Massachusetts House Docket 3565 (H.779) (2023) - (Introduced)

Packaging material is a discrete material or category of material, regardless of recyclability, including but not limited to such material types as paper, plastic, glass, metal, or multi-material, that is used for the containment, protection, handling, delivery, transport, distribution, or presentation of another product that is sold, offered for sale, imported, or distributed in the state.

Packaging exclusions include:

1. Medical devices, covered materials and products regulated as a drug, medical device, or dietary supplement.
2. Animal biologics, including vaccines, bacterins, antisera, diagnostic kits, and other products of biological origin.
3. Beverage containers subject to a deposit.
4. Packaging used to contain toxic or hazardous materials.

Producer is defined in a hierarchy. The first order is the person or entity that manufactures or uses in commercial enterprise a product sold, offered for sale, contained, protected, delivered, presented, or distributed in or using packaging into the state under the brand of the manufacture.

Producer is then defined as a person or entity that is not the manufacturer of the product, but is the owner or licensee of a trademark, regardless of whether the trademark is registered, under which a product is sold, offered for sale, contained, protected, delivered, presented, or distributed in or using packaging.

Lastly, producer is defined as a 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. Producer includes a franchisor of a franchise located in the state but does not include the franchisee operating that franchise.

Producers are exempt if 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 products contained, protected, delivered, presented, or distributed in or using less than one ton of packaging material in total during the prior calendar year.

The state will select a packaging reduction organization via a competitive bid process. The state will enter into a contract with a packaging reduction organization to coordinate the packaging reduction and recycling program. However, producers are individually responsible for compliance with the regulation.

The Department shall contract with a non-profit, 501(c)(3) to act as the Packaging Reduction Organization.

The packaging reduction organization must reimburse local governments for operational costs of managing packaging material including collection, transportation, and processing.

Program funds will be used to reimburse municipalities for operational costs associated with managing packaging material including collection, transportation, and processing.

Program funds will be used for educational and outreach efforts made by the packaging reduction organization.

Program funds will be used to reimburse the department for costs associated with administration.

Program funds will be used for investment in collection systems, transportation systems, reuse systems, washing systems, redistribution systems, technology for tracking and data collection, capital expenditures on new and emerging technology focused on reusable and refillable packaging, as well as equipment, and facilities, and other projects determined by the department.

Payments will be calculated based on total amount, by weight, of each type of packaging material. At a minimum, the following material types will have a specific fee: PET or PETE, HDPE, PVC, LDPE, PP, PS, EPS, other plastic resin types not specifically identified here, bio-plastics, paper, cardboard, wood, glass, bi-metal, steel and other ferrous metals, aluminum and other non-ferrous metals, mixed materials including laminates and packaging containing more than one of the above materials.

The fee structure adopted by the department will incentivize improvements to the design of packaging material, including actual reduction of packaging, increases in reusable and refillable packaging, recycling rates for packaging materials, and decreases in the amount of packaging.

Fees must incentivize an increase in packaging in a reuse and refill system. There shall be no fee assessed on packaging that is designed for reuse and refill and contained in a system.

Fees must incentivize a reduction in total packaging measured by weight used by producers, and discarded by consumers, businesses, institutions, and other users. Weight reductions shall not be achieved by substituting plastic for other materials types. A reduction in toxic components and reduction in litter from packaging materials is also incentivized.

Fees must incentivize an increase in the proportion of a producer’s total packaging that is deemed recyclable as determined by an annual review process and an increase in the proportion of a producer’s total packaging that is ultimately recycled.

Producers are required to ensure that the packaging they sell, offer for sale, or distribute into the state, is made of a material that meets the following recycling rates:

1. Not less than 30% within five years after the enactment of this Act
2. Not less than 50% within eight years after the enactment of this Act
3. Not less than 70% within twelve years after the enactment of this Act

This shall not apply to reusable or refillable packaging or containers.

Producers are required to meet packaging reduction requirements:
2 years after registration with the PRO, a producer shall reduce packaging by 10% by weight
4 years after registration with the PRO, a producer shall reduce packaging by 20% by weight
6 years after registration with the PRO, a producer shall reduce packaging by 30% by weight
8 years after registration with the PRO, a producer shall reduce packaging by 40% by weight
10 years after registration with the PRO, a producer shall reduce packaging by 50% by weight

Reductions must include: elimination or reduction of packaging components, packaging rightsizing, light weighting or by transitioning to reusable or refillable packaging systems. The reductions shall not be achieved by substituting plastic for other materials. In the case of a producer that enters the market with 50% or more by weight of its packaging being reusable and contained within a reuse and refill system, that producer may apply for a waiver from the packaging reduction requirements.

One year after the Packaging Reduction Organization is selected, a producer shall not sell, offer for sale, or distribute into the state a product contained, protected, delivered, presented, or distributed in packaging unless the producer is registered with the PRO and in full compliance.

In the event that the Department determines that the Packaging Reduction Organization no longer meets the requirements of this Act, or fails to implement and administer the requirements of this Act in a manner that effectuates the purposes of this Act, the Department shall revoke its approval of the Packaging Reduction Organization, and shall select a new Packaging Reduction Organization to replace it, or, in the alternative, may elect to operate the program itself.

A Packaging Reduction Fund will be managed by the PRO with oversight from the department. The PRO will deposit all payments received from producers into the fund.

The PRO shall annually submit a report to the department.

The PRO shall use their packaging’s label to inform consumers about the methods to responsibly reuse, recycle, or dispose of the packaging.

The PRO shall conduct public outreach and provide consumers with educational and informational materials related to reducing the amount of packaging discarded, recycled, and disposed of in the state, along with the location and availability of curbside and drop-off collection opportunities.

The PRO shall coordinate with various local governments in the state to incorporate electronic, print, web-based and social media elements that individual local governments may elect to use, at their discretion, to provide education directly to their residents.

Recyclable means a product or packaging material that can be sorted by entities that process post-consumer materials generated in the state, that has a consistent regional market for purchase by end users in the production of new products, and which can be recycled with minimal losses of material during processing and manufacturing.

Recycling means the series of activities by which material is collected, transported, sorted, and processed and used in industrial feedstocks in place of virgin materials to manufacture new products with minimal loss of material quality and quantity.

Recyclable does not include material processed through advanced recycling, chemical recycling, combustion, gasification, incineration, pyrolysis, solvolysis, thermal desorption, waste-to-energy, waste-to-fuel, or any other chemical or molecular conversion process.

Beginning 2 years after the promulgation of rules and regulations no person or entity shall sell, offer for sale, or distribute into the state any packaging containing any of the following toxic substances:
Ortho-phthalates, Bisphenols, Per- and polyfluoroalkyl substances (PFAS), Lead and lead compounds, hexavalent chromium, cadmium, and mercury; Benzophenone and its derivatives; Halogenated flame retardants; Perchlorate; Formaldehyde, Toluene, Antimony and compounds, and UV 328 (2-(2H-benzotriazol-2-yl)-4,6-di-tert-pentylphenol).

Beginning 2 years after the promulgation of rules and regulations no person or entity shall sell, offer for sale, distribute for use in this state any packaging containing: Polyvinyl chloride, Polystyrene, or Polycarbonate.

Beginning 3 years after the promulgation of rules and regulations and every 3 years thereafter, the department shall designate at least 10 additional toxic substances or classes of toxic substances that may no longer be sold, offered for sale, distributed for sale, or distributed for use in packaging in this state unless it determines there are not 10 chemicals that meet the definition of toxic substances. If the department determines there are not 10 toxic substances that meet such a definition, it shall publish a detailed statement of its findings and conclusions supporting such a determination.

The recycling rate is the percentage of any given packaging type that is ultimately recycled. It will be calculated as the total weight of packaging that is recycled in a given year divided by the total weight of packaging generated. Contaminants and residue from collection, processing and manufacturing new products do not count as recycled and should not be in the numerator of the equation.

Within six months of the passage of this act, and every five years thereafter, the Department shall issue a request for proposals to conduct a statewide packaging reduction, reuse, and recycling needs assessment. No later than eighteen months after after the effective date of this Act, the Department shall conduct a statewide packaging reduction, reuse, and recycling needs assessment The needs assessment shall be paid for by funds from the Packaging Reduction and Recycling Fund.

Reuse means the return of packaging back into the economic stream for use in the same kind of application intended for the original packaging, without effectuating a change in the original composition of the package, the identity of the product, or the components thereof. Reusable or refillable packaging and containers means packaging material and containers that are specifically designed and manufactured to maintain its shape and structure, and be materially durable for repeated sanitizing, washing, and reuse.