About Keller and Heckman
Keller and Heckman provides legal representation and support. The firm focuses in the areas of advertising and promotion, antitrust, chemical control, environmental, employment and labor, food and drug, government relations, insurance coverage, and intellectual property. Keller and Heckman specializes in science-focused litigation. It is based in Washington, District of Columbia.
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Latest Keller and Heckman News
Dec 14, 2022
Resource Recycling 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 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 Sept. 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 Microplastics 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 microplastics strategy includes 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 (such as 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 foodservice facility located in a state-owned building, 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 so as to include anything that is used to serve or transport prepared, ready-to-consume food or beverages. The 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 foodservice 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 Gov. 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 contain an average of 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 on 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 for the labeling of recyclable packaging and products. Signed into law on Oct. 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 contain 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 the 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. Gov. Newsom’s office announced that SB 343, along with several bills signed on Oct. 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 (see the other story in this package to learn more about the process that brought that law to fruition). This legislation requires producers of covered material to form and join a producer responsibility organization (PRO) by Jan. 1, 2024. Covered material is defined as single-use packaging and single-use food serviceware 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 Jan. 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 serviceware 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 2784, which would have imposed additional requirements for the use of post-consumer recycled plastic in food containers, was vetoed by the governor on Sept. 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, Gov. 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 Oct. 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 or other materials derived from plant fibers to which PFAS has been intentionally added to have a functional or technical effect, effective Jan. 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 about whether a Proposition 65 warning is required. Similarly, SB 343 requires manufacturers to disclose to CalRecycle the identities of all chemicals that are used in the manufacturing of the foodservice packaging item and also listed on Proposition 65. By referencing the State’s Green Chemistry List, which incorporates substances listed on Proposition 65, AB 1200 also imposes labeling and disclosure requirements for cookware covered under the bill. The above bills have created a conundrum for manufacturers, as their 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 ripple effects 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. 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 chemicals, and other manufacturing issues. She can be contacted at [email protected] This article appeared in the November 2022 issue of Resource Recycling. Subscribe today for access to all print content. Name Resource Recycling (weekly)
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