Attorney General Signals it will Enforce California's Restriction on Sale of EPS Food Service Ware

Effective last January 1, 2025, California’s extended producer responsibility (“EPR”) packaging and food service ware program, the Plastic Pollution Prevention and Packaging Producer Responsibility Act (the “Act" or "SB 54"), prohibits producers of expanded polystyrene (“EPS”) food service ware under the Act from selling or distributing EPS food service ware in California unless producers can demonstrate to California's Department of Resources Recycling and Recovery (“CalRecycle”) that EPS achieves a 25% recycling rate in the state. 

CalRecycle has published various notices over the course of the year urging producers to comply with the restrictions.  On December 2, 2025, the California Office of the Attorney General issued an enforcement advisory letter, signaling that they take the prohibition seriously by sending a the letter to parties they have identified as potential producers or EPS food service ware. According to the letter, [you[ are advised that, because the required recycling rate was not demonstrated, producers are prohibited from selling, offering for sale, distributing, or importing EPS service ware in the state of California. 

According to the Attorney General’s Office, SB 54 authorizes the imposition of administrative penalties of up to $50,000 per day per violation.  In addition, the letter notes that violations of SB 54 may be enforced under California’s Unfair Competition Law, which allows for penalties of up to $25,000 per day and may be enforced by the Attorney General.

Although other states have restrictions or bans on various types of EPS, those restrictions typically apply to various parties responsible for sale or distribution of the restricted materials, not to a “producer” of the covered materials under an EPR program.  Under SB 54, however, only “producers” of expanded polystyrene “food service ware” otherwise regulated under the law are subject to the restriction. 

CalRecycle is currently in the process of adopting  regulations under the Act – proposed regulations have been submitted to the Office of Administrative Law (“OAL”) and OAL must either approve or disapprove by early January, 2026.  The last published version of the proposed regulations include some key definitions and terms that both provided clarification and raised some questions about who and what materials may be subject to the EPS food service ware restriction.  The most recent version of the regulations submitted by to the OAL are not yet published.

It will be crucial for producers to understand – and for CalRecycle to make clear – what constitutes EPS “food service ware,” and what materials are considered products, as only producers of this category of covered materials would be subject to the EPS food service ware restriction should the 25% recycling rate not be demonstrated.