Single-use packaging producers subject to California’s landmark recycling law, SB 54 – which implements a statewide extended producer responsibility program for personal care and other sectors – should continue to prepare for its implementation even after Gov. Gavin Newsom directed state regulators to redraft it, says Michael Washburn, principal at New Jersey-based Washburn Consulting, who advises companies on the regulation.
The order does not change the targets or timeline set in the statute, a spokesperson at the California Department of Resource Recycling and Recovery (CalRecycle) said in a 27 March email.
In a same-day interview, Washburn said companies shouldn’t assume they can sit back and wait for the next step in the process.
“I’m advising clients to continue at pace. The rulemaking will catch up but the legislative timelines remain in place, so unless we revisit legislation, and it’s unclear if that’s a possibility, we’re still going to be looking at these intermediate timelines up to 2032,” he said in a 27 March interview.
SB 54, which implements a statewide extended producer responsibility program for personal care and other sectors’ packaging, faces uncertainty after Newsom ordered CalRecycle not to finalize the rules of the legislation by the 7 March deadline to do so, reportedly citing concerns over costs to consumers.
“CalRecycle is appreciative of the robust input from interested parties over the last couple of years and will work off of much of what has already been established,” the CalRecycle spokesperson said, adding it is working now to initiate a new rulemaking process to draft regulations to implement the law.
“Once the formal rulemaking process begins, CalRecycle will have one year to complete the Office of Administrative Law process and finalize the regulations,” said the agency, which fielded stakeholder questions during a 21 March advisory board meeting.
Newsom had touted SB 54 as going “further than any other state at cutting plastics pollution at the source,” when he signed the law in 2022. The law targets plastic single-use food service ware, as well as 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.”
The legislation sets net reduction requirements in plastic material use, ensuring all plastic covered material offered for sale, distributed or imported into the state on or after 1 January 2032 is recyclable or compostable, and sets a timeline for producers to meet specified recycling rates over a 10-year period.
“EPR has been in place for decades around the world. If it had been shown there was a direct impact to consumers at the retail level someone would be screaming from the rooftops.”
Michael Washburn
Specifically, at least 30% of plastic covered material must be recycled by 1 January 2028, 40% by 1 January 2030, and 65% by 1 January 2032.
While dozens of states have introduced EPR proposals, California was among a select number of states that passed laws with definitive statutory requirements for personal care as well as packaging for food, beverage and home products. States with similar laws include Colorado (HB 22-1355), Maine (LD 1541), and Oregon (SB-582).
EPR schemes adopted by California and other states and municipalities require producers of consumer packaging materials including paper, plastic, glass and metal, to pay fees to producer responsibility organizations (PROs) that use the revenues to expand recycling and consumer education. The schemes exclude producers who qualify for an exemption or that intend to submit an individual compliance plan under applicable law.
Consultant Skeptical On Consumer Cost Burden Claim
Washburn said for now, stakeholders “do not know what happens next or when” and says many companies feel relief about the revision, assuming it buys them time to comply with deadlines. However, he reminds stakeholders the revision simply puts the process “in a prolonged period of uncertainty” while they must still meet the deadlines of the rulemaking.
Addressing Newsom’s concerns about a cost burden to citizens of the state, Washburn said he’s “not aware of any evidence demonstrating a direct impact on consumers” related to EPR compliance costs.
“In fact, I’ve seen studies that say these impacts are miniscule and they are only based on models. EPR has been in place for decades around the world. If it had been shown there was a direct impact to consumers at the retail level someone would be screaming from the rooftops,” he said.
“Are there costs that get passed on? Absolutely, but businesses are far more likely to move compliance costs into the cost of goods and pricing strategy,” he said. Further, “typically the retailer sets the price, not the producers.”
Addressing costs of the regulation on companies, he added “the really onerous requirements are around having to find alternatives for materials that are not going to be deemed recyclable or compostable by 2032.”
Sen. Catherine Blakespear, D-Encinitas, issued a statement on the ordered redraft.
“The passage of SB 54 three years ago was a gigantic step forward in combatting the growing amount of plastic waste that is destroying our environment and poisoning people. But progress is significantly delayed now due to Gov. Gavin Newsom’s administration failing to issue the regulations required to implement this groundbreaking measure that ensures producers of consumer products take responsibility for the end-of-life management of their plastic,” she said.
“The statutory timelines in SB 54 have not changed and we need to remain committed to meeting them, despite this regulatory step back. Producer responsibility for plastic packaging will bring financial relief to residents and businesses that are facing repeated recycling and waste manage rate hikes to pay for the ever-increasing difficulty of managing our complex waste stream.”
Inspired by the SB 54 revision, stakeholders in New York are now pushing for changes to the state’s proposed packaging reduction and recycling infrastructure law, S.1464/A.1749. Politico obtained a copy of a letter signed by 100 companies citing the SB 54 revision and stating the latest amendments to the New York proposal contains “unworkable mandates” and “increased costs for consumers and businesses alike.”