TAKEAWAYS

• California’s adoption of the Statewide Microplastics Strategy is the first attempt by a U.S. state to establish a comprehensive, statewide program to mitigate microplastic pollution.

• The Statewide Microplastics Strategy is expected to give rise to regulations and may well serve as a model for other states interested in developing approaches to mitigating plastics-related environmental issues.

• To avoid being blindsided by future microplastic-related laws, companies should consider proactive measures to understand their nexuses to microplastic waste and potential risk from future regulatory actions.

On February 23, 2022, California’s Ocean Protection Council (CAOPC) approved a comprehensive Statewide Microplastics Strategy in response to concerns over the potential environmental and health impacts of microplastic pollution in the marine environment. The Strategy, a first in the nation, outlines early actions and research priorities that may provide a foundation for subsequent efforts to address microplastic pollution on a statewide level. In this sense, the Strategy is not a regulatory action but, rather, a policy initiative, which, if implemented, will give rise to future regulations.

Microplastics—small pieces of plastic less than five millimeters (0.2 inches) in diameter—have become a subject of significant public concern in light of recent studies that show them to be widespread pollutants across different environmental media. Most notably, microplastics have been identified in the marine environment, where plastic accounts for at least 85% of anthropogenic pollution. Additionally, microplastics are persistent and bioaccumulative, hence their detection in human, plant and animal tissues. Although certain existing federal, state and local laws are broad enough to regulate microplastics in some capacity, California’s Statewide Strategy is the first attempt to establish a comprehensive framework for addressing these materials in a targeted manner.

California’s Statewide Microplastics Strategy

The origins of the Statewide Strategy go back to 2018, when the California State Legislature adopted S.B. 1263. This bill directed the CAOPC to adopt and implement a comprehensive plan for mitigating microplastics pollution. In developing the Statewide Strategy, which is part of this broad legislative mandate, CAOPC consulted with 13 other state agencies and the interagency Plastic Pollution Steering Committee, as well as three universities (including one in Canada). The CAOPC released a draft of the Statewide Strategy for public comment in December 2021 and adopted the final version in February 2022.

In salient part, the Statewide Strategy calls for a two-track, multiyear roadmap to manage microplastic pollution. Track One, “Solutions,” recommends 22 near-term actions to reduce and manage microplastic pollution. In broad terms, these actions include efforts to eliminate microplastic waste at its point of origin, mitigate the mechanisms by which microplastics enter the environment and alter public behavior through education regarding the environmental risks presented by microplastics. These are summarized below:

Recommended Actions to Eliminate Microplastic Waste at the Point of Origin

By December 31, 2022:

• Require that single-use foodware and condiments be provided only upon request.
• Reduce state reliance on single-use foodware and encourage state purchasing and service contracts to require, whenever feasible, the use of reusable foodware.
• Ban the sale and distribution of certain single-use tobacco products, including cigarette filters and e-cigarettes.
• Identify Extended Producer Responsibility (EPR) strategies for plastic packaging and foodware.

By December 31, 2023

• Enact statewide comprehensive plastic source reduction, reuse and refill goals.
• Ban expanded polystyrene in foodware and packaging.
• Expand California’s microbead ban to include a wider array of consumer products.
• Organize groups of industry representatives and scientific experts to identify alternative products for specific targeted industries such as vehicle tires, textiles or foodware.

By December 31, 2024

• Promote or require washing machines to have high-micron filters to reduce microplastic waste from clothing.

Recommended Actions to Mitigate the Mechanisms by which Microplastics Enter the Environment

By December 31, 2022

• Prioritize Low Impact Development (LID) retrofit projects for existing developments that have the potential to generate microplastic pollution.
• Prioritize compliance and enforcement actions for plastic pellet (nurdles) discharge prohibitions, consistent with the Trash Provisions and local Trash Total Maximum Daily Loads.
• Prioritize placement of trash receptacles in “trash hot spots,” such as high use recreation areas, beaches and camping areas.
• Promote recycling of tertiary treated wastewater, based on existing studies on the effectiveness of wastewater treatment plants at removing microplastics.

By December 31, 2023

• Evaluate the effectiveness of LID at mitigating microplastic pollution and identify sites for requiring LID implementation.
• Consider establishing requirements for including LID in new and redevelopment projects to mitigate microplastic pollution.
• Based on the results of ongoing studies by Southern California Coastal Water Research Project Authority, develop additional microplastic reduction strategies for wastewater treatment.

By December 31, 2030

• Implement and assure compliance with the statewide Trash Provisions.

Recommended Actions to Alter Public Behavior

By December 31, 2022

• Engage with California Native American Tribes to initiate outreach, monitoring and immediate plastic and microplastic pollution reduction efforts.
• Engage underserved communities to ensure inclusion in the decision-making process.

By December 31, 2023

• Develop a public awareness campaign about microplastic pollution to facilitate behavioral changes.

By December 31, 2024

• Promote educational programs for K-12 students about microplastics.
• Engage in industry outreach to targeted sectors to advance microplastic pollution prevent strategies.

Track Two, “Science to Inform Future Action,” seeks to establish a comprehensive microplastics-focused research program. Specifically, this work will entail developing tailored methodologies for microplastic pollution monitoring and performing toxicological studies to facilitate the establishment of exposure-based risk thresholds for various types of microplastics. The expectation is that the monitoring program will allow California to better evaluate the nature and extent of microplastic pollution in the state, identify sources and pathways of contamination with greater precision and track changes to pollution levels to determine the efficacy of future regulatory actions. In the meantime, the establishment of risk thresholds will allow California to determine which communities and habitats are most affected by microplastics pollution. This information, in turn, will help California regulators prioritize management solutions.

Regulatory Horizon

The Statewide Strategy seems to be the tip of the iceberg in terms of upcoming state and federal initiatives to address microplastics contamination. With respect to California, S.B. 1263 requires the CAOPC to submit additional policy recommendations to the State Legislature by December 2025. Several other states already have passed laws or enacted regulations to limit or disincentivize the use of plastic products, such as straws and bags, and these efforts are relevant to the mitigation of microplastics pollution. It is likely that some states will look to develop comprehensive strategies on the model of California, especially if the Statewide Strategy proves successful.

At the federal level, several laws aimed at addressing plastic management have recently been introduced in Congress. Two bills that are currently pending include provisions which address microplastics—the Plastic Waste Reduction and Recycling Research Act (H.R. 2821) and the Break Free From Plastic Pollution Act of 2021 (S.984/H.R. 2238). The latter currently has 127 co-sponsors in the House and 14 in the Senate and, if passed, would amend the Solid Waste Disposal Act, both to impose restrictions that would functionally reduce the production and use of certain single-use plastic products and packaging and to increase manufacturer stewardship for the collection, reuse, recycling and disposal of consumer products and packaging.

In addition, even more comprehensive initiatives may be lurking on the horizon. In December 2021, the National Academies of Science, Engineering, and Medicine released a report to Congress, Reckoning with the U.S. Role in Global Ocean Plastic Waste. Like California’s Statewide Strategy, this report outlines recommendations to Congress on how to substantially reduce microplastic pollution and create a coordinated monitoring system and proposes a national strategy to be created by the end of 2022 to implement mitigation strategies.

On an international level, in what has been described as the most important environmental compact since the Paris Climate Accords, representatives from 175 nations agreed on March 2, 2022, to develop over the next two years a binding multilateral treaty to address the full life cycle of plastics, including microplastics. Were the United States enter into the treaty, additional federal and state lawmaking activity would surely follow.

The Path Forward

It is not too soon for companies to begin proactive measures to understand their nexuses to microplastics production and pollution. Such measures may include internal evaluations of business operations, supply chains and commercial contracts. Companies that know or suspect that they have significant nexuses may wish to consider additional measures, such as participation in future rulemaking processes at the state and federal levels, or even to plan ahead on ways to phase out their use of microplastics. Pillsbury has experienced practitioners in the field of chemical regulations that can assist businesses in devising practical strategies in relation to this burgeoning area of environmental concern.