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AB-1371 Recycling: plastic: packaging and carryout bags.(2021-2022)

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Date Published: 04/21/2021 09:00 PM
AB1371:v96#DOCUMENT

Amended  IN  Assembly  April 21, 2021
Amended  IN  Assembly  April 07, 2021
Amended  IN  Assembly  March 25, 2021

CALIFORNIA LEGISLATURE— 2021–2022 REGULAR SESSION

Assembly Bill
No. 1371


Introduced by Assembly Members Friedman, Lorena Gonzalez, and Ting
(Principal coauthors: Assembly Members Bloom, Carrillo, and Kalra)
(Principal coauthors: Senators Allen and Stern)
(Coauthors: Assembly Members Quirk and Stone) Quirk, Luz Rivas, and Stone)
(Coauthor: Senator Wiener)

February 19, 2021


An act to add Chapter 2.5 (commencing with Section 42040) to Part 3 of Division 30 of, to add and repeal Chapter 5.1 (commencing with Section 42250) of Part 3 of Division 30 of, and to repeal Sections 42042, 42043, and 42044 of, the Public Resources Code, relating to solid waste.


LEGISLATIVE COUNSEL'S DIGEST


AB 1371, as amended, Friedman. Recycling: plastic: packaging and carryout bags.
(1) The California Integrated Waste Management Act of 1989, administered by the Department of Resources Recycling and Recovery, generally regulates the disposal, management, and recycling of solid waste, including, among other solid waste, single-use plastic straws.
This bill would prohibit an online retailer that sells or offers for sale and delivers purchased products in or into the state from using single-use plastic packaging that consists of shipping envelopes, cushioning, or void fill to package or transport the products, on and after January 1, 2023, for large online retailers, as defined, and on and after January 1, 2025, for small online retailers, as defined. The bill would prohibit a manufacturer, retailer, producer, or other distributer that sells or offers for sale and delivers purchased products in or into the state from using expanded polystyrene packaging to package or transport the products.
The bill would require an online retailer that has at least one physical location in the state with in-person sales to provide at all physical locations in the state with in-person sales a take back container for plastic film and expanded polystyrene packaging that provides an opportunity for a customer to return to the location clean plastic film and expanded polystyrene packaging. The bill would require an online retailer that provides lockers for the secure pickup of purchased products at a store to provide a collection bin at the store near the lockers for the purpose of collecting and recycling plastic film and expanded polystyrene packaging. The bill would require an online retailer that delivers purchased products to customers in this state to have an at-delivery recycling program that provides for the pickup at the time of delivery of plastic film and expanded polystyrene packaging for products previously purchased from the online retailer, at no cost to the customer. The bill would require an online retailer to maintain records describing the collection, transport, and recycling of plastic film and expanded polystyrene packaging pursuant to these provisions for one year and to make the records available to the department and the local jurisdiction, upon request. The bill would make the physical location take back container requirement, locker collection bin requirement, and at-delivery recycling program requirement inoperative on January 1, 2025, except for the records provisions, and would repeal those 3 requirements, including the records provisions, as of January 1, 2026.
The bill would make a violation of the foregoing requirements subject to civil penalties and would require penalties collected by the Attorney General to be deposited into the Plastic Packaging Reduction Penalty Account, which the bill would create, for expenditure by the Attorney General, upon appropriation by the Legislature, to enforce those requirements.
(2) Existing law prohibits stores, including convenience food stores, foodmarts, and other specified entities that have a specified amount of sales in dollars or retail floor space from providing a single-use carryout bag to a customer and prohibits those stores from selling or distributing a recycled paper bag at the point of sale unless the store makes the bag available for purchase for not less than $0.10.
This bill would establish the At-Store Recycling Program. The bill would require an operator of a store, as defined, to establish an at-store recycling program that provides persons the opportunity to return clean plastic carryout bags and clean durable plastic bags to the store. The bill would require a plastic carryout bag or a durable plastic bag provided by a store to have specified information printed or displayed on the bag, and would require the placement of a collection bin in each store that is visible and easily accessible to the consumer. The bill would require a store to maintain records describing the collection, transport, and recycling of plastic bags pursuant to these provisions for 3 years and to make the records available to the department and the local jurisdiction, upon request. The bill would make a violation of these requirements subject to civil penalties and would require penalties collected by the Attorney General to be deposited into the At-Store Recycling Program Penalty Account, which the bill would create, for expenditure by the Attorney General, upon appropriation by the Legislature, to enforce those requirements. The bill would make these requirements, except for the records and civil penalty provisions, inoperative on January 1, 2030, and would repeal the provisions, including the records and civil penalty provisions, as of January 1, 2033.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.

 (a) The Legislature finds and declares all of the following:
(1) Plastic packaging used for products sold by an online retailer, also known as e-commerce packaging, becomes plastic waste immediately after a package is opened. Almost all plastic waste is landfilled, is burned, or enters and pollutes the environment, including waterways and oceans, where plastic can harm marine life.
(2) Once discarded, plastic breaks up into smaller and smaller pieces that can starve or choke wildlife when ingested and that act as conduits for harmful pollutants that make their way into the food chain.
(3) More than 900 marine life species have ingested or become entangled in plastic and plastic has been detected in melting Arctic sea ice and found sitting at the deepest point of the ocean floor.
(4) Plastic is harming human health through every single stage of its life cycle, from extraction and production to consumer use. It is making its way into our food, water, and air.
(5) Local governments in California spend more than $420,000,000 total annually in efforts to clean up and prevent plastic and other litter from entering oceans and waterways. Ultimately, these costs are borne by ratepayers.
(6) Plastic is a major contributor to climate change. Life cycle assessments that favor plastic often do not fully consider the material’s full environmental impact, particularly on the oceans.
(7) Plastic is a significant source of global greenhouse gas emissions that contribute to climate change, sea level rise, and ocean acidification. The environmental and public health impacts of plastic pollution are devastating, and the environmental externalities and public costs of cleaning up and mitigating plastic pollution are already staggering and continue to grow.
(8) Most plastics are petrochemicals made from hydrocarbons derived from fossil fuels and the production of these materials furthers the reliance on nonrenewable resources. Litter of these plastics constitutes a form of oil pollution spilling into the oceans and contaminating the environment.
(9) Globally, the e-commerce industry used nearly 2,100,000,000 pounds of plastic packaging in 2019, according to analysts, and that number is estimated to double by 2025.
(10) Almost one-third of the world’s population is now buying online.
(11) According to industry analysts, in 2019, e-commerce businesses in the United States generated 469,000,000 pounds of plastic packaging waste.
(12) Plastic packaging, including, but not limited to, mailers, bubble wrap, and inflatable pillows, which is often referred to as plastic film, and expanded polystyrene packaging have little to no value on the recycling market. Most often, plastic film and expanded polystyrene packaging is landfilled, is burned, or pollutes the environment, including the oceans. Additionally, most municipal recycling programs in the United States do not accept plastic film and expanded polystyrene packaging.
(13) Expanded polystyrene, including loose fill packaging and molded foam, is rarely recycled. Once in the environment, it breaks up into small pieces that are nearly impossible to remove.
(14) Recycling alone is not enough to solve the plastic crisis. Less than 9 percent of all plastic waste created has been recycled.
(b) It is the intent of the Legislature in enacting this act to reduce the harmful environmental and economic impacts of plastic pollution caused by unnecessary single-use plastic film packaging and expanded polystyrene packaging used in e-commerce by phasing out shipping envelopes, void fill, and cushioning that contain single-use plastic.

SEC. 2.

 Chapter 2.5 (commencing with Section 42040) is added to Part 3 of Division 30 of the Public Resources Code, to read:
CHAPTER  2.5. Plastic Packaging
Article  1. Definitions

42040.
 For purposes of this chapter, the following definitions apply:
(a) “Cushioning” means material used to protect fragile goods by absorbing shocks and vibrations during shipping. Plastic cushioning includes, but is not limited to, plastic bubble wrap and inflatable plastic pillows.
(b) “Expanded polystyrene packaging” means any packing material made of polystyrene that has been expanded or blown using a blowing agent into a solid foam, including, but not limited to, loose fill, often referred to as packing peanuts, and molded foam.
(c) “Large online retailer” means an online retailer that has annual gross sales equal to or more than one million dollars ($1,000,000) in or into the state and that has equal to or more than 2,500 shipping units sold and transported in or into the state annually.
(d) (1) “Online retailer” means a business that sells goods over the internet and transports goods by mail or parcel delivery. An online retailer includes business-to-business and business-to-consumer sales of products.
(2) An online retailer does not include an online marketplace that satisfies all of the following:
(A) Is an online or mobile application providing user services and facilitating sales solely from third-party sellers to third-party buyers.
(B) Does not own any of the inventory for sale on the online marketplace.
(C) Does not ship or control the distribution, packaging, or transport of any products on the online marketplace.
(D) Facilitates and permits direct, unhindered communication between the third-party buyer and the third-party seller.
(E) Conspicuously displays the third-party seller’s location.
(F) Does not determine the price for the product offered on the online marketplace.
(G) Is not a large online retailer.
(3) An online retailer does not include a public or privately operated motor carrier, as defined in Section 13102 of Title 49 of the United States Code, that only transports a parcel that has been placed into packaging prior to the motor carrier’s taking possession of the parcel and is not opened until after the motor carrier has delivered the parcel.
(e) “Packaging” includes, but is not limited to, all of the following:
(1) Primary packaging.
(2) Secondary packaging used to group products into unit loads during transit and that is the outermost layer of packaging shipped to consumers.
(3) Tertiary packaging or dunnage used to facilitate the protection, handling, and transportation of a sales unit or sales units to consumers.
(f) “Plastic film” means thin flexible sheets of plastic, sold in thicknesses of up to 10 millimeters, of which the majority produced are made of polyethylene resins. Plastic film is used to produce, and includes, shipping envelopes, cushioning, and void fill.
(g) “Reusable packaging” means packaging that is all of the following:
(1) Designed for reuse in the same or similar application, or for another purposeful packaging use in a supply chain.
(2) Highly durable to function properly in its original condition for multiple trips and its lifetime is measured in years.
(3) Repeatedly recovered, inspected, and repaired, if necessary, and reissued into the supply chain for reuse.
(4) Prevented, at the end of its life, from becoming solid waste with a process in place for recovery and recycling at the final destination of the packaging.
(h) “Shipping envelope” means packaging used for the containment, protection, handling, or delivery of smaller goods by a manufacturer or retailer for the user or consumer. A plastic shipping envelope includes, but is not limited to, plastic mailers, envelope mailers, lightweight plastic mailers, padded plastic mailers, poly mailers, poly bubble mailers, plastic shipping mailers, and paper mailers with plastic lining.
(i) “Single-use packaging” means packaging that satisfies any of the following:
(1) Is intended for a single use.
(2) Is regularly discarded, recycled, or otherwise disposed of after a single use.
(3) Is not reusable packaging.
(j) “Small online retailer” means an online retailer that has annual gross sales of less than one million dollars ($1,000,000) in or into the state or that has less than 2,500 shipping units sold and transported in or into the state annually.
(k) “Void fill” means a filler material used to close up the free space in a shipping container and lock products in place. prevent excessive movement. Plastic void fill includes, but is not limited to, sealed air and expanded polystyrene packaging.

Article  2. Plastic Packaging

42041.
 (a) (1) An online retailer that sells or offers for sale and delivers purchased products in or into the state shall not use single-use plastic packaging that consists of shipping envelopes, cushioning, or void fill to package or transport the products.
(2) A large online retailer shall comply with this subdivision on and after January 1, 2023.
(3) A small online retailer shall comply with this subdivision on and after January 1, 2025.
(b) A manufacturer, retailer, producer, or other distributer that sells or offers for sale and delivers purchased products in or into the state shall not use expanded polystyrene packaging to package or transport the products.

42042.
 (a) An online retailer that has at least one physical location in the state with in-person sales shall provide at all physical locations in the state with in-person sales a take back container for plastic film and expanded polystyrene packaging that provides an opportunity for a customer to return to the location clean plastic film and expanded polystyrene packaging. The program provided pursuant to this section shall include all of the following:
(1) The online retailer shall place a collection bin for plastic film and expanded polystyrene packaging at each physical location with in-person sales that is visible, easily accessible to the customer, and clearly marked that the collection bin is available for the purpose of collecting and recycling plastic film and expanded polystyrene packaging.
(2) All clean plastic film and clean expanded polystyrene packaging collected by the online retailer, or its agent, shall be transported and recycled in a manner that does not conflict with the local jurisdiction’s source reduction and recycling element, pursuant to Chapter 2 (commencing with Section 41000) and Chapter 3 (commencing with Section 41300) of Part 2.
(3) The online retailer shall maintain records describing the collection, transport, and recycling of plastic film and expanded polystyrene packaging collected for a minimum of one year and shall make the records available to the department and the local jurisdiction, upon request, to demonstrate compliance with this chapter.
(b) (1) This section, except for paragraph (3) of subdivision (a), shall become inoperative on January 1, 2025.
(2) This section shall remain in effect only until January 1, 2026, and as of that date is repealed.

42043.
 (a) An online retailer that provides lockers for the secure pickup of purchased products at a store, other than a physical location with in-person sales described in Section 42042, shall provide a collection bin at the store near the lockers that is visible, easily accessible to the customer, and clearly marked as available for the purpose of collecting and recycling plastic film and expanded polystyrene packaging. A collection bin provided pursuant to this subdivision shall be maintained by the online retailer and is not required to be maintained by the store.
(b) All plastic film and expanded polystyrene packaging collected by the online retailer, or its agent, pursuant to this section shall be collected, transported, and recycled in a manner that does not conflict with the local jurisdiction’s source reduction and recycling element, pursuant to Chapter 2 (commencing with Section 41000) and Chapter 3 (commencing with Section 41300) of Part 2.
(c) An online retailer shall maintain records describing the collection, transport, and recycling of plastic film and expanded polystyrene packaging pursuant to this section for one year and shall make the records available to the department and the local jurisdiction, upon request, to demonstrate compliance with this section.
(d) (1) This section, except for subdivision (c), shall become inoperative on January 1, 2025.
(2) This section shall remain in effect only until January 1, 2026, and as of that date is repealed.

42044.
 (a) An online retailer that delivers purchased products to customers in this state shall have an at-delivery recycling program that provides for the pickup at the time of delivery of plastic film and expanded polystyrene packaging for products previously purchased from the online retailer, at no cost to the customer.
(b) All plastic film and expanded polystyrene packaging collected by the online retailer, or its agent, pursuant to this section shall be collected, transported, and recycled or reused in a manner that does not conflict with the local jurisdiction’s source reduction and recycling element, pursuant to Chapter 2 (commencing with Section 41000) and Chapter 3 (commencing with Section 41300) of Part 2.
(c) An online retailer shall maintain records describing the collection, transport, and recycling of plastic film and expanded polystyrene packaging pursuant to this section for one year and shall make the records available to the department and the local jurisdiction, upon request, to demonstrate compliance with this section.
(d) (1) This section, except for subdivision (c), shall become inoperative on January 1, 2025.
(2) This section shall remain in effect only until January 1, 2026, and as of that date is repealed.

Article  3. Enforcement

42045.
 This chapter does not prohibit the adoption, implementation, or enforcement of a local ordinance, resolution, regulation, or rule governing curbside or dropoff recycling programs operated by, or pursuant to a contract with, a city, county, or other public agency, including any action relating to fees for these programs.

42046.

(a)A city, a county, or the Attorney General may impose civil liability in the amount of five hundred dollars ($500) for the first violation of this chapter, one thousand dollars ($1,000) for the second violation of this chapter, and two thousand dollars ($2,000) for the third and any subsequent violation of this chapter.

(b)Any civil penalties collected pursuant to subdivision (a) shall be paid to the office of the city attorney, city prosecutor, district attorney, or Attorney General, whichever office brought the action. The penalties collected pursuant to this section by the Attorney General shall be deposited into the Plastic Packaging Reduction Penalty Account, which is hereby created in the State Treasury. Moneys in the account may be expended by the Attorney General, upon appropriation by the Legislature, to enforce this chapter.

42046.
 (a) An action to enforce this chapter may be brought by the Attorney General upon a complaint from the department, or brought by a county counsel, or city attorney from a city or city and county with a full-time city prosecutor, upon a complaint by a local agency or resident located within the jurisdiction.
(b) An entity authorized to bring an action pursuant to subdivision (a) may impose civil liability on a person or entity that knowingly violated this chapter, in the amount of one thousand dollars ($1,000) per day for the first violation of this chapter, two thousand dollars ($2,000) per day for the second violation, and five thousand dollars ($5,000) per day for the third and subsequent violations of this chapter, if the entity is a small online retailer.
(c) An entity authorized to bring an action pursuant to subdivision (a) may impose civil liability in the amount not to exceed fifty thousand dollars ($50,000) per day for a violation of this chapter, if the entity is a large online retailer.
(d) Any civil penalties collected pursuant to this section shall be paid to the office of the Attorney General, county counsel, or city attorney, whichever office brought the action. The penalties collected pursuant to this section by the Attorney General shall be deposited into the Plastic Packaging Reduction Penalty Account, which is hereby created in the State Treasury. Moneys in the account may be expended by the Attorney General, upon appropriation by the Legislature, to enforce this chapter.
(e) In addition to any civil penalties collected in accordance with this section, the Attorney General, county counsel, or city attorney may seek all costs and attorney’s fees incurred by the prosecuting entity as well as the costs incurred by the department or a local agency in investigating the matter.

42047.
 The provisions of this chapter are severable. If any provision of this chapter or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.

SEC. 3.

 Chapter 5.1 (commencing with Section 42250) is added to Part 3 of Division 30 of the Public Resources Code, to read:
CHAPTER  5.1. At-Store Recycling Program

42250.
 For purposes of this chapter, the following definitions apply:
(a) “Manufacturer” means the producer of a plastic carryout bag sold to a store.
(b) “Operator” means a person in control of, or having daily responsibility for, the daily operation of a store, which may include, but is not limited to, the owner of the store.
(c) “Plastic carryout bag” means a plastic carryout bag provided by a store to a customer at the point of sale, including, but not limited to, plastic reusable bags.
(d) “Reusable bag” means either of the following: is a bag that meets the criteria described in subdivision (a) of Section 42281.

(1)A bag made of cloth or other machine washable fabric that has handles.

(2)A durable plastic bag with handles that is at least 2.25 mils thick and is specifically designed and manufactured for multiple reuse.

(e) “Store” means a retail establishment that provides plastic carryout bags to its customers as a result of the sale of a product and that meets either of the following requirements:
(1) Meet the definition of a “supermarket” in Section 14526.5.
(2) Has over 10,000 square feet of retail space that generates sales or use tax pursuant to the Bradley-Burns Uniform Local Sales and Use Tax Law (Part 1.5 (commencing with Section 7200) of Division 2 of the Revenue and Taxation Code) and has a pharmacy licensed pursuant to Chapter 9 (commencing with Section 4000) of Division 2 of the Business and Professions Code.

42251.
 (a) The operator of a store shall establish an at-store recycling program pursuant to this chapter that provides an opportunity for a person to return to the store clean plastic carryout bags and clean durable plastic bags, as described in paragraph (2) of subdivision (d) of Section 42250.
(b) A retail establishment that does not meet the definition of a store and that provides plastic carryout bags to customers at the point of sale may also adopt an at-store recycling program, as specified in this chapter.

42252.
 An at-store recycling program provided by the operator of a store shall include all of the following:
(a) A plastic carryout bag or durable plastic bag provided by the store shall have printed or displayed on the bag, in a manner visible to a consumer, the words “PLEASE RETURN TO A PARTICIPATING STORE FOR RECYCLING.”
(b) A collection bin for plastic carryout bags and durable plastic bags, as described in paragraph (2) of subdivision (d) of Section 42250, shall be placed at each store and shall be visible, easily accessible to the consumer, and clearly marked that the collection bin is available for the purpose of collecting and recycling plastic carryout bags and durable plastic bags.
(c) All plastic bags collected by the store shall be collected, transported, and recycled in a manner that does not conflict with the local jurisdiction’s source reduction and recycling element, pursuant to Chapter 2 (commencing with Section 41000) and Chapter 3 (commencing with Section 41300) of Part 2.
(d) The store shall maintain records describing the collection, transport, and recycling of plastic bags collected for a minimum of three years and shall make the records available to the department and the local jurisdiction, upon request, to demonstrate compliance with this chapter.

42253.
 (a) This chapter does not prohibit the adoption, implementation, or enforcement of any local ordinance, resolution, regulation, or rule governing curbside or dropoff recycling programs operated by, or pursuant to a contract with, a city, county, or other public agency, including any action relating to fees for these programs.
(b) This chapter does not affect any contract, franchise, permit, license, or other arrangement regarding the collection or recycling of solid waste or household hazardous waste.

42254.
 (a) A city, a county, or the Attorney General may impose civil liability in the amount of five hundred dollars ($500) for the first violation of this chapter, one thousand dollars ($1,000) for the second violation of this chapter, and two thousand dollars ($2,000) for the third and any subsequent violation of this chapter.
(b) Any civil penalties collected pursuant to subdivision (a) shall be paid to the office of the city attorney, city prosecutor, district attorney, or Attorney General, whichever office brought the action. The penalties collected pursuant to this section by the Attorney General shall be deposited into the At-Store Recycling Program Penalty Account, which is hereby created in the State Treasury. Moneys in the account may be expended by the Attorney General, upon appropriation by the Legislature, to enforce this chapter.

42255.
 (a) This chapter, except for subdivision (d) of Section 42252 and for Section 42254, shall become inoperative on January 1, 2030.
(b) This chapter shall remain in effect only until January 1, 2033, and as of that date is repealed.