The California legislature recently added new requirements for products sold in the state that claim to be “compostable” or “home compostable” in AB 1201.  As of the beginning of this year, these products must now:

• have a total organic fluorine concentration less than 100 parts per million (to reduce the presence of perfluoroalkyl or polyfluoroalkyl substances (“PFAS”)),
• be labeled to easily distinguish the product from non-compostable products (in accordance with any applicable Department of Resources Recycling and Recovery (“Department”) regulations), and
• be designed to be collected with other compostable materials, such as food scraps and yard trimmings.

Other requirements will take effect in the coming years.  Most notably, the legislative amendment requires products bearing a “compostable” or “home compostable” label to be an allowable agricultural organic input under the USDA’s National Organic Program by 2026, although the Department may grant a five-year extension for certain products.  In addition, the updated law allows the Department to approve a third-party entity to certify products containing a “compostable” or “home compostable” label.  If the Department does so, products bearing these labels must be certified within one year of the Department approving the certification entity, starting in 2024 at the earliest.

The legislative amendment builds upon pre-existing obligations for products making compostable claims, including requirements that products labeled “compostable” meet applicable ASTM standards, and products labeled “home compostable” hold OK compost HOME certification.  While these pre-existing requirements previously applied only to plastic products, the legislative amendment applies them to all products making composting claims.

Potential penalties for violating the law include fines of up to $2,500 for each violation, and injunctions to prevent the sale of mislabeled products.  The law applies to both manufacturers and suppliers, and either party must be ready to provide documentation of a product’s compliance with the law within 90 days of a request by any member of the public.

The law is part of California’s push to greatly expand composting in the state, with the goal of reducing organic waste disposal by 75 percent by 2025 (compared to 2014 levels).  Department regulations aimed at implementing this goal took effect this year and require jurisdictions in California to provide organic waste collection services.  Businesses and residents are required to use these collection services, although penalties for noncompliance do not take effect until 2024.

If you need help navigating the regulatory patchwork related to product claims, please reach out to the following attorneys: Vic Westgate, Brian Dunkiel, or Paul Quackenbush.