This article appeared in the March 2024 issue of Resource Recycling. Subscribe today for access to all print content. ZikG/Shutterstock
California, a national forerunner in environmental advocacy, continues to implement packaging waste reduction initiatives — especially ones that impact plastic. With the Plastic Pollution Producer Responsibility Act (SB 54) spearheading the effort, the state currently is implementing strategies to minimize the use of single-use plastics and packaging materials.
This update to a previous article published in November 2022 takes a high-level view of the nuanced components of SB 54 and other new and upcoming laws in the state.
Plastic Pollution Producer Responsibility Act ushers in sweeping EPR program
In September 2022, California enacted the Plastic Pollution Producer Responsibility Act (SB 54), establishing one of the most comprehensive extended producer responsibility (EPR) programs for managing packaging and food ware waste (defined as plastic utensils, to-go containers and cups) in the nation. SB 54 established January 1, 2024, as the deadline for any producer selling packaged products or single-use food ware in California to join a state-approved producer responsibility organization (PRO) that will implement initiatives to meet the law’s stringent recycling and composting targets. In addition, all packaging must be recyclable or compostable by 2032. The PRO is responsible for submitting plans to the California Department of Resources Recycling and Recovery (CalRecycle, the state agency delegated with the task of implementing the requirements of SB 54) outlining how it will fulfill SB 54’s requirements. Significant penalties of up to $50,000 per day can be imposed on producers or the PRO for failing to achieve the mandatory recycling targets or for other violations. In January 2024, CalRecycle approved the Circular Action Alliance (CAA) to serve as the first PRO for the implementation of SB 54. CAA was founded by U.S. producers representing retail, food, beverage and consumer packaged goods manufacturers to support the implementation of EPR laws for paper, packaging and food service ware.
CalRecycle releases preliminary findings of SB 343 material characterization study
Another bill, SB 343, prohibits labeling products or packaging as recyclable, including the use of “chasing arrows” or other recyclability indicators, unless CalRecycle determines the material to be both collected for recycling by 60% of statewide programs and sorted by 60% of the state’s large-scale recycling facilities. In late December 2023, CalRecycle released its first preliminary report, which will complement its recently released Covered Material Characterization (CMC) list and CMC Supplemental Material. This report is intended to inform CalRecycle about possible future strategies to further accomplish the state’s ambitious recycling goals.
The CMC list categorizes covered materials under California’s SB 54 into groups based on material type, form and plastic content. CalRecycle developed the list in keeping with legislative requirements and will finalize the list by July 2024. The CMC Supplemental Material provides background on the list development process and specifics on the updated list of 99 categories across five material classes. The list will inform producer reporting and help calculate recycling rates under SB 54.
The results of the preliminary study show that most recycling programs in California widely accept most types of glass, metal, paper and fiber and plastic products. While not final, this initial report provides guidance for manufacturers to evaluate if current recyclability claims comply with SB 343’s standards before the law takes effect.
Bifurcation of organic vs non-organic product feasibility results
Before January 1, 2026, the CMC must contain materials that are regularly collected for composting by at least 50% of organic waste recycling programs in the state; the materials also must be accepted by at least 50% of compost facilities that are permitted to accept mixed materials. These percentages increase to 75% effective January 1, 2026.
Under AB 1201, CalRecycle was required to conduct a study to determine whether it is feasible to separate the collection of products in order to recover organic waste that is suitable for use in organic agricultural applications from the collection of products not suitable for use in organic agricultural applications. In late December 2023, CalRecycle released the results of that study and concluded that organic waste suitable for organic agricultural applications cannot be bifurcated from non-organic waste. Accordingly, as of January 1, 2026, all products labeled as compostable in California must be materials that are allowable organic inputs, as defined under the United States Department of Agriculture’s National Organic Program requirements. Further, compost in the state will be suitable for organic agriculture only if it is made from “plant and animal materials.” A petition has requested that USDA expand this definition to include compostable materials that meet designated American Society for Testing and Materials specifications. This petition currently is pending.
State weighs rules to restrict microplastic pollution sources
California’s environmental initiatives also encompass microplastic pollution. With SB 1263, which was signed into law in 2018, California legislators have outlined a comprehensive strategy that includes pollution prevention, pathway interventions and outreach initiatives. As required by SB 1263, in February 2022, the California Ocean Protection Council released a first-of-its-kind Statewide Microplastics Strategy. Notably, the Ocean Protection Council recommended five specific actions:
1. Implement a statewide requirement that single-use food ware and condiments be provided only upon request;
2. Encourage state purchasing and service contracts to require reusable food ware whenever feasible;
3. Enact comprehensive statewide plastic source reduction, reuse and refill goals by 2023;
4. Prohibit the sale and distribution of expanded polystyrene food ware and packaging by 2023;
5. Expand the statewide microbead ban enacted by AB 888 in 2015 to include microplastics that are intentionally added to specific consumer products by 2023; these include cosmetics, household and industrial detergents and cleaning products.
Further, the California Department of Toxic Substances Control (DTSC) presently is considering whether “products containing or generating microplastics” should be included in the Department’s Candidate Chemicals List, a list that currently includes nearly 3,300 substances. In December 2023, DTSC held a meeting with the Green Ribbon Science Panel, seeking advice on whether to add products containing or generating microplastics to its 2025-2026 Priority Product Work Plan (PPWP). This is a move that signals DTSC’s increased focus on such products, potentially subjecting them to additional rules, such as use restrictions or labeling mandates, if they are later added as Priority Products. Though specific regulatory strategies are still under development, including whether this category will be officially included in DTSC’s upcoming 2024-2026 PPWP, the report signals DTSC’s intent to exercise its authority to impose requirements on plastic packaging, textiles, tires and other common sources of microplastic pollution.
Companies selling plastic-containing products in California should expect increasing scrutiny and possible restrictions based on microplastic concerns.
New law requires toxics disclosures for broad range of cookware
AB 1200, known as the California Safer Food Packaging Cookware Act of 2021, prohibits any person from distributing, selling or offering for sale food packaging that contains regulated perfluoroalkyl and polyfluoroalkyl substances, or PFAS, as of January 1, 2023. Food packaging is, in turn, defined as a “nondurable package, packaging component or food service ware that is composed, in substantial part, of paper, paperboard or other materials originally derived from plant fibers.”
AB 1200 is unique in that, in addition to the PFAS restrictions noted above, the law requires cookware manufacturers to label products containing any chemicals on California’s Green Chemistry list. Internet disclosures were mandated on January 1, 2023, and on-product disclosures were required as of January 1, 2024. The disclosure mandate applies to any “intentionally added” chemicals in the handles of cookware and on the surfaces contacting food during cooking. With its sweeping definition of cookware encompassing pots, pans, baking dishes, trays and other items used in households or restaurants, this law reaches far beyond direct-to-consumer cookware brands.
AB 1200 is an area of focus for California Attorney General Robert Bonta. In October of 2023, Bonta issued an enforcement advisory letter to manufacturers, distributors and sellers of food packaging and cookware, alerting them to their obligations under the law.
California’s leadership inspires action across the nation
California’s array of ambitious and first-of-its-kind plastics laws are reverberating nationwide, with several states looking to follow its model. For instance, Maine recently enacted legislation requiring the disclosure of chemicals in food packaging. This effort mirrors California’s approach with respect to the disclosure of listed substances in cookware. Proposed bills modeled after California’s EPR approach also are pending in states such as Washington.
With high-impact legislation like SB 54’s EPR program, scrutiny of environmental marketing, focus on microplastic sources and transparency rules for toxics in food-contact products, California has solidified its aggressive efforts with regard to plastic pollution. Companies producing food ware, plastic packaging and compostable products destined for this massive state market should make compliance with its evolving legal requirements a top priority.
Mitzi Ng Clark is a partner at Keller and Heckman LLP’s San Francisco office. Her practice encompasses a wide range of regulatory issues, including FDA premarket clearance requirements for food and food-contact materials, local and state regulations concerning plastics and recycling and other manufacturing issues. She can be contacted at [email protected].
Amber Grover is a law clerk at Keller and Heckman LLP’s San Francisco office and a third-year law student at the University of California College of the Law, San Francisco. She conducts legal research and analysis and writes reports related to food-contact materials, food additives, pharmaceuticals, California’s Prop 65 and related environmental issue.
This article appeared in the March 2024 issue of Resource Recycling. Subscribe today for access to all print content.
