Within days of California’s long-awaited single-use plastics law taking effect, environmentalists and anti-waste activists announced plans to file a lawsuit.
They argue that Gov. Gavin Newsom’s administration and CalRecycle inserted exemptions favorable to the plastics industry into the law’s regulations, weakening the plastics industry and undermining the intent of the legislation.
“These new rules create a huge loophole for plastic packaging that violates the law,” said Avinash Kher, senior director of the Toxic Substances Program at the Natural Resources Defense Council. “We plan to challenge this matter in court.”
The lawsuit, which has not yet been filed, is supported by NRDC and the Sacramento-based waste organization Californians Against Waste.
Meanwhile, the packaging industry is also unhappy with the law and has not formally announced its intention to sue, but “our members have serious concerns about cost, compliance and constitutionality,” said Matt Clark, a spokesman for the national association. A group of wholesale distributors sued Oregon earlier this year over similar waste laws.
CalRecycle did not respond in time for publication.
Environmental groups say the new final regulations open the door to so-called “chemical recycling,” which creates tons of hazardous waste. The law also includes questionable exemptions for certain categories of plastic food utensils, officials said.
The text of the law prohibits any type of recycling that generates large amounts of hazardous waste. New regulations allow these recycling methods if the facility is properly permitted.
The new regulations also exempt certain products that are already subject to federal law. For example, packaging companies, retailers and distributors can claim that they have such a pre-emption right, but CalRecycle may not immediately review their claims, Kar said. “And unless CalRecycle reviews it, they will have an exemption.” This creates a potential “perpetual loophole.”
“California residents were promised a system that would hold producers truly accountable for the waste they produce,” said Nick Lapis, advocacy director for Californians Against Waste. “That promise begins to crumble when regulations introduce broad exemptions and redefine key terms. The details are important here, and right now they are not consistent with the intent of the law.”
Senate Bill 54, the Plastic Pollution Prevention and Packaging Manufacturer Responsibility Act of 2022, was signed into law by Newsom. The bill was considered a landmark piece of legislation because it would address the scourge of single-use plastics, require plastic and packaging companies to use less plastic, and ensure that all food packaging is recyclable or compostable by 2032.
Accumulation of plastic waste overwhelms waterways and oceans, sickens marine life and threatens human health.
The purpose of this law was not only to reduce it, but also to place the burden and costs on packaging producers and manufacturers rather than on consumers and local governments. This was supposed to encourage companies to consider the fate of their products and foster innovation in material redesign.
According to one state analysis, 2.9 million tons of single-use plastic and 171.4 billion single-use plastic parts were sold, offered for sale, or distributed in California in 2023.
Similar laws have been passed in Maine, Oregon, Colorado, Minnesota, Maryland, and Washington. However, product manufacturers and others in some of these states are challenging the law. Oregon’s law is on hold pending litigation by the U.S. Congress. The wholesale distributor’s court proceedings will take place.
“Many of the same problems we warned about in Oregon are occurring in California,” said Clark, the trade group spokesman. “Given California’s size, the cost impact will be even greater. Our attorneys pointed out that California’s proposed rates are already higher than those offered by other states.”
Jan Dell of the Laguna Beach-based anti-plastic waste organization Last Beach Cleanup said she doesn’t believe the law will work, regardless of the final regulations, and that the “exorbitant” costs of implementing it will prompt producers to file lawsuits or ultimately pass higher costs on to consumers.
She referred to a report by the Circular Action Alliance, a nationally chartered body set up to represent and oversee the implementation of the law on behalf of the plastics and packaging industry. The law was found to increase the cost of disposal of common products such as wine index bottles made from polyethylene terephthalate by between six and 14 times.
“If producers do not succeed in filing fee garnishment lawsuits, there is no doubt that there will be even more product inflation for California consumers,” she said in an email. “Californians already have to pay exorbitant curbside collection fees for garbage, recycling, organics, etc… So starting in 2027, food prices will go up even more, but waste bills will not be reduced.”
Christopher “Smitty” Smith, a partner at the Los Angeles law firm Saul Ewing, who consults with businesses and interest groups on SB 54 and other expanded producer responsibility laws, said he sees areas in the law that “could be sharper and potentially avoidable legal challenges…but it doesn’t stop people from filing lawsuits.”
He said the law was already changing the way businesses thought about and responded to waste concerns.
One of his customers, a national fast-food chain, realized that if a brand name appears on plastic packaging, it’s the company’s responsibility, he said, and “has spent the past year mapping out its franchise agreements, supply chain agreements, producer agreements and figuring out what it needs to do to be compliant.”
Until now, he said, companies have paid little attention to these details, just making sure their franchisees understand these types of things. They are now spending a lot of time and money “understanding what their supply chains look like, what happens to plastic products after they are used by consumers, and what their regulatory obligations are.”
It is bringing new dialogue within the company. And that’s what could make this law so powerful, Smith said.
Times staff writer Meg Tanaka contributed to this report
