California puts EPS foodservice makers on notice to meet recycling targets

California's state recycling agency is telling expanded polystyrene foodservice makers they need to prove their products have a 25 percent recycling rate by Jan. 1 or be banned under the state's extended producer responsibility law.

The Sept. 11 announcement from CalRecycle — telling the industry it's "required to demonstrate" it meets a 25 percent recycling rate — is being seen by environmental groups as the first test case for how the state will enforce its EPR law.

That law, which passed in 2022 and is starting to be implemented, puts tougher requirements on EPS packaging compared with other plastics.

Several environmental groups earlier this year had urged CalRecycle to be clear in how it would enforce the EPS provisions, which they see as a de facto ban on EPS food ware because they don't believe it's possible for the industry to meet the 25 percent recycling rate in a few months.

"I'd argue that this is the first true compliance requirement under SB 54, so we appreciate CalRecycle showing that the state will hold producers accountable for achieving the requirements of the law," said Nick Lapis, director of advocacy for Californians Against Waste.

He does not think the EPS foodservice sector can meet the 25 percent recycling rate.

"I haven't seen anything to indicate that there is any meaningful recycling of foam takeout packaging happening in California, so I can't imagine a scenario in which this product is still legal to sell in three months," Lapis said. "SB 54 is abundantly clear that nobody is allowed to sell EPS foodservice ware after this year unless the manufacturers prove that they have achieved the recycling rates in the law."

An EPS industry group, however, said enforcing a ban would have a severe impact on consumers and companies, and it said alternative materials have not been studied.

"This provision has been given very little attention in terms of implementation consequences," said Betsy Bowers, executive director of the EPS Industry Alliance, who said the PS industry is "continuing to assess EPS recycling in California."

"If it results in a ban on polystyrene foodservice, it is unquestionable it would have severe economic impacts, both within the supply chain and for consumers," she said. "It may also be concerning considering the short time frame left, that we haven't seen any guidelines on alternative materials to ensure environmental gains are achieved. With the advent of packaging EPR these checks and balances are essential to reach circularity."

The state's Sept. 11 announcement does not have details on enforcement, but CalRecycle said it was issuing the notice "to remind you of this important upcoming deadline regarding expanded polystyrene foodservice ware."

It said SB 54 also requires EPS foodservice makers to demonstrate a recycling rate of 30 percent by Jan. 1, 2028; 50 percent by Jan. 1, 2030; and 65 percent by Jan. 1, 2032.

The agency said responsibility for demonstrating compliance rests with EPS foodservice makers and not SB 54's official producer responsibility organization, which works to see that other plastic packaging complies with the law.

In comments to CalRecycle earlier this year, CAW and other environmental groups said the agency should make it a priority to enforce the EPS language in SB 54. They noted the agency could impose fines of $50,000 a day for noncompliance.

One group suggested the legislative author of SB 54, state Sen. Ben Allen, D-Santa Monica, would be watching to see how the agency handles EPS.

"It will be highly problematic to Sen. Allen if EPS isn't off the shelves and out of fast food in early 2025," said Jan Dell, founder of the Last Beach Cleanup. "NGOs will be seriously unhappy. I've always been skeptical that CalRecycle would ever implement and enforce a product ban."

SB 54 includes the tougher requirements on EPS because at the time the law was passed, in the summer of 2022, there were plans for a state referendum vote in November that would have banned EPS food packaging outright and put a 1-cent tax on single-use plastics.

But in political horse trading to pass SB 54, sponsors of the referendum agreed to withdraw it from the ballot if a number of their conditions were met, including the EPS language.