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California Sinks “Marine Degradable” Plastic Claims

September 3, 2020

The California State Legislature has passed a bill that further restricts environmental marketing claims for plastic products. AB 2287 would expand restrictions on plastic degradability claims by eliminating the option of marine degradable claims, although it still permits compostability claims that comply with state requirements. The bill passed the Senate on August 29, 2020, the Assembly on August 30, 2020, and was enrolled on September 1, 2020. Governor Gavin Newsom has 12 days to sign or veto it. If Governor Newsom take no action, under state rules, the bill will automatically become law on September 30, 2020.

Under existing California law, companies must meet specific ASTM standards before making a compostable claim for plastic products, but most degradability claims for plastics are effectively barred. This is because the legislature has not recognized specific methods for substantiating soil and landfill degradability claims, even though a variety of standardized methods exist around the world. However, “marine degradable” claims have been permitted for products that passed ASTM D7081 testing. AB2287 eliminates this reference, thus effectively barring “marine degradable” claims along with other degradability claims for plastics.

AB 2287 contains a narrow exception allowing agricultural or horticultural mulch film for use in commercial farming applications to be labeled “soil biodegradable,” but only if the California Department of Resource Recycling (the Department) adopts EN 17033:2018 (“Plastics – Biodegradable mulch films for use in agriculture or horticulture – Requirements and test methods”), or an equivalent or more stringent standard.

Other changes in AB 2287 include a new requirement for the Statewide Commission on Recycling Markets and Curbside Recycling (the Commission), convened by the Department under the existing law, to issue preliminary recommendations for achieving market development and waste reduction goals by January 1, 2021. The Commission must issue final policy recommendations, after giving the public an opportunity to review and comment on the recommendations and identify products that are recyclable or compostable and regularly collected in curbside recycling programs by July 1, 2021. AB 2287 also gives the Director of the Department the authority to issue guidelines to determine “whether a plastic product is not compliant with the applicable labeling requirements, and whether a plastic product is designed, pigmented, or advertised in a manner that is misleading to consumers.”

In light of this legislative action, manufacturers of plastic products of all types will need to carefully evaluate the restrictions and requirements of the law. They may need to reassess not only their current marine degradability claims, but other environmental marketing claims as well. The potential for these new restrictions to impinge on truthful commercial speech as new materials and products are developed with properties that differ substantially from traditional fossil-fuel based plastics is also a potential consideration for businesses.