Which types of food service operations are required to comply with SB 1335?
Food service facilities, as defined, must comply with the requirements of SB 1335. A “food service facility” is an operation or business that stores, prepares, packages, serves, vends, or otherwise provides prepared food and is also one of the following:
- An operation or business located in a state-owned facility, including but not limited to: cafeterias, restaurants, catering companies, shops, markets, delis, Department of Corrections and Rehabilitation commissaries, University of California and California State University food courts and dormitories, fairs, expositions, and legislative offices
- An operation or business operating on or acting as a concessionaire on State property
- An operation or business under contract to provide food service to a State agency
If you are uncertain whether a particular operation or business meets the definition of “food service facility” after reviewing the statute and regulations, CalRecycle recommends that you consult an attorney.
What types of packaging are required to meet the requirements established by SB 1335?
SB 1335 prohibits state facilities from using any “food service packaging” that is not identified on CalRecycle’s List of Approved Food Service Packaging. Broadly speaking, food service packaging is anything used for serving or transporting prepared, ready-to-consume food or beverages. Categories of food service packaging include:
- Hinged or lidded containers
Some types of packaging products are exempt from the law, including:
- Beverage containers (e.g., bottled water and soda)
- Single-use disposable items (e.g., straws, lids, plastic bags, and utensils)
- Single-use disposable packaging for food that is mass produced by a third party off the premises of the food service facility (e.g., packaging for mass produced sandwiches)
In addition, an omnibus bill was passed in 2021 (AB 1570) specifying that the following are also excluded from the definition of “food service packaging”:
- Ceramic, porcelain, glass, or non-foil metal food service packaging that is cleaned and reused by the food service facility
- Products defined as drugs, devices, or medical food pursuant to federal law
- Products used at health facilities, residential care facilities, and community care facilities, if necessary to protect individuals’ health or safety and not identified on the List of Approved Food Service Packaging
When will the List of Approved Food Service Packaging (List) be published?
The law requires CalRecycle to publish the initial List of Approved Food Service Packaging by March 6th, 2022, 90 days after the Office of Administrative Law (OAL) approval of the regulations. A listserv notification will be sent when the List is published.
How can manufacturers submit an application to add a food service packaging item to the List?
To submit an application, visit The Sustainable Packaging Act Reporting System (SPARS) webpage.
Is there an application due date?
CalRecycle will accept applications on an ongoing basis; however, manufacturers seeking to add a food service packaging item or group of items to the List upon initial publication must submit an application to CalRecycle by Friday, January 14, 2022.
What information must be submitted in an application?
Application requirements are specified in the SB 1335 regulations (14 CCR section 17989.6, Application Requirements and Submittal Process).
What is CalRecycle’s review process for evaluating applications?
First, CalRecycle staff will determine whether an application is complete and, within 30 days of the application submission, notify the manufacturer of any missing information or other deficiencies. The applicant will then have an additional 30 days to correct any deficiencies.
After CalRecycle deems an application complete, the department will further evaluate the application and determine whether a food service packaging item meets the applicable criteria.
Upon approval of an application, the department will add the food service packaging item or group of items to the List and notify the food service packaging manufacturer.
How often will the List be updated?
CalRecycle will review applications on an ongoing basis and update the List as it approves new food service packaging items. Additionally, the department will review and evaluate the List at least once every five years to determine whether food service packaging items continue to meet the applicable criteria. If CalRecycle determines that a food service packaging item no longer meets the reusable, recyclable, or compostable criteria, or that an item has the potential to contribute to litter, public health, or wildlife impacts, the department may utilize a notice and comment process to remove that product from the List.
What is the process for removing an item from the List?
Before removing an item from the List, CalRecycle must make a preliminary determination that the item no longer meets the applicable criteria to be on the List, and then follow a step-by-step process:
- Notify the manufacturer of the reasons for the preliminary determination and allow at least 30 days for the manufacturer to submit comments and additional relevant information.
- Evaluate the comments and information received.
- If the item no longer meets the criteria, remove it from the List.
What is included in the public health and litter impacts criteria?
Food service packaging items included on the List must meet specified criteria to minimize public health and litter impacts. A food service packaging item may not contain any combination of lead, mercury, cadmium, or hexavalent chromium in excess of 100 parts per million by weight.
Food service packaging items must not contain more than 100 parts per million total fluorine, which is a proxy for intentionally added PFASs.
Food service packaging manufacturers must also disclose if a product contains chemicals included on the Proposition 65 list.
What are PFASs and why are these substances restricted by the SB 1335 regulations?
Per- and polyfluoroalkyl substances (PFASs) are a class of synthetic chemicals that can persist in the environment and are associated with harm to humans and wildlife, such as reproductive and developmental toxicity, carcinogenicity, and liver toxicity.
Food service packaging treated with PFASs can expose humans to health risks through the use of the products by consumers as well as through end-of-life management practices such as composting and recycling.
As part of the regulatory process, CalRecycle conducted an External Scientific Review (ESPR) that confirmed the potential public health harms from exposure to PFASs in food service packaging and associated end-of-life management practices.
To meet the recyclable and compostable criteria, a food service packaging item made from plastic or fiber may not contain a total fluorine concentration of more than 100 parts per million, which is a proxy for measuring PFASs. This threshold was established through CalRecycle’s ESPR.
Can food service facilities use existing food service packaging inventory if it is not on the List?
In some circumstances, yes. For example, a food service facility may continue to use inventory of noncompliant food service packaging items that it acquired prior to the publication of the initial List or prior to the List subsequently being updated to remove those items. Existing inventory requirements are specified in the SB 1335 regulations (14 CCR section 17989.7, Noncompliant Food Service Packaging)
What are the requirements for the Department of General Services (DGS)?
The law mandates DGS to comply with the following requirements:
- Publish CalRecycle’s List of Approved Food Service Packaging on its website within 90 days of the List being published
- Publish the statutory requirements for food service facilities in the State Contracting Manual
- Ensure that any new, modified, or renewed agreements, contracts, or procurement undertaken by a food service facility as part of a contract or agreement with DGS complies with the law
- When reasonably feasible, provide a food service facility with which it has a contract or agreement with resources to identify food service packaging suppliers, distributors, brokers, or manufacturers that sell approved food service packaging items
- Take appropriate steps to fulfill the statutory requirements, including, but not limited to, revising relevant state contracting and procurement rules and procedures
Why does the recyclable criteria require a minimum size for food service packaging items?
The recyclable criteria requires that a food service packaging item must measure a minimum of two inches in at least two dimensions. Items smaller than this are difficult to recover for recycling in material recovery facilities (MRFs). This criterion is consistent with the Association of Plastics Recyclers “Design Guide.”
Why does the compostable criteria require a plastic food service packaging item to biodegrade 90% within 60 days? This is different from the ASTM D6400 and D6868 standards that require 90% biodegradation within 180 days.
The 60-day timeframe is required in the regulations because it aligns with typical processing timeframes at California composting facilities. This timeframe also aligns with the FTC Green Guides (16 CFR Part 260) definition of “safe and timely manner,” meaning “in approximately the same time as the materials with which it is composted.”
What are regulated metals?
Regulated metals, including lead, mercury, cadmium, and hexavalent chromium, are specified in the Toxics in Packaging Prevention ActPDF download. These metals present serious health risks and are often found in a number of additives used to manufacture food service packaging, such as dyes, adhesives, and stabilizers.
For Additional Information:
Sustainable Food Service Packaging (SB 1335) Listserv
Phone: (916) 341-6518