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When Must Businesses Join a PRO under California's Plastic & Packaging Law? (Updated 11/17/23)

Updated: Nov 17, 2023

By Catherine W. Johnson


On March 29, 2023, the California Department of Resources Recycling and Recovery (CalRecycle) held a workshop[1] on Producer Responsibility Organizations (PROs) and forthcoming regulations under the Plastic Pollution Prevention and Packaging Producer Responsibility Act (SB 54).[2] SB 54 requires “producers” [3] of “covered materials” to reach ambitious source reduction and recycling rates by 2032 by (a) joining a PRO and participating in an approved producer responsibility plan prepared by the PRO; or (b) by satisfying eligibility requirements for individual compliance. [4]


Noting some ambiguities in the statute about when producers must join a PRO, CalRecycle clarified that while January 1, 2024 is the deadline for potential PROs to submit an application to CalRecycle for review, producers are not subject to enforcement for failure to join a PRO until after CalRecycle approves the producer responsibility plan or by January 1, 2027. [5] As of November 17, 2023, it is unclear whether CalRecycle continues or will continue to take this position after it selects the PRO (sometime after January 1, 2024, when the PRO applications must be submitted) ; producers should consult with legal counsel or contact CalRecycle directly for clarification. In response to queries about eligibility for individual compliance, CalRecycle deferred comment for later workshops.


CalRecycle is developing the PRO application form and expects to have it available by the fall of 2023. As provided by SB 54, if multiple PRO applications are received, CalRecycle will select a single PRO which the agency believes can most effectively implement the Act.[6] CalRecycle expects to select the PRO at a yet-to-be-determined date in 2024.


Several of the specific components that must be included in the producer responsibility plans were discussed during the workshop.[7] Questions and comments from participants ranged from technical questions about the definition of recycling and alternative collection systems to concerns about budgetary issues and the assessment of penalties under the Act.


CalRecycle announced that anyone interested in commenting on issues raised in the March workshop should do so before April 12, 2023 by emailing packaging@calrecycle.ca.gov with the subject line: SB 54 Plastic Pollution Prevention and Packaging Producer Responsibility Act Regulations. Questions and comments on other topics relating to SB 54 may also be sent to the email address above.


[1] As a preliminary matter, CalRecycle noted that the rule making was in its early stages and that the agency might later change its position on various issues discussed during the workshop. The agency also cautioned that nothing discussed during the meeting constituted legal advice. [2] Cal. Pub. Res. Code § 42040 et al. [3]See Cal. Pub. Res. Code § 42041(w) for definition of a producer. Under this definition, producers means various persons in the supply chain who sell, distribute, license, or own a product that uses materials covered by the Act, with primary responsibility on the business that manufactures a product and who owns or is the licensee of the brand or trademark under which the product is used in a commercial enterprise. [4] Under SB 54, producers may be eligible for individual compliance if they already meet certain recycling and source reduction rates or meet ambitious recycling or source reduction rates in the future. Cal. Pub. Res. Code § 42051(b)(1)(2). [5]See Cal. Pub. Res. Code §§ 42051(a) and 42051(b)(1). [6] Cal. Pub. Res. Code § 42051. [7] For information about the specific components of the plan discussed at the workshop, see Discovery Workshop Document, available at https://www2.calrecycle.ca.gov/PublicNotices/Details/5028. For information about these and other issues discussed during the workshop, contact EGC.


Nothing in this article is intended as legal advice. For more information contact Catherine Johnson at cjohnson@egcounsel.com.


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