The California Department of Resources Recycling and Recovery (CalRecycle) has published a revised set of proposed regulations to implement 2022’s Senate Bill (SB) 54, the “Plastic Pollution Prevention and Packaging Producer Responsibility Act.” (I wrote about the legislation HERE). The Act phases in a ban on non-recyclable single-use plastics by 2032, and requires that threshold proportions of single-use items sold as “recyclable” will actually be recycled. Its implementation will make use of “extended producer responsibility” (EPR) mechanism similar to those used in California and elsewhere for other enhanced recycling programs (I’ve written about these before, most recently HERE). The remainder of this note discusses the proposed regulations and SB 54’s provisions.
What items will be banned?
The proposed regulations incorporate the Act’s definition of single-use plastic items that are “covered materials” (i.e., covered by the requirements):
“Covered material” means both of the following:
- Single-use packaging that is routinely recycled, disposed of, or discarded after its contents have been used or unpackaged, and typically not refilled or otherwise reused by the producer.
- Plastic single-use “food service ware”, including, but not limited to, plastic-coated paper or plastic-coated paperboard, paper or paperboard with plastic intentionally added during the manufacturing process, and multilayer flexible material. For purposes of this subparagraph, “single-use food service ware” includes both of the following:
- Trays, plates, bowls, clamshells, lids, cups, utensils, stirrers, hinged or lidded containers, and straws.
- Wraps or wrappers and bags sold to food service establishments.
However, “covered material” excludes a number of specified packaging products, either because they are also regulated under federal or state laws, or because (beginning in 2027) they are recycled at high enough rates:
- Packaging for any of the following:
- Medical products (drugs) and products defined as devices or prescription drugs
- Drugs used for animal medicines, and animal medicines, drugs, biologics, parasiticides, medical devices, or diagnostics for animals
- Infant formula
- Medical food, as defined by federal law
- Fortified oral nutritional supplements used for persons who require supplemental or sole source nutrition to meet nutritional needs due to special dietary needs directly related to specified diseases
- Packaging used to contain regulated pesticide products
- Plastic packaging containers used to contain and ship products classified for transportation as dangerous goods or hazardous materials
- Packaging used to contain hazardous or flammable products regulated by the federal Occupational Safety and Health Administration (OSHA) Hazard Communications Standard
- Beverage containers subject to the California recycling laws
- Packaging used for the long-term protection or storage of a product that has a lifespan of not less than five years
- Packaging associated with products covered under California’s architectural paint recovery program
- Covered material for which the producer demonstrates recycling of at least 65 percent for three consecutive years prior to January 1, 2027, at after that date at least 70 percent annually
Separate requirements apply to “expanded polystyrene,” The proposed regulations clarify that a “substance” made from a covered material and also another (not covered) material is covered only for the covered-derived portion.
What producer responsibility requirements are created?
The Act aims to phase out plastic covered materials – which it refers to as “source reduction” – and assigns producers (and sellers) of these materials a series of responsibilities and deadlines. Producers of covered material sold, offered for sale, imported, or distributed in the state must achieve each of the following with respect to the materials for which they are the producers:
- Form a Producer Responsibility Organization (PRO), which registers with CalRecycle and coordinates compliance. On January 8, 2024, CalReycle approved the Circular Action Alliance (CAA) as California’s first PRO for single-use packaging and plastic food service ware. The CAA is developing a plan, to be approved in time for producers to participate beginning January 1, 2027.
- Producers must join a PRO within 30 days after the regulations become final (and no later than 1/1/27), or within 30 days after they become producers. As of September 2024, the CAA identified over 1,200 producers that will be subject to the Act.
- Ensure that all expanded polystyrene (EPS) food service ware covered material offered for sale, distributed, or imported in or into the state achieves the following recycling rates:
(1)By 1/1/25, at least 25% -- CalRecycle reports that this requirement was not met, so these items presently cannot be sold in California
(2) By 1/1/28, at least 40%
(3) By 1/1/30, at least 50%
(4) By 1/1/32, at least 65%
- Ensure that all plastic covered material offered for sale, distributed, or imported in or into the state achieves the following recycling rates:
(1) By 1/1/28, at least 30%
(2) By 1/1/30, at least 40%
(3) By 1/1/32, at least 65%
- on or after 1/1/32, ensure that 100% of covered material is recyclable in the state or eligible for being labeled “compostable” in compliance with the Act
What happens now?
CalRecycle will hold workshops for comments and discussion of the latest draft. After these reviews, CalRecycle will submit updated rulemaking documents to the state Office of Administrative Law (OAL) to initiate a new formal rulemaking process.
Self-audit checklist
Does the organization produce or use any single-use plastic items that are used in California?
- If so, is the organization preparing to comply with the Act
- If so, has the organization investigated alternatives?
Is the organization involved in recycling or source reduction activities?
- If so, do these activities include single-use plastics or could they be expanded to do so?
Where can I go for more information?
- CalRecycle
- “Plastic Pollution Prevention and Packaging Producer Responsibility Act SB 54” webpage
About the Author
Jon Elliott is President of Touchstone Environmental and has been a major contributor to STP’s product range for over 30 years.
Mr. Elliott has a diverse educational background. In addition to his Juris Doctor (University of California, Boalt Hall School of Law, 1981), he holds a Master of Public Policy (Goldman School of Public Policy [GSPP], UC Berkeley, 1980), and a Bachelor of Science in Mechanical Engineering (Princeton University, 1977).
Mr. Elliott is active in professional and community organizations. In addition, he is a past chairman of the Board of Directors of the GSPP Alumni Association, and past member of the Executive Committee of the State Bar of California's Environmental Law Section (including past chair of its Legislative Committee).
You may contact Mr. Elliott directly at: tei@ix.netcom.com