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AB-2026 Recycling: plastic packaging.(2021-2022)

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Date Published: 06/23/2022 09:00 PM
AB2026:v94#DOCUMENT

Amended  IN  Senate  June 23, 2022
Amended  IN  Senate  June 09, 2022
Amended  IN  Assembly  May 19, 2022
Amended  IN  Assembly  April 06, 2022
Amended  IN  Assembly  March 23, 2022

CALIFORNIA LEGISLATURE— 2021–2022 REGULAR SESSION

Assembly Bill
No. 2026

Introduced by Assembly Members Friedman and Ting
(Principal coauthors: Assembly Members Bloom, Kalra, and Quirk)
(Principal coauthors: Senators Stern and Wiener)
(Coauthors: Assembly Members Bennett, Luz Rivas, and Stone)

February 14, 2022

An act to add Chapter 3.2 (commencing with Section 42100) to Part 3 of Division 30 of the Public Resources Code, relating to solid waste.


LEGISLATIVE COUNSEL'S DIGEST


AB 2026, as amended, Friedman. Recycling: plastic packaging.
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, plastic packaging containers.
This bill would require an e-commerce shipper, as defined, that ships purchased products in or into the state to reduce from its 2022 2023 calendar year levels the total weight and number of units of single-use plastic shipping envelopes, cushioning, and void fill fill, and expanded and extruded polystyrene, it uses to ship or transport the products, by no less than unspecified percentages on or before January 1, 2030, and on or before January 1, 2035. The bill would prohibit a manufacturer, retailer, producer, or other distributor that sells or offers for sale and ships purchased products in or into the state from using expanded or extruded polystyrene to package or transport the products. 2030. The bill would establish exemptions from these prohibitions.
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.
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) Single-use plastic used to package 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 acts 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 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 2,900,000,000 pounds of plastic packaging in 2020, according to analysts, and that number is estimated to more than double by 2026.
(10) The highest growth by volume is expected for flexible plastic and plastic mailer markets over the medium term.
(11) More than a quarter of the world’s population is now buying online.
(12) According to industry analysts, in 2020, e-commerce businesses in the United States generated 601,300,000 pounds of plastic packaging waste.
(13) Single-use plastic packaging, including, but not limited to, mailers, bubble wrap, and inflatable pillows, which is often referred to as plastic film, and expanded or extruded polystyrene have little to no value on the recycling market. Most often, plastic film and expanded or extruded polystyrene 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 or expanded or extruded polystyrene.
(14) Expanded or extruded 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.
(15) Recycling alone is not enough to solve the plastic crisis. In the United States, 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 and expanded or extruded polystyrene used in e-commerce packaging by phasing out significantly reducing expanded or extruded polystyrene and shipping envelopes, void fill, and cushioning that contain single-use plastic.

SEC. 2.

 Chapter 3.2 (commencing with Section 42100) is added to Part 3 of Division 30 of the Public Resources Code, to read:
CHAPTER  3.2. Plastic Packaging
Article  1. Definitions

42100.
 For purposes of this chapter, the following definitions apply:
(a) “Cushioning” means material used to protect goods by absorbing shocks and vibrations during shipping. Plastic cushioning includes, but is not limited to, plastic bubble wrap and inflatable plastic pillows. Cushioning does not include the packaging of a sales unit that is substantially similar to the product’s packaging in a retail store.
(b) “E-commerce plastic packaging” means the single-use plastic shipping envelopes, void fill, and cushioning added by the e-commerce shipper to ship or transport a product.
(c) (1) “E-commerce shipper” means a business that satisfies all of the following:
(A) Does either of the following:
(i) Sells goods over the internet. Selling goods over the internet includes business-to-business sales, direct sales to consumers, and sales through a third-party seller or an online marketplace.
(ii) Provides e-commerce fulfillment services to package and ship goods by mail or parcel delivery in or into the state, either on behalf of itself or a third-party seller.
(B) Has annual gross sales greater than fifteen million dollars ($15,000,000) in or into the state.
(C) Has more than 100 full-time equivalent employees.
(2) An e-commerce shipper 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.
(3) An e-commerce shipper 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.

(b)

(d) “Expanded polystyrene” means any 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)

(e) “Extruded polystyrene” means any material made of polystyrene that when manufactured is forced through a die, a process known as extrusion, then allowed to cool and expand into the desired shape to form a foam product.

(d)(1)“E-commerce shipper” means a business that satisfies all of the following:

(A)Does either of the following:

(i)Sells goods over the internet. Selling goods over the internet includes business-to-business sales, direct sales to consumers, and sales through a third-party seller or an online marketplace.

(ii)Provides e-commerce fulfillment services to package and ship goods by mail or parcel delivery in or into the state, either on behalf of itself or a third-party seller.

(B)Has annual gross sales greater than fifteen million dollars ($15,000,000) in or into the state.

(C)Has more than 100 full-time equivalent employees.

(2)An e-commerce shipper 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.

(3)An e-commerce shipper 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)E-commerce plastic packaging means the single-use plastic shipping envelopes, void fill, and cushioning added by the e-commerce shipper to ship or transport a product.

(f) “Primary packaging” means material or materials that most closely encompass the product or sales unit, are the last piece of packaging the consumer opens, or are substantially similar to the product’s packaging in a retail store.
(g) “Reusable” means satisfies 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.
(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 plastic” means material that is wholly or partially made of plastic and is any of the following:
(1) Intended for a single use.
(2) Regularly discarded, recycled, or otherwise disposed of after a single use.
(3) Not reusable.
(j) “Void fill” means a filler material used to close up the free space in a shipping container and prevent excessive movement. Plastic void fill includes, but is not limited to, sealed air and expanded or extruded polystyrene.

Article  2. Plastic Packaging

42101.
 (a) (1) An e-commerce shipper that ships purchased products in or into the state shall reduce the total weight and number of units of the e-commerce plastic packaging and expanded and extruded polystyrene it uses to ship or transport products in or into the state, as follows:
(A) On or before January 1, 2030, an e-commerce shipper shall reduce e-commerce plastic packaging by no less than _____percent.
(B) On or before January 1, 2035, 2030, an e-commerce shipper shall reduce e-commerce plastic packaging expanded and extruded polystyrene by no less than _____percent.
(2) The reductions described in paragraph (1) shall be measured against the total weight and number of units of e-commerce plastic packaging and expanded and extruded polystyrene the e-commerce shipper shipped or transported in or into the state during the 2022 2023 calendar year.
(3) Paragraphs(1) and (2) do Subparagraph (A) of paragraph (1) does not apply to primary packaging.

(b)(1)Except as provided in paragraph (2), a manufacturer, retailer, producer, or other distributor that sells or offers for sale and ships purchased products in or into the state shall not use expanded or extruded polystyrene to package or transport the products.

(2)A manufacturer, retailer, producer, or other distributor that sells or offers for sale and ships purchased products in or into the state may use expanded or extruded polystyrene to package or transport televisions, printers, computer screens, and large appliances until January 1, 2025.

(c)

(b) This section does not apply to any of the following:
(1) Single-use plastic shipping envelopes, cushioning, and void fill E-commerce plastic packaging and expanded or extruded polystyrene that is used as primary packaging for raw, uncooked, or butchered meat, fish, poultry, or seafood sold for the purpose of cooking or preparing.
(2) Single-use plastic shipping envelopes, cushioning, and void fill E-commerce plastic packaging and expanded or extruded polystyrene that is necessary to prevent the contamination or extends the shelf life of fresh produce.
(3) Single-use plastic shipping envelopes, cushioning, and void fill E-commerce plastic packaging and expanded or extruded polystyrene that is used as packaging for a product regulated as a drug, medical device, or dietary supplement by the United States Food and Drug Administration under the Federal Food, Drug, and Cosmetic Act (21 U.S.C. Sec. 301 et seq.), Section 3.2(e) of Title 21 of the Code of Federal Regulations, or the federal Dietary Supplement Health and Education Act of 1994 (Public Law 103-417).
(4) Single-use plastic shipping envelopes, cushioning, and void fill E-commerce plastic packaging and expanded or extruded polystyrene that is used as packaging for a product regulated as a drug, biologic, parasiticide, medical device, or diagnostic used to treat, or administered to, animals under the Federal Food, Drug, and Cosmetic Act (21 U.S.C. Sec. 301 et seq.), by the United States Department of Agriculture under the federal Virus-Serum-Toxin Act (21 U.S.C. Sec. 151 et seq.), or by the United States Environmental Protection Agency under the Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. Sec. 136 et seq.).

Article  3. Enforcement

42105.
 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.

42106.
 (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, resident located within the jurisdiction, the department, or the Statewide Commission on Recycling Markets and Curbside Recycling.
(b) 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.
(c) 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.
(d) 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.

42107.
 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.