California remains on the forefront of sustainability and recycling requirements. A key restriction in California is the Rigid Plastic Packaging Container Law, which targets hard plastic product packaging (namely “clamshells”). The law requires that product manufacturers reduce waste from covered packaging through several methods.
The California Department of Resources Recycling and Recovery, referred to as CalRecycle, administers the law and enforces its requirements. Non-compliance can subject a manufacturer to up to $100,000 in fines per year.
What the law covers
The law applies to packaging that is:
- Made entirely of plastic (except for incidental portions of the packaging);
- Inflexible in shape or form;
- Capable of holding between eight ounces and five gallons of product;
- Capable of at least one closure (i.e., being sealed shut during packaging).
These criteria exclude, for example, blister packs, plastic bags, plastic sleeves covering products (like an umbrella cover), and very small or very large product packaging.
The law also exempts specific types of products, including packaged hazardous material subject to US Department of Transportation Regulations, and foods, drugs, and cosmetics.
Who the law covers
The law applies to “product manufacturers,” defined as the company that “through its own action or through contract or control, is primarily responsible for causing a product to be produced…” CalRecycle has issued regulations to clarify this definition, applying the following hierarchy for determining the manufacturer:
- The brand holder;
- The company with “control or influence over the design of the product”; and
- The company with “primary control or influence over the design specifications” of the container.
Based on these criteria, it is likely that it many situations, the actual product manufacturer is not responsible for compliance – instead, it will fall to the private labeler (even if a manufacturer is supplying the same product to multiple private labelers).
How to comply
The law requires that manufacturers reduce waste from packaging through any of three methods:
- Use of post-consumer recycled material in the packaging (at least 25% of the package);
- Source reduction (reducing the size/amount of packaging by 10% over prior iterations of the same packaging); and
- Packaging products in reusable containers (refillable at least five times).
Product manufacturers must be able to substantiate compliance with data on the packaging used. The regulations implementing the law provide detailed requirements for doing so.
The RPPC’s unusual enforcement approach
The law’s enforcement approach is highly unusual: CalRecycle annually audits randomly selected manufacturers, requiring them to certify compliance for the coming year. Here’s how the process works:
- First, CalRecycle notifies a manufacturer that the law applies to it. After notification, the manufacturer must register with CalReycle within 90 days. Note that the law requires compliance whether a manufacturer has received this notification or has registered – but if a manufacturer has not received this notification and registered, it cannot be selected for a compliance audit.
- Second, CalRecycle randomly selects several manufacturers from the pool of registered entities and provides notice that they may be required to certify compliance. CalRecycle sends these notices out one year in advance of the audit year (by January 31st of the preceding year). Selected manufacturers are in the “Precertfication Phase,” and must acknowledge receipt of the the Precertification Notice within 90 days.
- Third, from the pool of precertification manufacturers, CalRecycle selects the manufacturers it will audit. CalRecycle provides the lucky winners with notice of selection by March 31st of the year preceding the audit year.
- Finally, audited manufacturers must certify compliance by April 1 of the year following the audit year. The regulations provided detailed information for calculating compliance for each of the compliance methods.
While the phased nature of the certification process allows for time to come into compliance, a company failing to meet any deadlines, or ultimately being out of compliance, will be fined. The maximum amount a company can be fined is $100,000 in a calendar year. Companies have been fined tens of thousands of dollars for missing deadlines or failing to comply, and some have been fined multiple times.