Colorado House Bill 22-1355 Rerevised (2022) - (Passed)

Packaging means any material that is intended for single or short term use that is used for the containment, protection, handling, or delivery of products to a consumer a the point of sale, including through the internet. This includes food and beverage packaging that is ordinarily disposed of after a single use and not designed for reuse or refill.

Paper is included under covered products and includes items like flyers, brochures, booklets, magazines, paper used for writing and others.

Exclusions include:

1. Packaging materials intended for long term storage of a durable product for atleast 5 years
2. Paper products that could become unsafe or unsanitary through use
3. Bound books
4. Containers subject to returnable container deposits
5. Packaging materials exclusive to industrial or manufacturing process
6. Packaging used for FDA regulated drugs, medical devices, and dietary supplements, infant formula, medical food, or biological materials related to animals like vaccines
7. Packaging related to containers for architectural paint
8. Printed paper used for distributing financial documents, billing statements, medical documents, or other documents required to be provided in paper form by applicable consumer protection law or other laws.
9. Packaging used to contain a product regulated under the Federal Insecticide, Fungicide, and Rodenticide Act
10. Packaging for repaired and refurbished portable electronic devices
11. Paper products used for a print publication that primarily includes news and current events content derived from primary sources
12. Based on an analysis by the organization of operational and fiancial impacts, in addition to a consultation with the advisory board, any other material can be determined to be an exclusion by rule of the comission

The producer responsibility program must provide curbside recycling that is as convenient as the existing collection plan. The bill includes service to single and multifamily residences.

Schools, government buildings are covered entities in the bill and the PRO must provide recycling services.

Businesses, including hospitality, are covered entities in the bill and the PRO must provide recycling services.

Public places are covered entities in the bill and the PRO must provide recycling services.

If the paper or product is sold or distributed in Colorado using packaging materials under the manufacturer's own brand or if there is no brand, the person that manufactures the product is the producer.

If the paper or product is manufactured by a person other than the brand owner, the person that is the licensee of the brand or trademark under which a packaged item is sold or distributed is the producer, whether or not the trademark is registered in Colorado.

If there is no brand owner or licensee of the brand, then the person who imports the paper or product using covered materials into the United States for the use in a commercial enterprise that sells or distributes into the state of Colorado is the producer.

For any other covered material, the person that first distributes the product into the state is the producer.

A producer is exempt if they have less than 5 million dollars in gross total revenue during the prior year (not including on-premise alcohol sales) or uses less than 1 ton of covered materials for products sold, offered for sale, or distributed in Colorado. A builder, construction company or contractor and an agricultural employer with less than 5 million dollars in gross revenue are exempt.

The state or local governments are excluded from the definition of producer.

Nonprofits are excluded from the definition of producer.

An individual business operating a retail food establishment establishment, located at a specific business location that is specifically licensed to Denver's code of ordinances is exempt.

Producers must form a Producer Responsibility Organization (PRO) and discharge responsibilities to that organization.

Producers may comply individually, but any additional PROs are required to submit a coordination plan.

PRO(s) must be nonprofit organizations.

The PRO is responsible for the costs and operations by providing service or contracting with public and private service providers .

The plan must cover all recycling services, including the collection, transportation, sorting, and processing of covered materials at both curbside services and drop-off centers.

The plan must cover the development and implementation of a public statewide education and outreach on recycling and reuse programs.

The plan must cover costs related to the administration of recycling programs.

There must be an option for a De Minimis level in which no dues are charged and a flat rate for producers below a certain size is required.

The dues paid to a PRO by producers vary by type of covered material, whether or not the material is readily recyclable, and will be based on the net recycling service costs for each material.

Must include eco-modulation factors that increase producer responsibility dues to discourage design and materials that increase costs of recycling reuse, or composting and disrupt recycling or are not on the minimum recyclable list. The Executive Director will develop an eco-modulation bonus schedule that is designed to reduce the dues of producers that meet certain benchmarks.

The fees must incentivize high level of PCR materials that do not disrupt the recycling of other materials.

The fees must incentivize designs for the reuse and refill of covered materials.

The fees must incentivize reductions in the amount of packaging materials used for products.

The fees must incentivize innovations and practices to enhance recyclability or value of covered materials.

The plan must set minimum rate targets for minimum collection rates, minimum recycling rates, and minimum PCR content rates that the state will strive to meet by January 1, 2030 and January 1, 2035.

The plan must utilize and expand on providers' existing recycling services.

The plan must describe how the PRO will meet certain convenience standards and statewide recycling collection.

Producers must establish a non-profit organization PRO on or before June 1, 2023.

The PRO must submit a plan proposal to the advisory board and executive directory on or before February 1, 2025.

A producer may not sell or distribute any products that use covered materials in the state unless participating in the program after July 1, 2025 or after January 1, 2029, as set forth in the final plan or any additional plan approved by the executive director.

The executive director will approve, reject, or approve with amendments within 120 days after receiving the plan proposal.

The PRO and any additional PRO or person administering a plan must maintain documents and records for compliance and submit said documents to the Executive Director upon request.

Additionally, before March 31 of the 2nd year of any plan approved by the Executive Director and by March 31 each year thereafter any PRO or individual with a plan shall submit a progress report to the advisory board.

The Producer Responsibility Program for Statewide Recycling Administration Fund is established. This fund holds all the dues from producers and shall be used for funding and reimbursing.

Before March 31st of the 2nd year of the programs implementation and annually thereafter the PRO shall submit a report to the advisory board describing the progress of the program.

The bill establishes an administrative penalty for the PRO's (or a producer's) violation of the relevant statutes and rules. The collected penalties are deposited into the recycling resources economic opportunity fund.

The PRO shall include proper end-of-life management of covered materials in education and outreach materials.

The PRO shall include information on how to prevent litter in it's education and outreach materials.

The PRO shall include locations and availability of recycling services under the program in education and outreach materials.

The PRO shall develop and implement a statewide education and outreach program.

The PRO shall consult with the advisory board at all part of the process including plan review and approval, amendments, recommendations, and annual reporting.

The advisory board shall convene its first meeting no later than March 1, 2023 and will include 13 members. It will be overseen by the Colorado Department of Public Health and Environment. The voting board members would include representatives of 3 local governments, a hauler, a recycling facility, a compost facility, a landfill, 2 nonprofit groups, 2 packaging or paper manufacturers, and a trade association among others. The packaging material supplier representative will change to a different type of packaging material after each new term. The PRO and Colorado will each get a non-voting seat.

Recycling means the processing by means of a manufacturing process of a used material into a product or secondary raw material.

This bill extends antitrust protections to members of a PRO for actions taken in accordance with this regulation.

The recycling rate means the weight of covered materials that are recycled under the program in a calendar year divided by the weight of covered materials used for products sold or distributed by producers within or into Colorado in the same year, expressed as a percentage. The recycling rate is measured at the point where collected covered materials have been prepared for sale or delivery to material reclaimers or end markets after processing at a MRF or similar establishment that sells directly to reclaimers or end markets.

A person shall not charge any kind of point-of-sale or collection fee to consumers to recoup costs in meeting the obligations of this bill.

On or before September 1, 2023 the PRO will hire a third party to conduct a needs assessment of the recycling services in Colorado. The PRO shall issue a RFP to select the independent third party. On or before January 30, 2024, the PRO must report the results of the needs assessment to the advisory board and the executive director.

The program plan must describe how the PRO will work with newspapers, magazines, and periodicals to accept advertising in lieu of all or a portion of their PRO dues.

The PRO must provide a list of covered materials, called the minimum recyclable list, that providers performing services under the program must collect to be eligible for reimbursement under the program. This will be partially determined by the needs assessment.

Reuse or Refill means the return into the marketplace of a covered material that has already been used in the same manner as originally intended without a change in the covered material's purpose and was intended to be used for its original purpose at least 5 times.