California’s produce industry works through onerous EPR law 

California’s produce industry is still working through the details of how they will comply with the state’s extended producer responsibly (EPR) program. 

California Senate Bill 54 was signed into law in 2022 by Governor Newsom, and it mandates: 100 percent of single-use packaging and foodservice ware sold in California must be recyclable or compostable; 65 percent of single-use plastic packaging must be recycled; and 25 percent reduction in the sale or distribution of single-use plastic packaging and foodservice ware compared to 2023 levels. 

On June 1, producers had to register with Circular Action Alliance (CAA), which administers the program, collects fees, and reports compliance to CalRecycle, which oversees the program. 

Gail Delihant, Senior Director of California Government Affairs at Western Growers BB #:144734, says the fees that producers pay will ultimately depend on the final fee schedule approved under the program. 

They could be substantial. 

She says WGA is a strong advocate for the fresh produce industry and has been engaged on SB 54 since the legislation was first introduced and continues to work closely with CalRecycle, CAA, legislators, and other agricultural organizations during implementation. 

“Right now, we’re helping members understand how the law applies to their businesses,” she says. “That includes developing guidance for producers submitting Notices of Exclusion to CalRecycle where appropriate, preparing information for companies that may qualify for exemptions, hosting webinars and virtual town halls, and working directly with members to answer compliance questions.” 

Delihant says fresh produce is different from most other products covered by California’s EPR law because its packaging is performance-based.  

“We don’t choose packaging because we prefer plastic over another material—we choose it because it has to keep produce safe, prevent contamination, extend shelf life, reduce food waste, and protect products during harvesting, cooling, transportation, and retail display,” she says. “Fresh produce is still biologically active after it’s harvested, so the packaging plays an important role in keeping it fresh as long as possible. 

“One concern for the produce industry is that much of our packaging is technically recyclable but isn’t widely recycled in California today because collection and processing infrastructure hasn’t caught up yet. Under the proposed fee structure, some of those packaging materials receive relatively high fees because of current recycling performance rather than their technical recyclability. 

“We’ve heard estimates from members ranging from tens of thousands of dollars annually for smaller operations to several million dollars for some of the industry’s largest companies. Actual fees will ultimately depend on the final fee schedule approved under the program.” 

The program – with regulations checking in at more than 360 pages long – introduces several new costs that will be paid by producers, including producer fees, Plastic Pollution Mitigation Fund assessments, reuse investments, and future eco-modulation adjustments.  

“The actual cost varies considerably depending on the type and amount of packaging a company uses,” she says. 

“What we do know is that EPR creates new costs within the supply chain,” she says. “In competitive produce markets, growers often have very little ability to absorb significant new costs over the long term. Some of those costs will likely be absorbed within the supply chain, while others may eventually be reflected in consumer prices.” 

Earlier this month, a broad coalition of agriculture groups sent a letter to Governor Newsom and legislators urging a repeal of SB 54, and 17 state attorneys general joined the National Association of Wholesaler-Distributors in a federal lawsuit challenging the law. California’s SB 54 EPR Law Challenged by 17 States and NAW 

Delihant says WGA remains engaged in the law’s implementation process. 

“For the produce industry, the biggest question isn’t whether we support California’s recycling and circular economy goals—we do,” she says.  

“The question is how those goals can be achieved while continuing to protect food safety, reduce food waste, and maintain the packaging performance needed to move highly perishable products through the supply chain.”