Tennessee Senate Bill 269 - (Introduced)

Packaging materials means regardless of recyclability, a 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 this state; includes primary, secondary, and tertiary packaging intended for the consumer market and service packaging designed and intended to be filled at the point of sale, including carry-out bags, bulk goods bags, and take-out and home delivery food service packaging.

1. Packaging materials intended to be used for the long-term storage or protection of a durable product and that are intended to transport, protect, or store the product for at least five (5) years
2. Packaging materials used in commercial, industrial, or manufacturing processes
3. Packaging materials that are collected prior to receipt of the product by the consumer do not undergo separation from other materials at a commingled recycling processing facility, and are reused or recycled at a responsible end market
4. Beverage containers subject to a future returnable container deposit not established by the producer responsibility organization
5. Packaging material used to contain a product that is regulated as a drug or medical device by the federal food and drug administration or associated components and consumable medical equipment
6. Packaging material used to contain a product that is regulated under the Virus-Serum-Toxin Act
7. Packaging material used to contain a product that is required to be sold in packaging material that meets the requirements of the Poison Prevention Packaging Act
8. Packaging material used to contain a product that is regulated as infant formula, medical food, or as fortified nutritional supplements used for individuals who require supplemental or sole source nutrition to meet nutritional needs due to special dietary needs
9. Any other material that the department, after consultation with the advisory board, determines by rule to not be a covered material

Single-family and multi-family residences are covered entities.

A school or other location where education or childcare is provided, state agencies, political subdivisions or other public entity and government units are covered entities.

A nonprofit corporation with annual revenue of less than thirty-five million dollars ($35,000,000) is a covered entity.

Public areas are covered entities.

For items sold in or with packaging at a physical retail location in this state:

If the item is sold in or with packaging under the brand of the item manufacturer or is sold in packaging that lacks identification of a brand, then the producer is the person that manufactures the item. If there is no manufacturer or licensee, then the producer is the brand owner of the item.

For items sold or distributed in packaging in or into this state via e-commerce, remote sale, or distribution:

For packaging used to directly protect or contain the item, the producer of the packaging is the same as if the items sold in or with packaging at a physical retail location in this state.
For packaging used to ship the item to a consumer, the producer of the packaging is the person that packages the item to be shipped to the consumer.

For items sold in or with packaging at a physical retail location in this state:
If there is no brand owner, then the producer is the person that is licensed to manufacture and sell or offer for sale to consumers in this state an item with packaging under the brand or trademark of another manufacturer or person.

A person is the "producer" of a covered material sold, offered for sale, or distributed in or into this state, as defined except where another person has mutually signed an agreement with a produce that contractually assigns responsibility to the person as the producer, and the person has joined a registered producer responsibility organization as the responsible producer for that covered material under this chapter. If another person is assigned responsibility as the producer, the producer must provide written certification of that contractual agreement to the producer responsibility organization

If the producer is a business operated wholly or in part as a franchise the producer is the franchisor, if that franchisor has franchisees that have a commercial presence within the state.

For items sold in or with packaging at a physical retail location in this state:
If there is no brand owner or licensee that applies within the United States, then the producer is the person who is the importer of record for the item into the United States for use in a commercial enterprise that sells, offers for sale, or distributes the item in this state and if there is no importer, then the producer is the person that first distributes the item in or into this state.

For items sold or distributed in packaging in or into this state via e-commerce, remote sale, or distribution:
For packaging that is a covered material and for which a producer cannot be identified, the producer of the packaging is the person that first distributes the item in or into this state.

De minimis producers are exempted. De minimis means a person that in their most recent fiscal year introduced less than one (1) ton of covered material into this state or earned global gross revenues of less than two million dollars ($2,000,000).

A mill that uses any virgin wood fiber in the products it produces and a paper mill that produces container board derived from one hundred percent (100%) post-consumer recycled content and non-post-consumer recycled content are exempt.

A state, a federal or state agency, a political subdivision of a state, or other governmental unit are exempt.

A registered 501(c)(3) charitable organization or 501(c)(4) social welfare organization is exempt.

Producers must register with a Producer Responsibility Organization.

As an alternative method for participating in the producer responsibility program, a producer may submit to the advisory board and the department an individual producer responsibility program plan proposal if they provide a unique ability to manage a defined subgroup of covered materials, and if the producer notifies the department of its intent to submit an individual plan no later than July 1, 2028, and by July 1 of each subsequent year.

"Producer responsibility organization" or "PRO" means a nonprofit organization.

The PRO will reimburse service providers for the recovery, recycling, reuse, or composting of covered materials by local governments and other providers, including the collection, transportation, and processing of covered materials from the consumer to the end market, curbside services, and drop-off centers.

Cost coverage must include costs associated with transporting, collecting, and processing covered materials that are identified in the producer responsibility plan.

Cost coverage must include public outreach, education, and communication communication concerning the recycling, reuse, or composting of covered materials.

Cost coverage must include administration costs to the department.

Cost coverage must include expanding existing recycling, reuse, and composting service providers and infrastructure.

Fees will be based on unit-, weight-, volume-, or sales-based market share, or by another method the PRO determines to be an equitable determination of each producer's payment.

Fees will be based on factors like the use of recycled content, whether the covered material is reusable, compostable, or readily recyclable etc.

Fees will vary based on the use of recycled content in covered materials so that dues are lower for producers who use covered materials that contain higher amounts of recycled content than other producers.

Fees will prioritize reuse by charging covered materials that are managed through a reuse system only once, upon initial entry into the marketplace.

Fees will reduce the amount of packaging per individual covered material that is necessary to efficiently deliver a product without damage or spoilage and without reducing its ability to be recycled.

Fees will incentivize using materials and design attributes that reduce the environmental impacts and human health impacts of covered materials.

Fees will vary based on whether or not the covered materials are reusable, compostable, or readily recyclable, which determination must account for associated impacts as well as the extent to which recycling or composting services for a covered material are accessible to the consumer.

The PRO shall establish performance goals for each covered material type at 5, 10, and 15 year rolling intervals and demonstrate continual improvement in reducing environmental impacts and human health impacts of covered materials over time.

The performance goals must be informed by PRO experience and knowledge and include post-consumer recycled content goals, recyclability and recycling rate goals, reuse goals, packaging reduction goals, composting goals, contamination reduction rate goals, and any other goals required by the advisory board or the department. The PRO shall review existing rates and dates for performance goals from other programs to use in establishing a minimum that aims to exceed the national average.

PRO will work with recycling, reuse, and composting service providers to utilize and expand on existing recycling, reuse, and composting service providers and infrastructure to the greatest extent possible.

The PRO will use competitive bidding processes for infrastructure investments included in an approved stewardship plan.

By July 1, 2026, a producer shall establish a PRO.

By July 1, 2026, the governing body of the PRO shall apply for approval to the department describing how the PRO meets the requirements to be an approved PRO.

By July 1, 2029, a PRO shall submit an initial producer responsibility plan proposal to the department and the advisory board. When approved by the department, the PRO shall begin implementation of the producer responsibility plan within 6 months of approval.

By January 1, 2027, a producer must be a member of a PRO approved in this state.

On or after January 1, 2030, if the department has approved a producer responsibility plan, a producer shall not sell or distribute any products packaged in covered materials in this state unless the producer is participating in the PRO producer responsibility plan or an individual producer responsibility plan.

The PRO shall annually report to the department and the advisory board on the progress toward meeting producer responsibility plan requirements and goals for the immediately preceding year.

On or after January 1, 2030, if the department has approved a producer responsibility plan, a producer shall not sell or distribute any products packaged in covered materials in this state unless the producer is participating in the PRO producer responsibility plan or an individual producer responsibility plan.

A person that is not a PRO or a producer that violates this part is liable for a civil penalty not to exceed 25,000 per day of violation.

A PRO or a producer that violates this part or the requirements of a stewardship plan approved by the commissioner is liable for a civil penalty in the following amount:
For a first violation, a civil penalty not to exceed $25,000 per day of violation.
For a second violation, a civil penalty not to exceed $50,000 per day of violation.
For a third or subsequent violation, a civil penalty not to exceed one hundred thousand dollars $100,000 per day of violation.

The PRO must describe in the plan the actions taken or that will be taken for public outreach, education, and communication concerning the recycling, reuse, or composting of covered materials.

The advisory board shall advise the PRO on the development of producer responsibility plan proposals and review the producer responsibility plan proposal submitted to the department and recommend that the department approve or reject the proposal.

The commissioner shall appoint a producer responsibility program advisory board. The commissioner shall appoint the initial advisory board members by July 1, 2026. The advisory board consists of the following twenty members:

1. Three voting members representing local governments in this state
2. One voting member representing materials recovery facilities
3. One voting member representing covered service providers
4. One voting member representing environmental nonprofit organizations
5. One voting member representing community-based nonprofit organizations working in the area of solid waste
6. One voting member representing a trade association or chamber of commerce, or other business advocacy organization representing businesses that are headquartered in this state
7. One voting member representing glass packaging material suppliers that is not a producer
8. One voting member representing plastics packaging material suppliers that is not a producer
9. One voting member representing fiber packaging material suppliers that is not a producer
10. One voting member representing metals packaging material suppliers that is not a producer
11. One voting member who has experience representing underserved communities
12. One voting member representing a solid waste landfill or transfer station operating an onsite, public-facing recycling collection program
13. One voting member representing durable goods manufacturing that is not a producer
14. One voting member representing retail and food services that is not a producer
15. One voting member representing an entity that develops or offers for sale covered materials that are designed for reuse and maintained through a reuse system or infrastructure or a statewide or national trade association that represents such entities
16. One voting member representing an entity that develops or offers for sale covered materials that are designed for refill and maintained through a refill system or infrastructure or a statewide or national trade association that represents such entities
17. The commissioner, or the commissioner's designee, who serves as a nonvoting member
18. One nonvoting member representing a PRO

Recyclable means a covered material that can technically and safely be recycled.

Recycling means the process of collecting and preparing recyclable materials and reusing the materials in their original form or using the materials in manufacturing processes that do not cause the destruction of recyclable materials in a manner that precludes further use and does not include: use of covered materials for energy recovery or energy generation by means of combustion; use of covered materials as, or in production of, a fuel or fuel component; or disposal of discarded covered materials in a landfill, including use as alternative daily cover.

The PRO shall facilitate at least one needs assessment every five years conducted by an independent third party approved by the department using a consultation process to obtain recommendations from the advisory board, local governments, service providers, PROs, and other interested parties regarding the type and scope of information that should be collected and analyzed in the needs assessment.

By July 1, 2028, a PRO shall submit the results of the initial needs assessment to the department and the advisory board.

The department shall review and annually update minimum recyclable and compostable materials lists that consider the availability of recycling composting services for each material, taking into consideration the impact of innovative collection and sorting technology on the creation of viable end markets.

Reusable means capable of reuse.

Reuse means the return of a covered material to the marketplace and the continued use of the covered material by a producer or service provider when the covered material is:
Intentionally designed and marketed to be used multiple times for its original intended purpose without a change in form.

Designed for durability and maintenance to extend its useful life and reduce demand for new production of the covered material.

Supported by adequate logistics and infrastructure at a retail location, by a service provider, or on behalf of or by a producer, that provides convenient access for consumers.

Compliant with all applicable federal, state, and local statutes, rules, ordinances, and other laws governing health and safety.