Covered products include packaging, which is defined as any package or container and any part used for protection, handling, delivery, or presentation. It also includes service packaging at point of sale, secondary packaging, and tertiary packaging.
U.S. House Resolution 2238 "Break Free From Plastic Pollution Act of 2021" - (Amended)
U.S. House Resolution 2238 was introduced in Congress on 3/25/21. Also known as the Break Free from Plastic Pollution Act (BFFPA) of 2021, this bill has a significant EPR component. Under this legislation, producers of covered products and beverage containers would be required to join product-specific producer responsibility organizations (PROs) to implement a product stewardship plan. There are many other policy levers introduced in the bill, to include a national bottle deposit program, a ban on certain single-use plastic products, and recycled content minimums.
All Packaging Types
All paper products are covered unless intended use would render it unsanitary or unsafe, or the product is a bound book.
Covered products include food service products, other single-use products (straws, cups, lids, etc.), and certain beverage containers that will not be subject to bottle deposit (pouch, aseptic container, drink box) outlined in this legislation.
Covered products excludes most beverage containers (those subject to bottle deposit further on in bill). The bill also excludes packaging intended for long-term use.
The Producer Responsibility Organization (PRO) must, at a minimum, provide for collection of covered product through a curbside or multifamily recycling collection service.
The PRO may also establish a program or service that provides collection from public spaces.
Producer is defined as a tiered list, beginning with a person who manufactures and sells, offers for sale, or distributes covered product in the U.S. under the brand of the manufacturer.
If the brand does not apply, the producer is the owner or licensee of a trademark under which a covered product is sold, offered for sale, or distributed in the U.S.
If brand or licensee does not apply, the producer is the person who imports the covered product into the U.S. to sell, offer for sale, or distribute.
Small businesses are not subject to the requirements of a producer under this bill if they generate less than $1 million in annual revenue or less than 1 ton of covered products.
Collective Producer Responsibility
PROs are established by category of covered products or beverage containers. A producer can join multiple PROs if they cover different products. The categories of covered products will be established by the administrator, working with the PROs.
Any PRO must be established as a 501(c)(3) nonprofit organization.
Financial and Full Operational
The producers are responsible for all financial costs of the program. The PRO must provide for the collection of covered products. A PRO may do so by entering into an agreement with a governmental or private entity to compensate the entity for the collection of covered products. The PRO must provide reimbursement of 100% of the cost to the entity of managing the covered products, including, administrative costs, sorting, and reprocessing.
Fees will cover the costs of management of covered products, including costs associated with collecting, transporting, processing, recycling, and composting covered products after consumer use.
Education and Outreach
Administrative costs covered by program fees also include the cost of outreach and education.
Program fees will cover the costs of management of covered products, including administrative costs of the PRO and the government. This includes costs associated with oversight, planning, plan review, compliance, enforcement, and staffing.
Fees will cover the cost of cleanup of covered products that become litter, including from public places, and freshwater and marine environments, and the cost of other appropriate mitigation measures. The stewardship program will provide funding to, and coordinate with, entities that collect covered product or beverage container litter from public places or freshwater or marine environments in the United States, including Tribal land and territories.
During the first 10 years of program implementation, a minimum of 50% of program expenditures must be used for the improvement and development of new market, recycling, or composting infrastructure in the United States. This may include installing or upgrading equipment at existing sorting and reprocessing facility to improve sorting of covered product waste or to mitigate the impacts of covered product waste to other commodities. After 10 years, a minimum of 10% of expenditures must be used for these purposes.
Fees charged to a responsible party will include the costs of management and cleanup of the covered product and administrative costs. In determining the fee for a responsible party, the PRO will consider the company size and annual revenue of the responsible party.
Fees must take into account a variety of factors, including environmental impacts.
Fees should take into account the percentage of post-consumer recycled content verified that exceeds the minimum requirements established under section this legislation in the packaging, if the recycled content does not disrupt the potential for future recycling.
Fees should take into account the lower cost of managing contact containers and other covered products that are specifically designed to be reusable or refillable and have a high reuse or refill rate.
Fees should take into account the higher cost of managing covered products that includes labels, inks, liners, and adhesives containing heavy metals other toxic substances. Fees should also consider the lower cost of managing beverage containers that have non-detachable caps or other innovations and design characteristics to prevent littering. Fees should consider covered products with lower environmental impacts, including compostable covered products that have direct contact with food or help divert food waste from a landfill.
Fees should take into account the higher cost of managing covered products that bond materials together, making the covered product more difficult to recycle, such as plastic bonded with paper or metal, or products that would typically be recyclable or compostable, but, as a consequence of the design of the covered product, has the effect of disrupting recycling or composting processes. Fees should also consider the higher costs of managing products that cannot be mechanically recycled.
Fees should take into account covered products with lower environmental impacts, including those made of sustainable or renewably sourced materials. Fees should also account for covered products that are made of at least 90 percent by weight of any combination of post-consumer recycled content or materials derived from land or freshwater or marine environment litter.
The minimum rate targets include:
Material Specific Targets
Minimum material-specific targets include:
Targets Set in Legislation
Minimum targets are set in the legislation, and each plan submitted by a PRO must contain achievable performance targets for the collection and recycling of the applicable covered product or beverage container.
Maximizes Use of Existing Infrastructure
The product stewardship plan must include a description of how producers will work with, improve, and fund existing recycling, composting, litter cleanup, and disposal programs and infrastructure.
A stewardship program shall provide widespread, convenient, and equitable access to opportunities for the collection of covered products. Collection opportunities must be provided throughout each state, Tribal land, and territory in which the applicable covered product is sold, including in rural and island communities, and be as convenient as trash collection in the applicable area. In a case in which curbside collection is not practicable, and in cities of 750,000 or more residents, collection opportunities must be made available for not less than 95% of the population within a 10-minute walk in an urban area or, in a rural area, the longer of a 45-minute drive and the time to drive to the nearest rural service center.
Deposit Refund System
This bill establishes a National Beverage Container Program. Under this program, producers of beverage containers will charge a deposit to a retailer on delivery and pay a refund to the retailer on receipt of an empty covered beverage container. Retailers will charge a deposit to the customer and provide a refund on return of a covered beverage container. The refund amount will be a minimum of 10 cents and may be increased after three years based on inflation and other relevant factors. States with existing bottle deposit legislation may continue to operate such a program or negotiate with PROs to update existing legislation.
Recycled Content Minimums
Recycled content minimums for plastic beverage containers are included in this bill. The amount of post-consumer recycled content from US sources used to make the plastic beverage containers must be, at a minimum:
Product or Material Bans
This bill includes prohibitions on single-use plastic carryout bags and single-use plastic utensils and straws, effective January 1, 2023.
Deadline to Register
Beginning on February 1, 2023, producers must be a member of a PRO with an approved plan.
Deadline to Submit Plan
Not later than February 1, 2023, each PRO is required to submit a Product Stewardship Plan that describes how the PRO will carry out the responsibilities outlined in the legislation.
Date of Implementation
Beginning on August 1, 2023, not later than 60 days after receiving a notification of approval of a program plan, the PRO will begin implementation of the plan.
Plan Review and Approval
Not later than 90 days after receiving a product stewardship plan from a PRO, the Administrator will approve or deny the Plan and notify the applicable PRO of the decision.
Enforcement and Monitoring
The Administrator may require a revision to a plan if the performance targets are not being met or there is a change in circumstances that otherwise warrants a revision.
Reimbursements received from a PRO will be deposited into a dedicated account established for that PRO. These funds will be available to the Administrator for activities of the Administrator associated with overseeing the product stewardship plan and program.
Each PRO must annually publish a report that covers various aspects of the program, including the quantity of materials sold, recycling rates, contamination data, and information regarding collection opportunities. A yearly report will be submitted to Congress detailing the amount reimbursements received from a PRO.
Responsible parties that violate the requirements in this legislation are subject to a civil penalty.
The product stewardship plan must describe how the PRO will ensure sound management practices for worker health and safety.
The program must include developing and providing outreach and education to the diverse ethnic populations of the United States through translated and culturally appropriate materials, including in-language and targeted outreach.
Socially Just Management
The bill requires covered products to be managed in an environmentally sound and socially just manner at reprocessing, disposal, or other facilities operating with human health and environmental protection standards that are broadly equivalent to the standards required in the U.S. or other countries that are members of the Organization for Economic Cooperation and Development (OECD).
Outreach and education efforts must working with program participants to label covered products and beverage containers with information to assist consumers in responsibly managing covered product and beverage container waste.
The product stewardship program must include provisions for outreach and education to consumers throughout the United States regarding the proper end-of-life management of covered products. Recycling and composting instructions must be consistent nationwide, except as necessary, easy to understand, and easily accessible, including accessibility in multiple languages to reach a diverse ethnic population.
Litter Prevention Campaigns
Education and outreach must be provided regarding how to prevent litter of covered products and beverage containers.
Education and outreach must include information concerning the location and availability of curbside and drop-off collection opportunities.
Shared Responsibility of Government and PRO
Outreach and education efforts must include coordinating with and assisting local municipal programs, municipal contracted programs, solid waste collection companies, and other entities providing services.
Required Consultation During Plan Development
A PRO must provide an annual process to receive comments from additional stakeholders and community members, which to the maximum extent practicable must include diverse ethnic populations.
Stakeholder Advisory Committee
Each PRO must establish an advisory committee that represents relevant stakeholders, including collection providers, cleanup service providers, recyclers, composters, and governmental entities. An advisory committee will prepare a plan for the PRO and submit it to the PRO for review and approval. At a minimum, an advisory committee must include individuals representing each of the following:
Product must be economically and technically recycled in the US, with domestic capacity exceeding increasing percentages over 5 year periods. The product must not require to remove any attached components, such as a label. The product cannot contain a toxic substance.
Recycling is defined as converting a product to a raw material with minimal loss of quality. That material must be used in the production of a new product, and cannot be used for inferior purposes, as fuel or energy, or in infrastructure projects (pavement, building materials).
Excludes Advanced Recycling
Advanced recycling technologies that convert waste to alternative products, including feedstocks, is not considered recycling.
Producers are protected from antitrust liability while carrying out approved program activities, as long as the conduct is necessary to planning and implementation.
Producers must include labels on covered products and beverage containers that are easy to read and indicate that the covered product or beverage container is recyclable, not recyclable, compostable, reusable. If a product is not recyclable, it must not include the universal chasing arrows recycling symbol or any other similar symbol that would lead a consumer to believe that the item should be sorted for recycling.
Not later than 2 years after the date of enactment of this regulation, the Administrator will establish or approve a standardized label for each category of covered product and beverage container to be used by producers.
Waste Prevention And Reuse
Every 2 years, the Administrator will conduct an audit of collection and recycling to provide an accounting of the collection and recycling of covered products and beverage containers that are not produced by a PRO and covered products and beverage containers of brand names found in litter to provide for an accounting of covered products and other litter that continues to create pollution.
The bill includes a section that establishes guidelines for a national standardized labeling system for the development of labels for recycling and composting receptacles that use a methodology that is consistent throughout the United States to assist members of the public in properly recycling and composting.