Amended in Assembly April 22, 2014

Amended in Assembly March 27, 2014

California Legislature—2013–14 Regular Session

Assembly Bill No. 2284

Introduced by Assembly Member Williams

(Principal coauthor: Senator Correa)

February 21, 2014

An act to add Article 1.5 (commencing with Section 42445) to Chapter 8 of Part 3 of Division 30 of the Public Resources Code, relating to recycling.

LEGISLATIVE COUNSEL’S DIGEST

AB 2284, as amended, Williams. Recycling: household batteries.

The California Integrated Waste Management Act of 1989, administered by the Department of Resources Recycling and Recovery, requires retailers of rechargeable batteries to have in place a system for the acceptance and collection of rechargeable batteries.

This bill would enact the Primary Battery Stewardship Act and would define terms for purposes of that act. The act would require, by January 1, 2016, a producer of a primary battery or a primary battery-containing product to submit to the department a primary battery stewardship plan with regard to the primary batteries, or primary battery-containing products, that are sold, offered for sale, or distributed in the state by that producer. The bill would authorize a producer to elect to appoint a primary battery stewardship organization to submit a plan for those batteries or products. The bill would specify procedures for the development of the plan and the elements required to be included in the plan, including providing for a program that would achieve a specified collection rate. The bill would require the department to review the plan and would deem the plan to be approved, unless the department makes a specified notification.

The bill would require a producer or the primary battery stewardship organization to implement the approved plan, including achieving the specified collection rate. The bill would prohibit a producer, retailer, or wholesaler, on and after July 1, 2016, from selling a primary battery or a primary battery-containing product, unless the battery or product is an approved product, as specified. The bill would require each producer or organization to prepare and submit to the department an annual report describing the activities carried out pursuant to the plan and would require the department to review the report. The department would be authorized to require a producer or organization to amend and resubmit a plan if the department notifies a producer or organization that the report does not meet certain requirements.

The bill would authorize the department to require a producer or organization submitting a plan to pay the department an administrative filing fee in an amount sufficient to cover the cost of the department’s plan review, but not more than $5,000. The bill would create the Primary Battery Stewardship Account in the Integrated Waste Management Fund and would require the fees be deposited into that account, for appropriation by the Legislature to the department, to cover the department’s cost of plan review.

The bill would provide for the imposition of administrative civil penalties upon a producer that is in violation of the act or upon a wholesaler or retailer selling a primary battery or battery-containing products in violation of the act. The bill would create the Primary Battery Stewardship Penalty Subaccount in the Integrated Waste Management Fund and would require the penalties be deposited into the subaccount.

The bill would also allow a producer or organization that is implementing a plan and incurring specified costs to bring a civil action to recover costs, damages, and fees from another producer for failure to comply with the act’s provisions.

The bill would declare that the act fully occupies and preempts the entire field of the stewardship of primary batteries and primary battery-containing products and would prohibit a city, county, or district, including a chartered city or county, from adopting or enforcing an ordinance that regulates the disposal, collection, and recycling of primary batteries or requires reporting by producers or primary battery stewardship programs.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.

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

SECTION 1.  

The Legislature finds and declares all of the
following:

(a) In early 2006, most household batteries were classified by
the state as universal waste and are now prohibited from being
disposed of in solid waste landfills. Under state law, “household
batteries” are defined as including batteries made of mercury,
alkaline, carbon-zinc, and nickel-cadmium, and other batteries
typically generated as household waste, including, but not limited
to, batteries used in hearing aids, cameras, watches, computers,
calculators, flashlights, lanterns, standby and emergency lighting,
portable radios, television sets, meters, toys, and clocks. Household
batteries do not include lead-acid batteries, batteries that are sold
in a “covered electronic device,” as defined in Section 42463 of
the Public Resources Code, and batteries that are not easily
removable or are not intended or designed to be removed from the
products, other than by the manufacturer.

(b) Approximately 80 percent of batteries sold in this state are
primary batteries, including such household batteries as alkaline
batteries, and these primary batteries are not covered under existing
retail take-back requirements.

(c) The requirements of the Primary Battery Stewardship Act,
as added by Section 2 of this act, apply to each individual producer
of primary batteries or primary battery-containing products, with
respect to the batteries or products that are sold, distributed, or
offered in the state by that producer. The act also provides an
option for a producer to implement this act in conjunction with
other producers in this state.

SEC. 2.  

Article 1.5 (commencing with Section 42445) is added
to Chapter 8 of Part 3 of Division 30 of the Public Resources Code,
to read:

 

Article 1.5.  Primary Battery Stewardship Act

 

42445.  

This article shall be known, and may be cited, as the
Primary Battery Stewardship Act.

42445.1.  

For purposes of this article, the following terms have
the following meanings, unless the context clearly requires
otherwise:

(a) “Actual direct costs” means the costs to collect, transport,
and recycle a discarded primary battery, including any other actual
environmental management costs relating to those actions.

(b) “Approved product” means a primary battery or a primary
battery-containing product that meets all of the following
requirements:

(1) The producer of that primary battery or primary
battery-containing product has submitted a plan to the department
or the producer has designated an organization that has submitted
a plan to the department.

(2) The plan specified in paragraph (1) is approved in accordance
with Section 42445.6.

(3) The program implementing the approved plan collects the
products subject to the plan in accordance with the collection rate
specified in the plan.

(c) “Bona fide rechargeable battery stewardship organization”
means a person operating a system that provides for the acceptance
and collection of used rechargeable batteries pursuant to the
Rechargeable Battery Recycling Act of 2006 (Chapter 8.4
(commencing with Section 42451)).

(d) “Brand” means a name, symbol, word, or traceable mark
that does either of the following:

(1) Identifies a primary battery and attributes the primary battery
to the owner or licensee of the name, symbol, word, or traceable
mark as the producer.

(2) Identifies a primary battery-containing product and attributes
the primary battery to the owner or licensee of the primary
battery-containing product as the producer.

(e) “Collection rate” means the percentage of primary batteries,
including those taken from primary battery-containing products,
by weight, that are collected during a calendar year by a producer,
or by the producers participating in an organization, as compared
to the average annual weight of all primary batteries that were
estimated to have been sold in the state during the previous three
calendar years by that producer or those producers. Estimates of
primary batteries sold in the state may be based on a reasonable
pro rata calculation based on national sales.

(f) “Discarded primary battery” means a primary battery that is
discarded, as defined in subdivision (b) of Section 25124 of the
Health and Safety Code.

(g) “Primary battery” means a nonrechargeable battery that
weighs 2 kilograms or less, including, but not limited to, alkaline,
carbon-zinc, and lithium metal, that is typically generated as waste,
as defined in Section 25124 of the Health and Safety Code.

(h) (1) “Primary battery-containing product” means a product
that contains, or is packed with, a primary battery, including, but
not limited to, a camera, watch, calculator, flashlight, lantern,
portable radio, toy, or clock.

(2) “Primary battery-containing product” does not include any
of the following:

(A) A covered electronic device, as defined in Section 42463.

(B) A product from which a primary battery is not easily
removed or is not intended or designed to be removed, other than
by the manufacturer.

begin delete

(C) A medical device, as defined in the federal Food, Drug, and
Cosmetic Act by paragraph (h) of Section 321 of Title 21 of the
United States Code, that is implanted.

end delete begin insert

(C) A Class III medical device, as specified in Section 360c of
Title 21 of the United States Code.

end insert begin insert

(D) A Class II medical device, as specified in Section 360c of
Title 21 of the United Code, that is not exempt from subsection (k)
of Section 360 of Title 21 of the United States Code (Section 510(k)
of the federal Food, Drug, and Cosmetic Act)

end insert

(i) “Primary battery stewardship organization” or “organization”
means an organization appointed by one or more producers to
design, submit, implement, and administer a primary battery
stewardship plan pursuant to this article.

(j) “Primary battery stewardship plan” or “plan” means a plan
submitted to the department pursuant to Sections 42445.2 and
42445.3 by an individual producer or a primary battery stewardship
organization.

(k) (1) “Producer” means, with regard to a primary battery or
a primary battery-containing product that is sold, offered for sale,
or distributed in the state, one of the following:

(A) The person who manufactures the primary battery or the
primary battery-containing product, and who sells or offers for
sale that primary battery or that primary battery-containing product,
in the state, under that person’s own name or brand.

(B) If there is no person to whom subparagraph (A) applies, the
owner or licensee of a trademark or brand under which the primary
battery or primary battery-containing product is sold or distributed
in the state, whether or not the trademark is registered.

(C) If there is no person to whom subparagraph (A) or (B)
applies, the person who imports the primary battery or primary
battery-containing product into the state for sale or distribution.

(2) “Producer” does not include either of the following:

(A) A person who manufactures, sells, offers for sale, or imports
a primary battery-containing product in the state who complies
with Section 42445.5.

(B) A person who sells, offers for sale, distributes, or imports
a primary battery or primary battery-containing product, if the total
retail value of the sale, distribution, or importation in this state is
less than five hundred dollars ($500) annually.

(l) “Program” means the system for the collection,
transportation, recycling, and disposal of primary batteries that is
implemented pursuant to an approved primary battery stewardship
plan.

(m) “Recycling” has the same meaning as defined in Section
40180.

(n) “Retailer” means a person that offers primary batteries or
primary battery-containing products in a retail sale, as defined in
Section 6007 of the Revenue and Taxation Code, through any
means, including remote offerings such as sales outlets, catalogs,
or an Internet Web site.

(o) “Wholesaler” means a person that offers primary batteries
or primary battery-containing products for sale in this state in a
sale that is not a retail sale, as defined in Section 6007 of the
Revenue and Taxation Code, and for which the primary batteries
or primary battery-containing products are intended to be resold
in a retail sale.

42445.2.  

(a) On or before January 1, 2016, each producer shall
submit a primary battery stewardship plan that is in compliance
with Section 42445.3 to the department. A producer may elect, in
cooperation with one or more other producers, to appoint a primary
battery stewardship organization to implement this article on the
producer’s behalf, and the organization shall submit a primary
battery stewardship plan to the department on or before January
1, 2016.

(b) (1) If a producer appoints a primary battery stewardship
organization, the primary battery stewardship organization shall
establish an advisory committee to provide input during the
development of the primary battery stewardship plan. The advisory
committee shall include only parties who have no financial interest
in the collection or recycling of primary batteries and shall include,
to the extent possible, one member from each of the following
organizations:

(A) Retailers.

(B) Local governments.

(C) Public representatives.

(D) Haulers.

(E) Recyclers.

(2) If the primary battery stewardship organization is unable to
recruit members from the organizations identified in paragraph
(1) to participate in the advisory committee, the organization shall
provide an explanation to the department in the plan or in the report
required by Section 42445.10.

(c) (1) Except as provided in paragraph (4), a producer or
primary battery stewardship organization shall consult with
stakeholders during the development of the primary battery
stewardship plan and shall solicit stakeholder comments.

(2) The producer or organization shall make all stakeholder
meetings available using telecommunication.

(3) This article does not require a producer or primary battery
stewardship organization to share confidential business information
under the Uniform Trade Secrets Act (Title 5 (commencing with
Section 3426) of Part 1 of Division 4 of the Civil Code).

(4) If a producer or organization determines that stakeholder
involvement is not feasible, the producer or organization shall
provide an explanation to the department in the plan or in the report
required by Section 42445.10.

42445.3.  

A primary battery stewardship plan shall include, at
a minimum, all of the following:

(a) Contact information for all participating producers.

(b) The brands of primary batteries covered by the plan and the
collection rate of the primary batteries collected by the producer
or the producers participating in the organization during the
previous calendar year.

(c) The collection rate for the primary batteries subject to the
plan in the following manner:

(1) The plan shall provide for a program that will achieve a
10-percent collection rate two years after the date the program is
implemented and a 20-percent collection rate five years after the
program is implemented.

(2) The collection rate may be revised as provided in Section
42445.4.

(d) The number and type of convenient collection points that
shall be provided by the program free of charge for consumers in
all counties of the state where each producer subject to the plan
sells, offers for sale, or distributes primary batteries or primary
battery-containing products. begin insert The plan shall allow a collection point
to accept not more than 100 primary batteries per visit by a
consumer. end insert

begin delete

(1) The plan shall allow a collection point to accept not more
than 100 primary batteries per visit by a consumer.

(2) Unless the primary battery or primary-battery containing
product is sold only by a single retailer, including a retailer
operating under the same name with more than one location, in
the state, the plan shall establish collection points in the following
manner:

(A) Except as provided in subparagraph (B), at least one
collection point shall be established in each county that is not a
rural county, where the primary batteries or primary
battery-containing products subject to the plan are sold or
distributed.

(B) If a county is a rural county, on and after January 1, 2018,
at least one collection point shall be established in that county for
every 10,000 people in that county, and, on and after January 1,
2021, at least one collection point shall be established in that county
for every 5,000 people in that county.

end delete

(e) A description of the methods that will be used to responsibly
manage discarded primary batteries to ensure that the components
of the discarded primary batteries, to the extent economically and
technically feasible, are recycled or otherwise managed responsibly.

(f) The roles and responsibilities of key participants in the
primary battery distribution chain.

(g) The outreach procedures that will be used to provide notice
of the program to businesses, local agencies, retailers, wholesalers,
and haulers.

(h) The manner in which existing primary battery collection
points and other programs can be identified and leveraged to
achieve the required collection rates.

(i) The financing method selected to fund the implementation
of the plan to achieve the required collection rates, considering all
of the following factors:

(1) Battery chemistry.

(2) The estimated total weight of primary batteries, including
the estimated total weight of primary batteries that are contained
in primary battery-containing products, that will be sold,
distributed, or offered in the state by the producer or the producers
participating in the plan, during each calendar year.

(3) The cost of collecting, transporting, recycling and
responsibly managing the expected total weight of discarded
primary batteries collected during each calendar year.

(4) The administrative costs to the department of reviewing the
plan pursuant to this article.

(5) The cost of all other stewardship program elements,
including, but not limited to, stakeholder participation and public
outreach.

(j) Planned educational activities that will further the goal of
achieving the plan’s required collection rate.

(k) At the election of the producer or primary battery
stewardship organization, provisions for the implementation of
the program in conjunction with those cities, counties, districts,
and regional agencies in whose jurisdictions the program will be
implemented. If the producer or primary battery stewardship
organization makes an election pursuant to this subdivision, the
producer or primary battery stewardship organization shall provide,
to cities, counties, districts, and regional agencies participating in
the stewardship begin delete program end delete begin insert program, end insert one or more of the following:

(1) (A) Reasonable reimbursement for the mutually
agreed-upon, actual direct costs per unit of weight incurred by the
local agency in collecting primary batteries.

(B) The producer or organization may request an independent
audit of submitted reimbursement costs prior to making a payment
pursuant to subparagraph (A). If the independent audit confirms
the reasonableness of the reimbursement request, the audit costs
shall be paid by the producer or primary battery stewardship
organization.

(2) The location and contact information for the convenient
collection points for discarded primary batteries that are located
within the local agency’s jurisdiction and that are consistent with
the plan.

(3) Products for setting up a collection point within the local
agency’s jurisdiction and providing for the pickup of discarded
primary batteries collected, including, but not limited to, arranging
for the management of those discarded primary batteries.

42445.4.  

A producer or a primary battery stewardship
organization may petition the department to adjust the collection
rate specified in the plan. The department may grant an adjustment
to the collection rate if the department determines that
technological, ecological, cultural, economic, or other impediments
or circumstances that are beyond the control of the producer or
primary battery stewardship organization limit the ability of the
producer or organization to achieve the specified collection rate.

42445.5.  

(a) A person who manufactures, sells, offers for sale,
or imports a primary battery-containing product in this state shall
not be a producer for purposes this article if the person does both
of the following:

(1) Affirms to the department that the person only uses primary
batteries supplied by a producer participating in an approved
battery stewardship program.

(2) Reports to the producer specified in paragraph (1) or to the
organization begin delete in which end delete that producer elects to join, the estimated
use of the primary batteries in the primary battery-containing
products to be sold in the state by that person, which estimate may
be based on a reasonable pro rata calculation of national sales of
the primary battery-containing products.

(b) A producer or a primary battery stewardship organization
that operates a program that covers the primary battery contained
in the primary battery-containing product of a person who, pursuant
to subdivision (a), is not a producer shall list the person as a
participant in its program, subject to any limitations or exceptions
as may be indicated by the information submitted by the exempted
person producing the primary battery-containing product.

42445.6.  

(a) Upon receipt of a plan pursuant to Section
42445.2, the department shall review the plan and determine
whether the plan provides for the establishment of a primary battery
stewardship program that includes all of the elements required by
Section 42445.3. As part of the plan review, the department shall
review the plan’s financing mechanism and determine whether the
plan considers the factors specified in subdivision (i) of Section
42445.3. In conducting a review pursuant to this subdivision, the
department may consult with producers, primary battery
stewardship organizations, retailers, and recyclers.

(b) A plan shall be deemed approved by the department 30 days
after the plan is received, unless the department, in writing, notifies
the producer or the organization that submitted the plan that the
plan is deficient and identifies specific elements of Section 42445.3
that were not satisfactorily addressed.

(c) A producer or a primary battery stewardship organization
is not required to provide any services to a person exempted from
the definition of a producer pursuant to Section 42445.5.

(d) The department shall make all approved primary battery
stewardship plans available to the public on the department’s
Internet Web site, but shall not publish information protected under
the Uniform Trade Secrets Act (Title 5 (commencing with Section
3426) of Part 1 of Division 4 of the Civil Code). The total weight
of batteries collected by a program implementing an approved plan
is not confidential business information under that act.

42445.7.  

(a) Upon approval of the plan pursuant to Section
42445.6, the producer or the primary battery stewardship
organization shall do all of the following:

(1) No later than six months after the date of the approval of
the plan, implement the plan, including, but not limited to,
achieving the collection rates specified in the plan.

(2) Prepare and submit to the department the report required by
Section 42445.10.

(3) If a producer or primary battery stewardship organization
elects to implement the plan in conjunction with cities, counties,
districts, and regional agencies pursuant to subdivision (k) of
Section 42445.3, take the actions specified in that subdivision.

(b) A local agency that elects to participate in a program
pursuant to subdivision (k) of Section 42445.3 shall separate from
other materials the primary batteries for collection by the producer
or primary battery stewardship organization.

42445.8.  

(a) Within 30 days after the approval of a primary
battery stewardship plan, and on or before March 1 annually
thereafter, the department shall post on its Internet Web site a list
of the brands of primary batteries or primary battery-containing
products that are approved products.

(b) A primary battery stewardship program is in compliance
with this article if it achieves the collection rate specified in the
plan, as provided in paragraph (1) of subdivision (c) of Section
42445.3.

42445.9.  

(a) On and after July 1, 2016, a producer, retailer, or
a wholesaler shall not offer a primary battery or primary
battery-containing product for sale in this state, or offer a primary
battery or primary battery-containing product for promotional
purposes in this state, unless the primary battery or primary
battery-containing product is an approved product.

(b) On or before October 1, 2016, a retailer may sell the
remaining stock of those primary batteries or primary
battery-containing products that are not approved products.

(c) The department shall not take an enforcement action pursuant
to this article on or before October 1, 2016, against a retailer with
regard to primary batteries or primary battery-containing products
that are not approved products.

(d) A producer who seeks to sell or offer for sale or promotional
purposes a primary battery or primary battery-containing product
that was not sold or offered for sale in the state before July 1, 2016,
shall notify the department prior to selling or offering to sell that
primary battery or primary battery-containing product in the state.
The department shall list that producer as a new producer on the
department’s Internet Web site. On or before 90 days after making
that notification, the producer shall submit a primary battery
stewardship plan to the department or join an existing primary
battery stewardship organization that has an approved plan. If the
producer does not meet either of those requirements, the producer
shall not sell the primary battery or primary battery-containing
product after that 90-day period and a retailer may sell the primary
battery or primary battery-containing product only for 120 days
following the termination of that 90-day period.

(e) This section does not require the department to conduct or
commission a compliance survey or prohibit a primary battery
stewardship organization from conducting or commissioning a
compliance survey.

42445.10.  

(a) On or before two years after the date of the initial
approval of a primary battery stewardship plan, and once every
year thereafter, except as specified in subdivision (e), the producer
or primary battery stewardship organization implementing the plan
shall prepare and submit to the department a report describing the
activities carried out pursuant to the plan during the previous
calendar year. The report shall include, but is not limited to, all of
the following elements:

(1) The weight of primary batteries collected by the program
in the prior year and the collection rate achieved in the prior year.

(2) A report of the estimated total sales data by weight for
primary batteries sold in the state, or the weight of primary batteries
contained in primary battery-containing products sold in the state,
for the previous three calendar years.

(3) Financial statements that detail the financing of the plan,
consistent with the requirements of subdivision (i) of Section
42445.3, except as follows:

(A) If the plan is operated by a producer that is a single retailer,
including a retailer with more than one physical location, the report
is not required to provide this information.

(B) If the producer or organization operates a program in another
state, in addition to this state, the producer or organization may
submit a financial statement that includes all of those states,
including this state.

(4) Locations and contact information for all collection points
set up by the producers covered by the plan.

(5) Examples and a description of educational materials used
to increase collection.

(6) The manner in which the collected primary batteries were
managed.

(7) An explanation of why collection targets were not met, if
applicable.

(8) Any material change to the primary battery stewardship
plan.

(b) The department shall review each report to confirm that all
report elements specified in subdivision (a) have been addressed.
A report submitted on behalf of a regional or national primary
battery stewardship organization may include reasonable pro rata
estimates of the elements specified in paragraphs (2) and (3) of
subdivision (a). The report shall be deemed approved unless the
department, in writing, notifies the producer or organization within
30 days of receipt that the report is deficient, and identifies specific
elements of subdivision (a) that were not satisfactorily addressed.

(c) This section does not require or authorize the department to
publicly disclose the confidential business information of a
producer or primary battery stewardship organization, if the
information is protected under the Uniform Trade Secrets Act
(Title 5 (commencing with Section 3426) of Part 1 of Division 4
of the Civil Code). The total weight of batteries collected by an
approved plan is not confidential business information under that
act.

(d) The department shall make all approved reports available
to the public on the department’s Internet Web site, except as
provided in subdivision (c).

(e) On and after three years after the initial implementation date
of a plan, if the collection rate for the primary batteries subject to
the plan meets the collection rate specified in the plan, the producer
or organization shall thereafter submit the report required by this
section every two years.

42445.11.  

(a) If the department notifies a producer or
organization pursuant to subdivision (b) of Section 42445.10 that
a report does not meet the requirements of subdivision (a) of
Section 42445.10, or the report confirms that the collection rate
or the establishment of the collection points specified in the plan
were not met, the department shall notify the producer or
organization in writing within 30 days after receiving the report.
The notification shall require the continued implementation of the
existing approved plan and shall require the producer or
organization to amend and resubmit the plan. The producer or
organization shall amend and resubmit the plan to the department
no later than 45 days after this notification, or no later than a later
date that may be agreed to by the department.

(b) If the producer or primary battery stewardship organization
does not amend and resubmit the plan pursuant to subdivision (a),
or if the department does not approve the amended plan, the
department shall, in consultation with the producer or primary
battery stewardship organization, determine which actions should
be taken to obtain approval by the department.

(c) The department shall not disapprove an amended and
resubmitted plan without providing the producer or organization
with notice and an opportunity to request a hearing. A producer
or primary battery stewardship organization whose amended and
resubmitted plan is disapproved may file an action for judicial
appeal of the disapproval. A producer participating in a plan, and
any wholesaler, distributor, or retailer, may continue to sell the
producer’s primary batteries or products in the state during the
pendency of any appeal.

42445.12.  

(a) A producer or organization submitting a plan
pursuant to this article shall also pay an administrative filing fee
in an amount, established by the department, sufficient to cover
the reasonable cost of the department’s plan review, but not more
than five thousand dollars ($5,000).

(b) The Primary Battery Stewardship Account and the Primary
Battery Stewardship Penalty Subaccount are hereby established
in the Integrated Waste Management Fund.

(c) The administrative filing fees collected pursuant to this
section shall be deposited in the Primary Battery Stewardship
Account and shall be expended by the department, upon
appropriation by the Legislature, to cover the department’s plan
review costs.

(d) All penalties collected pursuant to this article shall be
deposited in the Primary Battery Stewardship Penalty Subaccount
and may be expended by the department, upon appropriation by
the Legislature, to cover the department’s costs to implement and
enforce this article.

42445.13.  

(a) The department may impose administrative civil
penalties not to exceed one thousand dollars ($1,000) per day upon
a producer that is not in compliance with this article, or upon a
wholesaler or retailer that violates Section 42445.9. An
administrative civil penalty may be imposed only by the department
and shall not be imposed by any other state or local agency.

(b) A producer, wholesaler, or retailer that removes from sale
any primary battery or primary battery-containing product within
90 days of discovery that it is not in compliance with this article
is not in violation of Section 42455.9.

(c) A producer, wholesaler, or retailer that purchases a primary
battery or primary battery-containing product which is verified to
be an approved product at the time of purchase is not in violation
of Section 42455.9 if, at the time begin delete when end delete the producer, wholesaler,
or retailer sells that primary battery or primary battery-containing
product, it is no longer an approved product.

(d) Before imposing a penalty pursuant to this section, the
department shall issue a compliance order to the producer,
wholesaler, or retailer selling the primary battery or primary
battery-containing product that allows 30 days from the date of
the compliance order to cease sales of the primary battery or
primary battery-containing product.

42445.14.  

(a) A producer or primary battery stewardship
organization that implements a plan in compliance with this article
and incurs in excess of three thousand dollars ($3,000) in actual
direct costs for collecting, handling, recycling, or properly
disposing of primary batteries sold or offered for sale in the state
by a producer that does not operate an approved battery stewardship
program or does not participate in an approved battery stewardship
organization, may bring a civil action to recover costs, damages,
and fees, as specified in subdivision (c), from the producer for
failure to comply with this article, if that producer can be identified
from a brand or marking on a discarded primary battery or from
other information.

(b) (1) An action under subdivision (a) may be brought against
one or more producers who are not in compliance with this article.

(2) An action under subdivision (a) shall not commence earlier
than 60 days after a written notice of the organization’s or
producer’s intention to file an action has been provided to the
department and to the producer who is alleged to be noncompliant.

(3) An action under subdivision (a) shall not commence if the
department has commenced an enforcement action against the
producer who is alleged to be noncompliant and is diligently
pursuing that action.

(c) In an action under this section, the plaintiff may recover all
of the following amounts from a producer who has been found to
be noncompliant:

(1) The costs the plaintiff incurred in collecting, handling,
recycling, or properly disposing of primary batteries reasonably
identified as having originated from the noncompliant producer.

(2) An amount of damages equal to no more than three times
those costs specified in paragraph (1).

(3) The plaintiff’s attorney’s fees and costs of bringing the
action.

42445.15.  

This article does not limit, supersede, duplicate, or
otherwise conflict with the authority of the Department of Toxic
Substances Control under Section 25257.1 of the Health and Safety
Code to fully implement Article 14 (commencing with Section
25251) of Chapter 6.5 of Division 20 of the Health and Safety
Code, including the authority of the department to include primary
batteries in its primary battery registry.

42445.16.  

Due to the need to provide a consistent statewide
program for the regulation of primary batteries and to protect the
public and the environment, this article fully occupies and preempts
the entire field of the stewardship of primary batteries and primary
battery-containing products. A city, county, or district, including
a chartered city or county, shall not adopt or enforce an ordinance
that regulates the disposal, collection, and recycling of primary
batteries or requires reporting by producers or primary battery
stewardship programs.

42445.17.  

(a) It is the intent of the Legislature that a producer
or a primary battery stewardship organization preparing,
submitting, and implementing a primary battery stewardship plan
pursuant to this article, and wholesalers or retailers who engage
in conduct authorized by this article, are granted immunity,
individually and jointly, from begin delete federal and end delete state antitrust laws for
the limited purpose of establishing and implementing a program
and complying with the requirements of this article. It is further
the intent of the Legislature that the activities of a producer,
organization, and the wholesalers or retailers that implement and
comply with this article are not in restraint of trade, a conspiracy,
or combination thereof, or any other unlawful activity in violation
of any provisions of begin delete federal or end delete state antitrust laws.

(b) Except as provided in subdivision (c), an action taken to
increase the recycling of primary batteries pursuant to this article
by a producer or primary battery stewardship organization that
affects the types or quantities being recycled or the cost and
structure of any return program is not a violation of either the
Cartwright Act (Chapter 2 (commencing with Section 16700) of
Part 2 of Division 7 of the Business and Professions Code), or the
Unfair Practices Act (Chapter 4 (commencing with Section 17000)
of Part 2 of Division 7 of the Business and Professions Code).

(c) Subdivision (b) shall not apply to any agreement establishing
or affecting the price of primary batteries or the output or
production of primary batteries, or any agreement restricting the
geographic area in which, or customers to whom, primary batteries
will be sold.