S4656

An Act concerning plastic packaging and supplementing Title 13 of the Revised Statutes.

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

1. This act shall be known and may be cited as the “Protect our Health from Plastics Act.”

2. As used in this act:

“Chemical conversion” means any method by which pre-consumer or post-consumer plastic waste is converted or altered through any non-mechanical process. “Chemical conversion” shall include:

(1) any process that results in the creation of hazardous chemicals by any means including, but not limited to, incineration, waste-to-energy, or waste-to-fuel;

(2) any process used to transform plastic or plastic-derived materials into any of, but not limited to, the following:

(a) plastic polymers;

(b) plastic monomers;

(d) waxes;

(e) lubricants;

(f) chemical feedstocks;

(g) crude oil;

(h) diesel;

(i) gasoline; or

(j) home heating oil; and

(3) any process that subjects plastics to high heat, combustion, solvents, solutions, catalysts, or other chemical processes including, but not limited to:

(a) gasification;

(b) pyrolysis;

(d) hydropyrolysis;

(e) methanolysis;

(f) glycolosis

(g) enzymatic breakdown;

(h) combustion;

(i) flash graphene conversion;

(j) radical anion attack or electron-driven depolymerization;

(k) thermal desorption;

(l) continuous microwave assisted pyrolysis;

(m) flash joule heating; and

(n) dissolution

“Consumer product” means an item manufactured, assembled, packaged or otherwise prepared for sale, including its product components, which is sold for personal use or consumption by individuals. “Consumer product” shall not include used products offered for sale or resale.

“Covered plastic packaging” means any plastic, in whole or in part, that is used for the containment, protection, handling, delivery, transport, distribution, or presentation of any consumer product or other product that is sold, offered for sale, imported, or distributed in the State. “Covered plastic packaging” includes, but is not limited to: (1) sales packaging, or primary packaging, intended to provide the user or consumer with the individual serving or unit of the product and most closely containing the product, food, or beverage; (2) grouped packaging, or secondary packaging, intended to bundle, sell in bulk, brand, or display the product; and (3) transport packaging, or tertiary packaging, intended to protect the product during transport. “Covered plastic packaging” shall not include: medical devices and packaging which are included with products regulated as a drug, medical device, or dietary supplement by the United States Food and Drug Administration under the “Federal Food, Drug, and Cosmetic Act,” 21 U.S.C. s.301 et seq., or the federal “Dietary Supplement Health and Education Act,” Pub.L.103-417; packaging included with a combination product as defined at 21 C.F.R. s.3.2(e); animal biologics packaging, including vaccines, bacterins, antisera, diagnostic kits, and other products or biological origin, and other covered materials regulated by the United States Department of Agriculture under 21 U.S.C. ss.151-159, known as the “Virus-Serum-Toxin Act”; or packaging regulated by the “Federal Insecticide, Fungicide, and Rodenticide Act,” 7 U.S.C. s.136 et seq., or other applicable federal law, rule, or regulation.

“Department” means the Department of Environmental Protection.

“Disposal” means the landfilling or incineration of packaging material. “Disposal” shall also include: (1) the chemical conversion of discarded materials or discarded product component materials; (2) landfill disposal of discarded material or discarded product component materials, including the use of materials as landfill cover; and (3) composting, aerobic digestion, anaerobic digestion, or biodegradation in industrial or non-industrial facilities.

“Food contact plastic packaging” means covered plastic packaging, or a packaging component, that is designed or intended to contain or come into direct contact with food, foodstuffs, beverages, or ingredients intended for human consumption. “Food contact plastic packaging” includes, but is not limited to, containers, bottles, cups, trays, wrappers, films, liners, closures, seals, coatings, and other packaging components that are designed or intended to directly contact food or beverages. “Food contact plastic packaging” shall not include secondary or tertiary packaging that does not directly contact food or beverages.

“Licensee” means a person holding the exclusive right to use a trademark or brand in the United States or the State in connection with the manufacture, sale, or distribution of a product.

“Office” means the Office of Inspector General established pursuant to section 9 of this act.

“Plastic” means a synthetic or semi-synthetic material made from linking monomers derived from fossil fuel or biological sources through a chemical reaction to create a polymer chain that can be molded, extruded, or otherwise shaped into pellets, objects, films, or filaments, whether alone or in combination with chemical additives including but not limited to plasticizers, stabilizers, colorants, or flame retardants.

“Producer” means (1) the person or entity that manufactures or uses in commercial enterprise a product that is sold, offered for sale, contained, protected, delivered, presented, or distributed in, or using, packaging into the State under the brand of the manufacturer; (2) if there is no person in the State who is the producer for purposes of paragraph (1), the producer is the owner, or, if the owner is not in the State, the exclusive licensee of a brand or trademark under which the product is sold; or (3) if there is no person in the State who is the producer for purposes of paragraph (1) or (2), the producer is the person or entity that imports a product that is contained, protected, delivered, or presented in packaging, into the United States or the State for use in commercial enterprise in the State. In the instance where a private label product is being sold by a retailer, the “producer” is the person or entity who is the owner or licensee of the brand or trademark under which the product is used in a commercial enterprise, sold, offered for sale, or distributed in or into New Jersey, whether or not the trademark is registered in New Jersey. “Producer” includes a franchisor of a franchise located in the United States but does not include the franchisee operating that franchise. For the purposes of this act, the sale of the product shall be deemed to occur in the United States if the product is delivered to the purchaser in the United States.

“Product” means an item manufactured, assembled, packaged or otherwise prepared for sale – including its product components – that is sold or distributed for personal, residential, commercial or industrial use, including for use in making other products. “Product” shall not include used products offered for sale or resale.

“Reuse and refill” means a program or set of systems designed to facilitate multiple uses of packaging, including, but not limited to: deposits, incentives, curbside collection, collection kiosks, refill stations, dishwashing facilities, and reuse sheds, buildings, or centers. A product shall be considered to be “reusable and refillable” if it is designed for reuse and refill and has a demonstrated reusability of more than 10 times for the same or similar purpose as its original format in a system of reuse and refill that is owned by producers, manufacturers, or any third party. Plastic packaging used to contain food or beverages for human consumption shall not be considered to be “reusable and refillable.”

“Toxic substance” means a chemical or chemical class identified by a state agency, federal agency, international intergovernmental agency, accredited research university, or other scientific entity deemed authoritative by the department on the basis of credible scientific evidence as being one or more of the following: (1) a chemical or chemical class that is a carcinogen, mutagen, reproductive toxicant, immunotoxin, neurotoxicant, or endocrine disruptor; (2) a chemical or chemical class that is persistent or bioaccumulative; (3) a chemical or chemical class that may harm the normal development of a fetus or child or cause other developmental toxicity in humans or wildlife; (4) a chemical or chemical class that may harm organs or cause other systemic toxicity; (5) a chemical or chemical class that may have adverse air quality impacts, adverse ecological impacts, adverse soil quality impacts, or adverse water quality impacts; or (6) a chemical or chemical class that the department has determined has equivalent toxicity to the above criteria.

“Unit” means each discrete component of a plastic package or container, including material that is used for the containment, protection, handling, delivery, transport, distribution, and presentation of a product that is sold, offered for sale, imported, or distributed in the United States, including through Internet transactions.

3. a. Each individual producer of covered plastic packaging is subject to the following requirements and shall annually:

(1) submit a registration fee to the department in an amount determined by the department pursuant to subsection d. of section 6 of this act, which shall be deposited by the department into the “Plastics and Toxics Reduction Fund” established by section 6 of this act;

(2) report the total amount, by unit and weight, of covered plastic packaging in the prior calendar year used by the producer to sell, offer for sale, contain, protect, deliver, present, or distribute products into the State, the first instance of which shall serve as the baseline year;

(3) submit a written statement, signed by the chief corporate officer, verifying the producer’s compliance with the reduction requirements established in section 4 of this act, and the toxic elimination requirements established in section 5 of this act; and

(4) provide all information necessary for the producer and the department to meet the obligations required under this section.

b. The department shall establish, in the rules and regulations adopted pursuant to section 11 of this act, a form, manner, and schedule by which producers shall comply with the provisions of this section.

4. a. Each individual producer shall reduce the amount of covered plastic packaging used to sell, offer for sale, contain, protect, deliver, present, or distribute products into the State according to the following schedule:

(1) 10 percent by weight no later than two years after registering with the department pursuant to section 3 of this act;

(2) 20 percent by weight no later than four years after registering;

(3) 30 percent by weight no later than six years after registering;

(4) 40 percent by weight no later than eight years after registering; and

(5) 50 percent by weight no later than 10 years after registering.

b. The reductions required by this section shall be measured against the total amount of covered plastic packaging the producer used to contain, protect, deliver, present, or distribute the products they sold, offered for sale, or distributed for sale, during the first year the producer registered with the department.

c. The reductions required by this section may be achieved by using strategies including, but not limited to:

(1) the elimination of plastic packaging components;

(2) the reduction of plastic packaging components;

(3) the use of reuse and refill systems;

(4) plastic packaging rightsizing, lightweighting, and optimization; and

(5) replacing plastic packaging components with non-plastic materials.

d. The reductions required by this section shall not be achieved through disposal.

e. Upon application by a producer, the department may grant a waiver from the reduction requirements of this section, solely with respect to a specified category or format of covered plastic packaging, if the producer demonstrates, through verifiable data and documentation satisfactory to the department, that:

(1) the covered plastic packaging is not food contact plastic packaging; and

(2) during the preceding calendar year, not less than 75 percent of the covered plastic packaging by weight was collected and managed through a reuse and refill system.

5. a. Beginning three years after the effective date of this act, no producer may knowingly sell, offer for sale, contain, protect, deliver, present, or distribute a product into the State with covered plastic packaging that contains the following toxic substances:

(1) antimony and antimony compounds;

(2) arsenic;

(3) benzophenone and its derivatives;

(4) bisphenols;

(5) cadmium and cadmium compounds;

(6) cobalt

(7) formaldehyde;

(8) halogenated flame retardants;

(9) hexavalent chromium and hexavalent chromium compounds;

(10) lead and lead compounds;

(11) mercury and mercury compounds;

(12) non-detectable pigments including carbon black;

(13) nonylphenols;

(14) ortho-phthalates;

(15) oxo-degradable additives including oxo-biodegradable additives;

(16) perchlorate;

(17) per- and polyfluoroalkyl substances (PFAS);

(18) short chained, medium chained, and long chained chlorinated paraffins;

(19) toluene;

(20) UV 328 (2-(2H-benzotriazol-2-yl)-4,6-di-tert-pentylphenol);

(21) polyvinyl chloride (PVC), including polyvinylidene chloride;

(22) polystyrene; or

(23) polycarbonate.

b. Beginning five years after the effective date of this act, and every three years thereafter, the department shall designate at least 10 additional toxic substances or families of toxic substances that may no longer be sold, offered for sale, distributed for sale, or distributed for use in covered plastic packaging in the State unless the department determines there are not 10 chemicals that meet the definition of toxic substances.

(1) If the department determines there are not 10 chemicals that meet the definition of toxic substances, it shall publish a detailed statement of its findings and conclusions supporting such determination on its Internet website.

(2) No later than 180 days after designating a toxic substance that may no longer be sold, offered for sale, distributed for sale, or distributed for use in covered plastic packaging in the State, the department shall adopt rules and regulations to enforce this prohibition, with an effective date no later than two years after the designation.

6. a. There is hereby established in the department a special, nonlapsing fund to be known as the “Plastics and Toxics Reduction Fund.” Monies in the fund shall be held separately and be used to carry out the purposes enumerated in subsection c. of this section.

b. The “Plastics and Toxics Reduction Fund” shall be credited with all revenues and penalties collected pursuant to this act, all interest received from the investment of monies in the fund, and any monies which, from time to time, may otherwise become available for the purposes of the fund. Pending the use of the monies pursuant to the provisions of subsection c. of this section, the monies deposited in the fund shall be held in interest-bearing accounts in public depositories, as defined pursuant to section 1 of P.L.1970, c.236 (C.17:9-41), and may be invested or reinvested in such securities as are approved by the State Treasurer. Interest or other income earned on monies deposited into the fund shall be credited to the fund for use as set forth in this section for other monies in the fund.

c. Monies in the “Plastics and Toxics Reduction Fund” shall be used to reimburse the department, Attorney General, and other agencies for the costs associated with administering and enforcing the requirements of this act and its implementing regulations. Any remaining funds shall be used for projects and programs approved by the department that support reuse and refill systems.

d. Beginning one year after the effective date of this act, and annually thereafter, the department shall collect a registration fee from each producer. The registration fee shall vary based on the total amount of covered plastic packaging each producer introduced in the prior year calculated on a per-unit basis, such as per ton, per item, or another unit of measurement, as determined by the department.

7. A producer shall be exempt from the requirements of this act if the producer provides the department with sufficient information to demonstrate that, in any calendar year, the producer: realized less than $1,000,000 in total gross revenue during the prior calendar year; or used less than one ton of covered plastic packaging material in total during the prior calendar year to sell, offer for sale, contain, protect, deliver, present, or distribute products.

8. a. Beginning one year after the effective date of this act, and annually thereafter, the department shall:

(1) calculate the total amount of covered plastic packaging by weight and by producer that was produced during the prior calendar year;

(2) develop a list of producers believed to be out of compliance with the requirements of this act; and

(3) develop, and publish on the department’s Internet website, a report that summarizes the data required by paragraph (1) of this subsection, compiled by producer and in aggregate. The report shall also include, but shall not be limited to:

(a) the total amount of covered plastic packaging produced in the State, by unit and weight;

(b) the total amount of covered plastic packaging reduced by unit and weight, as measured against the baseline year;

(d) how a member of the public can report suspected non-compliance of a producer with the provisions of this act; and

(e) any recommendations for further plastic and toxic substance reduction in packaging.

b. The department shall establish and maintain on its Internet website a public database, searchable by producer, product, and toxic substance, that contains all data submitted to, or aggregated by, the department pursuant to sections 3, 4, and 7 of this act.

9. a. The Attorney General shall establish an independent Office of Inspector General within the Office of the Attorney General. The Office of Inspector General shall evaluate the requirements created by this act on an annual basis to ensure producers and facilities are in compliance with the requirements of this act.

b. The Office of Inspector General shall have the authority to investigate the compliance of producers and facilities with all provisions of this Act and to bring enforcement violations against non-compliant producers and facilities.

10. a. Whenever the Department of Environmental Protection or the Office of Inspector General established pursuant to section 9 of this act finds that a person has violated any provision of this, or any rule or regulation adopted pursuant thereto, the department or the office may:

(1) issue an order requiring the person found to be in violation to comply in accordance with subsection b. of this section;

(2) bring a civil action in accordance with subsection c. of this section;

(3) levy a civil administrative penalty in accordance with subsection d. of this section;

(4) bring an action for a civil penalty in accordance with subsection e. of this section;

(5) direct a producer or other person that is not in compliance with the requirements of this to stop offering for sale or distributing products that violate the provisions of this act; or

(6) notify the public of a producer that is not in compliance with the requirements of this act.

b. Whenever the department or the office finds that a person has violated the provisions of this act, or any rule or regulation adopted pursuant thereto, it may issue an administrative enforcement order specifying the provision or provisions of this act, or the rule or regulation adopted pursuant thereto, of which the person is in violation, citing the action that constituted the violation, requiring compliance with the provision violated, and giving notice to the person of the person’s right to a hearing on the matters contained in the administrative enforcement order. The ordered person shall have 20 calendar days from receipt of the order within which to deliver to the division a written request for a hearing. After the hearing and upon finding that a violation has occurred, the division may issue a final order. If no hearing is requested, the order shall become final after the expiration of the 20-day period. A request for hearing shall not automatically stay the effect of the order.

c. The department and the office are authorized to institute a civil action in Superior Court for appropriate relief from any violation of the provisions of this act, or any rule or regulation adopted pursuant thereto. This relief may include an assessment against the violator for the costs of any investigation, inspection, or audit that led to the discovery and establishment of the violation, and for the reasonable costs of preparing and litigating the case under this subsection.

d. The department and the office are authorized to impose a civil administrative penalty of not more than $50,000 for each violation, provided that each day during which the violation continues shall constitute an additional, separate, and distinct offense. In assessing a civil administrative penalty, the department or office, as applicable, shall consider the severity of the violation, the measures taken to prevent further violations, and whether the penalty will maintain an appropriate deterrent. Prior to assessment of a civil administrative penalty, the person committing the violation shall be notified by certified mail or personal service that the penalty is being assessed. The notice shall identify the section of the statute, rule, regulation, or order violated; recite the facts alleged to constitute a violation; state the basis for the amount of the civil administrative penalties to be assessed; and affirm the rights of the alleged violator to a hearing. The ordered party shall have 20 days from receipt of the notice within which to deliver to the division a written request for a hearing. After the hearing and upon finding that a violation has occurred, the department or office, as applicable, may issue a final order after assessing the amount of the fine specified in the notice. If no hearing is requested, the notice shall become a final order after the expiration of the 20-day period. Payment of the assessment is due when a final order is issued or the notice becomes a final order. The authority to levy an administrative order is in addition to all other enforcement provisions in this act, and the payment of any assessment shall not be deemed to affect the availability of any other enforcement provisions in connection with the violation for which the assessment is levied. The department and the office may compromise any civil administrative penalty assessed under this section in an amount and with conditions it determines appropriate.

e. A person who violates any provision of P.L. , c. (C. ) (pending before the Legislature as this bill), or any rule or regulation adopted pursuant thereto, or an administrative order issued pursuant to subsection b. of this section, or a court order issued pursuant to subsection c. of this section, or who fails to pay a civil administrative penalty in full pursuant to subsection d. of this section, or who knowingly makes any false or misleading statement on any application, record, report, or other document required to be submitted to the division shall be subject, upon order of a court, to a civil penalty not to exceed $50,000 per day of the violation, and each day during which the violation continues shall constitute an additional, separate, and distinct offense. Any civil penalty imposed pursuant to this subsection may be collected with costs in a summary proceeding pursuant to the “Penalty Enforcement Law of 1999,” P.L.1999, c.274 (C.2A:58-10 et seq.), or may be collected in a civil action commenced by the division . In addition to any penalties, costs, or interest charges, the Superior Court, or the municipal court as the case may be, may assess against the violator the amount of economic benefit accruing to the violator from the violation.

f. The exercise of any of the remedies provided in this section shall not preclude the seeking of any other remedy specified.

g. The department and the office may conduct investigations of any individual producer or facility, including inspecting operations, buildings, and records to determine compliance under this act.

h. The department and the office may perform audits of any individual producer or facility to determine compliance under this act.

i. Any monies collected under this section shall be deposited into the “Plastics and Toxics Reduction Fund” established by section 6 of this act.

11. The department shall, in accordance with the “Administrative Procedure Act,” P.L.1968, c.410 (C.52:14B-1 et seq.), adopt rules and regulations as necessary to implement this act.

12. This act shall take effect immediately.

STATEMENT

This bill, to be known as the “Protect our Health from Plastics Act,” would require producers of plastic packaging to gradually reduce the amount of plastic packaging that they produce each year, and would prohibit the presence of certain toxic substances in plastic packaging.

The bill would define a “producer” of plastic packaging according to the following hierarchy. First, the “producer” would be the manufacturer of the product that is packaged in the plastic packaging. Second, if the manufacturer is outside the State, the “producer” would be owner of the brand under which the product is sold. Finally, if the brand owner is outside the State, the “producer” would be the person who imports the product into the State (e.g., the distributor). The bill would exempt certain small producers, as described in section 7 of the bill. The bill would define “plastic packaging” to include primary packaging, which immediately surrounds the product, secondary packaging, which is used to bundle multiple products together, and tertiary packaging, which is used to protect products during transportation.

The bill would require each producer of plastic packaging to register with the Department of Environmental Protection (DEP), pay a registration fee, and provide information about the amount of plastic packaging that they produce, which would serve as the baseline. Each producer would be required to reduce the total amount of plastic packaging they produce according to the schedule described in section 4 of the bill, culminating in a 50 percent reduction 10 years after the producer registers with the DEP.

Section 5 of the bill would prohibit the use of plastic packaging that contains the listed toxic substances, including antimony, arsenic, and cadmium. The bill would also direct the DEP to prohibit the use of 10 additional toxic substances in plastic packaging five years after the bill’s enactment and every three years thereafter.

The bill would direct the Attorney General to establish an independent enforcement office, to be known as the Office of Inspector General. The bill would direct the Office of Inspector General to enforce the bill’s provisions and investigate potential violations. Finally, the bill would authorize the DEP and the Office of Inspector General to levy civil and civil administrative penalties of up to $50,000 per violation for persons that violate the bill’s provisions. Each day of a continuing violation would be considered a separate violation.