Unpack the Plastic Packaging Law
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We have produced more than 8.3 billion metric tons of plastic. More than enough to cover the entire country of Argentina.
But why should we care? It seems like the victims of this plastic crisis are just the turtles, seals, birds, and whales. Ocean plastics indeed have a devasting effect on these animals, but it would be wrong to think that humans are spared.
Plastic Crisis and Climate Crisis
Plastic, a ubiquitous material, poses a significant environmental challenge. Derived from oil and natural gas, two major contributors to climate change, the production and use of plastics have far-reaching consequences. Plastics have a substantial carbon footprint, releasing greenhouse gases at every stage of their life cycle, from extraction to manufacturing, distribution, use, and even end-of-life recycling and disposal. In fact, plastic is currently responsible for approximately 3.4% of global greenhouse gas emissions, making it a major environmental concern. To put this into perspective, Judith Enck, president of Beyond Plastics, notes that if plastic were a nation, it would rank as the world’s fifth-largest greenhouse gas emitter. Looking ahead, plastics consumption is set to be the largest driver of global oil demand, accounting for 20% of global oil and gas consumption by 2050. Plastic have even been named as a “novel entities” on par with environmental pollutants that exceeds the planetary boundaries. The nexus between plastic and climate change makes solving the plastic crisis an indispensable part in climate solutions.
Moreover, the plastic crisis is a matter of environmental justice. Although the majority of plastics consumption take place in developed countries, the plastic pollution problem falls disproportionately on the developing countries in the global south, especially in Southeast Asia.
The Role of US in the Plastic Crisis
The United States is the largest generator of plastic waste in the world and a top contributor to the ocean plastics crisis. However, the U.S. packaging recycling rate is far below many other countries and has been stagnant for over a decade. This disparity between plastic production and the lack of end-of-life solutions highlights the urgent need for legislative responses in the U.S. Moreover, petrochemicals, the refined oil and gas products on which plastic production relies, have long been an energy “blind spot” the policymakers consistently neglect. Last year, California passed a new and ambitious legislation that aims to mitigate this growing plastic crisis. This article will unpack the goals and mechanisms of the California Plastic Law (Senate Bill 54) and its contributions towards solving the plastic crisis.
California’s Landmark Plastics Law
California Governor Gavin Newsom signed Senate Bill 54 (the Plastic Pollution Prevention and Packaging Producer Responsibility Act) into law in June of 2022. This creates a comprehensive mandatory scheme for a circular plastic economy and it is the first to set specific source reduction goals for plastic.
The legislation has ambitious goals. The law mandates a 25% reduction in plastic packaging and requires that at least 65% of single-use plastic be recyclable by 2032. The reduction of plastic will lead to reduced greenhouse gas emissions. According to The Ocean Conservancy’s protection, the legislation is expected to eliminate 23 million tons of plastic in the next 10 years.
How will the legislation achieve these ambitious goals? The California’s legislation is designed to reshape our plastic system from a linear take-make-waste model to a circular economy where plastics are designed to be circulated and not tossed. A circular economy means materials constantly flow within a ‘closed loop’ system, rather than being disposed after a single use. In the context of plastic, a circular economy entails both decreasing the quantity of plastic in circulation and enhancing the recyclability and reusability of plastic within the system. The California legislation seeks to advance a circular economy through the implementation of an Extended Producer Responsibility (EPR) program.
What is an Extended Producer Responsibility (EPR) Program?
The system of extended producer responsibilities originated in Germany in the late 1980s and has since been widely adopted in developed countries. Dubbed as the Green Dot system, Germany formed the foundation of EPR policy in over 20 European countries.
EPR programs like the Green Dot system yielded impressive results, significantly increasing packaging recycling rate in Germany from 3% in 1991 to 65% in 2019.
Extended producer responsibility (EPR) programs extend producers’ duties so that they are not only responsible for producing and selling the products, but also responsible for their products until the end-of-life stage, when their packaging and products become waste. The EPR system is an application of the Polluters Pays Principle. Here, the polluter is not the person directly causing the pollution (like a consumer throwing away a plastic bottle) but rather the economic agent (the producer) that plays a decisive role in pollution.
Theoretically, the EPR system can be traced back to idea of product liability. In product liability, manufacturers are liable for damages caused by that product to consumers, if the product was defective or unreasonably dangerous. Therefore, manufacturers can be liable for their products long after production. Similarly, in the context of plastic, manufacturers retain liability for their product at end-of-life stage.
Creating a New Incentive Structure
Practically, EPR is a systemic way to mitigate the plastic waste problem, because manufacturers are in a far better position to make large-scale changes to plastic use. Thus, a key question in the management plastic waste is who pays for the costs of plastic? An EPR program provides a structure for funding waste management and an incentive structure to incorporate environmental costs into the designs of plastics. Without an EPR program, plastic recycling and waste management are generally financed by taxpayer dollars in the local jurisdiction, often at a municipal level. Municipal waste management creates no incentive for producers to design and produce sustainable products that are reusable. Instead, producers are incentivized by normal market forces to achieve the lowest cost possible regardless of the environmental impacts of their product. However, an EPR system will require producers to pay for the waste management system, and therefore incentivize producers to implement high-level changes to plastic production, like adopting efficient and recyclable designs.
How Will EPR Work in California?
California’s legislation establishes a compulsory system that transfers costs from consumers to producers through feecollection. The EPR program in California will be managed under the California’s Department of Resources Recycling and Recovery (CalRecycle). The EPR system, specifically targeting packaging producers, starts with the formation of a Producer Responsibility Organization (PRO). Under the new legislation, plastic producers are required to join a producer responsibility organization (PRO) by January 1, 2024. The PRO is responsible for planning a comprehensive statewide program for managing packaging disposal. The PRO’s plan will set out how the organization will collect fees from its members, cover costs of recycling providers, fund other provisions of the law, meet source reduction targets and incorporate recycled material. A key responsibility of the PRO is to set and collect the fees for participating producers to pay for a more robust waste management with higher recycling rates (like added curbside deposit programs), fund the EPR program, and finance efforts to mitigate existing plastic pollution and waste.
Lingering Concerns?
Although the California’s legislation initiates a systemic reform of the waste system, there are lingering concerns regarding the ambiguity in the language of the law. Provision 42060(a) in California’s legislation allows producers to request exemptions for plastic packaging that poses “unique challenges” from compliance with the Extended Producer Responsibility, and follow an alternative plan. Sec 42060.(3)(A)-(B).
According to Judith Enck, founder and president of Beyond Plastics, the broad language of “unique challenges” related to the exception could allow a wide range of plastic to avoid complying with the EPR. During the implementation stage, businesses could claim “unique challenges” to the CalRecycle, the implementation agency, and request exemption under the law. The language will likely invite legal controversies, litigating over what would fit under the category of “unique challenges.”
Moreover, the legislation lacks explicit regulations on problematic materials like polystyrene. Polystyrene is more commonly known as styrofoam, which is the type of plastic that is often seen in single-use products like to-go boxes, cups, and packaging sheets. The lack of prohibition against polystyrene raises concerns because, despite its ubiquity, polystyrene is not recyclable and increases microplastic pollution which threatens the ecosystem by carrying other toxic chemicals with plastic particles.
Concerns about the California legislation also revolve around the enforcement of terms like “reusable” and “refillable” materials. The effectiveness of an EPR program relies on clear definitions and stringent enforcement of these categories. Historically, California’s plastic policies, such as Prop 67, have encountered challenges due to weak enforcement. The issue stems from the broad interpretation of terms like “reusable” and “refillable,” leading to their application to toxic, non-recyclable plastics.
A notable example is manufacturers labelingplastic bags and plastic films with “recycle” or featuring triangular chasing arrows that serve as recycling symbols. Despite these labels, many of these plastic bags and films contain fine prints instructing users to “check locally” or to drop them off exclusively at special facilities. Consequently, these items are often mistakenly placed in curbside recycling bins, clogging recycling equipment and contaminating local ecosystems.
Conclusion
In addition to California’s statewide legislation, there are nationwide initiatives proposed to address the plastic crisis. One example is the reintroduction of the ‘Break Free from Plastic’ legislation in Congress, which aims to regulate plastic packaging. This includes the establishment of federally managed Extended Producer Responsibility (EPR) and deposit return systems, along with bans on black plastic and polystyrene foam food service ware.
Ultimately, the California EPR program plays a vital role in establishing a circular economy and addressing the plastic crisis by providing funding for downstream recycling of plastic waste and promoting eco-design during production. The legislation marks a significant step in the right direction to reshape the incentive structure surrounding plastic waste. However, the success of the legislation largely hinges on its implementation and its full potential requires an expansion on the national scale.
Suggested Citation: Angela Pan, Unpack the Plastic Packaging Law, Cornell J.L. & Pub. Pol’y, The Issue Spotter (November 20, 2023), https://live-journal-of-law-and-public-policy.pantheonsite.io/unpack-the-plastic-packaging-law/.
Angela (Ruoyi) Pan is a JD Candidate at Cornell Law School in the class of 2025. She graduated from Cornell University with a degree in Government and China & Asia Pacific Studies. Aside from her involvement with Cornell Law School’s Journal of Law and Public Policy, Angela serves as the president of the Public Interest Law Union and the vice president of Women of Color Collective.