California’s New Environment-Friendly Battery Recycling Regulations
California is the United States’ most populous state and the fifth largest economy in the world. Every year brings a plethora of new bills to California’s seemingly hyperactive Assembly and Senate, and every September the bills that make it to the governor’s desk have a chance at becoming law or being unceremoniously vetoed. This year Gavin Newsom signed nearly 1000 bills, while he vetoed 169.
Among those signed are a couple that will impact the electronics industry and its supply chains by ensuring collection and recycling of nearly every battery and nearly every product that uses a battery (except certain product categories outside the scope, like medical devices) sold in California:
- AB-2440 Responsible Battery Recycling Act of 2022. While rechargeable (secondary) batteries are currently regulated, this will also regulate single-use (primary) batteries. Vermont is the only other state that currently regulates primary batteries.
It will require
o Producers to establish a stewardship program for the collection and recycling of covered batteries via individual actions or creation of one or more stewardship organizations. Call2Recycle, Inc. is a pre-existing nationwide stewardship organization for batteries, so this appears to already be in place.
o The Department of Resources Recycling and Recovery and the Department of Toxic Substances Control to adopt regulations to implement the act with an effective date of no earlier than April 1, 2025
“Covered batteries” includes batteries sold separately, batteries designed to be easily removed from a product by the user of the product and batteries “packed with, but not installed in, the product that the battery is intended to power when the product is offered for sale by the producer.”
Read the bill carefully to understand who in your downstream supply chain is defined as the “producer.” It’s neither unique nor confusing but must simply be understood by manufacturers to ensure that the responsibility for compliance is identified and held accountable (like any good regulatory compliance business process will ensure). I suspect that this will result in manufacturers no longer including uninstalled batteries when selling products like remote controls in order to avoid the obligations.
- SB-1215 Electronic Waste Recycling Act of 2003: covered battery-embedded products. This bill greatly expands the scope of the current Electronic Waste Recycling Act of 2003 (EWRA, California’s e-waste regulation). The current regulation covers a narrow scope of products (“video display device containing a screen greater than 4 inches, measured diagonally” and includes televisions, computer monitors, laptops, tablets and, oddly, DVD players) and requires consumers to pay a small fee – related to the size of the screen – at the time of purchase. Retailers, distributors, internet sellers and manufacturers that sell direct return the collected fees to CalRecycle, which uses the fees to help fund recycling of collected e-waste.
This bill will
o Expand the definition of “covered electronic device” (CED) to include a “covered battery-embedded product,” whether sold B2C or B2B. The expansion includes “a product containing a battery from which the battery is not designed to be easily removed from the product by the user of the product with no more than commonly used household tools.”
o Require CalRecycle to establish covered e-waste recycling fees that consumers will pay, upon purchase as of January 1, 2026, for this very broad category of products
o Obligate manufacturers, or their downstream supply chain that is responsible for bringing the product into the state and/or selling it, to make information available to consumers that describes where and how to return, recycle and dispose of the covered electronic device as well as report to CalRecycle
One of the unique requirements of the California EWRA is the requirement for the manufacturer to provide CalRecycle with the “total estimated amounts of mercury, cadmium, lead, hexavalent chromium and polybrominated biphenyls (PBBs) used in covered electronic devices” on an annual basis. They want an initial baseline, then expect to see the amounts decline over time. The current form for providing this information, CalRecycle 242, is here, along with other useful information.
The bill continues to erroneously reference EU Directive 2002/95/EC, which was the original EU RoHS Directive that was repealed as of January 1, 2013, by Directive 2011/65/EU. Section 15 of the bill rewrites section 42465.2.(b) of the current California “Public Resources Code” to require that “the manufacturer submits written verification to DTSC that demonstrates, to DTSC’s satisfaction, that the manufacturer is in compliance with Directive 2002/95/EC and any amendments to that directive, for those covered electronic devices.” To the extent 2011/65/EU is a superset of 2002/95/EC, that can be accomplished, but for products that are not in scope of 2002/95/EC or those that take current exemptions that were not part of 2002/95/EC but are now considered CEDs, they may not be able to confirm compliance to 2002/95/EC.
Why is compliance with a foreign regulation written into a U.S. law? Is this even legal? I’ve been asking this since the original EWRA and no lawyer (or regulator) has been able to provide an answer. In any case, since 2011/65/EU will be recast by the time this regulation comes into force (we can now expect a draft in 2Q 2023), the Assembly member who wrote this would be well advised to simply copy the relevant requirements into the Code directly rather than continue to reference a foreign regulatory regimen he neither understands nor controls.
A of couple bills failed that could have had significant implications for the electronics industry (as well as other industries’) supply chains:
- SB-260 Climate Corporate Accountability Act. This would have required the California Air Resources Board (CARB) to write regulations requiring companies with total revenues over $1 billion that do business in California to verify and annually report all scope 1, 2 and 3 emissions to the emissions registry.
This failed to get enough votes on the Assembly floor during the final vote before sending the bill to the governor for signature. The primary reason was probably related to the argument made by the California Chamber of Commerce that
o Industry lacks adequate objective criteria to accurately report Scope 3 emission data
o California should not be regulating out-of-state emissions
- AB-2247 Perfluoroalkyl and polyfluoroalkyl substances (PFAS) and PFAS products and product components: publicly accessible data collection interface. This bill would have required that, on or before July 1, 2026, and on or before July 1 each year thereafter, a manufacturer of perfluoroalkyl and polyfluoroalkyl substances (PFAS) or of a product or product component containing intentionally added PFAS that is sold, offered for sale or distributed into the state during the prior calendar year, to register the PFAS or the product or product component on the publicly accessible data collection interface implemented by the Department of Toxic Substances Control (DTSC) and an existing multi-state chemical data collection entity.
PFAS are used in a relatively wide variety of applications in electronics, but often the details of which PFAS substance is used, where and why is unknown by the manufacturer responsible for selling the finished good because today PFAS are generally not reportable. This would have made the entire broad range of PFAS substances reportable.
Governor Newsom vetoed this bill, along with others, due to the high expected cost of implementation and management to the state per the final Assembly Floor Analysis. His message to the California legislature is “to remain disciplined when it comes to spending.”
Both of these bills are very likely to be reintroduced in an upcoming legislative session in California, and the requirements themselves may well be introduced by other regulators in other markets. In fact, PFAS reporting for manufacturers selling product in Maine begins on January 1, 2023, though Bergeson & Campbell PC reports that an extension is possible.
Electronics manufacturers and their supply chains not already doing so would be well-advised to begin putting in place systems to report Scope 3 emissions and add PFAS reporting to supply chain communication requirements.