Extended Product Responsibility (EPR) Programs Take Effect and Are Subject of Pending Legislation in California

The Summary: Retailers selling any thermostats to customers in California are expected to check the website of a state agency to see whether particular manufacturers have been listed as failing to comply with a 2008 state law mandating collection programs for out-of-service mercury-added thermostats. Thermostats from a listed manufacturer are banned from in-state sales (following a 120-day notice period). Violation of the sales ban is punishable as a crime, and could subject a retailer to criminal penalties under the state’s hazardous waste law. (Calif. Health & Safety Code sec. 25214.8.12(b), (d)).

Background: California banned the in-state sale of mercury-containing thermostats effective January 1, 2006. Then, following the 2007 adoption of guidance for Extended Product Responsibility (EPR) by the California Integrated Waste Management Board, the California Legislature approved, and Governor Schwarzenegger signed, the Mercury Thermostat Collection Act of 2008. California Health & Safety Code, section 2514.8.10. The new law is part of the state’s statutes governing hazardous waste. Besides requiring manufacturers to have collection programs for out-of-service thermostats, the new law also affects retailers, including retailers who offer private-label merchandise.

“Retailer” is defined in the new law as “a person who sells thermostats of any kind directly to a consumer through a selling or distribution mechanism, including, but not limited to, a sale using catalogs or the Internet.”

The main thrust of the Act is to improve programs for the collection and proper disposal of mercury-containing thermostats once they are taken out of service. A retailer may contract with a manufacturer for in-store or out-of-store collection of old mercury-added thermostats. The new law encourages retailers to support and participate with manufacturers to educate consumers on the handling of such thermostats.

The enforcing agency, California Department of Toxic Substances Control (DTSC), has described the obligations of retailers as follows:

• A retailer that distributes new thermostats by mail to buyers in California shall include with the sale of the new thermostat, an Internet Web site address and toll-free telephone number with instructions on obtaining a prepaid mail-in label that a consumer may use to send an out-of-service mercury-added thermostat to a collection location.

 

• A retailer is prohibited from selling or offering for sale a thermostat that is manufactured by a manufacturer that is not in compliance with the Act. This prohibition becomes effective on the 120th day after the notice listing the manufacturer is posted on the DTSC’s Internet Web site, and continues until the manufacturer is no longer so listed.

 

DTSC has issued a Fact Sheet generally covering some of the Act’s highlights.

Lawmakers based the new law on findings that mercury can become toxic in the environment. EPR programs seek to have manufacturers and producers of consumer goods, including retailers of private-label merchandise, not only remain responsible for products when they are discarded, but also to design products and packaging that are less toxic and more durable, reusable, recyclable or biodegradable, in order to reduce waste.

Additional legislation aimed at instituting end-of-life management programs for many more consumer products, based on the EPR guidance, has already been introduced in the current session of the California Legislature. AB 283, the California Product Stewardship Act, is currently pending in the state Assembly. As presently drafted, the bill would amend the state’s Public Resources Code to add provisions on solid waste disposal affecting retailers and others. A version of the proposed bill is Here.

If enacted, the law would, among other things, require producers of covered goods (which would include retailers of private-label goods) to adopt a stewardship plan for the product, and to collect the covered product without charge to the consumer. Sales of covered products would be banned after July 1, 2012, unless the producer or product stewardship organization had submitted a stewardship plan to the state’s Waste Board.

Whether or not AB 283 becomes law, the trend is clearly to have more programs requiring manufacturers and retailers to handle previously sold consumer goods that have reached the end of their useful life and are ready for disposal.