California’s Policy Push: Litany of Laws

Over the past eight years, California has passed a wide range of bills related to food packaging and foodware waste. Here is a comprehensive rundown.

As most readers are likely aware, California has for some time been at the forefront of efforts to reduce food packaging and foodware waste through legislation. In 2014, for instance, California became the first state to pass a statewide ban on plastic bags when SB 270 was signed into law. Although implementation was delayed, California voters ultimately backed the ban in 2016, and it became effective immediately after that year’s election.

Since 2014, a number of other laws that aim to reduce food-contact waste have been enacted in the Golden State. The majority of these impact plastic packaging waste, but not all. This article will review various pieces of legislation that have been introduced to continue these efforts.

Focus on Plastics

California SB 1263, which was signed into law on September 20, 2018, required the California Ocean Protection Council (OPC) to adopt a statewide research strategy and identify early actions to reduce microplastic pollution in California’s marine environment. OPC’s report, titled “Statewide Microplastic Strategy, Understanding and Addressing Impacts to Protect Coastal and Ocean Health,” was released in February 2022. 

The Strategy outlines a two-track approach to comprehensively manage microplastics in California: (1) Solutions and (2) Science to Inform Future Action. 

The Solutions track of the Microplastic Strategy has three parts: pollution Prevention, pathway Interventions, and outreach &and education. Two of the recommendations under “pollution prevention” that impact food packaging and foodware are:

• Identify Extended Producer Responsibility (EPR) strategies for recycling or disposal of plastic packaging and foodware by 2022.
• “Convene representatives from targeted industries (e.g., vehicle tires, textiles, agriculture, foodware and packaging, and/or fisheries &and aquaculture) and scientific experts to identify alternative products and other sector-specific plastic pollution prevention strategies by 2023. 

Two other bills were enacted in 2018 that directly impact plastic food-contact articles. These are the Sustainable Packaging for the State of California Act of 2018 (SB 1335) and Single-Use Plastic Straws Upon Request (AB 1884). 

SB 1335 requires a food service facility located in a state-owned facility, operating on state-owned property, or otherwise contracted by the state to use “food service packaging” that is deemed to be reusable, recyclable, or compostable. “Food Service Packaging” is defined to include anything that is used to serve or transport prepared, ready-to-consume food or beverages. This category includes plates, cups, trays, bowls, and hinged or lidded containers. Beverage containers, single-use disposable items, and single-use disposable packaging for food that is mass-produced by a third party off the food service facility premises are exempted. 

The legislation also requires the California Department of Resources Recycling and Recovery (CalRecycle) to create, publish, and maintain a list of acceptable packaging materials and items. CalRecycle published the initial list of approved service packaging on March 4, 2022.

AB 1884, meanwhile, is solely focused on single-use plastic straws and prohibits full-service restaurants from providing these straws, unless requested by the customer. The legislation defines a “single-use plastic straw” as “a single-use, disposable tube made predominantly of plastic derived from either petroleum or a biologically based polymer, such as corn or other plant sources, used to transfer a beverage from a container to the mouth of the person drinking the beverage.” 

Straws made from non-plastic materials, including, but not limited to, paper, pasta, sugar cane, wood, or bamboo are not included in the definition. With the enactment of this bill, California became the first state to restrict the use of plastic straws in restaurants.

First to Require Minimum Recycled Content

California was also the first state to require minimum recycled content in plastic beverage containers when Governor Gavin Newsom signed AB 793 into law. Beginning in 2022, AB 793 required all plastic bottles covered by the state’s container redemption program to average at least 15% post-consumer recycled resin. The amount of required post-consumer recycled resin increases to 25% in 2025 and 50% in 2030. CalRecycle is in the process of developing regulations to implement this mandate. 

More information of California’s plastic minimum content standards imposed by AB 793, including a copy of the most recent draft regulations to implement the legislation, can be found on CalRecycle’s website.

In addition to the requirement for minimum recycled content in plastic beverage containers, California has established strict requirements with respect to the labeling of recyclable packaging and products. Signed into law on October 5, 2021, the Truth in Labeling Recyclable Materials bill (SB 343) prohibits environmental markings or statements on products or packaging that are not deemed to be “recyclable” by the state of California. The legislation defines a packaging product as “readily recyclable” if at least 60% of the population of California can recycle it through local programs. For plastic packaging to be labeled as recyclable, it must meet both of the following criteria:

• It may not include any components, inks, adhesives, or labels that prevent recyclability.
• It may not be made from plastic or fiber that contains perfluoroalkyl or polyfluoroalkyl substances (PFAS) above 100 parts per million or that contains any intentionally added PFAS. 

In addition, SB 343 declares use of the “chasing arrows symbol” (also known as the resin identification code), or any other symbol or statement indicating recyclability, to be deceptive or misleading unless the product or packaging is considered “recyclable.” 
The bill specifies that a resin identification code should be placed inside a solid equilateral triangle. However, the bill exempts from regulation consumer goods that are required to display a chasing arrow symbol (for example, under the Mercury-Containing and Rechargeable Battery Management Act) and beverage containers subject to the California Beverage Container Recycling and Litter Reduction Act. 

Governor Newsom’s office announced that SB 343, along with several bills that the governor signed on October 5, 2021, would “combat plastic pollution and advance a more sustainable and renewable economy.” These bills included one that expanded the existing scope of AB 1884 regarding single-use plastic straws to include other single-use foodware items, such as utensils, straws, stirrers, and condiment cups and packets, as well as a bill that specified additional criteria required to label a product as “compostable” (AB 1201). 

Packaging EPR

New legislation that establishes an EPR program, The Plastic Pollution Producer Responsibility Act (SB 54) was signed into law on June 30, 2022. This legislation requires producers of covered material to form and join the producer responsibility organization (PRO) by January 1, 2024. Covered material is defined as single-use packaging and single-use food service ware with exemptions for items such as packaging for medical products, infant formula, and medical food. 

The EPR law also:

• Prohibits the sale or distribution of covered materials manufactured on or after January 1, 2032, unless they are recyclable or compostable
• Requires plastics covered under the legislation to meet the following recycling rates: 30% by January 2028, 40% by January 2030, and 65% by January 2032.
• Bans expanded polystyrene (EPS) food service ware unless it meets the following recycling rates: 25% by January 2025, 30% by January 2028, 50% by January 2030, and 65% by January 2032.
• Requires the PRO to, among other things, develop and implement a plan to achieve a 25% reduction by weight and 25% reduction by plastic components for covered material by January 2032.

Meanwhile, AB 2748, which would have imposed additional requirements for the use of post-consumer recycled plastics in food containers, was vetoed by the governor on September 19, 2022. The bill would have required the total thermoform plastic containers sold by a producer to, on average, contain specified amounts of post-consumer recycled plastic in thermoform food and beverage containers (10% by January 2025 and either 20 or 30% by July 2030). In his veto message, Governor Newsom stated that he was concerned that AB 2784 “imposes confusing requirements in conflict with some of SB 54's key provisions, which could unfairly result in duplicative fees and penalties for the same material.”

California’s active stance in the area has extended beyond the regulation of plastics. On October 5, 2021, the governor signed a bill that speaks to plant-based food packaging and cookware. AB 1200 bans the sale of food packaging composed in substantial part of paper, paperboard, and other materials derived from plant fibers to which PFAS have been intentionally added to have a functional or technical effect, effective January 1, 2023.

Intersection with Proposition 65

It is worthwhile to note that a number of the state initiatives mentioned above also make reference to California’s Safe Drinking Water and Toxic Enforcement Act of 1986 (otherwise known as Proposition 65). One example is SB 1335, where manufacturers must provide to the State the identities of all chemicals that are used in the manufacture of the packaging item and that are also listed on Proposition 65. Further, manufacturers must inform the State of whether a Proposition 65 warning is required.

The above bills have created a conundrum for manufacturers, as the bill provisions appear to go beyond the current scope of Proposition 65, which only requires a warning on consumer products where exposure to a Proposition 65-listed substance exceeds the safe harbor level for the compound (or is otherwise subject to another exemption or exception under the law).

Given its massive economy, California has led the way in precedent-setting waste reduction initiatives that have had a ripple effect on the food packaging and foodware sectors. While these ambitious goals have been largely aspirational in past years, the recent passage of multiple legislative bills make this a tangible reality for all players in the food supply chain.

This article is reprinted with the permission of Resource Recycling magazine. It first appeared in the November 2022 issue.