A3746

An Act concerning the provision, by food service businesses, of single-use utensils and condiments to customers, amending P.L.2002, c.128 and P.L.2020, c.117, and supplementing Title 13 of the Revised Statutes.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. (New section) As used in P.L. , c. (C. ) (pending before the Legislature as this bill):

"Commissioner" means the Commissioner of Environmental Protection.

"Condiment" means packaged ketchup, mustard, mayonnaise, hot sauce, salt, pepper, or any other herb, spice, seasoning, sauce, or substance that is used to give a special flavor to food.

"Department" means the Department of Environmental Protection.

"Food service business" means and includes a restaurant, café, food truck, vendor station, cafeteria, or any other facility or premises, or section or part thereof, including, but not limited to, a section or part of a grocery store, convenience store, hospital, school, sports arena, entertainment venue, or other similar facility or venue, where meals are prepared and served to customers for immediate consumption thereby on or off the premises, whether on a take-out, eat-in, drive-thru, or delivery basis.

"Single-use utensils or condiments" means utensils or condiment packets or packages which are designed to be discarded, by the consumer, after a single use.

"Utensil" means an instrument, including, but not limited to, a knife, fork, chopstick, or spoon, which is commonly used by humans to eat meals served thereto by a food service business.

2. (New section) a. Commencing on the effective date of P.L. , c. (C. ) (pending before the Legislature as this bill):

(1) no food service business operating in the State shall provide single-use utensils or condiments to any customer, except upon, and in accordance with, the express request of that customer. The provisions of this paragraph shall be applicable regardless of whether a customer is receiving meals from the food service business on an eat-in, take-out, drive-thru, or delivery basis, and regardless of whether the customer's meal order is placed in person, over the phone, online, or using other available means or methods. An online ordering application may allow customers to request single-use utensils or condiments, provided that the default selection is "no utensils or condiments," and that the food service business bears final responsibility for ensuring that no utensils or condiments are provided except upon request; and

(2) a food service business that has on-site seating capacity for 50 or more customers shall provide its on-site customers with easy access to reusable, washable utensils for use thereby while consuming meals on the premises, and shall require each customer using such utensils to return those utensils to the food service business, for the purposes of cleaning and reuse, upon completion of the customer's on-site meal.

b. Any food service business that elects to supply customers with single-use utensils or condiments, upon request, as authorized by paragraph (1) of subsection a. of this section:

(1) shall provide each customer with only those types and amounts of single-use utensils and condiments that have been expressly requested thereby; and

(2) shall not create, acquire, or provide customers with bundled packages that contain more than one type of single-use utensil or condiment, regardless of the nature of any customer request therefor.

c. Nothing in this section shall be deemed to require a food service business to provide any single-use utensils or condiments to customers, upon their request, as authorized by paragraph (1) of subsection a. of this section.

d. A school shall be exempt from the provisions of this section for a period of five years beginning on the effective date of P.L. , c. (C. ) (pending before the Legislature as this bill).

e. A health care facility licensed pursuant to P.L.1971, c.136 (C.26:2H-1 et seq.) shall be exempt from the provisions of this section during a time of infectious outbreak or during outdoor recreational activities and family picnics.

f. A food service business located in a food court shall be exempt from the provisions of this section for a period of two years beginning on the effective date of P.L. , c. (C. ) (pending before the Legislature as this bill).

3. (New section) a. Any food service business that violates the provisions of section 2 of P.L. , c. (C. ) (pending before the Legislature as this bill) shall be subject to a warning for the first offense, a civil penalty of $2,500 for the second offense, and a civil penalty of $5,000 for the third and each subsequent offense. Each day on which a violation occurs shall constitute a separate and distinct offense.

b. A penalty imposed pursuant to this section shall be collected, by the commissioner, a municipality, or an entity certified pursuant to the "County Environmental Health Act," P.L.1977, c.443 (C.26:3A2-21 et seq.), in a summary proceeding commenced, pursuant to the provisions of the "Penalty Enforcement Law of 1999," P.L.1999, c.274 (C.2A:58-10 et seq.), before a court of competent jurisdiction. The Superior Court and municipal courts shall have jurisdiction to enforce the provisions of the "Penalty Enforcement Law of 1999," P.L.1999, c.274 (C.2A:58-10 et seq.), for the purposes of this section. Entities certified pursuant to the "County Environmental Health Act," P.L.1977, c.443 (C.26:3A2-21 et seq.) shall assume primary enforcement responsibility for violations of the provisions of section 2 of P.L. , c. (C. ) (pending before the Legislature as this bill).

c. Any moneys collected from penalties imposed pursuant to this section shall be deposited into the "Clean Communities Program Fund," established pursuant to section 5 of P.L.2002, c.128 (C.13:1E-217), except that a municipality or entity certified pursuant to the "County Environmental Health Act," P.L.1977, c.443 (C.26:3A2-21 et seq.) may retain 30 percent of any penalty it collects pursuant to this section.

d. Notwithstanding any provision of P.L. , c. (C. ) (pending before the Legislature as this bill) to the contrary, a food service business shall be authorized to acquire, and to maintain on its premises, an adequate supply of non-bundled single-use utensils or condiments for the purposes of providing such single-use utensils or condiments to customers, upon request, in accordance with the provisions of paragraph (1) of subsection a. of section 2 of P.L. , c. (C. ) (pending before the Legislature as this bill), and no food service business shall be subject to a penalty, pursuant to subsection a. of this section, for acquiring, possessing, or maintaining a supply of single-use utensils or condiments for the limited purposes authorized by this subsection.

4. Section 5 of P.L.2002, c.128 (C.13:1E-217) is amended to read as follows:

5. The Clean Communities Program Fund is established as a nonlapsing, revolving fund in the Department of the Treasury. The Clean Communities Program Fund shall be administered by the Department of Environmental Protection and credited, in addition to any appropriations made thereto, with all user fees imposed pursuant to section 4 of P.L.2002, c.128 (C.13:1E-216) [or], penalties imposed pursuant to section 10 of P.L.2002, c.128 (C.13:1E-222), penalties imposed pursuant to P.L. , c. (C. ) (pending before the Legislature as this bill), and any sums received as voluntary contributions from private sources. Interest received on moneys in the Clean Communities Program Fund shall be credited to the fund. Unless otherwise expressly provided by the specific appropriation thereof by the Legislature, which shall take the form of a discrete legislative appropriations act and shall not be included within the annual appropriations act, all available moneys in the Clean Communities Program Fund shall be appropriated annually and solely for the following purposes and no others:

a. 10 percent of the estimated annual balance of the Clean Communities Program Fund shall be used for a State program of litter pickup and removal and of enforcement of litter-related laws and ordinances in State owned places and areas that are accessible to the public. Moneys in the fund may also be used by the State to abate graffiti;

b. 50 percent of the estimated annual balance of the Clean Communities Program Fund shall be distributed as State aid to eligible municipalities with total housing units of 200 or more for programs of litter pickup and removal, including establishing an "Adopt-A-Highway" program, of public education and information relating to litter abatement and of enforcement of litter-related laws and ordinances. The amount of State aid due each municipality shall be solely calculated based on the proportion which the housing units of a qualifying municipality bear to the total housing units in the State. Total housing units shall be determined using the most recent federal decennial population estimates for New Jersey and its municipalities, filed in the office of the Secretary of State. Moneys in the fund may also be used by an eligible municipality to abate graffiti;

c. 30 percent of the estimated annual balance of the Clean Communities Program Fund shall be distributed as State aid to eligible municipalities with total housing units of 200 or more for programs of litter pickup and removal, including establishing an "Adopt-A-Highway" program, of public education and information relating to litter abatement and of enforcement of litter-related laws and ordinances. The amount of State aid due each municipality shall be solely calculated based on the proportion which the municipal road mileage of a qualifying municipality bears to the total municipal road mileage within the State. For the purposes of this subsection, "municipal road mileage" means that road mileage under the jurisdiction of municipalities, as determined by the Department of Transportation. Moneys in the fund may also be used by an eligible municipality to abate graffiti;

d. 10 percent of the estimated annual balance of the Clean Communities Program Fund shall be distributed as State aid to eligible counties for programs of litter pickup and removal, including establishing an "Adopt-A-Highway" program, of public education and information relating to litter abatement and of enforcement of litter-related laws and ordinances. The amount of State aid due each county shall be solely calculated based on the proportion which the county road mileage of an eligible county bears to the total county road mileage within the State. For the purposes of this subsection, "county road mileage" means that road mileage under the jurisdiction of counties, as determined by the Department of Transportation. Moneys in the fund may also be used by an eligible county to abate graffiti;

e. No eligible municipality shall receive less than $4,000 in State aid as apportioned pursuant to subsections b. and c. of this section. A municipality or county may use up to five percent of its State aid for administrative expenses;

f. Prior to the distribution of funds pursuant to subsections a. through d. of this section:

(1) $375,000 of the estimated annual balance of the Clean Communities Program Fund shall be annually appropriated to the department and made available on July 1 of every year to the organization under contract with the department pursuant to section 6 of P.L.2002, c.128 (C.13:1E-218) for a Statewide public information and education program concerning antilittering activities and other aspects of responsible solid waste handling behavior, of which up to $75,000 shall be used exclusively to finance an annual Statewide television, radio, newspaper and other media advertising campaign to promote antilittering and responsible solid waste handling behavior.

(2) in each of the first three years after the effective date of P.L.2020, c.117 (C.13:1E-99.126 et al.), $500,000 of the estimated annual balance of the Clean Communities Program Fund shall be appropriated to the department and made available on July 1 of each year to the organization under contract with the department pursuant to section 6 of P.L.2002, c.128 (C.13:1E-218) for the Statewide public information and education program developed pursuant to subsection b. of section of section 8 of P.L.2020, c.117 (C.13:1E-99.133).

The organization under contract with the department pursuant to section 6 of P.L.2002, c.128 (C.13:1E-218) shall, no later than the date on which the contract period concludes, submit a report to the Governor and the Legislature concerning its activities during the contract period and any recommendations concerning improving the program. Every eligible municipality and county shall cooperate with the organization under contract with the department pursuant to section 6 of P.L.2002, c.128 (C.13:1E-218) in providing information concerning its program of litter pickup and removal.

No later than May 31, 2008, 25 percent of the estimated annual balance of the Clean Communities Program Fund shall be appropriated to the State Recycling Fund established pursuant to section 5 of P.L.1981, c.278 (C.13:1E-96). These moneys shall be used by the Department of Environmental Protection for direct recycling grants to counties and municipalities, up to a maximum appropriation of $4,000,000.

g. As used in this section, "graffiti" means any inscription drawn, painted or otherwise made on a bridge, building, public transportation vehicle, rock, wall, sidewalk, street or other exposed surface on public property.

The department may carry forward any unexpended balances in the Clean Communities Program Fund as of June 30 of each year.

(cf: P.L.2020, c.117, s.10)

5. Section 6 of P.L.2020, c.117 (C.13:1E-99.131) is amended to read as follows:

6. a. Any person or entity that violates a provision of P.L.2020, c.117 (C.13:1E-99.126 et al.), or any rule or regulation adopted pursuant thereto, shall be subject to a warning for a first offense, up to $1,000 for a second offense, and up to $5,000 for a third or subsequent offense, to be collected in a civil action by a summary proceeding under the "Penalty Enforcement Law of 1999," P.L.1999, c.274 (C.2A:58-10 et seq.), or in any case before a court of competent jurisdiction wherein injunctive relief has been requested. If the violation is of a continuing nature, each day during which it continues shall constitute an additional, separate, and distinct offense. The Superior Court and the municipal court shall have jurisdiction to enforce the provisions of the "Penalty Enforcement Law of 1999" in connection with P.L.2020, c.117 (C.13:1E-99.126 et al.).

b. Any penalty collected pursuant to this section shall be remitted to the State Treasurer for deposit in the Clean Communities Program Fund established pursuant to section 5 of P.L.2002, c.128 (C.13:1E-217), except that a municipality or entity certified pursuant to the "County Environmental Health Act," P.L.1977, c.443 [(C.26:3a2-21] (C.26:3A2-21 et seq.) may retain 30 percent of any penalty it collects pursuant to subsection a. of this section.

c. The Department of Environmental Protection, a municipality, and any entity certified pursuant to the "County Environmental Health Act," P.L.1977, c.443 [(C.26:3a2-21] (C.26:3A2-21 et seq.) shall have the authority to enforce the provisions of P.L.2020, c.117 (C.13:1E-99.126 et al.). Those entities may institute a civil action for injunctive relief to enforce P.L.2020, c.117 (C.13:1E-99.126 et al.) and to prohibit and prevent a violation thereof, and the court may proceed in the action in a summary manner. Entities certified pursuant to the "County Environmental Health Act," P.L.1977, c.443 (C.26:3A2-21 et seq.) shall assume primary enforcement responsibility for violations of the provisions of P.L.2020, c.117 (C.13:1E-99.126 et al.).

(cf: P.L.2020, c.117, s.6)

6. This act shall take effect on the first day of the seventh month next following the date of enactment.

STATEMENT

This bill would prohibit food service businesses in the State from providing customers with single-use utensils or condiments, except upon request.

Specifically, the bill would provide that, commencing on the first day of the seventh month after the bill's enactment: (1) no food service business operating in the State may provide single-use utensils or condiments to any customer, except upon, and in accordance with, the express request of that customer; and (2) a food service business that has on-site seating capacity for 50 or more customers will be required to provide its on-site customers with easy access to reusable, washable utensils, which are to be returned to the food service business, upon completion of the on-site meal, for cleaning and reuse. The bill would expressly provide, however, that: (1) schools are to be exempted from the bill’s provisions for the first five years following the bill’s effective date; (2) food service businesses are to be exempted from the bill’s provisions for the first two years following the bill’s effective date; and (3) health care facilities are to be exempted from the bill’s provisions during any infectious disease outbreak, or during outdoor recreational activities or family picnics.

Under the bill’s provisions, any food service business that elects to supply customers with single-use utensils or condiments, upon request, would be required to provide each customer with only those types and amounts of single-use utensils and condiments that have been expressly requested by the customer. A food service business would also be prohibited from creating, acquiring, or providing customers with bundled utensil or condiment packages that contain more than one type of single-use plastic utensil or condiment.

Any food service business that violates the bill's provisions would be liable to a warning for the first offense, a civil penalty of $2,500 for the second offense, and a civil penalty of $5,000 for the third and each subsequent offense, to be collected through a summary proceeding. Each day on which a violation occurs would constitute a separate and distinct offense. Any moneys collected from penalties imposed pursuant to the bill would be deposited into the "Clean Communities Program Fund" for use in financing litter pickup, removal, education, and enforcement programs at the State and local levels, except that municipalities and county environmental enforcement agencies would be permitted to retain 30 percent of the moneys.

Finally, the bill would amend the law at P.L.2020, c.117 (C.13:1E-99.126 et al.), which prohibits the distribution of plastic bags and polystyrene food serviceware, in order to provide for entities that are certified pursuant to the "County Environmental Health Act," P.L.1977, c.443 (C.26:3a2-21 et seq.), to have primary enforcement responsibility under, and for the purposes of, that law.