Will Single-Use Products and Packaging Be a Thing of the Past in California?

Retail and Consumer Products Law Roundup

Walk down virtually any street, sidewalk, path, beach or trail in California and you will invariably find at least some single-use product or packaging as discarded waste. In most urban areas this has become a significant problem.1, 2 These wastes take the form of cigarettes, butts and filters; food wrappers and containers; caps and lids; paper and plastic bags; cups, plates and utensils; straws and stirrers; glass and plastic bottles; and beverage cans. In fact, this list reflects the top nine categories making up 82% of the trash found on California beaches over the past 30 years—according to the California Coastal Commission3—and all are single-use products or packaging. During California Coastal Cleanup Day each year, close to 1 million pounds of waste debris is cleaned up, with the vast majority being single-use products and packaging. Further, the State Water Resources Control Board has adopted a trash plan4 that requires all stormwater permitted entities in California (cities, counties and industry) to achieve 100% control of trash entering the state’s waters by 2030.

Over the past 30 years, California has largely relied on recycling infrastructure in other countries, mostly China and Pacific Rim nations. California has enacted aspirational 75% recycling goals by relying on these foreign outlets to provide well over 50% of its paper and plastic processing and recycling capacity. This came crashing to an end in 2017 when China and other waste-importing countries became alarmed with the inflow of these materials and enacted bans and barriers to such waste commodities.5 While domestic and international outlets still exist, these markets now dictate significantly more processing and contaminant removal, at more expense, than in the past. Due to the increasing cost of recycling, many jurisdictions, in spite of California’s aspirational recycling goals, are resorting to landfill disposal. To counter this trend, others have even suggested instituting bans on the land disposal of single-use products and packaging. But would this help address the problem of single-use product and packaging discarded onto the streets? Certainly not. Such landfill bans would invariable lead to further mismanagement of these wastes.

Who is responsible for addressing this problem? Who is going to pay for the cost of achieving zero trash by 2030? Should cities and counties with stormwater collection systems be held accountable? Is the problem primarily due to the irresponsibility of individuals who improperly discard these items? Should we rely on public workers or volunteers to clean up this improperly managed waste? Should more regulatory pressure in the form of rules, regulations, fines and penalties be imposed on citizens and waste producers for the proper management of these wastes? Or, as California is considering, should more pressure be inflicted on the companies who manufacture and sell single-use products and packaging in California? While these supply-chain entities are not directly responsible for the improper discarding of these items, should they be held responsible for providing such single-use items that facilitate discarding rather than recycling or reuse? For the most part, this is a zero-sum game for the citizens of California. The cost of reducing improper single-use product and packaging disposal will likely fall to the people of the state, through either higher taxes and fees or higher prices for consumer products. But what approach will be the most cost-effective?

The California legislature is now considering two companion measures, SB 54 (Allen)6 and AB 1080 (Gonzalez),7 that are identically worded while moving through their respective forums. Both are titled “California Circular Economy and Plastic Pollution Reduction Act,” and both measures are widely supported by approximately 100 environmental organizations, public agencies, and entities seeking to benefit from restrictions on single-use products and packaging. Opposition to these measures, as proposed, is being voiced by a handful of national product and packaging associations.

Both SB 54 and AB 1080 are currently on their way to the second house, and both measures declare it is the policy goal of the state that by 2030, manufacturers and retailers of single-use products and packaging achieve a 75% reduction in the amount of waste generated by these materials. The bills further require CalRecycle, the state agency responsible for solid waste and recycling, to adopt regulations by January 1, 2023, that would require manufacturers and retailers of single-use products and packaging to source-reduce those products and ensure that they are recyclable or compostable. Single-use plastic products would be further defined as the 10 single-use plastic products that are most littered in California as determined by CalRecycle (i.e., those plastic items identified in the first paragraph above). Although not in either of the bills now, there is some speculation that these measures could morph into a new Extended Producer Responsibility (EPR) program whereby manufacturers and retailers of single-use products and packaging would be responsible for the collection and management of these items at the end of the items’ useful life. This is not something that the manufacturers and retailers view with enthusiasm.

Most single-use packaging manufacturers and retailers who are engaged with this legislative process recognize they have a level of responsibility and are willing to entertain the notion that all single-use packaging must be recyclable or compostable at some point in the future, say 2030. Cigarette products, butts and filters will not likely need to be addressed in these measures, as there is another bill, SB 424 (Jackson),8 that has been separately introduced to specifically deal with waste tobacco products. Further, the single-use packaging industry appears willing to allow CalRecycle to further evaluate management options through the development of a scoping plan, with updates, over an extended period. The plan would:

  • further define the universe of single-use packaging to be regulated;
  • assess the current waste collection and recycling infrastructure;
  • evaluate end-use markets for collected materials;
  • assess the effectiveness of alternative policies to achieve defined objectives;
  • evaluate opportunities for encouraging reusable products and packaging;
  • identify incentives for, and streamlining of, instate recycling capacity; and
  • maximize state procurement of products containing recycled materials and compost.

Where this issue goes from here is uncertain. Further amendments to both SB 54 and AB 1080 will be entertained when these measures get to their respective second houses in early June 2019. The legislative session ends on September 13, and the legislature is unlikely to reach consensus on a final measure that can be enacted until much closer to that date. What is certain, however, is that manufacturers and retailers of single-use products and packaging will be increasingly faced with new challenges regarding the acceptability of these items in California—now and in the future.

1 https://www.cbs17.com/news/check-this-out/california-city-to-pay-homeless-15-per-hour-to-pick-up-street-trash/1559339711
2 https://www.ocregister.com/2019/02/04/after-storms-seal-beach-looks-like-a-landfill-blanketed-with-trash/
3 https://www.coastal.ca.gov/publiced/ccd/history.html#top10
4 https://www.waterboards.ca.gov/water_issues/programs/stormwater/trash_implementation.html
5 https://www.calrecycle.ca.gov/markets/nationalsword/globalpolicies/
6 http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201920200SB54
7 http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201920200AB1080
8 http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201920200SB424



pursuant to New York DR 2-101(f)

© 2024 Manatt, Phelps & Phillips, LLP.

All rights reserved