Current through Register 2024 Notice Reg. No. 38, September 20, 2024
(a) The List of Approved Food Service Packaging shall be published on the department's website and shall include, at a minimum, the following information for each food service packaging item:
(1) An indication that the department has determined the food service packaging item to be reusable, recyclable, or compostable, and to meet all applicable requirements of Sections 17989.2 through 17989.5.
(2) A description of the food service packaging item, including the food service packaging types (e.g., plate, cup, bowl, tray), item names, and sizes (e.g., dimensions, diameter, volume).
(3) The materials used to manufacture the food service packaging item (e.g., polyethylene terephthalate (PET), PLA lined paperboard).
(4) The name of the food service packaging manufacturer.
(5) The names of chemicals contained in the food service packaging item, and their Chemical Abstract Service Registry Numbers, that are included on the Proposition 65 list.
(b) The List shall also include a section that identifies materials which the department determines have met the requirements of subsection 17989.4(a)(3)(A) or 17989.5(a)(1)(A). Food service packaging manufacturers may identify the materials specified on the List pursuant to subsection 17989(a)(16)(B) in the application submitted pursuant to Section 17989.6. The department shall consider whether materials are identified on the List when making recyclability and compostability determinations for food service packaging items.
(c) The department shall establish the initial List required by subsection 42370.3(a) of the Public Resources Code, as follows:
(1) A food service packaging manufacturer that seeks to have items included on the List shall submit an application to the department pursuant to Section 17989.6 within 30 days of the department posting these regulations on its website after approval by the Office of Administrative Law.
(2) The department shall evaluate each application in the order it is received to determine if a food service packaging item or group of items meets the applicable criteria pursuant to this Article for inclusion on the List.
(d) Following publication of the initial List, the department shall evaluate applications on an ongoing basis and update the List with additional food service packaging items that it determines to be reusable, recyclable, or compostable pursuant to this Article.
(e) Except as otherwise provided in this Article, before removing a food service packaging item from the List, the department shall make a preliminary determination that a food service packaging item or material on the List no longer meets the requirements of this Article, and the department shall:
(1) With regard to the potential removal of a food service packaging item from the List, notify the food service packaging manufacturer of the reasons for the department's preliminary determination and allow no fewer than 30 days for the manufacturer to submit written comments and additional information relevant to the department's preliminary determination.
(2) With regard to the potential removal of a material from the List, notify the public of the reasons for the department's preliminary determination and allow no fewer than 30 days for submission of written comments and additional information relevant to the department's preliminary determination.
(3) Evaluate the comments and information received pursuant to this subsection prior to issuing its final determination as to whether the item or material satisfies the requirements of this Article.
(4) Either maintain the food service packaging item and/or material on the List or remove the item and/or material from the List.
(f) The department shall notify a food service packaging manufacturer when the department determines that a manufacturer's food service packaging items included on the List may contain a chemical that has been added to the definition of "regulated metal" in Health and Safety Code Section 25214.12(l) pursuant to the Toxics in Packaging Prevention Act (Health and Safety Code Sections 25214.11 through 25214.26), as that definition may be modified by statute or by regulations promulgated by the Department of Toxic Substances Control pursuant to its rulemaking authority under Health and Safety Code Section 25214.26, or added to the Proposition 65 list.
(1) Within 60 days of the date of the notification, the manufacturer shall provide information to the department indicating whether the identified chemical is present in the food service packaging items.
(2) If this information is not received within 60 days of the date of the notification, or if the department determines that the food service packaging item no longer satisfies the criteria set forth in subsections 17989.2(a)(1) or 17989.2(a)(2). the department shall remove the food service packaging items from the List.
(3) Removal of a food service packaging item from the List due to failure to provide the required information within 60 days of the notification pursuant to this subsection shall not be subject to the requirements of subsection (e).
(g) Pursuant to subsection 42370.3(b) of the Public Resources Code, the department shall review and evaluate the entire List no less than once every five years to determine whether each of the food service packaging items on the List is reusable, recyclable, or compostable.
(1) If the department determines that a new application pursuant to Section 17989.6 is reasonably necessary for the department to evaluate whether a food service packaging item is reusable, recyclable, or compostable, the department shall notify the manufacturer that the item requires a new application. The food service packaging manufacturer shall submit a new application to the department within 180 days of the date of the notification, and the department shall consider such application in making its determination of whether the item is reusable, recyclable, or compostable. If a new application is not submitted within 180 days of the date of the notification, the department shall remove the food service packaging item from the List, and the requirements of subsection (e) shall not apply.
(2) The department shall review the new application and either maintain the item on the List or make a preliminary determination pursuant to subsection (e) that a food service packaging item is not reusable, recyclable, or compostable.
(h) The department shall notify the Department of General Services and the public within 30 days of making any changes to the List.
1. New section filed 12-6-2021; operative 12-6-2021 pursuant to Government Code section 11343.4(b)(3) (Register 2021, No. 50). Filing deadline specified in Government Code section 11349.3(a) extended 60 calendar days pursuant to Executive Order N-40-20 and an additional 60 calendar days pursuant to Executive Order N-71-20.
Note: Authority cited: Sections 40401, 40502 and 42370.2, Public Resources Code. Reference: Sections 42370.2 and 42370.3, Public Resources Code.
