California League of Food Producers v. Bonta, 2026 WL
2055589, No. 3:26-cv-01675-WQH-BLM (S.D. Cal. Jul. 14, 2026)

Trade associations challenged a California law about
recyclability claims; the court found it unconstitutionally vague and also
unconstitutional under Central Hudson. Basically, the law provided that
using a recycling symbol would be deemed deceptive or misleading “unless the
product or packaging is considered recyclable pursuant to statewide
recyclability criteria and is of a material type and form that routinely
becomes feedstock used in the production of new products or packaging.” Something
would be deemed recyclable if it was collected by jurisdictions including least
60 percent of the population of the state and processed by facilities that
serve 60 percent of recycling programs statewide. But the standards for “routinely
becoming feedstock” and other key terms were too vague, even for an economic
regulation; there was no scienter requirement to mitigate its harshness. The
state’s own reporting disclaimed comprehensiveness. Defining a consumer good as
“recyclable” if it can be “conveniently recycled” in California counties with
more than 300,000 people offered no guidance as to what recycling programs
satisfy the “conveniently recycled” requirement. Reference to outside guidance
like the Basel Convention also wasn’t specific enough to provide guidance.

Reference to the APR Design Guide for plastic packaging “does
not correspond to other language in the statute because a product or package
design that is ‘detrimental to recycling’ or ‘needs improvement’ may reasonably
be understood as precluding recycling of that material”—or not. “Constitutional
concerns regarding fair notice and standardless enforcement are heightened here
because, under California law, the APR Design Guide provision may be enforced
by private individuals and local governmental actors and may result in criminal
sanctions.” Plus, the Guide described itself as “dynamic” and subject to change
as “packaging technologies evolve.” “Manufacturers are left without statutory
guidance not only as to whether their compliance will be measured at the time
of design, manufacture, or sale of their packaging, but also without reliable
information regarding which version of the APR Design Guide will apply. The
record indicates that the APR Design Guide has been repeatedly revised after
the enactment of [the new law].” Even if the date of design was key, there was
vagueness in determining when a package was “designed.”

Similarly, requirements that “plastic products and
non-plastic products and packaging” must be “designed to ensure recyclability
and [must] not include any components, inks, adhesives, or labels that prevent
the recyclability of the product or packaging” were too vague. Determining what
“prevented” recyclability requires consideration of not only recycling
technologies, but also whether it is “economically feasible” for recycling
facilities to ultimately process those materials into feedstock. The court
severed all the challenged provisions.

Unsurprisingly, then, the Central Hudson challenge
also succeeded. The law directly regulated commercial speech: “environmental
marketing claim[s], whether explicit or implied” related to products and
packaging.

The legislature couldn’t just declare use of recyclability
claims inconsistent with the government’s definition of recyclability to be
inherently misleading. [Now do gas mileage calculations.] In the context of recyclability,
where there were a lot of variables about local practices, the term was only
potentially misleading, not inherently misleading.

California identified two primary government interests:
reducing consumer confusion and improving recycling rates. These were
substantial.

Did the regulation directly advance those interests? “To
satisfy its burden, California must provide evidence establishing that the
harms it recites are real and that its speech restriction will significantly
alleviate those harms.” However, this does not “require that ‘empirical data
come … accompanied by a surfeit of background information … We have
permitted litigants to justify speech restrictions by reference to studies and
anecdotes pertaining to different locales altogether, or even, in a case
applying strict scrutiny, to justify restrictions based solely on history,
consensus, and ‘simple common sense.’ ”

Under Ninth Circuit precedent,

[A] state can invoke ‘common sense’
only if the connection between the law restricting speech and the government
goal is so direct and obvious that offering evidence would seem almost
gratuitous. But as the government’s justifications for a regulation become more
attenuated, bare appeals to common sense quickly veer into impermissible
speculation. In such cases, the state needs to provide evidence to substantiate
that its law will meaningfully further its stated objectives.

Plaintiffs argued that uncertainty would chill recycling
claims, contrary to the state’s objective. California responded that it was
trying to address a different problem: “cross-contamination in recycling
streams, which makes recycling less effective.” This process “weakens the
recyclables market” by increasing the cost to reclaim materials and reducing
the value of contaminated “plastic lots.” But the record didn’t support the
government’s position that enforcement would reduce the total amount of
material that is deposited into landfills.

The evidence showed that “California faces serious
difficulties in efficiently recycling consumer products and packaging, at least
with respect to those made of plastic.” And there was evidence that “consumers’
attempts to recycle materials, especially plastic bags, are detrimental to the
recycling process because—as a matter of practice—recycling facilities are
unable to process these materials and turn them into feedstock that can become
new products and packaging.” Thus, “elimination of contaminated materials from
recycling streams would benefit the operations of recycling facilities and
result in a greater portion of their collected materials being turned into
feedstock. But the evidence in the record indicates that … this benefit to
recycling facilities would come at the cost of increasing the amount of
materials placed in landfills.” Plaintiffs submitted declarations from members
stating that the law would require them to omit truthful statements regarding
recyclability from their products and packaging, which will result in materials
that would otherwise be recycled going to a landfill. California conceded that
this would be a short-term effect, but argued that manufacturers would respond
by redesigning; this was speculative given manufacturers’ declarations that
instead recycling claims would be omitted entirely. “While these declarations
are self-serving, Defendant offers no evidence to counter them.”

What about consumer confusion? Plaintiffs argued that
consumers would be deprived of “accurate, qualified recycling instructions” for
products and packaging that are capable of being recycled. True, there was
evidence that consumers lack adequate information about which products to
recycle. And the court assumed that “consumers read and consider recyclability
claims on products and packaging during their purchasing decisions and at the
time that they discard the products and packaging.” But the record was conflicting
on whether the law would improve accuracy. Presumably, standardizing the
requirements would “facilitate California consumers’ ability to trust that, if
a product or package is labelled as recyclable, it will be recycled and turned
into feedstock if they place it in the appropriate bin.” And information about
recyclability is presumably difficult for consumers to obtain without relying
on manufacturers’ representations. But there was also evidence that
manufacturers would forgo some recyclability claims, leaving consumers with
less information, including “truthful and genuinely helpful information, such
as a listing of which areas accept the product or package for recycling and
which do not.” [Do such packages with lists actually exist?] And the law “would
still leave consumers in dark about whether a package or product marked as
recyclable is genuinely recyclable in the consumers’ area—i.e., whether the
consumer is in the portion of the state (which can be up to 40%) which does not
accept the material for recycling.” Ultimately, the consumer understanding
claims were too speculative to support the law.

It followed that narrow tailoring was also not present.  The law failed to leave “breathing room for
manufacturers to provide qualified information about their products and
packaging,” such as “[n]ot recyclable in most areas; check locally” or a QR
code on the packaging with “details regarding the product’s recyclability.”
This meant that the provisions of the law that survived vagueness did not
survive Central Hudson.

from Blogger https://tushnet.blogspot.com/2026/09/dct-strikes-down-californias-new.html