Stakeholders Who Want Input Should Reach Out Now
The California Department of Resources Recycling and Recovery (CalRecycle) is currently studying the feasibility of separating the collection of compostable waste that is suitable for use in organic agricultural applications from waste that is not. The results of the study will impact the requirements for products sold in California that are labeled as “compostable.”
On October 5, 2021, AB 1201 was enacted to expand on the requirements for products sold in state that are labeled as compostable or home compostable. The law made changes to Section 42357 of California’s Public Resources Code regarding the requirements to substantiate a compostable or home compostable claim in the state. Section 42357(g)(1)(b) now states that, as of January 1, 2026, products may not be labeled as compostable or home compostable in California unless, among other things, they are “an allowable agricultural organic input under the requirements of the United States Department of Agriculture National Organic Program [NOP].”
First, however, CalRecycle has until January 1, 2024 to assess the feasibility of bifurcating products that are suitable for use in organic agricultural applications from products that are not suitable for use in organic agricultural applications. If the agency determines that these two types of waste can be separated, CalRecycle will then adopt regulations by January 1, 2026, to clarify that products that are not collected for use in organic agricultural applications are exempt from the requirement to be an allowable agricultural organic input.
If CalRecycle decides that the organic and non-organic waste streams cannot be bifurcated, industry will face the challenge of fitting into the NOP paradigm that is designed to assess items intended for use in organic agriculture, not packaging materials. It is expected to be challenging, if not infeasible, for many packaging materials to obtain an organic status under the NOP.
Feasibility Study Takes on Greater Significance
The outcome of the feasibility study is taking on greater significance, as the requirement for products to be compostable is incorporated in other California legislation. For example, under SB 1046, as of January 1, 2025, plastic pre-checkout bags – including plastic produce bags – must be eligible to be labeled as compostable or home compostable. Thus, depending on the outcome of CalRecycle’s feasibility study, plastic pre-checkout and produce bags may also need to be allowable agricultural organic input.
Likewise, pending bill AB 1489 proposes to amend California’s Extended Producer Responsibility (EPR) framework (SB 54) to exempt from source reduction requirements “compostable covered materials.” “Compostable covered materials” are proposed to be defined as those eligible to be labeled with the term compostable in accordance with Chapter 5.7 of the California Public Resources Code (as revised by AB 1201 and SB 1046). Thus, pending the feasibility study results, it may be necessary to satisfy the organic standard to rely on this exemption, assuming it is ultimately enacted.
CalRecycle has confirmed that its feasibility assessment is underway, and it intends to complete the assessment this year. The agency will hear from stakeholders at a public meeting, but this may not occur until fall 2023. In the meantime, stakeholders may submit input to the department for consideration in the feasibility study.