Many food companies, including Coca-Cola, Danone, Unilever, PepsiCo, and Nestlé, have made commitments to increase the use of recycled plastics in their packaging within the next 10 years. These commitments, along with recently passed minimum-recycled-content laws, are contributing to a growing demand for recyclates. However, food companies and their plastic packaging suppliers face a major challenge in meeting these targets due to the limited supply available for recycled resins.

According to the 2019 Closed Loop Partners report, Accelerating Circular Supply Chain for Plastics,1 the current supply of recycled plastics can meet only 6 percent of the demand. The report also notes that current projections indicate new demand for recycled plastics will increase to 5 to 7.5 million metric tons by 2030.

With respect to minimum-recycled-content laws, California became the first U.S. state to require a minimum amount of postconsumer recycled resin in plastic bottles with enactment of Assembly Bill 793 on September 24, 2020.2 Beginning in 2022, the law requires the total number of filled plastic beverage containers sold by beverage manufacturers covered by the state’s container redemption program to average at least 15 percent postconsumer recycled resin. That amount increases to 25 percent in 2025 and 50 percent in 2030.

Washington State followed suit with enactment of SB 5022 in May 2021, requiring minimum recycled content for certain plastic products.3 This trend is likely to continue, as other states (New Jersey and Oregon, for example) have introduced bills requiring minimum recycled content for plastic containers.

These factors, which are increasing demand for recycled resins and will continue to do so, are pushing suppliers to seek new sources that can be produced at higher levels, with greater predictable physical and chemical quality, and less potential for contamination. Some think that chemical recycling may be the way to respond to all these demands, and not only for polyethylene terephthalate (PET), which is the predominant resin used for carbonated soft drinks and some other beverages, but also for polyolefin resins, which raise a host of issues that PET can escape.

Defining Chemical Recycling

To understand the place of chemical recycling in the use of recycled plastics with food, it helps to understand the issues from the vantage point of the U.S. Food and Drug Administration (FDA), which is concerned that the use of recycled plastics with food remains safe. FDA addresses its concerns on the use of post-consumer plastics to produce new (or recycled materials) in its August 2006 guidance document, Guidance for Industry: Use of Recycled Plastics in Food Packaging (Chemistry Considerations).4 In this guidance, FDA considers three types of recycling processes—primary, secondary, and tertiary—and discusses specific concerns that may be associated with each type when intended for use in contact with food.

Primary recycling consists of the reuse of pre-consumer scrap during the manufacture of food contact articles. FDA states that it does not expect the use of such industrial scrap to pose a hazard to consumers and is acceptable provided that Good Manufacturing Practices are followed. The fact that resin is pre-consumer will typically preclude the possibility that it could be contaminated by other materials or that the adjuvants that may be used in it are not the subject of an FDA clearance. On this latter point, the agency recommends only that the recycler consider whether the level and types of adjuvants used in the recycled plastic comply with existing clearances.

Secondary recycling involves the physical recycling of (typically) post-consumer plastic packaging materials by grinding, melting, and reforming processes, which also involve washing the ground or flaked material and the use of relatively high processing temperatures and vacuum stripping to affect potential contaminant levels that may be present in the postconsumer material. The concern with contamination comes from the fact that mixed-use plastics could be used to store potentially hazardous household chemicals, which could be adsorbed into the plastic containers that hold them.  

In the case of some resins, such as polyolefins, there is also a possibility of contamination by additives, such as antioxidants, used in the original production process that are not cleared by FDA for use with food. The traditional way to avoid this problem with polyolefins is to source materials that were previously used for food contact use. For PET resins used in the recycle, FDA determined that this is not generally a problem as the set of potential additives is small and all of them are cleared for use in food contact applications. In either case, some analytical testing or other controls are needed to establish the suitable purity of the recyclate-containing article.

Finally, the FDA guidance describes tertiary recycling as involving the regeneration of purified starting materials by way of chemical reprocessing through “depolymerization of used packaging material with subsequent regeneration and purification of resulting monomers (or oligomers). The monomers are then repolymerized and the regenerated or reconstituted polymer is formed into new packaging.” FDA indicates in the guidance that based on its review of surrogate testing data for tertiary recycling processes for PET and polyethylene naphthalate (PEN), recycling of PET or PEN “by methanolysis or glycolysis results in the production of monomers or oligomers that are readily purified to produce a finished polymer that is suitable for food-contact use.”5

Much of the newer chemical recycling processes involve pyrolysis that goes well beyond the methanolysis/glycolysis processes in terms of its ability to generate a purified monomer stream. Whether it will be universally identified and accepted as a recycling process that can be counted toward goals and requirements for meeting minimum percent recycled content in food packaging is another question, some of which arises simply from the different sort of descriptions for chemical recycling that are bandied about.

Chemical recycling has been referred to as advanced recycling, molecular recycling, and tertiary recycling. One definition for “chemical recycling,” from Plastic Recyclers Europe, is “a process which converts polymeric waste by changing its chemical structure to produce substances that are used as raw materials for the manufacturing of new products, which excludes production of fuels or means of energy generation.”6 The organization notes that chemical recycling is also referred to as advanced recycling and further explains that when the end product of a chemical process is naphtha or pyrolysis oils, the process is considered a recovery operation rather than recycling in the EU. Such identity definitions could exclude it from being counted as contributing to the production of recycled plastics.

Taking a slightly different approach, the Plastics Industry Association does not consider “chemical recycling” and “advanced recycling” as equivalent terms; rather, it views advanced recycling as a broader type of production techniques that include chemical recycling, pyrolysis, and gasification as subcategories. The association defines “chemical recycling” as “any process by which a polymer is chemically reduced to its original monomer form so that it can eventually be processed (re-polymerized) and remade into new plastic materials that go on to be new plastic products.”7

Pyrolysis (also known as plastic-to-fuel) converts plastics into synthetic crude oil that can be refined into diesel fuel, gasoline, heating oil, or waxes. Gasification (also known as waste-to-energy) converts plastics into a synthesis gas, or “syngas,” which can be used for electric power generation or converted into fuel or chemical feedstocks that can be used to make new plastics for food packaging. There seems little doubt, though, that whether considered recovered or recycled, the use of these streams to produce new food contact products achieves the goal of converting product once used as a finished material to new product available for use again.

Current State of Advanced Recycling

Chemical Recycling Europe (CRE) points out that while chemical recycling technologies have been available for some time, “it is only in the past five years or so that the global plastic waste challenges have been brought to the attention of many parties in an effective way.”8 An area of focus has been packaging, particularly post-consumer packaging, due to its short-term use and partial collection. The organization suggests that since recycled content from chemical recycling is comparable to virgin materials, it is likely to be integrated into food-grade packaging.

While it has not been fully scaled up yet, CRE notes that chemical recycling is currently a reality as some chemical recycling plants are already up and running in Europe as either pilot or small commercial plants. The organization also points out that some of the outputs from these plants are REACH (registration, evaluation, authorization, and restriction of chemicals) registered and on the market. However, CRE adds that these chemical recycling technologies are in constant evolution and predicts that significant progress will be achieved over the next 5 years.

Closed Loop Partners explains that while these processes are not new, technology providers are applying them in innovative and exciting ways. These technologies allow operators to select how and where they will reenter the plastics supply chain. The group’s 2019 report, Accelerating Supply Chains for Plastics, pointed out that more than 40 advanced plastics recycling technology providers were operating commercial-scale plants in the U.S. and Canada or had plans to do so in the next two years.1

Time to Establish Consistent Definitions and Regulations

As noted above, the EU does not consider chemical processes with end products of naphtha or pyrolysis oils as recycling but as recovery operations. Therefore, if the naphtha is used as feedstock to manufacture plastic packaging for food product, that packaging may not count toward the percentage of recyclates that food and beverage companies incorporate into their packaging. If the goal is the reuse of plastics to make new product that diverts waste from the landfill and limits the need for further petroleum production, then this makes no sense. If the goal is to shut off the use of viable technology to meet state-imposed goals, which will just make survival of the plastics industry more difficult, then there may be a transparency issue.

A bill introduced in the U.S. Congress in March 2021, Break Free From Plastics Pollution Act of 2021 (S.984),9 would also exclude chemical processes from the definition of “recycling.” More specifically, the bill excludes the conversion of waste into alternative products, such as chemicals, feedstocks, fuels, and energy, if accomplished through incineration, pyrolysis, hydropyrolysis, methanolysis, gasification, or similar technologies.

The legislation would also implement extended producer responsibility requirements for plastic manufacturers, ban certain single-use plastic products, establish minimum recycled content requirements for plastic beverage containers, and pause construction of new plastics facilities until certain environmental and health protections are put in place.

In response to S.984, the American Chemical Council (ACC) noted that the legislation would limit the role plastic plays in reducing greenhouse gas emissions and stall efforts to address plastic waste in the environment. “The legislation includes damaging provisions that would restrict the production of modern and innovative plastic materials and limit advanced recycling technologies needed to recover plastic waste and revolutionize how we use—and reuse—our plastic resources,” ACC stated in a press release.10

Several U.S. states have taken a different approach to regulating chemical recycling by enacting laws that define advanced recycling as manufacturing and not waste management. States that have passed these types of advanced recycling laws include Arizona, Florida, Georgia, Illinois, Iowa, Ohio, Oklahoma, Pennsylvania, Tennessee, Texas, Virginia, and Wisconsin.

An advantage of being deemed a manufacturing facility rather than a solid-waste facility involves the required permits. For example, Pennsylvania’s HB 1808,11 which specifies that chemical recycling facilities be regulated as manufacturing rather than solid-waste facilities, eliminates the requirement for chemical recycling facilities to obtain a waste-handling permit and exempts products produced at these facilities from compliance with the federal Resource Conservation and Recovery Act of 1976 provisions. Although operators still have to apply for a range of permits that provide environmental safeguards, Rep. Ryan Mackenzie, author of HB 1808, explains that the new law “allows for simpler permitting from the state and enables new and advanced technology businesses to put down roots in the Commonwealth and provide more jobs for Pennsylvanians.”12

Oklahoma SB448,13 which was signed into law by Governor Kevin Stitt in April 2021, also stipulates that advanced recycling shall not be considered disposal, incineration, or a solid-waste management system. It also specifies that advanced plastic recycling facilities shall not be considered disposal sites, solid-waste management systems, or transfer systems. The bill’s definition of advanced plastic recycling includes pyrolysis, gasification, depolymerization, catalytic cracking, reforming, hydrogenation, solvolysis, and other similar technologies.

After Oklahoma passed SB448, the ACC issued a press release14 applauding the move and noting that the legislation will help Oklahoma attract new recycling businesses and support job creation: “This legislation provides a modernized regulatory framework for advanced recycling technologies in the state, which will help reduce plastic waste, enhance operational certainty and enable greater adoption of advanced recycling.”

With respect to the EU, CRE explains, “Although pyrolysis doesn’t have yet the policy recognition that is currently being discussed in the Commission under the Directorate-General for Health and Food Safety (DG SANTE), the hydrocarbon oils from this process have received a formal authorization to be used in food-grade packaging.” Depolymerization also does not have policy recognition in the EU. “However, we hope that DG SANTE will authorize the output to be used for food-grade applications without an EFSA [European Food Safety Authority] authorization as long as the output is in compliance with the defined characteristics and purity levels as explained in Regulation 282/2008/EC and Regulation 10/2011/EC,” added CRE.15

The Future

Chemical recycling in many of its forms has the potential to meet the growing demand for recyclates intended for use in a variety of plastic materials, including those intended for packaging food products, and to do so in a way that avoids the presence of contaminants and unapproved additives in the plastics. It will also enable the recycling and reuse of hard-to-recycle materials that otherwise would go to waste while reducing the demand for new resources. Much of this, though, will depend upon the availability of plastic wastes that can be brought into the recycling system to be converted to new resin.  

Closed Loop provided recommendations for advancing the use of chemical recycling in this respect. Some of these are more supportive policies for recyclers and users of the products, such as credit schemes for tracking materials in the system and resources dedicated to more comprehensive collections and recovery of postuse plastics. Others tend to be more extreme and maybe not so necessary, such as landfill bans and minimum-recycled-content requirements. There is a path forward here that could solve many of the problems with the desire to use recycled plastics for the production of new finished articles for food packaging. It is just necessary at this point for legislators and regulators to see these chemical recycling efforts as a way to continue to provide the benefits that plastics bring to consumer and commercial products while minimizing the potential environmental issues related to landfill disposal and the like.


  5. FDA issued an updated version of its recycling guidance in July 2021; however, the update only included Paperwork Reduction Act information and nonsubstantive formatting and editing revisions.

George G. Misko, Esq., is a partner in the Washington, DC, office of Keller and Heckman LLP.