Are you a manufacturer of products sold in plastic containers such as tools, consumer electronics, cosmetics, dish soap or soft drinks? Are you a company that rebrands these types of products for sale in your retail stores? Are you a company that makes products for sale into California that are sold in plastic boxes, bottles, buckets, clamshells, molded cases or similar plastic containers? If so, recently approved changes to California’s regulations governing plastic containers may apply to you. The revised regulations take effect on January 1, 2013, so companies should gear up now to comply.

The California Rigid Plastic Packaging Container Act was enacted in 1991 as part of an effort to increase the use of recycled plastic and reduce the amount of plastic waste. As required by the Act, the California Department of Resources Recycling and Recovery (CalRecycle) regulates companies selling products into California sold in plastic containers covered by the Act.

CalRecycle developed the revised regulations and on June 28, 2012, the Office of Administrative Law (OAL) approved these revisions. Though all regulated companies must comply with the rigid plastic packaging container (RPPC) regulations, under both the current and revised regulations, certification is only required at the request of CalRecycle. Notably, there is no mandated, regular-interval reporting requirement, nor would one be imposed with the revised regulations.

During the rulemaking process, public hearings were held allowing industry stakeholders to weigh in on the proposed changes. Many affected companies were critical of several aspects of the revisions, but were unable to derail final approval by the OAL. CalRecycle estimates more than 500 million plastic containers will be subject to the new law once it takes effect. It is therefore important that product manufacturers understand both the current RPPC regulatory framework for these types of containers and the impact CalRecycle’s revised regulations will have on a company’s future compliance.

Who Must Comply?

The Act applies to manufacturers, producers and generators of RPPC products sold or offered for sale in California. When a company or brand name appears on the container label of a product that is sold or offered for sale into California, either directly or indirectly (through distributors, franchises or Internet sales), then that company is subject to the requirements of the RPPC law.

What Is an RPPC?

The current regulations define RPPCs as containers that:

  • Are made entirely of plastic, except for lids, caps or labels;
  • Have a capacity of at least 8 fluid ounces but no more than 5 gallons, or the equivalent volumes;
  • Can maintain their shape while holding a product; and
  • Are capable of multiple reclosures and are sold with an attached or unattached lid or cap.

To qualify under the current regulations, an RPPC must be capable of multiple reclosures and be made entirely of plastic. This means that heat-sealed clamshells – those tamper resistant containers you often see at electronics and hardware stores that typically require scissors to open – are not RPPCs, whereas a virtually identical clamshell that can be reclosed is an RPPC. Similarly, a plastic bucket or similar container with a plastic handle is an RPPC, while a plastic bucket or similar container with an attached metal handle is not an RPPC.

The approved changes to the definition of RPPC remove the requirement that the container be capable of multiple reclosures. The changes also allow for containers to have non-plastic “hinges and other incidental packaging elements.” By broadening the definition of RPPC, the regulations will require companies to account for substantially more plastic containers, regardless of multiple reclosure capability or use of non-plastic packaging elements (unless, of course, the product meets an exemption criteria). CalRecycle estimates an additional 21.6 million buckets and 335.6 million clamshells will fall under the new definition of RPPC.

What Are a Company’s Compliance Options Under the Current Regulations?

Under the current regulations, all RPPCs sold or offered for sale in California must meet one of the following criteria:

  1. Be made from at least 25 percent postconsumer material.
  2. Have a recycling rate of 45 percent if it is a brand specific or a particular type of RPPC.
  3. Be determined by CalRecycle to be reusable or refillable at least five times.
  4. Be source-reduced by 10 percent within one year after the product has been placed on the market in California. (Source reduction is achieved by reducing the weight of a container used for a specific amount (ounces, grams, etc.) of product by 10 percent.)

How Will the Approved Changes to the Regulations Impact Compliance?

Under the revised regulations, the following key changes will be instituted for companies:

  1. Postconsumer Material Compliance Option: “Postconsumer material” is material that has completed its intended end use and product life cycle. “Post‐industrial material” is waste or extra material (i.e., scraps) from the original manufacturing of containers. Under the revised regulations, the use of post‐industrial material as a substitute for postconsumer material in meeting the postconsumer material compliance option will be prohibited. Companies have expressed dissatisfaction because the approved change bars a company from using its leftover scrap material to meet this compliance option.
  2. Reusable Compliance Option: Under the revised regulations, the term “reusable” is redefined to explicitly exclude from its definition “a container that is intended to be used or may be used to permanently hold the original product sold in that container.” The new definition excludes containers that store original products (like a tool container) from the reusable compliance option.
  3. Source Reduction Compliance Option: The revised regulations prevent a product manufacturer from resin switching – switching from a heavier plastic resin type to a lighter weight plastic resin type – to achieve compliance through the source reduction option.

How Do the Revised Regulations Affect Companies That Use Overseas Container Manufacturers?

The current regulations use a single definition for both “manufacturer” and “product manufacturer,” which has caused significant confusion for both container manufacturers and regulated product manufacturers regarding who will be responsible for complying with the law. The revised regulations define “product manufacturer” as any product manufacturer using a regulated container and indicated that a product manufacturer is responsible for compliance. Under the new definition, all product manufacturers are responsible for ensuring that both their domestic and overseas suppliers are using compliant containers. CalRecycle reasoned that the new definition is intended to ensure that all companies that use regulated containers are treated equally. The regulations will add yet another hurdle to companies dealing with Chinese suppliers and vendors – none of which are subject to California law and do not have to comply with the Act’s reporting requirements. Companies from all over the world, including California, face numerous challenges in dealing with Chinese suppliers and their compliance with federal and state regulations on materials, among other issues. In terms of the Act and the additional compliance requirements it will impose on companies that import from China, CalRecycle suggests that companies should seek out Chinese partners who are proactive with documenting their regulatory compliance. CalRecycle also points to some companies that have provided Chinese translations of their certification forms currently available on the agency’s website.

What Is the Certification Process and What Are the Penalties?

Neither the current nor revised regulations mandate regular reporting. Under the Act, manufacturers must certify that the containers they use comply with the RPPC regulations when requested to do so by CalRecycle. The RPPC statute allows CalRecycle to assess penalties of up to $50,000 for any violation of the RPPC regulations, but the total penalties assessed cannot exceed $100,000 annually. Violations can include: failure to submit a certification on or by the due date; submission of incomplete or inaccurate certification; and failure to meet the content requirements specified in the regulations.

How to Prepare for Compliance

Companies should make sure they are up to speed on both the Act and the changes, and should take the following steps to prepare for the regulatory changes:

  • Determine whether the regulations apply to the containers sold by your company.
    1. Are your containers made entirely of plastic (except for lids, caps or labels)? (Under the approved changes, the container’s “hinges and other incidental packaging elements” can be non-plastic.)
    2. Do your containers have a capacity of at least 8 fluid ounces but no more than 5 gallons (or the equivalent volumes)?
    3. Can your containers maintain their shape while holding a product?
    4. Are your containers capable of multiple reclosures? (Under the approved changes, this question is irrelevant as the revised regulations do away with the multiple reclosure requirement.)

If your answers to all of the above questions are yes, then it is likely your containers are covered and, if requested by CalRecycle, you will be expected to submit a compliance certification.

  • If your containers are regulated under the Act and no exemptions apply, you should have information for each RPPC to determine (1) postconsumer material content, (2) recycling rate, (3) reuse / refill rate and/or (4) source-reduction rate. Since the Act’s enactment, several companies have been fined by CalRecycle, including supermarkets, drugstores, an office supply store, a pet food supply store and a consumer electronics manufacturer.
  • Ensure your procedures are up to date and in place to collect and retain sufficient documentation (either in-house or from container manufacturers) to back up statements made during the certification process.
  • Keep track of developments on CalRecycle’s rulemaking process to learn more about the history and reasoning for these – and any future – revisions to the regulations and the impact these revisions will have on California companies. For more information, visit the RPPC Proposed Regulations website.
The revised regulations take effect on January 1, 2013 and will soon become a packaged reality. Be prepared.