California mulls new standards for post-consumer plastic in thermoforms – proposed penalties may be severe

Product Liability Alert

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California already applies strict standards to plastic producers. But 2021 California Assembly Bill No. 478, introduced by Assembly members Phil Ting, Lorena Gonzalez, and Jacqui Irwin and co-authored by Senator Nancy Skinner, aims to add teeth to current regulations.

Under current law, thermoform plastic containers can either include 25 percent post-consumer content on average or meet one of four other criteria.  The proposed bill affects producers of thermoform plastic containers manufactured to contain fresh foods, such as clamshells, cups, tubs, lids, boxes, trays, and egg cartons.  It would be mandatory for producers to include post-consumer recycled plastic in these products.  Producers would also be required to show they are including higher thresholds of post-consumer recycled plastic than are currently required.  There would be fewer exceptions. Starting in 2024, the penalties for producers not complying with this law would be severe. 


Proposed California standards for post-consumer plastic in thermoform containers

Required average post-consumer recycled plastic content now

Proposed standard for 2024

Proposed standard for 2027

Proposed standard for 2030 and beyond

0%

10%

20%

30%

 

Who is a producer?

Anyone who manufactures or sells the plastic containers would be considered a producer. 

The bill also authorizes audits and investigations of producers, as well as enforcement actions against companies that do not meet the required amounts as described in the chart above. Producers would be entitled to a copy of the audit, and trade secrets and proprietary information discovered in the course of these actions would be kept confidential and would not be subject to the Public Records Act.

But an audit demonstrating noncompliance could mean administrative penalties and enforcement actions against the offending producer. The penalties would be calculated by multiplying the total pounds of plastic that a producer used by the relevant minimum percentage, subtracting the pounds of post-consumer recycled plastic used, then multiplying that figure by 20 cents. Fines gleaned in this way would be assigned to a fund meant to enhance recycling efforts in the state.

Producers would also be required, on penalty of perjury, to self-report to the Department of Resources Recycling and Recovery by March of each year how many pounds of each type of resin of the plastic used in manufacturing their containers were virgin plastic compared to postconsumer recycled plastic in the previous calendar year. Additionally, producers would be required to post these figures online.

Room for variance

There is some room for variances in compliance. If the bill becomes law, producers could apply for a reduction based on such factors as anomalous market conditions; disruption in or lack of supply of recycled plastic due to an unforeseen circumstance or event, like a natural disaster; or other factors which may prevent producers from using recycled plastic in their thermoform plastic containers.

This bill was referred to the Appropriations Committee on April 22. Position letters are considered public comments.

Learn more about the implications of this development by contacting any of the authors.