New Jersey Senate Bill 3398 (2024) - (Introduced)

Packaging product means any product or material designed and used for the containment, protection, handling, delivery, or presentation of another product, including, but not limited to, a food or beverage item, and that is sold, offered for sale, imported, or distributed in New Jersey.

This includes primary packaging that constitutes a sales unit at the point of purchase; secondary packaging that is used to group other products for multiunit sale or is intended to brand or display another product; tertiary packaging that is used either for the transportation and distribution of another product directly to the consumer or for the protection of the product during transport; service packaging, including carry-out bags, bulk goods bags, take-out bags, home delivery food service packaging, and prescription bottles, which are designed and intended to be filled at the point of sale; beverage containers; ancillary elements that are attached to another product and that serve a packaging function; and any other product, whether constituted of paper, plastic, glass, metal, a mixture thereof, or any other material, which serves a packaging function.

Exemptions include:

1. Packaging that contains drugs, dietary supplements, medical devices, or cosmetics as defined by the FDA.
2. Packaging that contains toxic or hazardous products regulated under the Federal Insecticide, Fungicide, and Rodenticide Act.
3. Packaging that is manufactured for use in the shipment of hazardous materials and is prohibited from being manufactured with used material by federal packaging material specifications.
4. Packaging subject to the testing standards of packaging for infectious substances or is subject to the recommendations of the United Nations on the transport of dangerous goods.

For items sold in a packaging product at a physical retail location:
If item is sold in a packaging product under the manufacturer’s own brand or is sold in a packaging product that lacks identification of a brand, the producer is the person that manufactures the packaged item.

For items sold or distributed in a packaging product in or into New Jersey via remote sale or distribution:
The producer of a packaging product used to directly protect or contain the item is the producer is the person that manufactures the packaged item.

For items sold in a packaging product at a physical retail location:
If the item is manufactured by a person other than the brand owner, the producer is the person that is the licensee of the brand or trademark under which the packaged item is used in a commercial enterprise, sold, offered for sale, or distributed, whether or not the trademark is registered in New Jersey.

For items sold or distributed in a packaging product in or into New Jersey via remote sale or distribution: The producer of a packaging product used to ship the item to a consumer is the person that packages and ships the item to the consumer.

For items sold in a packaging product at a physical retail location:
If there is no manufacturer or licensee within the United States, the producer is the person that imports the packaged item into the United States for use in a commercial enterprise that sells, offers for sale, or distributes the item.

For items sold or distributed in a packaging product in or into New Jersey via remote sale or distribution: For all other packaging products, the producer is the person that first distributes the packaged item in or into New Jersey.

Producers with a gross revenue of less than $5 million for the producer’s most recent fiscal year or sold in or into New Jersey less than one metric ton of packaging products in the most recent calendar year are exempt.

Manufacturers of a beverage sold in a beverage container, and sold in or into New Jersey less than five metric tons of packaging products, including, but not limited to, secondary and tertiary packaging for beverage containers, in the most recent calendar are exempt.

A restaurant, food cart, or other similar business establishment that primarily sells to members of the public food that is generally intended to be consumed immediately and without the need for further preparation, either on or off the premises is exempt.

Public entities are exempt.

Nonprofit organizations are exempt.

Producers who operates a single retail sales establishment, has no online sales, and is not supplied or operated as part of a franchise or a chain are exempt.

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

A producer may comply without participating in a PRO, but is responsible for complying individually.

Producers are responsible for all costs and operations by providing service or contracting with service providers.

The program plan costs must cover the transportation of packaging products to a recycling center, broker, or viable and responsible end market, cleaning, sorting, aggregating, and baling of packaging products, as necessary to bring those materials to a viable and responsible end market.

The program plan costs must cover the consumer outreach and education efforts undertaken as part of the packaging product stewardship plan.

The program plan costs must cover the administration and operation of the producer responsibility organization.

The fee system shall have fees based on amount, by weight or volume, as appropriate, of packaging products sold, offered for sale, imported, or distributed in or into New Jersey by the producer.

Fees shall be proportional to the environmental impacts of the packaging products.

Packaging products that are composed of recycled content, or are biodegradable shall be levied the lowest fee. The fees shall be inversely proportional to the percentage of recycled content in the products. The fees shall be proportional to the amount of virgin material used in the products, and the percentage of non-biodegradable materials, including plastic, in the packaging.

Packaging products that are certified as being reusable or reused shall be levied no fee.

The presence of hazardous materials in the products, as identified by the Department of Health or the department, shall be associated with a higher fee and the incorporation of elements, including, but not limited to, inks, labels, and adhesives, that prevent an otherwise recyclable or biodegradable product from being recyclable or biodegradable, shall be associated with a higher fee.

Packaging products that are recyclable, or are biodegradable shall be levied the lowest fee. The fees shall be inversely proportional to the ease of recycling the products.

Starting January 1, 2036, the packaging products sold, offered for sale, imported, or distributed in or into the State by the producer responsibility organization's members are recycled at a rate of not less than 65 percent. Two years after the start date and biennially thereafter, the department shall review data to access whether the recycling and source reduction requirements should be adjusted.

By 2032, the cumulative amount of single-use packaging products sold, offered for sale, imported, or distributed in or into New Jersey be reduced by 25 percent in volume. At least 10 percent must be achieved by shifting to reusable products or by eliminating plastic components.

Starting January 1, 2034, all packaging products sold, offered for sale, imported, or distributed in or into the State by the producer responsibility organization's members are either compostable or recyclable, as determined by the department.

The program plan must utilize existing municipal solid waste collection and recycling infrastructure to implement the stewardship plan, or, if existing infrastructure will not be used, provide an explanation as to why it is necessary to establish separate infrastructure.

Collection must be in a manner that is more convenient for consumers than other collection programs prior to implementation of the packaging product stewardship plan.

No later than two years after the effective date of this act, producers of packaging products shall establish or join a producer responsibility organization in order to comply with this act.

The producer responsibility organization shall submit the finalized packaging product stewardship plan to the department within 120 days after receipt of the advisory council’s comments, and the department shall review the plan.

Upon approval of the first producer responsibility organization’s packaging product stewardship plan, or commencing five years after the effective date of this act, whichever is sooner, a producer shall be prohibited from selling, offering for sale, importing, or distributing packaging products in or into New Jersey unless the producer is a participating producer.

If a packaging product stewardship plan is approved, the producer responsibility organization shall implement the approved plan within 90 days after receipt of the commissioner’s written notice.

The commissioner will approve or disapprove the plan no more than 120 days after receipt of a complete packaging product stewardship plan.

The stewardship plan shall be reviewed and updated by the producer responsibility organization and reapproved by the commissioner at least once every 5 years.

The Packaging Reduction and Recycling Fund is formed as a separate, non-lapsing fund in the Department of the Treasury. Money shall be expended only to fund efforts identified in a Statewide needs assessment , in the form of grants or low-interest loans issued by the department, or to administer or enforce the provisions of this act, including the transfer of moneys into the General Fund to repay moneys expended by the department or any other State agency during fiscal years prior to the deposit of moneys in the fund.

Each PRO (and any producers not participating in a PRO) would be assessed an annual surcharge by the Division of Taxation in the Treasury, and the moneys from the surcharge would be placed in the Packaging Reduction and Recycling Fund. The surcharge is the amount needed during the following fiscal year to administer and enforce the bill's provisions and improve the State's recycling system in order to meet the recycling rate and other targets, up to a maximum of $120 million. The amount owed is prorated between producers.

Not more than one year after an approved packaging product stewardship plan is implemented, a PRO shall submit an annual report.

The commissioner may bring a civil action, bring an action for a civil penalty and notify the public of a producer that is not in compliance with the requirements of this act.

The commissioner shall be authorized to assess a civil administrative penalty of not less than $5,000 nor more than $10,000 for each violation, provided that each day during which the violation continues shall constitute an additional, separate, and the commissioner shall be authorized to assess a civil administrative penalty of not less than $5,000 nor more than $10,000 for each violation, provided that each day during which the violation continues shall constitute an additional, separate, and distinct offense.

Education and outreach must provide instructions to enable consumers to carry out the recycling or composting of discarded packaging products, which instructions shall be easily accessible, easy to understand, and, to the extent practicable, applicable on a Statewide basis, taking into account the differences among local laws and processing capabilities.

Education and outreach much provide information on the proper end-of-life management of discarded packaging products, including the end-of-life recycling and other environmentally sound disposal options that are available under the stewardship plan, as well as the location and availability of curbside and drop-off collection opportunities.

Producers shall conduct public outreach and provide consumers with educational materials, to the extent practicable, applicable on a Statewide basis, taking into account the differences among local laws and processing capabilities.

A producer responsibility organization shall submit a draft of its packaging product stewardship plan to the Advisory Council on Solid Waste Management and must describe how they received, considered, and implemented the comments of various stakeholders.

The Advisory Council on Solid Waste Management will review plans and provide recommendations. The council was established in previous legislation related to solid waste.

Recycling means any process by which materials or products that would otherwise become solid waste are collected, separated, or processed and returned to the economic mainstream in the form of raw materials or products. Recycling shall not include energy recovery or energy generation resulting from combustion or incineration processes.

An action undertaken by a producer or group of producers, which affects the types or quantities of packaging products being recycled or the cost or structure of any collection or recycling program, shall not be deemed to constitute a violation of any State law relating to antitrust, restraint of trade, unfair trade practices, or the regulation of trade or commerce, so long as the action is necessary to plan for or implement the organized collection or recycling of packaging products pursuant to this act.

No later than one year after the effective date of this act, the department shall prepare a Statewide needs assessment that is designed to determine the necessary steps and investments, in both the private and public sector, needed to effectuate the requirements of this act. A Statewide needs assessment prepared under this section shall be updated every five years or on a more frequent basis, as determined by the department to be necessary to ensure compliance. The department may select, and contract with, a State institution of higher education to complete the needs assessment required by this section, or any update.

Reuse means the return of a packaging product back into the economic stream for use in the same kind of application intended for the original packaging product, without effectuating a change in the original composition or identity of the product or the components thereof.