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Two states adopt regulations for rigid-container laws

California and Oregon have enacted far-reaching laws dealing with the recycling of rigid containers and issued comprehensive regulations implementing those laws.

Under the California law known as the Rigid Plastic Packaging Container Act, manufacturers of consumer products and suppliers of rigid-plastic containers sold within the state are required to comply with recycling requirements. They include a mandatory recycling rate, postconsumer-content requirements, and source-reduction requirements or reusability/refillability requirements.

Manufacturers of rigid-plastic containers used for food and cosmetics were given a temporary reprieve with the passage last year of Senate Bill 466, which gave them an extension until Jan. 1, 1997, to comply with the act's recycling requirements.

However, the amendment requires container manufacturers to diligently seek nonobjection letters from the US Food and Drug Administration that would permit the use of recycled plastics in food and cosmetic containers.

The new regulations under the law were issued by the California Integrated Waste Management Board. In some respects, the regulations were responsive to industry's most significant concerns about the measure.

The regulations now exempt plastic-container manufacturers from the requirements to seek nonobjection letters if their product manufacturer customers are already in compliance with the state's law.

The regulations also limit the need for container manufacturers to seek FDA nonobjection letters to situations where the product manufacturer using the container intends to comply with the act under the postconsumer-content option.

The regulations also set a Jan. 1 deadline for product manufacturers to request container suppliers to obtain nonobjection letters from FDA in time for container manufacturers to meet the Jan. 1, 1996, deadline in the regulations for submitting such requests to FDA.

The regulations can also be interpreted to state, albeit it very obliquely, that a container manufacturer must seek no objection letters only when the company's own scientific analysis indicates FDA will likely conclude that the proposed container use complies with applicable regulation standards.

The new regulations still don't relieve the food product manufacturers of the need to comply with the act by January 1, 1997. Thus, they will continue to impose an unfunded mandate on FDA to deal with a large number of clearance requests and will continue to require such filings by container suppliers or their customers.

On Oct. 21, 1994, the Oregon Environmental Quality Commission adopted regulations implementing the 1991 Oregon Rigid Plastic Container Recycling Law.

The Recycling Law mandates rigid-plastic containers, between 8 oz. and 5 gal, must meet one of the following criteria by Jan. 1:

* Be made of plastic that is being recycled in the state at a rate of 25%.

* Have 25% postconsumer content.

* Be reusable - used five or more times for the same or substantially similar use.

Under the law, source-reduced packages are exempt for five years if reduced 10% by weight compared to five years earlier. A one-time, two-year exemption is available when a firm can demonstrate a substantial investment has been made toward achieving the 25% recycling rate. Further, a permanent exemption exists for containers for drugs, medical devices, medical food, and infant formula. Food and cosmetic packaging isn't exempt from the law.

The regulations resolve the definition of rigid-plastic container, rejecting industry's proposal to include an element to the effect that containers subject to the law be designed to completely contain a product, under normal usage, without other packaging material except a lid or closure. The rebuffed industry definition would have exempted sleeves, domed lids, or trays contained in bags like plastic cookie trays.

The adopted version now broadly defines rigid-plastic container as a plastic bottle, jar, cup, tub, pail, clamshell container or other plastic container designed to hold a product for sale, has a volume of 8 oz. and not more than 5 gal., is composed predominantly of plastic and is able to maintain its shape, whether empty or full.

Although the law went into effect on Jan. 1, subsequent legislation has delayed enforcement of the rates and dates requirements for all products until Jan. 1, 1996.

Fred Hansen, the director of the Oregon Department of Environmental Quality, confirmed in an Aug. 26, 1994, memorandum that his office "won't take enforcement action, audit, or request copies of records until Jan. 1, 1996, and after the department has calculated and made public the aggregate recycling rate for calendar year 1995." He further stated that enforcement actions taken by the department for violations of the statute and implementing regulations will be based upon a manufacturer's compliance status beginning Jan. 1, 1996.

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