S1927

An Act concerning the ban on single-use plastic carryout products and amending P.L.2021, c.391.

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

1. Section 1 of P.L.2021, c.391 (C.13:1E-99.135) is amended to read as follows:

1. As used in [this act] P.L.2021, c.391 (C.13:1E-99.135 et seq.):

"Beverage" means any of the following products if those products are in liquid, ready-to-drink form, and are intended for human consumption: beer and other malt beverages; wine and distilled spirit coolers; carbonated water, including soda and carbonated mineral water; noncarbonated water, including noncarbonated mineral water; carbonated soft drinks; noncarbonated soft drinks and sport drinks; noncarbonated fruit drinks that contain any percentage of fruit juice; coffee and tea drinks; carbonated fruit drinks; and vegetable juice.

"Commissioner" means the Commissioner of Environmental Protection.

"Department" means the Department of Environmental Protection.

"Food" means articles used for food or drink for consumption by humans or other animals, and articles used for components of any such article.

"Glass container" means a container made of glass that is filled with a food or beverage.

"Hot fill process" means a process to sterilize both a food product and its container during the food packaging process, in which the food product is heated to a temperature between 194 and 203 degrees Fahrenheit and then injected into the container.

"Licensee" means a manufacturer or entity who licenses a brand and manufactures a product under that brand.

"Manufacturer" means: (1) a person that produces or generates a rigid plastic container, paper carryout bag, plastic carryout bag, or plastic trash bag that does not contain a product and that is sold or offered for sale in the State; (2) a person that produces or generates a container, carryout bag, or trash bag designed to be composted at home that is made entirely from organic material, or composted in a municipal landfill or industrial aerobic or anaerobic composting facility, and that is certified by a recognized third-party independent verification organization, does not contain a product, that is sold or offered for sale in the State; (3) a person that is the brand owner of a product that is sold or offered for sale in the State and that is packaged in a rigid plastic container, plastic beverage container, or glass container, unless the brand owner identifies a licensee who agrees to accept responsibility under [this act] P.L.2021, c.391 (C.13:1E-99.135 et seq.) and the licensee informs the department in writing of the agreement; (4) a person that is the brand owner of a product that is sold or offered for sale in the State and is packaged in a container, carryout bag, or trash bag that is designed to be composted and that is made entirely from organic material, or composted in a municipal landfill or industrial aerobic or anaerobic composting facility, and is certified by a recognized third-party independent verification organization; or [(3)] (5) in the absence of a person meeting the criteria in (1) through (4) of this definition over whom the State may exercise jurisdiction, a person who imports or distributes a product into or within the State that is sold or offered for sale in the State and that is packaged in a rigid plastic container, plastic beverage container, or glass container. "Manufacturer" shall not include a person who, at a single physical location, produces, packages, and sells a product directly to a consumer at retail, which may include a grocery store, restaurant, bar, cafeteria, café, food truck, food cart, or similar establishment.

"Paper carryout bag" means a bag made of paper that is sold or provided by a store to a customer for the purpose of containing, carrying, and transporting food, beverages, or retail goods.

"Person" means an individual, corporation, company, association, society, firm, partnership, or joint stock company.

"Plastic" means a synthetic material made from linking monomers through a chemical reaction to create an organic polymer chain that can be molded or extruded at high heat into various solid forms retaining their defined shapes during the life cycle and after disposal. "Plastic" shall not include products designed to be composted that are made entirely from organic materials, or material that is designed to be composted in a municipal or industrial aerobic or anaerobic composting facility and that is certified by a recognized third-party independent verification body as meeting the standards therefor established by the Biodegradable Products Institute, the American Society for Testing and Materials in ASTM D6400 or ASTM D6868, or an international verification organization, such as the Technical Inspection Association.

"Plastic beverage container" means an individual, separate bottle, can, jar, carton, or other container made of plastic that is hermetically sealed or made airtight with a metal or plastic cap, and that contains a beverage. "Plastic beverage container" shall not include any label, cap, closure, or other item affixed to the container.

"Plastic carryout bag" means a bag made of plastic, of any thickness, whether woven or nonwoven, that is sold or provided by a store to a customer for the purpose of containing, carrying, and transporting food, beverages, or retail goods. "Plastic carryout bag" shall not include bags sold or provided by a store to a customer for the purpose of containing, carrying, and transporting food, beverages, or retail goods, that are made entirely from organic materials and designed to be composted, or that may be composted in a municipal landfill or industrial aerobic or anaerobic composting facility, and that are certified by a recognized third-party independent verification organization.

"Plastic trash bag" means a bag that is made of plastic, is at least 0.70 mils thick, and is designed and manufactured for use as a container to hold, store, or transport materials to be discarded, composted, or recycled, and includes, but is not limited to, a garbage bag, lawn or leaf bag, can-liner bag, kitchen bag, or compactor bag. "Plastic trash bag" shall not include any bags that are made entirely from organic materials and that are designed to be composted, or that may be composted in a municipal landfill or industrial aerobic or anaerobic composting facility, and that are certified by a recognized third-party independent verification organization.

"Postconsumer recycled content" means a material or product that has completed its intended end use and product life cycle, and which has been separated from the solid waste stream for the purposes of collection and recycling. "Postconsumer recycled content" shall not include secondary waste material or materials and by-products generated from, and commonly used within, an original manufacturing and fabrication process.

"Rigid plastic container" means a container made of plastic that has a relatively inflexible finite shape or form, has a minimum capacity of eight fluid ounces or its equivalent volume and a maximum capacity of five fluid gallons or its equivalent volume, and is capable of maintaining its shape while empty or while holding other products. "Rigid plastic container" shall not include any container that is made entirely from organic materials, designed to be composted in an industrial aerobic or anaerobic composting facility, or certified as compostable by a recognized third-party independent verification organization.

"Third-party independent verification organization" means a nonpartisan, credentialed service agency established to test, inspect, and certify products.

(cf: P.L.2021, c.391, s.1)

2. Section 14 of P.L. 2021, c.391 (C.13:1E-99.148) is amended to read as follows:

14. a. (1) Beginning three years and six months after the effective date of [this act] P.L.2021, c.391 (C.13:1E-99.135 et seq.), and annually thereafter, each manufacturer shall certify, in writing, to the department whether or not the rigid plastic containers, plastic beverage containers, glass containers, paper carryout bags, plastic carryout bags, or plastic trash bags, as applicable, sold, offered for sale, or used in association with the sale or offer for sale of a product in the State, are in compliance with the postconsumer recycled content requirements of [this act] P.L.2021, c.391 (C.13:1E-99.135 et seq.), or are otherwise exempt or have been approved for a waiver from the requirements. If the manufacturer claims an exemption from the requirements of [this act] P.L.2021, c.391 (C.13:1E-99.135 et seq.), the manufacturer shall set forth the specific basis upon which the exemption is claimed, and submit such proof as the department determines necessary. In the case of compostable containers, carryout bags, or trash bags, certification of compostable content shall be obtained from a recognized third-party independent verification organization such as the Biodegradable Products Institute, the American Society for Testing and Materials in ASTM D6400 or ASTM D6868, or an international verification organization, such as the Technical Inspection Association. The certification shall be signed by an authorized representative of the manufacturer. A manufacturer shall submit the certification, in the form and manner determined by the department, under penalty of perjury. The certification shall include the amount, in pounds, of virgin plastic, glass, or paper and the amount, in pounds, of postconsumer recycled material used by the manufacturer for any products subject to the requirements of [this act] P.L.2021, c.391 (C.13:1E-99.135 et seq.), and any other information as the department deems necessary. The department shall establish an electronic certification process on its Internet website; however, the lack of an electronic certification process shall not negate the requirement for a manufacturer to certify its compliance pursuant to this subsection.

(2) The department may, in consultation with manufacturers, study: (a) whether there exist independent, third-party verification organizations that can verify manufacturers' compliance with the requirements of [this act] P.L.2021, c.391 (C.13:1E-99.135 et seq.); and (b) appropriate accreditation standards for such organizations. The department may prepare and submit a report including its findings to the Governor, to the Legislature pursuant to section 2 of P.L.1991, c.164 (C.52:14-19.1), and to the members of the Senate Environment and Energy Committee and the Assembly Environment and Solid Waste Committee, or their successors.

b. Each manufacturer shall maintain records, in a form prescribed by the department, that demonstrate, for all rigid plastic containers, plastic beverage containers, glass containers, paper carryout bags, plastic carryout bags, or plastic trash bags generated or produced by the manufacturer, whether and how the manufacturer has complied with the postconsumer recycled content requirements, or whether the manufacturer qualifies for an exemption or waiver from the postconsumer recycled content requirements. The department may adopt specific requirements for the records required to be maintained pursuant to this subsection and may request the records from a manufacturer at any time. A manufacturer shall submit records to the department no later than 30 days after receipt of a request, unless the department extends that timeframe.

c. The department may audit or investigate a manufacturer, at any time, to assess the manufacturer's compliance with the requirements of [this act] P.L.2021, c.391 (C.13:1E-99.135 et seq.). Each year, the department may audit, or cause to be audited, a random sample of manufacturers in order to determine compliance with [this act] P.L.2021, c.391 (C.13:1E-99.135 et seq.). A manufacturer shall cooperate fully with any audit or investigation conducted pursuant to this section. The department may require a manufacturer to pay the costs of an audit conducted pursuant to this subsection.

d. The department shall annually publish a list of registered manufacturers, their compliance status, and other information the department deems appropriate on the department's Internet website.

(cf: P.L.2021, c.391, s.14)

3. This act shall take effect immediately.

STATEMENT

This bill would amend existing law concerning the statewide ban on single-use disposable plastic carryout bags, single-use paper carryout bags, and polystyrene foam food service products to stipulate that certain compostable items, such as compostable carryout bags, compostable trash bags, and rigid compostable containers, would be exempt from the ban on single-use plastic carryout products.

In addition, the bill would clarify that compostable containers, carryout bags, or trash bags would be exempt from the ban on single-use plastic products, provided that their organic composition is certified by any of several identified independent, nationally-recognized third party organizations, as enumerated in the bill.