1. (a) The following are not covered material:

   1. (1) Packaging and other items identified in paragraph (2) of subdivision (e) of section 42041 of the Public Resources Code.

   2. (2) In accordance with paragraphs (1) and (2) of subdivision (b) and with subdivision (d) of section 42060 of the Public Resources Code, packaging or packaging components used by a food or agricultural commodity (without regard to its origin) if it is not reasonably possible to use packaging or packaging components that comply with both the Act and mandatory regulations, rules, or guidelines issued by the United States Department of Agriculture or the United States Food and Drug Administration. A determination of exclusion pursuant to this paragraph may consider mandatory regulations, rules, or guidelines to prevent microbial contamination or to maintain the safety or structural integrity of packaging under the Food, Drug, and Cosmetic Act, the FDA Food Safety Modernization Act, the Poultry Products Inspection Act, the Federal Meat Inspection Act, or the Egg Products Inspection Act, or other applicable mandatory food or agricultural regulations, rules, or guidelines.

      1. (A) Any entity that has determined that packaging or packaging components are not covered material pursuant to paragraph (2) shall provide written notice to the Department electronically via email. If the Department has published a notice via its website that an online portal is available for use, the notice required by this subparagraph shall instead be submitted electronically via that portal.

      2. (B) The notice shall identify all specific provisions of the Act and the mandatory federal regulations, rules, or guidelines that are in conflict, specifically describe all packaging and packaging components to be excluded and the associated products, and demonstrate that it is not reasonably possible to use any alternative packaging or packaging components that would avoid the conflict. It is not reasonably possible to use any such alternative if all of the following are true:

         1. (i) there is no such alternative that satisfies all applicable mandatory standards for safety and structural integrity of packaging, creates no new unavoidable legal conflict with any law, and otherwise is lawful to use in California;
         2. (ii) it is not possible to avoid all legal conflicts by eliminating or replacing the components that cause the conflict cited in the notice; and
         3. (iii) it is not possible to avoid all legal conflicts by redesigning or replacing the packaging as a whole.
      3. (C) Upon receipt of the notice, the Department shall confirm that the notice is for a food or agricultural commodity and that it contains all elements described in subparagraph (B). If the notice does not contain all such elements or if the Department identifies packaging or packaging components that the notice did not address but that would avoid the cited conflict, the Department shall notify the entity within 90 days of receipt of the notice that the notice is incomplete and requires resubmission pursuant to subparagraphs (A) and (B).
      4. (D) The Department shall maintain on its website a publicly available electronic database identifying each complete notice, including the packaging or packaging components and associated products identified in the notice, the date the notice was deemed complete, and the status of any review of the notice by the Department. Packaging or packaging components identified in the database shall be deemed not covered material unless and until the Department makes a determination pursuant to subparagraph (E) that the notice and any additional information submitted pursuant to that subparagraph fail to demonstrate that the packaging or packaging components qualify for the exclusion.
      5. (E) At any time, the Department may request from an entity additional information supporting that entity's determination, which must be provided within 60 days. If such information is not provided, or if the Department believes the information provided is incomplete or insufficient as a basis for the determination, it shall notify the entity, which shall respond within 60 days. Following review of the information provided by the entity, and any further consultation with the entity and any state or federal government agencies (including the California Department of Food and Agriculture and the California Department of Public Health) that the Department deems advisable, the Department shall determine whether the notice and additional information have demonstrated that each packaging or packaging component qualifies for the exclusion. If the Department determines that the notice and additional information fail to demonstrate that certain packaging or packaging components identified in the notice qualify for the exclusion, the Department shall notify the entity via email and update the database accordingly. Those packaging or packaging components shall then be considered covered material 180 days following such notification.
      6. (F) If an entity submits a notice concerning the same or substantially the same packaging or packaging components during or after the 180-day period described in subparagraph (E), the packaging or packaging components shall be considered not covered material, with the database updated accordingly, only upon a determination by the Department that the notice and any additional information have demonstrated that the packaging or packaging components qualify for the exclusion.
      7. (G) In implementing this paragraph, the Department shall withhold from public disclosure any information that the entity appropriately identifies as trade secrets, subject to the requirements and limitations set forth in section 18980.14.
   3. (3) Packaging that is “refillable” or “reusable,” as defined in subdivision (af) of section 42041 of the Public Resources Code.
   4. (4) Packaging used for “devices,” as defined in subsection (h) of section 321 of Title 21 of the United States Code.
   5. (5) Packaging used for “drugs,” as defined in subsection (g) of section 321 of Title 21 of the United States Code, that require a prescription pursuant to subsection (b) of section 353 of Title 21 of the United States Code.

   6. (6) Packaging for medical products. “Medical products” means products that are “drugs,” as defined pursuant to paragraph (5), that do not require a prescription and satisfy at least one of the following criteria:

      1. (A) They are neither “cosmetics,” as defined in subsection (i) of section 321 of Title 21 of the United States Code, nor “soap,” as defined in section 701.20 of Title 21 of the Code of Federal Regulations.
      2. (B) They are not a drug solely by virtue of containing a “sunscreen active ingredient,” as defined in section 352.3 of Title 21 of the Code of Federal Regulations.
2. (b) For purposes of subparagraphs (A) through (D) of paragraph (2) of subdivision (e) of section 42041, packaging used for a good or used to contain a good includes primary, secondary, and tertiary packaging. Notwithstanding the foregoing, tertiary packaging used for goods not identified in those subparagraphs is covered material regardless of whether the packaging also contains goods identified in those subparagraphs.
3. (c) For purposes of subparagraph (E) of paragraph (2) of subdivision (e) of section 42041, “[b]everage containers subject to the California Beverage Container Recycling and Litter Reduction Act” is defined according to sections 14504 and 14505 of the Public Resources Code and regulations adopted pursuant thereto.
4. (d) Nothing in this section precludes the Department from conducting investigations pursuant to subdivision (a) of section 42080 of the Public Resources Code, including to determine whether any packaging or other item qualifies for an exclusion identified in this section, or from taking any enforcement action consistent with its authority pursuant to this Act.

Note: Authority cited: Sections 40401, 40502, 42060 and 42080, Public Resources Code. Reference: Sections 42040, 42041, 42060 and 42080, Public Resources Code.

History

1. New article 2 (sections 18980.2-18980.2.7) and section filed 5-1-2026; operative 5-1-2026 pursuant to Government Code section 11343.4(b)(3) (Register 2026, No. 19).