This article shall be known, and may be cited, as the Primary Battery Stewardship Act.

For purposes of this article, the following terms have the following meanings, unless the context clearly requires otherwise:

(a)“Actual direct costs” means the costs to collect, transport, and recycle a discarded primary battery, including any other actual environmental management costs relating to those actions.

(b)“Approved product” means a primary battery or a primary battery-containing product that meets all of the following requirements:

(1)The producer of that primary battery or primary battery-containing product has submitted a plan to the department or the producer has designated an organization that has submitted a plan to the department.

(2)The plan specified in paragraph (1) is approved in accordance with Section 42445.6.

(3)The program implementing the approved plan collects the products subject to the plan in accordance with the collection rate specified in the plan.

(c)“Bona fide rechargeable battery stewardship organization” means a person operating a system that provides for the acceptance and collection of used rechargeable batteries pursuant to the Rechargeable Battery Recycling Act of 2006 (Chapter 8.4 (commencing with Section 42451)).

(d)“Brand” means a name, symbol, word, or traceable mark that does either of the following:

(1)Identifies a primary battery and attributes the primary battery to the owner or licensee of the name, symbol, word, or traceable mark as the producer.

(2)Identifies a primary battery-containing product and attributes the primary battery to the owner or licensee of the primary battery-containing product as the producer.

(e)“Collection rate” means the percentage of primary batteries, including those taken from primary battery-containing products, by weight, that are collected during a calendar year by a producer, or by the producers participating in an organization, as compared to the average annual weight of all primary batteries that were estimated to have been sold in the state during the previous three calendar years by that producer or those producers. Estimates of primary batteries sold in the state may be based on a reasonable pro rata calculation based on national sales.

(f)“Discarded primary battery” means a primary battery that is discarded, as defined in subdivision (b) of Section 25124 of the Health and Safety Code.

(g)“Primary battery” means a nonrechargeable battery that weighs 2 kilograms or less, including, but not limited to, alkaline, carbon-zinc, and lithium metal, that is typically generated as waste, as defined in Section 25124 of the Health and Safety Code.

(h)(1)“Primary battery-containing product” means a product that contains, or is packed with, a primary battery, including, but not limited to, a camera, watch, calculator, flashlight, lantern, portable radio, toy, or clock.

(2)“Primary battery-containing product” does not include any of the following:

(A)A covered electronic device, as defined in Section 42463.

(B)A product from which a primary battery is not easily removed or is not intended or designed to be removed, other than by the manufacturer.

(C)A Class III medical device, as specified in Section 360c of Title 21 of the United States Code.

(D)A Class II medical device, as specified in Section 360c of Title 21 of the United Code, that is not exempt from subsection (k) of Section 360 of Title 21 of the United States Code (Section 510(k) of the federal Food, Drug, and Cosmetic Act)

(i)“Primary battery stewardship organization” or “organization” means an organization appointed by one or more producers to design, submit, implement, and administer a primary battery stewardship plan pursuant to this article.

(j)“Primary battery stewardship plan” or “plan” means a plan submitted to the department pursuant to Sections 42445.2 and 42445.3 by an individual producer or a primary battery stewardship organization.

(k)(1)“Producer” means, with regard to a primary battery or a primary battery-containing product that is sold, offered for sale, or distributed in the state, one of the following:

(A)The person who manufactures the primary battery or the primary battery-containing product, and who sells or offers for sale that primary battery or that primary battery-containing product, in the state, under that person’s own name or brand.

(B)If there is no person to whom subparagraph (A) applies, the owner or licensee of a trademark or brand under which the primary battery or primary battery-containing product is sold or distributed in the state, whether or not the trademark is registered.

(C)If there is no person to whom subparagraph (A) or (B) applies, the person who imports the primary battery or primary battery-containing product into the state for sale or distribution.

(2)“Producer” does not include either of the following:

(A)A person who manufactures, sells, offers for sale, or imports a primary battery-containing product in the state who complies with Section 42445.5.

(B)A person who sells, offers for sale, distributes, or imports a primary battery or primary battery-containing product, if the total retail value of the sale, distribution, or importation in this state is less than five hundred dollars ($500) annually.

(l)“Program” means the system for the collection, transportation, recycling, and disposal of primary batteries that is implemented pursuant to an approved primary battery stewardship plan.

(m)“Recycling” has the same meaning as defined in Section 40180.

(n)“Retailer” means a person that offers primary batteries or primary battery-containing products in a retail sale, as defined in Section 6007 of the Revenue and Taxation Code, through any means, including remote offerings such as sales outlets, catalogs, or an Internet Web site.

(o)“Wholesaler” means a person that offers primary batteries or primary battery-containing products for sale in this state in a sale that is not a retail sale, as defined in Section 6007 of the Revenue and Taxation Code, and for which the primary batteries or primary battery-containing products are intended to be resold in a retail sale.

(a)On or before January 1, 2016, each producer shall submit a primary battery stewardship plan that is in compliance with Section 42445.3 to the department. A producer may elect, in cooperation with one or more other producers, to appoint a primary battery stewardship organization to implement this article on the producer’s behalf, and the organization shall submit a primary battery stewardship plan to the department on or before January 1, 2016.

(b)(1)If a producer appoints a primary battery stewardship organization, the primary battery stewardship organization shall establish an advisory committee to provide input during the development of the primary battery stewardship plan. The advisory committee shall include only parties who have no financial interest in the collection or recycling of primary batteries and shall include, to the extent possible, one member from each of the following organizations:

(A)Retailers.

(B)Local governments.

(C)Public representatives.

(D)Haulers.

(E)Recyclers.

(2)If the primary battery stewardship organization is unable to recruit members from the organizations identified in paragraph (1) to participate in the advisory committee, the organization shall provide an explanation to the department in the plan or in the report required by Section 42445.10.

(c)(1)Except as provided in paragraph (4), a producer or primary battery stewardship organization shall consult with stakeholders during the development of the primary battery stewardship plan and shall solicit stakeholder comments.

(2)The producer or organization shall make all stakeholder meetings available using telecommunication.

(3)This article does not require a producer or primary battery stewardship organization to share confidential business information under the Uniform Trade Secrets Act (Title 5 (commencing with Section 3426) of Part 1 of Division 4 of the Civil Code).

(4)If a producer or organization determines that stakeholder involvement is not feasible, the producer or organization shall provide an explanation to the department in the plan or in the report required by Section 42445.10.

A primary battery stewardship plan shall include, at a minimum, all of the following:

(a)Contact information for all participating producers.

(b)The brands of primary batteries covered by the plan and the collection rate of the primary batteries collected by the producer or the producers participating in the organization during the previous calendar year.

(c)The collection rate for the primary batteries subject to the plan in the following manner:

(1)The plan shall provide for a program that will achieve a 10-percent collection rate two years after the date the program is implemented and a 20-percent collection rate five years after the program is implemented.

(2)The collection rate may be revised as provided in Section 42445.4.

(d)The number and type of convenient collection points that shall be provided by the program free of charge for consumers in all counties of the state where each producer subject to the plan sells, offers for sale, or distributes primary batteries or primary battery-containing products. The plan shall allow a collection point to accept not more than 100 primary batteries per visit by a consumer.

(e)A description of the methods that will be used to responsibly manage discarded primary batteries to ensure that the components of the discarded primary batteries, to the extent economically and technically feasible, are recycled or otherwise managed responsibly.

(f)The roles and responsibilities of key participants in the primary battery distribution chain.

(g)The outreach procedures that will be used to provide notice of the program to businesses, local agencies, retailers, wholesalers, and haulers.

(h)The manner in which existing primary battery collection points and other programs can be identified and leveraged to achieve the required collection rates.

(i)The financing method selected to fund the implementation of the plan to achieve the required collection rates, considering all of the following factors:

(1)Battery chemistry.

(2)The estimated total weight of primary batteries, including the estimated total weight of primary batteries that are contained in primary battery-containing products, that will be sold, distributed, or offered in the state by the producer or the producers participating in the plan, during each calendar year.

(3)The cost of collecting, transporting, recycling and responsibly managing the expected total weight of discarded primary batteries collected during each calendar year.

(4)The administrative costs to the department of reviewing the plan pursuant to this article.

(5)The cost of all other stewardship program elements, including, but not limited to, stakeholder participation and public outreach.

(j)Planned educational activities that will further the goal of achieving the plan’s required collection rate.

(k)At the election of the producer or primary battery stewardship organization, provisions for the implementation of the program in conjunction with those cities, counties, districts, and regional agencies in whose jurisdictions the program will be implemented. If the producer or primary battery stewardship organization makes an election pursuant to this subdivision, the producer or primary battery stewardship organization shall provide, to cities, counties, districts, and regional agencies participating in the stewardship program, one or more of the following:

(1)(A)Reasonable reimbursement for the mutually agreed-upon, actual direct costs per unit of weight incurred by the local agency in collecting primary batteries.

(B)The producer or organization may request an independent audit of submitted reimbursement costs prior to making a payment pursuant to subparagraph (A). If the independent audit confirms the reasonableness of the reimbursement request, the audit costs shall be paid by the producer or primary battery stewardship organization.

(2)The location and contact information for the convenient collection points for discarded primary batteries that are located within the local agency’s jurisdiction and that are consistent with the plan.

(3)Products for setting up a collection point within the local agency’s jurisdiction and providing for the pickup of discarded primary batteries collected, including, but not limited to, arranging for the management of those discarded primary batteries.

A producer or a primary battery stewardship organization may petition the department to adjust the collection rate specified in the plan. The department may grant an adjustment to the collection rate if the department determines that technological, ecological, cultural, economic, or other impediments or circumstances that are beyond the control of the producer or primary battery stewardship organization limit the ability of the producer or organization to achieve the specified collection rate.

(a)A person who manufactures, sells, offers for sale, or imports a primary battery-containing product in this state shall not be a producer for purposes this article if the person does both of the following:

(1)Affirms to the department that the person only uses primary batteries supplied by a producer participating in an approved battery stewardship program.

(2)Reports to the producer specified in paragraph (1) or to the organization that producer elects to join, the estimated use of the primary batteries in the primary battery-containing products to be sold in the state by that person, which estimate may be based on a reasonable pro rata calculation of national sales of the primary battery-containing products.

(b)A producer or a primary battery stewardship organization that operates a program that covers the primary battery contained in the primary battery-containing product of a person who, pursuant to subdivision (a), is not a producer shall list the person as a participant in its program, subject to any limitations or exceptions as may be indicated by the information submitted by the exempted person producing the primary battery-containing product.

(a)Upon receipt of a plan pursuant to Section 42445.2, the department shall review the plan and determine whether the plan provides for the establishment of a primary battery stewardship program that includes all of the elements required by Section 42445.3. As part of the plan review, the department shall review the plan’s financing mechanism and determine whether the plan considers the factors specified in subdivision (i) of Section 42445.3. In conducting a review pursuant to this subdivision, the department may consult with producers, primary battery stewardship organizations, retailers, and recyclers.

(b)A plan shall be deemed approved by the department 30 days after the plan is received, unless the department, in writing, notifies the producer or the organization that submitted the plan that the plan is deficient and identifies specific elements of Section 42445.3 that were not satisfactorily addressed.

(c)A producer or a primary battery stewardship organization is not required to provide any services to a person exempted from the definition of a producer pursuant to Section 42445.5.

(d)The department shall make all approved primary battery stewardship plans available to the public on the department’s Internet Web site, but shall not publish information protected under the Uniform Trade Secrets Act (Title 5 (commencing with Section 3426) of Part 1 of Division 4 of the Civil Code). The total weight of batteries collected by a program implementing an approved plan is not confidential business information under that act.

(a)Upon approval of the plan pursuant to Section 42445.6, the producer or the primary battery stewardship organization shall do all of the following:

(1)No later than six months after the date of the approval of the plan, implement the plan, including, but not limited to, achieving the collection rates specified in the plan.

(2)Prepare and submit to the department the report required by Section 42445.10.

(3)If a producer or primary battery stewardship organization elects to implement the plan in conjunction with cities, counties, districts, and regional agencies pursuant to subdivision (k) of Section 42445.3, take the actions specified in that subdivision.

(b)A local agency that elects to participate in a program pursuant to subdivision (k) of Section 42445.3 shall separate from other materials the primary batteries for collection by the producer or primary battery stewardship organization.

(a)Within 30 days after the approval of a primary battery stewardship plan, and on or before March 1 annually thereafter, the department shall post on its Internet Web site a list of the brands of primary batteries or primary battery-containing products that are approved products.

(b)A primary battery stewardship program is in compliance with this article if it achieves the collection rate specified in the plan, as provided in paragraph (1) of subdivision (c) of Section 42445.3.

(a)On and after July 1, 2016, a producer, retailer, or a wholesaler shall not offer a primary battery or primary battery-containing product for sale in this state, or offer a primary battery or primary battery-containing product for promotional purposes in this state, unless the primary battery or primary battery-containing product is an approved product.

(b)On or before October 1, 2016, a retailer may sell the remaining stock of those primary batteries or primary battery-containing products that are not approved products.

(c)The department shall not take an enforcement action pursuant to this article on or before October 1, 2016, against a retailer with regard to primary batteries or primary battery-containing products that are not approved products.

(d)A producer who seeks to sell or offer for sale or promotional purposes a primary battery or primary battery-containing product that was not sold or offered for sale in the state before July 1, 2016, shall notify the department prior to selling or offering to sell that primary battery or primary battery-containing product in the state. The department shall list that producer as a new producer on the department’s Internet Web site. On or before 90 days after making that notification, the producer shall submit a primary battery stewardship plan to the department or join an existing primary battery stewardship organization that has an approved plan. If the producer does not meet either of those requirements, the producer shall not sell the primary battery or primary battery-containing product after that 90-day period and a retailer may sell the primary battery or primary battery-containing product only for 120 days following the termination of that 90-day period.

(e)This section does not require the department to conduct or commission a compliance survey or prohibit a primary battery stewardship organization from conducting or commissioning a compliance survey.

(a)On or before two years after the date of the initial approval of a primary battery stewardship plan, and once every year thereafter, except as specified in subdivision (e), the producer or primary battery stewardship organization implementing the plan shall prepare and submit to the department a report describing the activities carried out pursuant to the plan during the previous calendar year. The report shall include, but is not limited to, all of the following elements:

(1)The weight of primary batteries collected by the program in the prior year and the collection rate achieved in the prior year.

(2)A report of the estimated total sales data by weight for primary batteries sold in the state, or the weight of primary batteries contained in primary battery-containing products sold in the state, for the previous three calendar years.

(3)Financial statements that detail the financing of the plan, consistent with the requirements of subdivision (i) of Section 42445.3, except as follows:

(A)If the plan is operated by a producer that is a single retailer, including a retailer with more than one physical location, the report is not required to provide this information.

(B)If the producer or organization operates a program in another state, in addition to this state, the producer or organization may submit a financial statement that includes all of those states, including this state.

(4)Locations and contact information for all collection points set up by the producers covered by the plan.

(5)Examples and a description of educational materials used to increase collection.

(6)The manner in which the collected primary batteries were managed.

(7)An explanation of why collection targets were not met, if applicable.

(8)Any material change to the primary battery stewardship plan.

(b)The department shall review each report to confirm that all report elements specified in subdivision (a) have been addressed. A report submitted on behalf of a regional or national primary battery stewardship organization may include reasonable pro rata estimates of the elements specified in paragraphs (2) and (3) of subdivision (a). The report shall be deemed approved unless the department, in writing, notifies the producer or organization within 30 days of receipt that the report is deficient, and identifies specific elements of subdivision (a) that were not satisfactorily addressed.

(c)This section does not require or authorize the department to publicly disclose the confidential business information of a producer or primary battery stewardship organization, if the information is protected under the Uniform Trade Secrets Act (Title 5 (commencing with Section 3426) of Part 1 of Division 4 of the Civil Code). The total weight of batteries collected by an approved plan is not confidential business information under that act.

(d)The department shall make all approved reports available to the public on the department’s Internet Web site, except as provided in subdivision (c).

(e)On and after three years after the initial implementation date of a plan, if the collection rate for the primary batteries subject to the plan meets the collection rate specified in the plan, the producer or organization shall thereafter submit the report required by this section every two years.

(a)If the department notifies a producer or organization pursuant to subdivision (b) of Section 42445.10 that a report does not meet the requirements of subdivision (a) of Section 42445.10, or the report confirms that the collection rate or the establishment of the collection points specified in the plan were not met, the department shall notify the producer or organization in writing within 30 days after receiving the report. The notification shall require the continued implementation of the existing approved plan and shall require the producer or organization to amend and resubmit the plan. The producer or organization shall amend and resubmit the plan to the department no later than 45 days after this notification, or no later than a later date that may be agreed to by the department.

(b)If the producer or primary battery stewardship organization does not amend and resubmit the plan pursuant to subdivision (a), or if the department does not approve the amended plan, the department shall, in consultation with the producer or primary battery stewardship organization, determine which actions should be taken to obtain approval by the department.

(c)The department shall not disapprove an amended and resubmitted plan without providing the producer or organization with notice and an opportunity to request a hearing. A producer or primary battery stewardship organization whose amended and resubmitted plan is disapproved may file an action for judicial appeal of the disapproval. A producer participating in a plan, and any wholesaler, distributor, or retailer, may continue to sell the producer’s primary batteries or products in the state during the pendency of any appeal.

(a)A producer or organization submitting a plan pursuant to this article shall also pay an administrative filing fee in an amount, established by the department, sufficient to cover the reasonable cost of the department’s plan review, but not more than five thousand dollars ($5,000).

(b)The Primary Battery Stewardship Account and the Primary Battery Stewardship Penalty Subaccount are hereby established in the Integrated Waste Management Fund.

(c)The administrative filing fees collected pursuant to this section shall be deposited in the Primary Battery Stewardship Account and shall be expended by the department, upon appropriation by the Legislature, to cover the department’s plan review costs.

(d)All penalties collected pursuant to this article shall be deposited in the Primary Battery Stewardship Penalty Subaccount and may be expended by the department, upon appropriation by the Legislature, to cover the department’s costs to implement and enforce this article.

(a)The department may impose administrative civil penalties not to exceed one thousand dollars ($1,000) per day upon a producer that is not in compliance with this article, or upon a wholesaler or retailer that violates Section 42445.9. An administrative civil penalty may be imposed only by the department and shall not be imposed by any other state or local agency.

(b)A producer, wholesaler, or retailer that removes from sale any primary battery or primary battery-containing product within 90 days of discovery that it is not in compliance with this article is not in violation of Section 42455.9.

(c)A producer, wholesaler, or retailer that purchases a primary battery or primary battery-containing product which is verified to be an approved product at the time of purchase is not in violation of Section 42455.9 if, at the time the producer, wholesaler, or retailer sells that primary battery or primary battery-containing product, it is no longer an approved product.

(d)Before imposing a penalty pursuant to this section, the department shall issue a compliance order to the producer, wholesaler, or retailer selling the primary battery or primary battery-containing product that allows 30 days from the date of the compliance order to cease sales of the primary battery or primary battery-containing product.

(a)A producer or primary battery stewardship organization that implements a plan in compliance with this article and incurs in excess of three thousand dollars ($3,000) in actual direct costs for collecting, handling, recycling, or properly disposing of primary batteries sold or offered for sale in the state by a producer that does not operate an approved battery stewardship program or does not participate in an approved battery stewardship organization, may bring a civil action to recover costs, damages, and fees, as specified in subdivision (c), from the producer for failure to comply with this article, if that producer can be identified from a brand or marking on a discarded primary battery or from other information.

(b)(1)An action under subdivision (a) may be brought against one or more producers who are not in compliance with this article.

(2)An action under subdivision (a) shall not commence earlier than 60 days after a written notice of the organization’s or producer’s intention to file an action has been provided to the department and to the producer who is alleged to be noncompliant.

(3)An action under subdivision (a) shall not commence if the department has commenced an enforcement action against the producer who is alleged to be noncompliant and is diligently pursuing that action.

(c)In an action under this section, the plaintiff may recover all of the following amounts from a producer who has been found to be noncompliant:

(1)The costs the plaintiff incurred in collecting, handling, recycling, or properly disposing of primary batteries reasonably identified as having originated from the noncompliant producer.

(2)An amount of damages equal to no more than three times those costs specified in paragraph (1).

(3)The plaintiff’s attorney’s fees and costs of bringing the action.

This article does not limit, supersede, duplicate, or otherwise conflict with the authority of the Department of Toxic Substances Control under Section 25257.1 of the Health and Safety Code to fully implement Article 14 (commencing with Section 25251) of Chapter 6.5 of Division 20 of the Health and Safety Code, including the authority of the department to include primary batteries in its primary battery registry.

Due to the need to provide a consistent statewide program for the regulation of primary batteries and to protect the public and the environment, this article fully occupies and preempts the entire field of the stewardship of primary batteries and primary battery-containing products. A city, county, or district, including a chartered city or county, shall not adopt or enforce an ordinance that regulates the disposal, collection, and recycling of primary batteries or requires reporting by producers or primary battery stewardship programs.

(a)It is the intent of the Legislature that a producer or a primary battery stewardship organization preparing, submitting, and implementing a primary battery stewardship plan pursuant to this article, and wholesalers or retailers who engage in conduct authorized by this article, are granted immunity, individually and jointly, from state antitrust laws for the limited purpose of establishing and implementing a program and complying with the requirements of this article. It is further the intent of the Legislature that the activities of a producer, organization, and the wholesalers or retailers that implement and comply with this article are not in restraint of trade, a conspiracy, or combination thereof, or any other unlawful activity in violation of any provisions of state antitrust laws.

(b)Except as provided in subdivision (c), an action taken to increase the recycling of primary batteries pursuant to this article by a producer or primary battery stewardship organization that affects the types or quantities being recycled or the cost and structure of any return program is not a violation of either the Cartwright Act (Chapter 2 (commencing with Section 16700) of Part 2 of Division 7 of the Business and Professions Code), or the Unfair Practices Act (Chapter 4 (commencing with Section 17000) of Part 2 of Division 7 of the Business and Professions Code).

(c)Subdivision (b) shall not apply to any agreement establishing or affecting the price of primary batteries or the output or production of primary batteries, or any agreement restricting the geographic area in which, or customers to whom, primary batteries will be sold.