Redwood City — Fed up with the state’s refusal to enforce a law banning the sale of polystyrene foam cups, plates and bowls, a San Diego County resident has taken matters into his own hands.

Jeffrey Heavey, a chef and owner of Convivial Catering, a San Diego-area catering service, is suing WinCup, an Atlanta-based foam foodware product manufacturing company, claiming that it continues to sell, distribute and market foam products in California despite a state law that was supposed to ban such sales starting Jan. 1. He is suing on behalf of himself, not his business.

The suit, filed in the San Diego County Superior Court in March, seeks class action status on behalf of all Californians.

Heavey’s attorney, William Sullivan of the Sullivan & Yaeckel Law Group, said his client is seeking an injunction to stop WinCup from selling these banned products in California and to remove the products’ “chasing arrows” recycling label, which Heavey and his attorney describe as false and deceptive advertising.

They are also seeking damages for every California-based customer who paid the company for these products in the last three years, and $5,000 to every senior citizen or “disabled” person who may have purchased the products during this time period.

WinCup didn’t respond to requests for comments, but in a court filing described the allegations as vague, unspecific and without merit, according to the company’s attorney, Nathan Dooley.

At issue is a California ban on the environmentally destructive plastic material, which went into effect on Jan. 1, as well as the definition of “recyclable” and the use of such a label on products sold in the state.

Senate Bill 54, signed into law by Gov. Gavin Newsom in 2021, targeted single-use plastic in the state’s waste stream.

The law included a provision that banned the sale and distribution of expanded polystyrene food service ware — such as foam cups, plates and takeout containers — on Jan. 1, unless producers could show they had achieved a 25% recycling rate.

“I’m glad a person in my district has taken this up and is holding these companies accountable,” said Catherine Blakespear (D-Encinitas). “But CalRecycle is the enforcement authority for this legislation, and they should be the ones doing this.”

The intent of the law was to put the financial onus of responsible waste management onto the producers of these products, and away from California’s taxpayers and cities that would otherwise have to dispose of these products or deal with their waste on beaches, in rivers and on roadways.

Expanded polystyrene is a particularly pernicious form of plastic pollution that does not biodegrade, has a tendency to break down into microplastics, leaches toxic chemicals and persists in the environment.

There are no expanded polystyrene recycling plants in California, and recycling rates nationally for the material hover around 1%.

A Mallard duck swims in water with Styrofoam polluting the beach on Lake Washington, Kirkland, Wash.

(Wolfgang Kaehler / LightRocket via Getty Images)

However, despite CalRecycle’s delayed announcement of the ban, companies such as WinCup not only continue to sell these banned products in California, but Heavey and his lawyers allege the products are deceptively labeled as “recyclable.”

In his suit, Heavey includes a March 15 receipt from a Smart & Final store in the San Diego County town of National City, indicating a purchase of “WinCup 16 oz. Foam” cups.

Similar polystyrene foam products could be seen on the shelves this week at a Redwood City Smart & Final, including a 1,000-count box of 12-ounce WinCup foam cups selling for $36.99. Across the aisle, the shelves were packed with bags of Simply Value and First Street (both Smart & Final brands) foam plates and bowls.

There were “chasing arrow” recycling labels on the boxes containing cup lids. The symbol included a No. 6 in the center, indicating the material is polystyrene. There were none on the cardboard boxes containing cups, and it couldn’t be determined if the individual foam products were tagged with recycling labels. They were either obstructed from view inside cardboard boxes or stacked in bags which obscured observation.

Smart & Final, which is owned by Chedraui USA, a subsidiary of Mexico City-based Grupo Comercial Chedraui, didn’t respond to requests for comment.

Heavey’s suit alleges the plastic product manufacturer is “greenwashing” its products by labeling them as recyclable and in so doing, trying to skirt the law.

According to the suit, recycling claims are widely disseminated on products and via other written publications.

The company’s website includes an “Environmental” tab, which includes a page entitled: “Foam versus Paper Disposable Cups: A closer look.”

The page includes a one-sentence argument highlighting the environmental superiority of foam over paper, noting that “foam products have a reputation for environmental harm, but if we examine the scientific research, in many ways Expanded Polystyrene (EPS) foam is greener than paper.”

Heavey’s suit claims that he believed he was purchasing recyclable materials based on the products’ labeling, and he would not have bought the items had they not been advertised as such.

WinCup, which is owned by Atar Capital, a Los Angeles-based global private investment firm sought to have the case moved to the U.S. District Court in San Diego, but a judge there remanded the case back to the San Diego Superior Court or jurisdiction grounds.

Susan Keefe, the Southern California Director of Beyond Plastics, an anti-plastic environmental group based in Bennington, Vt., said that as of June, the agency had not yet enforced the ban, despite news stories and evidence that the product was still being sold in the state.

“It’s really frustrating. CalRecycle’s disregard for enforcement just permits a lack of respect for our laws. It results in these violators who think they can freely pollute in our state with no trepidation that California will exercise its right to penalize them,” she said.

Melanie Turner, a spokesoman for CalRecycle, said in a statement that expanded polystyrene producers “should no longer be selling or distributing expanded polystyrene food service ware to California businesses.”

“CalRecycle has been identifying and notifying businesses that may be impacted by SB 54, including expanded polystyrene requirements, and communicating their responsibilities with mailed notices, emailed announcements, public meetings, and workshops,” she said.

The waste agency “is prioritizing compliance assistance for producers regulated by this law, prior to potential enforcement action,” she said.

Keefe filed a public records request with the agency regarding communications with companies selling the banned material and said she found the agency had not made any attempts to warn or stop the violators from selling banned products.

Blakespear said it’s concerning the law has been in effect for more than six months and CalRecycle has yet to clamp down on violators. Enforcement is critical, she said, for setting the tone as SB 54 is implemented.

According to Senate Bill 54, companies that produce banned products that are then sold in California can be fined up to $50,000 per day, per violation.

According to a report issued by the waste agency last week, approximately 47,000 tons of expanded polystyrene foam was disposed in California landfills last year.