BILL ANALYSIS
SB 1454
Page 1
Date of Hearing: June 29, 2010
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
SB 1454 (DeSaulnier) - As Amended: June 22, 2010
SENATE VOTE : 26-8
SUBJECT : RECYCLING: PLASTIC PRODUCTS
KEY ISSUE : SHOULD EXISTING LAW THAT SEPARATELY REGULATES THE
SALE AND LABELING OF PLASTIC BAGS AND PLASTIC FOOD AND BEVERAGE
CONTAINERS WITH CERTAIN END-OF LIFE CLAIMS BE EXPANDED TO
UNIFORMLY APPLY THOSE REQUIREMENTS TO ALL PLASTIC PRODUCTS SOLD
IN CALIFORNIA?
FISCAL EFFECT : As currently in print this bill is keyed fiscal.
SYNOPSIS
This bill, sponsored by Californians Against Waste, seeks to
expand the scope of current labeling restrictions for plastic
bags and food packaging to all plastic products. More
specifically, this bill would prohibit manufacturers from
claiming their plastic products are "biodegradable" and would
allow a labeling claim that a plastic product was "compostable"
or "marine degradable" only if it met the relevant technical
standard, known as ASTM D6400. The author contends that this
bill is needed to address potential consumer and waste
management problems that arise from the practice of some
manufacturers of plastic goods in California who market their
products as "compostable" or "biodegradable" when those products
do not conform to the precise scientific standard the
Legislature has reserved for those distinctions. According to
supporters, the expansion of current labeling restrictions under
this bill is justified because (1) unwarranted claims of
"compostability" may jeopardize the use of compost end-product,
and (2) "biodegradability" claims cannot be verified and may
promote littering. This bill is opposed by Green Genius, a
company that produces a plastic bag product that it claims is
"biodegradable in a landfill environment." This bill passed the
Senate by a 26-8 vote and the Assembly Committee on Natural
Resources by a 6-0 vote.
SUMMARY : Establishes uniform requirements for the sale and
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labeling of plastic products, as defined, with respect to
end-of-life claims about the "compostability" and
"degradability" of those products. Specifically, this bill :
1)Makes new Legislative findings and declarations, including
that:
a) It is the intent of the Legislature to ensure that
environmental marketing claims, including claims of
biodegradation, do not lead to an increase in environmental
harm associated with plastic litter by providing consumers
with a false belief that certain plastic products are less
harmful to the environment if littered.
b) Use of the terms "degradable," "biodegradable,"
"decomposable," or other like terms on plastic products is
inherently misleading unless the claim includes a thorough
disclaimer providing necessary qualifying details,
including, but not limited to, the environments and
timeframes in which the claimed action will take place.
c) Given the complex nature of biodegradation, and the fact
that most plastic products will travel through multiple
environments from the time of manufacture to the time of
final disposition, and given the intrinsic constraints of
marketing claims, including the space on the plastic
product, there is no reasonable ability for plastic product
manufacturers to provide an adequate disclaimer qualifying
the use of these and like terms without relying on an
established scientific standard specification for the
action claimed.
d) Given these and other constraints, and the significant
environmental harm that is caused by plastic litter, the
use of these terms must be prohibited unless, or until the
time as there is established, an American Society for
Testing and Materials (ASTM) standard specification for the
term claimed that has been approved by the Legislature.
2)Repeals and reenacts current Legislative findings that:
a) It is the public policy of the state that environmental
marketing claims, whether explicit or implied, should be
substantiated by competent and reliable evidence to prevent
deceiving or misleading consumers about the environmental
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impact of plastic products.
b) In order for consumers to have accurate and useful
information about the environmental impact of plastic
products, environmental marketing claims should adhere to
uniform and recognized standards, including those standard
specifications established by the American Society for
Testing and Materials (ASTM).
3)Defines "plastic product" to mean a product made of plastic,
whether alone or in combination with other material, and that
includes, but is not limited to, any of the following:
a) A consumer product, defined as a product or part of a
product that is used, bought, or leased for use by a person
for any purpose.
b) A package or a packaging component.
c) A bag, sack, wrap, or other thin plastic sheet film
product.
d) A food or beverage container or a container component,
including, but not limited to, a straw, lid, or utensil.
4)Prohibits the sale of any plastic product in this state that
is labeled "compostable" or "marine degradable" unless the
plastic bag meets the applicable ASTM standard specification,
as specified.
5)Prohibits the sale of any plastic product in this state that
is labeled with the term "biodegradable," "degradable," or
"decomposable," or any form of those terms, or that in any way
implies that the bag will break down, fragment, biodegrade, or
decompose in a landfill or other environment.
6)Provides that, notwithstanding the general prohibition on
labeling using the terms "compostable" or "marine degradable",
a person may sell a plastic product in this state that is
labeled with a qualified claim for "compostability" or "marine
degradability," including, but not limited to, the claim "home
compostable," if the Department of Resources Recycling and
Recovery ("department") adopts a standard for that qualified
claim that is more stringent than the applicable ASTM standard
specification for that term, and if the plastic product meets
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the standard adopted by the department for that qualified
claim.
7)Authorizes a city, county, or the state to impose civil
liability in the amount of five hundred dollars ($500) for the
first violation of these prohibitions, one thousand dollars
($1,000) for the second violation, and two thousand dollars
($2,000) for the third and any subsequent violation. Further
provides that any civil penalties collected pursuant to this
authority shall be paid to the office of the city attorney,
city prosecutor, district attorney, or Attorney General,
whichever office brought the action.
EXISTING LAW , pursuant to the California Integrated Waste
Management Act (Division 30 of the Public Resources Code):
1)Makes Legislative findings and declarations that it is the
public policy of the state that environmental marketing
claims, whether explicit or implied, should be substantiated
by competent and reliable evidence to prevent deceiving or
misleading consumers about the environmental impact of plastic
bags. Finds and declares that for consumers to have accurate
and useful information about the environmental impact of
plastic bags and packages, environmental marketing claims
should adhere to uniform and recognized standards, including
those standard specifications established by the American
Society for Testing and Materials (ASTM). (Public Resources
Code Section 42355. All further references will be to this
Code unless otherwise noted.)
2)Makes identical findings and declarations with respect to
plastic food or beverage containers. (Section 42359.)
3)Prohibits a person from selling any plastic bag in this state
that is labeled "compostable" or "marine degradable" unless
the plastic bag meets specified ASTM standards, and prohibits
a plastic bag from being sold that is labeled with the term
"biodegradable," "degradable," or "decomposable," or any form
of those terms, or that in any way implies that the bag will
break down, fragment, biodegrade, or decompose in a landfill
or other environment. (Section 42357.)
4)Contains an identical prohibition on the sale of plastic food
or beverage containers having any of the same labels or that
in any way implies that the bag will break down, fragment,
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biodegrade, or decompose in a landfill or other environment.
(Section 42359.6)
5)Provides that if an ASTM standard specification applicable to
plastic bags or plastic food or beverage containers is
subsequently revised, the Department of Resources Recycling
and Recovery ("department") shall review the new ASTM standard
specification as follows:
a) If the department determines that the new standard is
more stringent and more protective of the public health,
safety, and the environment, and is reflective of and
consistent with state policies and programs, the department
may adopt the new standard.
b) If the department determines that the new standard is
not as stringent and does not protect the public health,
safety, and the environment, and is not reflective of and
consistent with state policies and programs, the department
shall not adopt the new standard.
6)Authorizes a city, county, or the state to impose civil
liability in the amount of five hundred dollars ($500) for the
first violation of these prohibitions, one thousand dollars
($1,000) for the second violation, and two thousand dollars
($2,000) for the third and any subsequent violation. Further
provides that any civil penalties collected pursuant to this
authority shall be paid to the office of the city attorney,
city prosecutor, district attorney, or Attorney General,
whichever office brought the action. (Section 42358 (plastic
bags); Section 42359.8 (plastic food and beverage
containers).)
COMMENTS : This bill, sponsored by Californians Against Waste,
seeks to expand the scope of current labeling restrictions for
plastic bags and food packaging to all plastic products. More
specifically, this bill would prohibit manufacturers from
claiming their plastic products are "biodegradable" and would
allow a labeling claim that a plastic product was "compostable"
or "marine degradable" only if it met the relevant technical
standard, known as ASTM D6400.
Stated purpose of the bill. The author contends that this bill
is needed to address potential consumer and waste management
problems that arise from the practice of some manufacturers of
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plastic goods in California who market their products as
"compostable" or "biodegradable" when those products do not
conform to the precise scientific standard the Legislature has
reserved for those distinctions. According to the author:
Under current law, manufactures of plastic bags and food
packaging cannot claim that their products are
"biodegradable" and can only claim their products are
"compostable" if they meet the American Society for Testing
and Materials (ASTM) scientific technical standard for
"compostability," known as ASTM D6400.
Scientific technical standards exist to verify that a
product is "compostable." However, no scientific technical
standard exists to verify if a product is "biodegradable,"
because the conditions and timeframe inherent in the claim
of "biodegradability" are too nebulous. Additionally, some
products are claiming to be "compostable" even though they
do not meet the technical scientific standards for
"compostable" and do not actually break down in composting
facilities.
SB 1454 prohibits manufacturers from making false claims
about the degradation of their products and requires that
end-of-life claims for plastic products be verifiable by
scientific technical standards. This bill ensures that
product manufacturers do not encourage the littering of
their products by making misleading claims about the
biodegradability of plastic.
Why claims on labels of plastic products must be tied to a
scientific standard. According to the supporters of the bill,
there are compelling scientific and policy justifications to
support the Legislature's decision to codify that the ASTM D6400
Standard Specification for Compostable Plastics is the
appropriate standard to determine whether a plastic product is
"compostable" or not, as well as the Legislature's decision to
expressly prohibit manufacturers from claiming that their
plastic products are "biodegradable."
a.) Unwarranted claims of "compostability" may jeopardize the
use of compost end-product . As the City and County of San
Francisco explains:
(ASTM D6400) is the one scientific standard that products
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must pass to ensure complete biodegradation into safe and
marketable compost at commercial composting facilities,
including those in California processing compostables from
San Francisco and other communities. Unfortunately, there
are numerous products in the marketplace labeled
"biodegradable" or "degradable" by suppliers who claim that
they can be composted, but who cannot document that they
meet the ASTM D6400 standard specification. San Francisco
residents, businesses, and city departments rely on
truthful advertising about the compostability of products
for their successful participation in composting programs.
Further, if products which were thought to be compostable
do not break down properly, they can destroy the ability of
the end product to be sold.
In short, if products that are claimed to be "compostable" do
not meet the technical D6400 standard for compostability, then
this discrepancy will damage the ability of composting
facilities to ensure their material will break down properly and
be available for resale to end users. For example, because
federal standards for organics require that compost not contain
plastic of any kind, the inclusion of compostable plastics as
feedstock would make the finished compost ineligible for use in
organic farms.
b.) "Biodegradability" claims cannot be verified and may promote
littering. The author is also concerned that claims that
plastic products are "biodegradable" may be misleading and
confusing to consumers, writing:
Claiming that plastic is "biodegradable" is inherently
misleading because the environmental conditions and
timeframe required for the supposed biodegradation are not
communicated to consumers. Most consumers will assume that
"biodegradable" means a product will quickly break down if
littered, which is not true even for "compostable" plastics
designed to break down in composting facilities. In
addition, some consumers may mistakenly believe that
littering materials labeled "biodegradable" is acceptable
because they will quickly break down and not cause any harm
to the environment.
In short, the environmental conditions and timeline necessary
for degradation of a plastic product are not disclosed by a
simple label, and consumers mistakenly believe that the product
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will degrade quickly if littered. Unlike "compostability" which
is governed by ASTM D6400, there is no neat corresponding
standard to determine "biodegradability" because the conditions
under which that process may occur are too variable and
unpredictable to be standardized. For these reasons, the author
has recently amended the bill to include the following
legislative findings:
Given the complex nature of biodegradation, and the fact
that most plastic products will travel through multiple
environments from the time of manufacture to the time of
final disposition, and given the intrinsic constraints of
marketing claims, including the space on the plastic
product, there is no reasonable ability for plastic product
manufacturers to provide an adequate disclaimer qualifying
the use of these and like terms without relying on an
established scientific standard specification for the
action claimed.
This bill expands existing law requirements for plastic bags and
plastic food and beverage containers to all plastic products.
Existing law contains two parallel chapters, Chapter 5.7
(plastic bags) and Chapter 5.8 (plastic food and beverage
containers) that are essentially identical to each other, except
that they regulate different kinds of plastic products. If it
is the goal of the Legislature to protect compost end-product
from being contaminated by plastic not meeting specified
technical standards, then it creates a policy double standard to
restrict plastic bags and food and beverage containers, but not
other types of plastic consumer products that may end up in the
feedstock of composting facilities. For this reason, this bill
repeals the separate requirements of Chapters 5.7 and 5.8, and
re-enacts essentially a mirror image of those requirements so
that they now apply to all plastic products, thus creating a
uniform standard that all plastic products must comply with.
ARGUMENTS IN OPPOSITION : Shortly before the hearing, the
Committee received an "Oppose Unless Amended" letter from Green
Genius, a San Francisco-based company that manufactures and
sells plastic bags for household use that it claims are
"biodegradable in a landfill environment." According to its
company website, "Green Genius bags biodegrade under active
landfill conditions within 1 to 15 years (ASTM D5511)."
Among the concerns that Green Genius raises are:
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1) This bill unfairly establishes one type of
biodegradability (compostability) as the only
recognized form of biodegradation in the state.
. . . .
3) This bill codifies essentially one ASTM standard,
ASTM D6400, as the only standard by which a
manufacturer can claim any type of natural
degradation or biodegradation.
4) This bill unfairly supports corn-based plastic
products and restrains the development of
alternative, non-compostable but still biodegradable
technologies.
(plus an additional 8 concerns)
Many of Green Genius' concerns appear to make scientific and
technical arguments against the use of ASTM D6400 as the
exclusive scientific technical standard by which to evaluate
"compostability"- a different ASTM standard than that which
Green Genius cites in making the claim for its products of
"biodegradability in a landfill environment." The ASTM D6400
standard is apparently not contingent on a landfill environment,
which, according to the sponsor, is supposed to prevent
breakdown of materials in order to protect the environment, not
speed up the degradation process.
In any case, the Legislature has already codified the ASTM
standard specifications that it presumably believes incorporate
the best technical standards for the purpose of determining
"compostability" (ASTM D6400) and "marine degradability" (ASTM
D7081) in plastic bags and food and beverage containers. (See
Public Resources Code Sections 42356(b)(1) and 42359.5(b)(1).)
This bill does not establish or codify for the first time the
ASTM D6400 standard-it merely continues that standard after
combining and reorganizing former Chapters 5.7 and 5.8 of the
Public Resources Code while maintaining almost identical
substantive language. In that respect, at least some of Green
Genius' objections appear to be based on opposition to existing
law that already applies to plastic bags.
REGISTERED SUPPORT / OPPOSITION :
Support
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Californians Against Waste (sponsor)
City and County of San Francisco
California Resources Recovery Association
Opposition
Green Genius
Analysis Prepared by : Anthony Lew / JUD. / (916) 319-2334