He cites Food and Drug Administration rules on food packaging as an example. Recycled materials have a harder time meeting a strict standard of purity than virgin materials. The FDA doesn't ban recycled content. But Volokh charges that the FDA's review process is too lengthy and the standards it uses to judge recycled goods are too strict. The important question for consumers isn't how 'pure' the packaging is, but whether any impurities affect the quality or safety of the food.
Hazardous waste is another area where government policies discourage recycling.
The U.S. generates over 13 million tons of hazardous waste each year. Less than 10 percent of this gets recycled. Experts say this figure could be higher, but federal laws dealing with hazardous waste often make recycling difficult. Many materials are subject to strict record-keeping, storage and disposal rules when they are used or have been recycled, even though the very same materials aren't covered by the laws when they are in a virgin form. The advantage this gives to makers of virgin materials is obvious.