Bill Text: CA SB303 | 2023-2024 | Regular Session | Amended

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Solid waste: Plastic Pollution Prevention and Packaging Producer Responsibility Act.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Vetoed) 2024-01-25 - Veto sustained. [SB303 Detail]

Download: California-2023-SB303-Amended.html

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Amended  IN  Senate  March 22, 2023

CALIFORNIA LEGISLATURE— 2023–2024 REGULAR SESSION

Senate Bill

No. 303

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Introduced by Senator Allen

February 02, 2023

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An act to amend Sections 42041, 42060, and 42070 of the Public Resources Code, relating to solid waste.

LEGISLATIVE COUNSEL'S DIGEST

SB 303, as amended, Allen. Solid waste: Plastic Pollution Prevention and Packaging Producer Responsibility Act.

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, among other solid waste, plastic packaging containers and single-use foodware accessories.

Existing law establishes the Plastic Pollution Prevention and Packaging Producer Responsibility Act, which covers certain single-use packaging and plastic single-use food serviceware, as provided. As part of its comprehensive statutory scheme, existing law requires producers, as defined, of these covered materials to source reduce plastic covered material, to ensure that all covered material offered for sale, distributed, or imported in or into the state on or after January 1, 2032, is recyclable or compostable, and to ensure that plastic covered material offered for sale, distributed, or imported in or into the state achieves specified recycling rates, as provided.

The act prohibits a producer from selling, offering for sale, importing, or distributing covered materials in the state unless the producer is approved to participate in the producer responsibility plan of a producer responsibility organization (PRO), as prescribed, for the source reduction, collection, processing, and recycling of covered material, except as provided.

The act requires the department to establish a producer responsibility advisory board for specified purposes. The act authorizes an affected entity that asserts that specific actions taken to meet the requirements of the act are disrupting or otherwise adversely affecting the sustained operation or commercial viability of solid waste collection programs, solid waste recycling facilities, or composting facilities providing services in accordance with local solid waste handling requirements, to bring the concern and evidence supporting that assertion to the advisory board for discussion and to ask the advisory board to conduct a preliminary evaluation of the information. If the evaluation demonstrates that specific actions are disrupting or otherwise adversely affecting existing operations, the act requires the advisory board to submit the concern to the department for further analysis. The act requires the department to analyze the information provided by the advisory board and authorizes the department to offer a recommendation for resolution.

This bill would instead authorize an affected entity that asserts that specific actions taken by the PRO, a producer, or an entity under contract with the PRO are not consistent with specified prohibitions and requirements of the act and are disrupting or otherwise adversely affecting the sustained operation or commercial viability of solid waste collection programs, solid waste recycling facilities, or composting facilities providing services in accordance with local solid waste handling requirements to bring that concern and supporting evidence to the advisory board. The bill would delete the requirement that the board submit the concern to the department for further analysis and would instead require that the advisory board, rather than the department, offer a recommendation for resolution within 90 days of submission of the request for a preliminary evaluation. The bill would thereafter authorize either party to initiate nonbinding arbitration, as specified. The bill would require the arbiter to consider the information provided to the advisory board and any other information provided to the arbiter by the parties, and would authorize the arbiter to order actions to remedy any disrupting or adverse effect determined by the arbiter to exist. The bill would require the department to include any actions taken under these provisions in a specified report submitted to the Legislature.

The act authorizes the department to adopt regulations to identify responsible end markets and to establish criteria regarding benefits to the environment and minimizes risks to public health and worker health and safety. The act sets forth definitions for purposes of the act.

This bill would instead authorize the department to adopt regulations to establish standards for the PRO regarding responsible end markets for covered material and to establish criteria that prioritizes benefits to the environment and minimizes risks to public health and worker health and safety. The bill would also revise and clarify certain definitions in the act.

Existing law establishes the Plastic Pollution Prevention and Packaging Producer Responsibility Act, which covers certain single-use packaging and plastic single-use food service ware, as provided. As part of its comprehensive statutory scheme, the act requires the producers, as defined, of these covered materials to source reduce plastic covered material, to ensure that covered material offered for sale, distributed, or imported in or into the state on or after January 1, 2032, is recyclable or compostable, and to ensure that plastic covered material offered for sale, distributed, or imported in or into the state meets specified recycling rates.

This bill would state the Legislature’s intent to enact future legislation relating to the Plastic Pollution Prevention and Packaging Producer Responsibility Act.

Digest Key

Vote: MAJORITY   Appropriation: NO   Fiscal Committee: NOYES   Local Program: NO  

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Bill Text

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

SECTION 1.

 Section 42041 of the Public Resources Code is amended to read:

42041.

 For purposes of this chapter, the following definitions apply:

(a) “Advisory board” means the producer responsibility advisory board established pursuant to Section 42070.

(b) “Bulk or large format packaging” means packaging for a large amount of a product in a large packaging, thereby offsetting the need for multiple smaller packaging units for the same amount of product.

(c) “California circular economy administrative fee” means the fee imposed by the department pursuant to Section 42053.5.

(d) “Concentrate” or “concentration” means reducing the amount of packaging needed for a product by reformulating the product to allow for smaller quantities of the product to be used for the same purpose as the previous, larger quantity.

(e) (1) “Covered material” means both of the following:

(A) Single-use packaging that is routinely recycled, disposed of, or discarded after its contents have been used or unpackaged, and typically not refilled or otherwise reused by the producer.

(B) Plastic single-use food service ware, serviceware, including, but not limited to, plastic-coated paper or plastic-coated paperboard, paper or paperboard with plastic intentionally added during the manufacturing process, and multilayer flexible material. For purposes of this subparagraph, “single-use food service ware” serviceware” includes both of the following:

(i) Trays, plates, bowls, clamshells, lids, cups, utensils, stirrers, hinged or lidded containers, and straws.

(ii) Wraps or wrappers and bags sold to food service establishments.

(2) Notwithstanding paragraph (1), “covered material” does not include any of the following:

(A) Packaging used for any of the following products:

(i) Medical products and products defined as devices or prescription drugs, as specified in the Federal Food, Drug, and Cosmetic Act (21 U.S.C. Secs. 321(g), 321(h), and 353(b)(1)).

(ii) Drugs that are used for animal medicines, including, but not limited to, parasiticide products for animals.

(iii) Products intended for animals that are regulated as animal drugs, biologics, parasiticides, medical devices, or diagnostics used to treat, or administered to, animals under the Federal Food, Drug, and Cosmetic Act (21 U.S.C. Sec. 301 et seq.), the federal Virus-Serum-Toxin Act (21 U.S.C. Sec. 151 et seq.), or the Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. Sec. 136 et seq.).

(iv) Infant formula, as defined in Section 321(z) of Title 21 of the United States Code.

(v) Medical food, as defined in Section 360ee(b)(3) of Title 21 of the United States Code.

(vi) Fortified oral nutritional supplements used for persons who require supplemental or sole source nutrition to meet nutritional needs due to special dietary needs directly related to cancer, chronic kidney disease, diabetes, malnutrition, or failure to thrive, as those terms are defined as by the International Classification of Diseases, Tenth Revision, or other medical conditions as determined by the department.

(B) Packaging used to contain products regulated by the Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. Sec. 136 et seq.).

(C) Plastic packaging containers that are used to contain and ship products that are classified for transportation as dangerous goods or hazardous materials under Part 178 (commencing with Section 178.0) of Subchapter C of Chapter I of Subtitle B of Title 49 of the Code of Federal Regulations.

(D) Packaging used to contain hazardous or flammable products regulated by the 2012 federal Occupational Safety and Health Administration Hazard Communications Standard (29 C.F.R. 1910.1200).

(E) Beverage containers subject to the California Beverage Container Recycling and Litter Reduction Act (Division 12.1 (commencing with Section 14500)).

(F) Packaging used for the long-term protection or storage of a product that has a lifespan of not less than five years, as determined by the department.

(G) Packaging associated with products covered under the architectural paint recovery program established pursuant to Chapter 5 (commencing with Section 48700) of Part 7.

(H) (i) Covered material for which the producer demonstrates to the department that the covered material meets all of the following criteria:

(I) The covered material is not collected through a residential recycling collection service.

(II) The covered material does not undergo separation from other materials at a commingled recycling processing facility.

(III) The covered material is recycled at a responsible end market.

(IV) The material has demonstrated a recycling rate of 65 percent for three consecutive years prior to before January 1, 2027, and on and after that date demonstrates a recycling rate at or over 70 percent annually, as demonstrated to the department every two years.

(ii) If only a portion of the covered material sold in or into the state by a producer meets the criteria of clause (i), only the portion of the covered material that meets the criteria of clause (i) is exempt from this chapter and any portion that does not meet the criteria is a covered material for purposes of this chapter.

(f) “Covered material category” means a category that includes covered material of a similar type and form, as determined by the department.

(g) “Curbside collection” means a program that includes the collection of material, including, but not limited to, covered materials, by a local jurisdiction or recycling or composting service provider under contract with a local jurisdiction.

(h) “Department” means the Department of Resources Recycling and Recovery.

(i) “Disadvantaged community” means an area identified by the California Environmental Protection Agency pursuant to Section 39711 of the Health and Safety Code or an area identified as a disadvantaged unincorporated community pursuant to Section 65302.10 of the Government Code.

(j) “Eliminate” or “elimination,” with respect to source reduction, means the removal of a plastic component from a covered material without replacing that component with a nonplastic component.

(k) “Expanded polystyrene” means blown polystyrene and expanded or extruded foams that are thermoplastic petrochemical materials utilizing using a styrene monomer and processed by any technique or techniques, including, but not limited to, fusion of polymer spheres (expandable bead polystyrene), injection molding, foam molding, and extrusion-blow molding (extruded foam polystyrene).

(l) “Local jurisdiction” means a city, county, city and county, regional agency formed pursuant to Chapter 5 (commencing with Section 6500) of Division 7 of Title 1 of the Government Code or Article 3 (commencing with Section 40970) of Chapter 1 of Part 2, or special district that provides solid waste collection services.

(m) “Lightweighting” means reducing the weight or amount of material used in a specific packaging or food service ware serviceware without functionally changing the packaging or food service ware. serviceware. “Lightweighting” does not include changes that result in a recyclable or compostable covered material becoming nonrecyclable or noncompostable or less likely to be recycled or composted.

(n) “Low-income community” means an area with household incomes at or below 80 percent of the statewide median income or with household incomes at or below the threshold designated as low income by the Department of Housing and Community Development’s list of state income limits adopted pursuant to Section 50093 of the Health and Safety Code.

(o) “Malus fee” means a charge imposed by a PRO on a participant producer for a covered material due to the adverse environmental or public health impacts of the covered material.

(p) “Materials recovery facility” or “MRF” means a recycling facility that receives recyclable material, including, but not limited to, any covered material, for mechanical or manual sorting into specification-grade commodities for processing or for sale to a broker or end market.

(q) “Needs assessment” means a needs assessment prepared pursuant to Section 42067.

(r) “Optimize” or “optimization” means limiting the amount of covered material used in packaging by meeting product or packaging needs with minimal material. This includes, but is not limited to, eliminating unnecessary components, right-sizing, concentrating, and using bulk or large format packaging.

(s) “Packaging” means any separable and distinct material component used for the containment, protection, handling, delivery, or presentation of goods by the producer for the user or consumer, ranging from raw materials to processed goods. “Packaging” includes, but is not limited to, all of the following:

(1) Sales packaging or primary packaging intended to provide the user or consumer the individual serving or unit of the product and most closely containing the product, food, or beverage.

(2) Grouped packaging or secondary packaging intended to bundle, sell in bulk, brand, or display the product.

(3) Transport packaging or tertiary packaging intended to protect the product during transport.

(4) Packaging components and ancillary elements integrated into packaging, including ancillary elements directly hung onto or attached to a product and that perform a packaging function, except both of the following:

(A) An element of the packaging or food service ware serviceware with a de minimis weight or volume, which is not an independent plastic component, as determined by the department.

(B) A component or element that is an integral part of the product, if all components or elements of the product are intended to be consumed or disposed of together.

(t) “Plastic” means a synthetic or semisynthetic material chemically synthesized by the polymerization of organic substances that can be shaped into various rigid and flexible forms, and includes coatings and adhesives. “Plastic” includes, without limitation, polyethylene terephthalate (PET), high density polyethylene (HDPE), polyvinyl chloride (PVC), low density polyethylene (LDPE), polypropylene (PP), polystyrene (PS), polylactic acid (PLA), and aliphatic biopolyesters, such as polyhydroxyalkanoate (PHA) and polyhydroxybutyrate (PHB). “Plastic” does not include natural rubber or naturally occurring polymers such as proteins or starches.

(u) “Plastic component” means any single piece of covered material made partially or entirely of plastic. A plastic component may constitute the entirety of the covered material or a separate or separable piece of the covered material.

(v) “Processing” means to sort, segregate, break or flake, and clean material to prepare it to meet the specification for sale to a responsible end market. market in which the recovery of materials and the disposal of contaminants is conducted in a way that prioritizes benefits to the environment and minimizes risks to public health and worker health and safety.

(w) (1) “Producer” means a person who manufactures a product that uses covered material and who owns or is the licensee of the brand or trademark under which the product is used in a commercial enterprise, sold, offered for sale, or distributed in the state.

(2) If there is no person in the state who is the producer for purposes of paragraph (1), the producer of the covered material is the owner or, if the owner is not in the state, the exclusive licensee of a brand or trademark under which the covered product using the covered material is used in a commercial enterprise, sold, offered for sale, or distributed in the state. For purposes of this subdivision, a licensee is a person holding the exclusive right to use a trademark or brand in the state in connection with the manufacture, sale, or distribution of the product packaged in or made from the covered material.

(3) If there is no person in the state who is the producer for purposes of paragraph (1) or (2), the producer of the covered material is the person who sells, offers for sale, or distributes the product that uses the covered material in or into the state.

(4) “Producer” does not include a person who produces, harvests, and packages an agricultural commodity on the site where the agricultural commodity was grown or raised.

(5) For purposes of this chapter, the sale of covered materials shall be deemed to occur in the state if the covered materials are delivered to the purchaser in the state.

(x) “Producer responsibility organization” or “PRO” means an organization that is exempt from taxation under Section 501(c)(3) of the federal Internal Revenue Code of 1986 and is formed for the purpose of implementing a plan to meet the requirements of this chapter.

(y) “Producer responsibility plan” or “plan,” unless context requires otherwise, means the plan produced by a PRO, or by a producer that chooses to assume responsibility to comply with this chapter individually, and submitted to the advisory board and department pursuant to Section 42051.1.

(z) “Rate of inbound contamination” means the amount of nonrecyclable or noncompostable materials arriving at a materials recovery facility or other recycling or composting facility.

(aa) (1) “Recycle” or “recycling” means the process of collecting, sorting, cleansing, treating, and reconstituting materials that would otherwise ultimately be disposed of onto land or into water or the atmosphere, and returning them to, or maintaining them within, the economic mainstream in the form of recovered material for new, reused, or reconstituted products, including compost, that meet the quality standards necessary to be used in the marketplace.

(2) “Recycle” or “recycling” does not include any of the following:

(A) Combustion.

(B) Incineration.

(C) Energy generation.

(D) Fuel production, except for anaerobic digestion of source separated organic materials.

(E) Other forms of disposal.

(3) To be considered recycled, covered material shall be sent to a responsible end market.

(4) (A) The department may adopt regulations to define guidelines and verification requirements for the PRO and for any producers complying with this chapter pursuant to paragraph (2) of subdivision (b) of Section 42051, for covered material shipped out of state and exported to other countries for recycling, including processing requirements, requirements and contamination standards, or to otherwise implement this paragraph.

(B) For any mixture of plastic waste exported to another country, the PRO or producer shall certify to the department that the processes and recycling technologies used meet both of the following requirements, as determined by the department:

(i) The plastic waste is a mixture of plastic types consisting only of one or more of polyethylene, polypropylene, or polyethylene terephthalate, and the export is destined for separate recycling of each material.

(ii) The plastic waste export is not prohibited by an applicable law or treaty of the destination jurisdiction, and the import of the plastic waste into the destination jurisdiction will be conducted in accordance with all applicable laws and treaties of that destination jurisdiction.

(C) For any mixture of plastic waste exported to other states or countries, the PRO or producer shall certify to the department that the recycling technology used meets the requirements of this subdivision.

(D) In meeting the requirements of subparagraphs (B) and (C), the PRO or producer shall provide documentation necessary to verify this certification and shall make the certification under penalty of perjury.

(5) The department’s regulations shall encourage recycling that minimizes generation of hazardous waste, generation of greenhouse gases, environmental impacts, environmental justice impacts, and public health impacts. The regulations shall include criteria to exclude plastic recycling technologies that produce significant amounts of hazardous waste.

(ab) “Recycling rate” means the percentage, overall and by category, of covered material sold, offered for sale, distributed, or imported in the state that is ultimately recycled. The recycling rate shall be calculated as the amount of covered material that is recycled in a given year divided by the total amount of covered material disposed of, as defined in subdivision (b) of Section 40192, and the amount of covered material recycled, unless and until the department adopts a new methodology for calculating the recycling rate by regulation.

(ac) “Recycling service provider” means a solid waste enterprise that provides solid waste handling services on behalf of a local jurisdiction.

(ad) “Responsible end market” means a materials market in which the recycling and recovery of materials or the disposal of contaminants an entity that uses recycled covered material for the manufacturing of products when the manufacturing, including the disposal of contaminates, is conducted in a way that benefits the environment and minimizes risks to public health and worker health and safety. The department may adopt regulations to identify responsible end markets and to establish criteria regarding benefits to the environment and minimizes risks to public health and worker health and safety.

(ae) (1) “Retailer” or “wholesaler” means the person or entity who sells covered material in the state to purchasers or offers to purchasers the covered material in the state through any means, including, but not limited to, any of the following:

(A) Remote offering, including sales outlets or catalogs.

(B) Electronically through the internet.

(C) Telephone.

(D) Mail.

(E) Direct sales.

(2) A person who sells covered material as a third-party seller using an online marketplace as described in paragraph (3) shall be considered the retailer or wholesaler for purposes of such transactions. The owner or operator of the online marketplace shall not be considered the retailer or wholesaler for such sales.

(3) For purposes of this subdivision, “online marketplace” means a consumer-directed, electronically accessed platform in which all of the following are true:

(A) The platform includes features that enable third-party sellers to sell consumer products directly to consumers in the state without the owner or operator of the platform involved in the transaction other than by providing order processing, payment, storage, shipping, or delivery services.

(B) Third-party sellers use the features described in subparagraph (A) to sell directly to consumers in the state, with title to the consumer product passing from the third-party sellers directly to consumers and not being held by the owner or operator of the online marketplace at any point during the transaction, including upon receipt of the order and throughout the order fulfillment process.

(C) Except as provided by subparagraph (E), the owner or operator of the platform does not directly or indirectly control the covered material used in packaging and shipping of a consumer product in this state.

(D) The person or entity operating the platform has a contractual or similar relationship with consumers governing their use of the platform to purchase consumer products.

(E) Third-party sellers agree, pursuant to the platform’s terms and conditions or other enforceable agreement, that they will not use the platform to offer for sale, sell, or distribute into the state covered material that does not meet the requirements of this chapter.

(af) “Reusable” or “refillable” or “reuse” or “refill,” in regard to packaging or food service ware, serviceware, means either of the following:

(1) For packaging or food service ware serviceware that is reused or refilled by a producer, it satisfies all of the following:

(A) Explicitly designed and marketed to be utilized used multiple times for the same product, or for another purposeful packaging use in a supply chain.

(B) Designed for durability to function properly in its original condition for multiple uses.

(C) Supported by adequate infrastructure to ensure the packaging or food service ware serviceware can be conveniently and safely reused or refilled for multiple cycles.

(D) Repeatedly recovered, inspected, and repaired, if necessary, and reissued into the supply chain for reuse or refill for multiple cycles.

(2) For packaging or food service ware serviceware that is reused or refilled by a consumer, it satisfies all of the following:

(A) Explicitly designed and marketed to be utilized used multiple times for the same product.

(B) Designed for durability to function properly in its original condition for multiple uses.

(C) Supported by adequate and convenient availability of and retail infrastructure for bulk or large format packaging that may be refilled to ensure the packaging or food service ware serviceware can be conveniently and safely reused or refilled by the consumer multiple times.

(ag) “Right-size” or “right-sizing” means reducing the amount of material used to package an item by reducing unnecessary space or eliminating unnecessary components of the packaging.

(ah) “Rural area” has the same meaning as defined in Section 50101 of the Health and Safety Code.

(ai) “Single use” means conventionally disposed of after a single use or not sufficiently durable or washable to be, or not intended to be, reusable or refillable.

(aj) “Source reduction” means the reduction in the amount of covered material created by a producer relative to a baseline established pursuant to subdivision (b) of Section 42057. Methods of source reduction include, but are not limited to, shifting covered material to reusable or refillable packaging or a reusable product or eliminating unnecessary packaging. “Source reduction” does not include either of the following:

(1) Replacing a recyclable or compostable covered material with a nonrecyclable or noncompostable covered material or a covered material that is less likely to be recycled or composted.

(2) Switching from virgin covered material to postconsumer recycled content.

(ak) “Source reduction plan” means the plan prepared as part of the PRO plan in accordance with Section 42057.

(al) “Unexpended funds” means moneys in a PRO’s accounts that the organization is not already obligated to pay pursuant to a contract, claim, or similar mechanism. “Unexpended funds” excludes the California circular economy administrative fees.

SEC. 2.

 Section 42060 of the Public Resources Code is amended to read:

42060.

 (a) By January 1, 2025, the department shall adopt regulations necessary to implement and enforce this chapter and to ensure that the requirements of this chapter and in particular the requirements established in Section 42050 and the policy goal established in Section 41780.01 as it relates to covered material are met. The regulations shall include, but not be limited to, all of the following:

(1) Any regulations necessary to ensure the PRO fully funds plan implementation, including fully funding the budget. This shall include the costs incurred by a local jurisdiction or a local jurisdiction’s recycling service providers to implement this chapter, including, but not limited to, the cost of consumer education and of collection, including the cost of containers where relevant, as well as the processing, storage, and transportation of covered materials. Costs may vary based on population density or other relevant factors and shall allow local jurisdictions to protect ratepayers from increased costs associated with the processing and marketing of covered material.

(2) (A) Establish a mandatory process for producers, retailers, and wholesalers, or a PRO operating on behalf of a producer, retailer, or wholesaler, to register with and report to the department.

(B) The process shall include establishing appropriate timelines to begin regular reporting following the adoption of the regulations. The department shall consider, along with any other factors the department deems appropriate, the amount of information being reported in developing the timelines.

(C) (i) Data requests by the department shall be consistent with the covered material categories established and posted on the department’s internet website pursuant to subdivision (a) of Section 42061.

(ii) To the maximum extent feasible, the department shall seek to use records and information that the local jurisdiction, producer, retailer, wholesaler, or PRO already maintains, in order to minimize the burden imposed by the reporting and recordkeeping requirements while still enabling the department to determine compliance with this chapter.

(D) The department shall, to the extent feasible, make the reporting consistent with other recognized third-party reporting systems used by producers or other packaging extended producer responsibility programs.

(E) Market-sensitive trade secret data received by the department pursuant to this chapter shall be held confidentially by the department as required by Section 40062 and any implementing regulations, provided that the furnisher of the data complies with the requirements set forth in subdivision (b) of Section 40062 and any implementing regulations for identifying the information claimed to be a trade secret.

(F) The department shall create an online registration form to facilitate submitting reports pursuant to this subdivision. To the extent permissible under applicable law, the department may contract with an independent third-party online reporting system with recognized standards for waste characterization, source reduction, and recycling.

(3) (A) The department shall establish a process to identify covered material that, while determined to be single use for purposes of this chapter, presents unique challenges in complying with this chapter. The department may exempt covered material identified pursuant to this subparagraph from this chapter.

(B) For any covered material identified as presenting unique challenges and exempted from this chapter under subparagraph (A), the department may at any point develop a plan to phase the covered material into the requirements of this chapter.

(4) The department shall establish a process to identify covered material that cannot comply with this chapter for health and safety reasons, or because it is unsafe to recycle. The department may exempt that covered material from this chapter.

(5) The department shall establish a process to exempt from the requirements of this chapter, except for the requirements of subdivision (b) of Section 42050, small producers, small retailers, and small wholesalers based on size, revenue, number of retail locations, and market share, as follows:

(A) Subject to subparagraph (B), the department shall exempt producers, retailers, or wholesalers that, in the most recent calendar year, had gross sales of less than one million dollars ($1,000,000) in the state.

(B) If the department determines that exempting a particular small producer, small retailer, or small wholesaler pursuant to subparagraph (A) would hinder the ability of a type of covered material or covered material category from complying with the requirements of this chapter, the department may determine that the particular small producer, small retailer, or small wholesaler will not be exempted from the requirements of this chapter.

(6) (A) The department shall include mechanisms necessary to reduce the amount of covered material entering the environment, in accordance with the regulations adopted pursuant to this section.

(B) The department may consider reductions of covered material achieved by a producer before the effective date of the regulations toward a producer’s compliance with this chapter if the producer can demonstrate to the satisfaction of the department that the producer reduced the covered material in a manner consistent with this chapter and actions taken to comply with Chapter 5.5 (commencing with Section 42300).

(C) In calculating the reductions necessary to achieve the requirements adopted pursuant to subdivision (a), the department shall consider source reduction achieved pursuant to Section 42057.

(7) The department shall establish a process to require coordination between a PRO and producer that is not a participant of the PRO’s approved plan and between multiple PROs as necessary. This includes determining how much each PRO shall charge producers of plastic covered material in order to prorate the funding as necessary to raise the revenue required by Section 42064.

(8) The department shall establish a methodology and process to calculate, to the extent feasible, an annual recycling rate defined in subdivision (ab) of Section 42041.

(b) The department may adopt regulations to establish standards for the PRO regarding responsible end markets for covered material and to establish criteria that prioritizes benefits to the environment and minimizes risks to public health and worker health and safety.

(b)

(c) (1) The department shall ensure that any regulations adopted pursuant to this chapter consider guidelines and do not conflict with regulations issued by the United States Food and Drug Administration and the United States Department of Agriculture and consider requirements imposed by other California state agencies.

(2) Neither the department nor the PRO shall impose any requirement, including, but not limited to, a recycled content requirement, in direct conflict with a federal law or regulation, including, but not limited to, laws or regulations covering tamper-evident packaging pursuant to Section 211.132 of Title 21 of the Code of Federal Regulations, laws or regulations covering child-resistant packaging pursuant to Part 1700 (commencing with Section 1700.1) of Subchapter E of Chapter II of Title 16 of the Code of Federal Regulations, regulations, rules, or guidelines issued by the United States Department of Agriculture or the United States Food and Drug Administration relevant to packaging agricultural commodities, requirements for microbial contamination, structural integrity, or safety of packaging under the Federal Food, Drug, and Cosmetic Act (21 U.S.C. Sec. 301 et seq.), 21 U.S.C. Sec. 2101 et seq., the federal FDA Food Safety Modernization Act (21 U.S.C. Sec. 2201 et seq.), the federal Poultry Products Inspection Act (21 U.S.C. Sec. 451 et seq.), the Federal Meat Inspection Act (21 U.S.C. Sec. 601 et seq.), or the federal Egg Products Inspection Act (21 U.S.C. Sec. 1031 et seq.). Neither the department nor a PRO shall impose a postconsumer recycled content requirement for covered material for fresh produce.

(c)

(d) In developing the regulations, the department shall consider relevant information on reduction programs and approaches in other states, localities, and nations, including, but not limited to, the European Union, India, Costa Rica, China, Chile, and Canada, and international standards, including, but not limited to, ISO 18602.

(d)

(e) In adopting regulations pursuant to this section, the department shall ensure the regulations, and activities conducted in accordance with the regulations, avoid or minimize disproportionate impacts to disadvantaged or low-income communities or rural areas.

SEC. 3.

 Section 42070 of the Public Resources Code is amended to read:

42070.

 (a) In implementing this chapter, the department shall establish a producer responsibility advisory board for the purpose of identifying barriers and solutions to creating a circular economy consistent with this chapter and advising the department, producers, and producer responsibility organizations in the implementation of this chapter. The advisory board shall be composed of 13 voting and 3 nonvoting members as provided in the following categories, who shall be appointed by the director:

(1) One representative nominated by a statewide city association.

(2) One representative nominated by a statewide rural county association.

(3) One representative from an environmental protection organization.

(4) One representative from an ocean advocacy organization.

(5) One representative from an environmental justice organization.

(6) One representative from a disadvantaged or low-income community or rural area.

(7) One representative of a materials recovery facility located within the State of California.

(8) One representative of a recycling service provider, or a representative of an association of recycling service providers.

(9) One representative from the composting industry operating in the State of California.

(10) A representative of each of four manufacturers of covered materials of different material types utilizing using postconsumer recycled content, one of which produces third-party certified compostable covered material. These board members shall not be a board member of a PRO.

(11) One representative nominated by a statewide association representing the retail sector. This board member shall be a nonvoting member.

(12) One representative nominated by a statewide association representing the grocery sector. This board member shall be a nonvoting member.

(13) One representative of a producer responsibility organization. This board member shall be a nonvoting member.

(b) The director shall appoint all members to the advisory board on or before July 1, 2023. The director shall appoint the members for staggered three-year terms, and may reappoint a member for additional terms. At its first meeting, the advisory board shall elect a chair who will serve as chair for the calendar year, and who may be reelected as chair.

(c) The advisory board shall meet at least once per year by the call of the chair or by request of a majority of the voting members. The department shall provide administrative support to the advisory board.

(d) The advisory board meetings shall be open to the public and are subject to the Bagley-Keene Open Meeting Act (Article 9 (commencing with Section 11120) of Chapter 1 of Part 1 of Division 3 of Title 2 of the Government Code).

(e) (1) The advisory board shall provide the PRO and the department, and a third party conducting or updating a needs assessment if applicable, with initial recommendations regarding all of the following:

(A) Key barriers and possible solutions to advance the objectives of increasing recovery of covered materials and decreasing the leakage of plastic into the environment no later than one year after the advisory board’s initial meeting. This shall include key barriers and possible solutions related to available and viable responsible end markets and market development for covered materials.

(B) Key barriers and possible solutions to advance the objectives of reducing the production of virgin material for covered material and reducing the landfilling of covered material.

(C) Key barriers and possible pathways toward reusable packaging and products and refillable systems.

(D) Key barriers and other considerations needed for covered material to meet the requirements of this chapter.

(E) How a PRO will cover the costs incurred by local jurisdictions and local jurisdictions’ recycling service providers associated with implementing this chapter and managing the material covered in a plan.

(2) The department shall consider the recommendations provided under paragraph (1) as it evaluates which specific actions may be appropriate to advance the objectives of this chapter.

(f) The advisory board may take any of the following actions through written recommendations as the advisory board deems appropriate:

(1) Advise the department, producers, or PROs on technical matters in support of the goals of this chapter to create a circular economy and reduce covered material pollution.

(2) Advise the department in the adoption of the regulations required by this chapter.

(3) Advise the department, producers, or PROs on any other pertinent matters in implementing this chapter, as determined by the advisory board or department.

(g) Pursuant to Section 42067, the advisory board shall review any needs assessment or revised needs assessment submitted to it within 90 calendar days of receipt of the assessment.

(h) Within 60 calendar days of receiving a plan submitted pursuant to subdivision (a) of Section 42051.2, the advisory board shall review the plan and offer written comments, which may include suggested modifications to the plan.

(i) The advisory board shall submit written recommendations to the department only if a majority of the advisory board’s voting members endorse the recommendation. One or more advisory board members who do not endorse the recommendation may submit a separate written recommendation to the department reflecting the minority opinion or opinions.

(j) (1) If an affected entity asserts that specific actions taken to meet the requirements of this chapter by the PRO, a producer, or an entity under contract with the PRO are not consistent with paragraph (3) or (4) of subdivision (c) of, or paragraph (2) of subdivision (i) of, Section 42051.1 and are disrupting or otherwise adversely affecting the sustained operation or commercial viability of solid waste collection programs, solid waste recycling facilities, or composting facilities providing services in accordance with local solid waste handling requirements, the affected entity may bring the concern and evidence supporting this assertion to the advisory board for discussion and ask the advisory board to conduct a preliminary evaluation of the information. If the evaluation demonstrates that specific actions are disrupting or otherwise adversely affecting existing operations, the advisory board shall submit this concern to the department for further analysis. The department shall analyze the information provided by the advisory board and may offer a recommendation for resolution. offer a recommendation for resolution within 90 days of submission of the request for a preliminary evaluation.

(2) After the advisory board offers its recommendation pursuant to paragraph (1), either party may initiate nonbinding arbitration, consistent with procedures set forth in Title 9 (commencing with Section 1280) of Part 3 of the Code of Civil Procedure, and without prejudice to seeking judicial relief, to determine whether specific actions taken to meet the requirements of this chapter are disrupting or otherwise adversely affecting the sustained operation or commercial viability of solid waste collection programs, solid waste recycling facilities, or composting facilities providing services in accordance with local solid waste handling requirements. The arbiter shall consider the information presented to the advisory board and any other information provided to the arbiter by the parties.

(3) If the arbiter determines pursuant to paragraph (2) that specific actions are disruptive or otherwise have an adverse effect, the arbiter may order actions, to the extent feasible, to remedy the disruption or adverse effect, including, but not limited to, requiring a change to the producer responsibility plan causing the disruption or adverse effect. The department shall include any actions taken pursuant to this subdivision in the subsequent report submitted to the Legislature pursuant to subdivision (a) of Section 42065.

SECTION 1.

It is the intent of the Legislature to enact future legislation relating to the Plastic Pollution Prevention and Packaging Producer Responsibility Act.