“Single-use” product and packaging waste generator obligations: proposed changes to SB 54/AB 1080 would increase CalRecycle authority and manufacturer responsibility 

At a Glance… On June 20, 2019, theCalifornia Senate proposed amendments to Senate Bill 54 and Assembly Bill 1080 (the California Circular Economy and Plastic Pollution Reduction Act). The proposed amendments attempt to regulate manufacturers of single-use packaging and single-use plastic products to reduce their source materials and ensure those products are recyclable or compostable. The Bill’s purpose as a whole is to reduce waste that businesses generate in California by January 1, 2030, with specific regulations to be adopted by January 1, 2024. If enacted, the Bill would grant broad authority to the Department of Resources Recyclg and Recovery (CalRecycle) to determine which products or types of packaging are considered “single-use.” Additionally, it would establish an “extended producer responsibility program” designed to make manufacturers and retailers pay for costs associated with processing their single-use products and packaging. The Bill would also require manufacturers to annually report information on single-use packaging and products, source
reduction, and “any other data” the department deems necessary to determine the mandated source reduction. 

Summary of proposed amendments

1. The state Senate amended the entities to be subject to the Bill from “manufacturers and retailers of single-use packaging” and “priority single-use plastic products” to “covered entities” (emphasis added). “Covered entity” is defined as a “person or company that manufactures the single-use packaging or single-use product that is sold in or into the state.” However, according to the Senate’s latest proposed amendments, if there is no person or company that meets such description in the state, the covered entity is the person or company that imports the single-use packaging or product. Moreover, if the person or company in the state neither manufactures nor imports, the covered entity is the person or company that sells or distributes the single-use packaging and products in the state. This shows the state legislature’s intent to place the initial burden of meeting the Bill’s requirements on in-state manufacturers of single-use packaging and priority single-use products.  
2. As amended, the Bill would require covered entities to ensure that all single-use packaging and “priority single-use plastic products” in the California market are recyclable or compostable by 2030. “Priority single-use plastic products” are defined as the 10 single-use plastic products, or categories of products, that are the most littered in California, as determined by CalRecycle. Based upon data obtained from coastal cleanups over a 25 year time period, some of the most common plastic packaging categories include, food containers, caps, lids, cups, utensils, straws, and stirrers. However, CalRecycle has yet to release a definitive list specifying the top ten most littered plastics. 
3. Covered entities would also be mandated to “source reduce” single-use packaging and priority single-use plastic to the “maximum extent feasible.” Source reduction is not clearly defined in the Bill. However, covered entities would be expected to submit annual reports detailing the quantity, weight, volume, and type of material source reduced. The Bill does not give clear guidance, for example, to how expanding businesses subject to the Bill would meet these requirements. 
4. In addition to priority single-use plastic products, the state Senate’s proposed amendments add a provision to mandate covered entities to reduce non-priority single-use plastic product waste by 75 percent through source reduction, recycling, or composting. This demonstrates the state Senate’s intention to re-broaden the scope of the products covered where the previous proposed amendments narrowed the scope from all single-use consumer products to priority single-use plastic products.  

Looking ahead

While many stakeholders support efforts to increase the recycling and recovery of product and packaging materials, the Bill’s broad scope creates uncertainty. Rather than identifying specific products or packaging (for example, plastic bags and straws), the definition of single-use products and packaging is unclear. The only express bright-line rule applies to medical devices and medical products. However, it remains uncertain whether this exception would extend to hygienic products and packaging, for example. Notably, the Bill requires manufacturers to meet significantly higher recycling thresholds, but is
silent about addressing the infrastructure needed to handle processing the increase in recyclables and compostable material. This issue is particularly
important given the current recycling market disruption taking place across the globe. The Bill’s wide scope and aggressive timeline for compliance will
have a significant impact on packaging businesses and the consumer product companies on which they rely.       

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