Massachusetts House Bill 4263 (2024) - (Introduced)

"Packaging material" is any part of a package or container, including material that is used for the containment, protection, handling, delivery, and presentation of a product that is sold, offered for sale, imported, or distributed in the state, including through internet transactions.

"Paper products" is paper that can or has been printed on including flyers, brochures, booklets, catalogues, greeting cards, telephone directories, magazines, paper used for copying, writing or any other general use are covered materials.

Packaging material does not include:

1. Material intended to be used for the long-term storage or protection of a durable product and that can be expected to be usable for that purpose for a period of at least 5 years
2. Beverage containers

Paper products does not include:

1. Paper products that, by virtue of their anticipated use, could become unsafe or unsanitary to recycle
2. Any literary, text, reference, or other bound book
3. Any newspaper

Residential generators are covered entities.

Schools are covered entities.

Producer, with respect to a covered material, means a party that has legal ownership of the brand of a product for sale, use, or distribution in the state, including online retailers who sell into the state, that utilizes covered material.

For packaging, a person who manufactures a product under the manufacturer’s own brand that uses covered material.

If there is no brand, a person who is not the manufacturer of a product under the manufacturer’s own brand that uses covered material, but is the owner or licensee of a trademark under which a covered material is used in a commercial enterprise, sold, offered for sale or distributed in the state, whether or not the trademark is registered, is the producer.

If there is no brand or licensee, a person who imports the product that uses the covered material into the state for use in a commercial enterprise, sale, offer for sale or distribution in the commonwealth is the producer.

The definition of producer includes a franchisor of a franchise located in the commonwealth but does not include the franchisee operating that franchise.

A producer is exempt if in any calendar year in which the producer:

Realized less than $1,000,000 in total gross revenue during the prior calendar year, or the producer sold, offered for sale or distributed for sale in or into the commonwealth during the prior calendar year products contained, protected, delivered, presented or distributed in or using less than one ton of covered material in total.

Nonprofit organizations are exempt.

Producers are required to comply with regulation as part of an organization.

Individual producers or group of producers can develop an alternative collection program pending approval from the department.

Producer Responsibility Organizations are not-for-profit entities.

The program will reimburse participating municipalities for certain incurred municipal recycling and waste management costs.

To be eligible for reimbursement of costs as a participating collector, a collector must provide for the collection and recycling of covered materials that are generated by all residential and school generators using its service and that are readily recyclable as listed regularly by the department and that are not collected by an alternative collection program.

The program plan shall include costs associated with collection, processing, transportation and recycling or disposal of covered materials.

The program plan shall include costs used for investments in public outreach, education, communication, and infrastructure enhancement in a way that increases access to recycling and reuse throughout the commonwealth. The organization shall ensure that not less than 2% is used for education.

The program plan shall include costs to cover administrative costs for the implementation and enforcement of this act including oversight, issuance of any regulations, planning, plan review, review of proposed modifications to a plan developed, compliance, enforcement, and adequate staff positions to administer the packaging and paper products program or an alternative collection program.

The program plan shall include the costs associated with increasing access to reuse and recycling of covered materials.The organization shall ensure not less than 8% is used for infrastructure.

Fee schedule must include a flat-rate fee schedule for producers generating between 1 and 15 tons of covered materials annually.

The PRO shall collect payments from producers based on the type and weight of packaging material sold, offered for sale or distributed for sale in the State by each producer.

Fee payments can be reduced by covered material modifications. The department shall regularly publish a schedule of adjustments to be used by the producer responsibility organization in determining the amount of producer payments required.

Fee schedules must incentivize use of readily recyclable materials to manufacture covered materials and increased use of post-consumer recycled content material in covered materials so long as it does not increase the toxicity of the packaging material.

Fee schedules must incentivize reduced use of toxic substances in covered materials, which raise the lifecycle environmental and societal costs of packaging, and minimal life cycle impact of covered materials.

Fee schedules must incentivize reuse and lifespan extension of packaging.

Fee schedules must incentivize covered material waste reduction and the use of the minimum quantity of packaging necessary to effectively deliver a product without damage or spoilage.

Fee schedules must incentivize single-material packaging with clear recycling or disposal instructions for consumers, and other design characteristics that reduce contamination in recycling, and domestic processing of covered materials.

The PRO plan must include how the organization intends to achieve and assist collectors and facilities in achieving a combined reduction and recycling rate. The rates are of covered materials managed by the organization.

1. No less than 65% by weight by July 1, 2027
2. No less than 80% by weight by July 1, 2031
3. No less than 100% by weight by July 1, 2035

The PRO plan must include a proposed schedule of minimum post-consumer recycled material content rate requirements for covered materials, including a description of how the organization intends to meet the proposed minimum post-consumer recycled material content rates. The minimum post-consumer recycled material content rates shall include each covered material category, and shall not be less than 10% of all material in each covered material category, by weight.

Producers of covered materials sold or distributed into the commonwealth shall, within 6 months following the enactment of this legislation, establish a producer responsibility organization(s) that shall act as an agent and on behalf of each producer to operate the packaging and paper products program.

Within 8 months of the department's regulation promulgation, the PRO(s) shall submit a program plan for approval.

No later than 30 days after the approval of the PRO plan, and quarterly thereafter, a producer shall make payments to the organization to be deposited into the producer responsibility fund, based on the amount of each type of covered material sold, offered for sale or distributed for sale in or into the commonwealth by the producer and not managed under an approved alternative collection program.

Within 18 months of the passage, no producer, distributor, retailer, or other responsible party for a covered material shall sell, offer for sale, use, or distribute any covered material to any person in the commonwealth if the producer of such materials is not in compliance.

The department shall review the PRO plan and approve or deny the plan within 90 days of receipt. Approval terminates after 5 years, but may be extended. The organization or coordinating body must submit an updated plan no later than 120 days prior to the date its current plan expires.

An expendable trust, the sustainable packaging trust, is established. Under the control of the department for the purpose of collecting funds for department administration of the packaging and paper products program or an alternative collection program, and for collecting fines related to the packaging and paper products program or an alternative collection program.

The PRO shall submit an annual report to the department on a regular schedule determined by the department for the preceding calendar year the program was in operation.

Any producer, distributor, retailer, or other responsible party in violation shall be subject to a fine for each violation and for each day that the violation occurs in an amount of not more than $200,000. Civil action by the department can be used against a covered material in violation.

Public outreach, education, and communication shall provide recycling instructions that are, to the extent practicable, consistent statewide, easy to understand, easily accessible, and in compliance with the annually published list of readily recyclable materials.

Public outreach, education, and communication shall promote the proper end-of-life management of covered materials

Public outreach, education, and communication shall provide for outreach and education that are designed to achieve covered materials goals, including the prevention of contamination of materials coordinated across programs or regions to avoid confusion for consumers; and developed in consultation with local governments and other stakeholders.

The department shall establish an advisory committee that represents a range of interested and engaged persons relevant to the category of covered materials of the applicable program, including:

1. The commissioner of the department of environmental protection or a designee
2. One member who shall be appointed by the attorney general and who shall have expertise in consumer protection
3. Individuals representing producers, retailers, waste haulers, material recovery facility operators, municipalities, environmental and community organizations, freshwater and marine litter programs, regional end-of-life management of covered materials, and environmental and human health scientists.

Each individual serving on an advisory committee may represent only one member of each category.

"Recycling" means to separate, dismantle or process the materials, components or commodities in covered materials for the purpose of preparing the materials, components or commodities for use or reuse in new products or components. "Recycling" does not include energy recovery or energy generation by means of combustion; pyrolysis, gasification and any other high-heat chemical conversion processes; or landfill disposal of discarded covered material or discarded product component materials.

A producer or producer responsibility organization, including a producer's or organization's officers, members, employees and agents that organize a packaging and paper product program or an alternative collection program, is immune from liability for the producer's or organization’s conduct under state laws relating to antitrust, restraint of trade, unfair trade practices and other regulation of trade or commerce.

Beginning one year after passage, the department shall establish a toxic substances list, and may reference existing toxic or hazardous substances lists created by other state agencies and the Interstate Chemicals Clearinghouse. Any person may petition the department to add a chemical or chemical class substance to the list based on scientific evidence. The department shall review and update the list of toxic substances at least every three years.

The department shall conduct an initial needs assessment within six months of the enactment of this legislation. Subsequent needs assessments shall be conducted every four years by the department in consultation with the committee.

A producer or group of producers may develop and operate an alternative collection program to collect and manage a type or types of covered material sold, offered for sale or distributed for sale in or into the commonwealth by the producer or producers. A producer that manages a type of covered material under an approved alternative collection program through reduction, reuse, or recycling may wholly or partially offset the producer's payment obligations under the packaging and paper product program with respect to that same type of covered material only.

The program shall ensure that a combined reduction and recycling rate is achieved of no less than 65 percent by weight by July 1, 2027, no less than 80 percent by weight by July 1, 2031, and no less than 100 percent by weight by July 1, 2035 of covered materials managed by the organization.

The department shall regularly publish a list of readily recyclable materials, developed through coordination with the producer responsibility organization and material recovery facilities or other entities managing covered materials. The department shall provide for a transitional period between the time that a type of covered material is determined to be readily recyclable or to not be readily recyclable.

The PRO will fund third-party independent audits of inbound and outbound recyclable material generated in the commonwealth that is processed and sold by facilities; waste characterizations of municipal solid waste being disposed of in the commonwealth; and litter audits. The audits must be conducted at least annually.