California Ballot Initiative Filed to Phase Out Single-Use Packaging and Ban Polystyrene Food and Beverage Containers
Several organizations, including waste haulers and environmental groups, have filed a ballot initiative to impose significant new waste reduction requirements on producers of single-use packaging. Filed on November 4, 2019, the initiative has several procedural hurdles to overcome before qualifying for the November 2020 ballot, but despite those challenges, the initiative will surely add additional pressure on the California Legislature to broker a deal on two single-use packaging measures, SB 54 (Senator Ben Allen - D) and AB 1080 (Assembly Member Lorena Gonzalez - D), that failed to pass the Legislature in 2019 but which are slated to be revived and again considered early in the 2020 legislative session.
The initiative borrows many concepts from but also goes significantly further than SB 54 and AB 1080. Specifically, the initiative empowers CalRecycle to develop regulations to ensure that all waste (not just plastic waste) from single-use packaging and certain single-use foodware products are reduced by 20% by 2023, 40% by 2025 and 80% by 2030. The initiative, moreover, would significantly impact the food service industry, as it empowers CalRecycle to prohibit food vendors, including restaurants and grocery stores, from using polystyrene cups, bowls, trays, and hinged containers. The initiative also contains an infrastructure funding mechanism that would allow CalRecycle to impose a fee of up to one-cent per plastic product or plastic component of packaging. These fees, which the proponents estimate would produce approximately $1 billion per year, would fund recycling infrastructure in California, non-profits and education organizations, and the restoration and protection of marine waters impacted by plastic pollution. Finally, the initiative would require producers to reduce to the "maximum extent possible" the single-use packaging and products they create through source reduction measures or through the use of offering more reusable packaging.
By way of comparison, SB 54 and AB 1080 would require that producers of single-use packaging or "priority" single-use products to demonstrate a recycling rate of not less than 30%by 2026, 40% by January 1, 2028 and 75% percent by 2030. Unlike the initiative, which would impose an overall waste reduction requirement, the bills would require CalRecycle to establish different recycling rates by material type and form, which if not met would require producers of those material types to submit a corrective action plan outlining how it will come into compliance. The bills would also require producers to source reduce "to the maximum extent feasible," but unlike the initiative, the bills provide some guidance around what that phrase means; for example, a producer would meet this standard if it is in compliance a best practices checklist as determined by CalRecycle. The bills do not, however, contain a ban on polystyrene in food packaging, and they further do not contain a recycling infrastructure funding mechanism.
Although both the initiative and the bills would only apply to products sold in California, few manufacturers are believed to have the ability to segregate their distribution of products between California—the fifth largest economy in the world—and the rest of the county. It is therefore likely that products would be redesigned for the entire US market, if not the global market, in the event the initiative or bills are enacted into law.
Importantly, if the proponents of the initiative obtain the requisite signatures to qualify it for the 2020 ballot, the proponents may nonetheless pull the initiative from appearing on the ballot by late June 2020. So, if SB 54 and AB 1080 pass the Legislature in 2020, it is possible that the initiative would be pulled from consideration. Either way, 2020 is slated to be an extremely active year in California as it pertains to single-use packaging and products.
Arnold & Porter—through its California Government Affairs and Environmental practices—has been and will continue to be actively engaged in these developments, and we are happy to provide assistance as needed.
© Arnold & Porter Kaye Scholer LLP 2019 All Rights Reserved. This Advisory is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.