July 2021

Regulatory Issues

Guest Columnist Nicole Quiñonez, Industry Lobbyist & Partner at Madden Quinonez Advocacy, consultant to the National Aerosol Association (NAA) and Household & Commercial Products Association (HCPA)

Waste not, want not. It is a proverb we have all grown up with. Today, to live by this mantra is no longer a matter of personal responsibility. As the use of packaging has increased, recycling alone has not been a sufficient solution to “waste not,” and many States are trying to tackle the increase in waste through a variety of methods.

The most holistic solutions, like those contemplated in New York, Oregon and California, would create extended producer responsibility (EPR) programs for packaging. Some more modest measures—such as SB 5022 that was signed into law in Washington State—require consumer packaging to contain prescribed amounts of recycled content. While many recycling-related measures are focused on plastic packaging, others go beyond plastics.

In California, the California Recycling Market Development Act, signed into law in 2019, established a Statewide Commission on Recycling Markets & Curbside Recycling (Commission) housed under Cal Recycle and consisting of representatives of public agencies, private solid waste enterprises and environmental organizations with expertise in recycling.

While the Commission was only formed in June 2020, it is charged with issuing policy recommendations and identifying products that are recyclable or compostable and regularly collected in curbside recycling programs by July 1, 2021. The recommendations and identifications will be shared with the legislature and regulatory agencies. With 16 commissioners, four subcommittees and full commission meetings every two weeks, they have covered a lot of ground in a year. The draft report includes 35 policy recommendations and may still grow.


There are a couple of recommendations that should be of particular interest to the aerosol industry, and one is already moving through the legislature and could become law as early as January 2022. The legislation, SB 343 (Allen) would require Cal Recycle to determine what product and packaging material types and forms are considered recyclable. Only the product and packaging types determined by Cal Recycle to be recyclable would be allowed to make recyclability claims on their packaging—including the use of the chasing arrows symbol.

SB 343 includes criteria Cal Recycle must consider when determining what is or is not recyclable, but the language is open for interpretation and Cal Recycle can add additional criteria. For example, Cal Recycle must consider whether the packaging material type and form is regularly collected, regularly sorted and regularly processed—but the term “regularly” is not defined. It would also require Cal Recycle to consider if the material is recycled in sufficient quantity and is of sufficient quality, but “sufficient” is not defined.

Based on the criteria outlined in the bill, which is the same criteria the Commission used to create a list of recyclable materials, there resulted in only 15 materials identified as recyclable in California. Aerosol containers did not make the Commission’s list and I would not expect them to make the Cal Recycle list. The legislation does include a pathway to get put on the list to achieve recyclability, but it requires producers to submit a plan to Cal Recycle outlining how and when they would meet the criteria to be considered recyclable—and gives Cal Recycle the authority to approve or deny the plan. If passed, aerosol manufacturers would have to either eliminate any recyclability claims from their packaging nationwide or create a California-specific label. Furthermore, if a holistic EPR bill is passed in California requiring all packaging materials to meet a 75% recycling rate or face steep fines, a bill like SB 343 will restrict a producer’s ability to reach the 75% rate because they will be unable to tell consumers to recycle the packaging.

Another policy recommended by the Commission, but not yet in legislation, would require all household hazardous waste (HHW) to be managed by EPR programs. Non-empty aerosol containers are considered HHW, and because it is difficult to assess whether an aerosol container is empty or not, many waste haulers manage them all as HHW. Under this proposal, which needs legislation to take effect, a regulatory body such as Cal Recycle or the Dept. of Toxic Substances Control (DTSC) would be charged with the authority to establish EPR programs for specific HHW products each year, until all HHW materials were covered by an EPR program. Under the EPR model, manufacturers of the HHW products would be required to cover the costs of their end-of-life management—either by setting up their own collection program or reimbursing waste haulers.

It is unlikely this will become law prior to 2023, but it would behoove the industry to ask itself, “how do we waste not, want not” and consider what proactive measures can be taken to improve the collection and recycling of aerosol containers in California prior to being faced with such an onerous measure. SPRAY