Break Free From Plastic Pollution Act of 2021

II 117TH CONGRESS 1ST SESSION S. 984 To amend the Solid Waste Disposal Act to reduce the production and use of certain single-use plastic products and packaging, to improve the responsibility of producers in the design, collection, reuse, recycling, and disposal of their consumer products and packaging, to prevent pollu- tion from consumer products and packaging from entering into animal and human food chains and waterways, and for other purposes. IN THE SENATE OF THE UNITED STATES MARCH 25, 2021 Mr. MERKLEY (for himself, Mr. BOOKER, Mr. DURBIN, Mr. MARKEY, Mr. WYDEN, Mr. BLUMENTHAL, Mr. LEAHY, Mrs. GILLIBRAND, Ms. WAR- REN, Mr. SANDERS, and Mrs. FEINSTEIN) introduced the following bill; which was read twice and referred to the Committee on Finance A BILL To amend the Solid Waste Disposal Act to reduce the pro- duction and use of certain single-use plastic products and packaging, to improve the responsibility of producers in the design, collection, reuse, recycling, and disposal of their consumer products and packaging, to prevent pollution from consumer products and packaging from entering into animal and human food chains and water- ways, and for other purposes. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 VerDate Sep 11 2014 22:11 Apr 18, 2021 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S984.IS S984 kjohnson on DSK79L0C42PROD with BILLS 2 •S 984 IS SECTION 1. SHORT TITLE. 1 This Act may be cited as the ‘‘Break Free From 2 Plastic Pollution Act of 2021’’. 3 SEC. 2. PRODUCER RESPONSIBILITY FOR PRODUCTS AND 4 PACKAGING. 5 (a) IN GENERAL.—The Solid Waste Disposal Act (42 6 U.S.C. 6901 et seq.) is amended by adding at the end 7 the following: 8 ‘‘Subtitle K—Producer Responsi- 9 bility for Products and Pack- 10 aging 11 ‘‘SEC. 12001. DEFINITIONS. 12 ‘‘In this subtitle: 13 ‘‘(1) ADVISORY COMMITTEE.—The term ‘advi- 14 sory committee’ means an advisory committee estab- 15 lished by an Organization under section 12102(c). 16 ‘‘(2) BEVERAGE.— 17 ‘‘(A) IN GENERAL.—The term ‘beverage’ 18 means any drinkable liquid intended for human 19 oral consumption, including— 20 ‘‘(i) water; 21 ‘‘(ii) flavored water; 22 ‘‘(iii) soda water; 23 ‘‘(iv) mineral water; 24 ‘‘(v) beer; 25 ‘‘(vi) a malt beverage; 26 VerDate Sep 11 2014 22:11 Apr 18, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S984.IS S984 kjohnson on DSK79L0C42PROD with BILLS 3 •S 984 IS ‘‘(vii) a carbonated soft drink; 1 ‘‘(viii) liquor; 2 ‘‘(ix) tea; 3 ‘‘(x) coffee; 4 ‘‘(xi) hard cider; 5 ‘‘(xii) fruit juice; 6 ‘‘(xiii) an energy or sports drink; 7 ‘‘(xiv) coconut water; 8 ‘‘(xv) wine; 9 ‘‘(xvi) a yogurt drink; 10 ‘‘(xvii) a probiotic drink; 11 ‘‘(xviii) a wine cooler; and 12 ‘‘(xix) any other beverage determined 13 to be appropriate by the Administrator. 14 ‘‘(B) EXCLUSIONS.—The term ‘beverage’ 15 does not include— 16 ‘‘(i) a drug regulated under the Fed- 17 eral Food, Drug, and Cosmetic Act (21 18 U.S.C. 301 et seq.); 19 ‘‘(ii) infant formula; or 20 ‘‘(iii) a meal replacement liquid. 21 ‘‘(3) BEVERAGE CONTAINER.— 22 ‘‘(A) IN GENERAL.—The term ‘beverage 23 container’ means a prepackaged beverage con- 24 tainer— 25 VerDate Sep 11 2014 22:11 Apr 18, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S984.IS S984 kjohnson on DSK79L0C42PROD with BILLS 4 •S 984 IS ‘‘(i) made of any material, including 1 glass, plastic, metal, and multimaterial; 2 and 3 ‘‘(ii) the volume of which is not more 4 than 3 liters. 5 ‘‘(B) EXCLUSION.—The term ‘beverage 6 container’ does not include a covered product of 7 any material used to sell a prepackaged bev- 8 erage, such as— 9 ‘‘(i) a carton; 10 ‘‘(ii) a pouch; or 11 ‘‘(iii) aseptic packaging, such as a 12 drink box. 13 ‘‘(C) INCLUSION.—Notwithstanding sub- 14 paragraphs (A) and (B), for purposes of the 15 program under section 12104, the term ‘bev- 16 erage container’ includes a container for a bev- 17 erage that is not described in those subpara- 18 graphs, such as a carton, pouch, or drink box, 19 the responsible party for which elects to partici- 20 pate in the program under that section. 21 ‘‘(4) COMPOSTABLE.— 22 ‘‘(A) IN GENERAL.—Subject to subpara- 23 graph (B), the term ‘compostable’ means, with 24 VerDate Sep 11 2014 22:11 Apr 18, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S984.IS S984 kjohnson on DSK79L0C42PROD with BILLS 5 •S 984 IS respect to a covered product, that the covered 1 product— 2 ‘‘(i)(I) meets the ASTM International 3 standard specification for compostable 4 products numbered D6400 or D6868— 5 ‘‘(aa) as in effect on the date of 6 enactment of this subtitle; or 7 ‘‘(bb) as revised after the date of 8 enactment of this subtitle, if the revi- 9 sion is approved by the Administrator; 10 and 11 ‘‘(II) is labeled to reflect that the cov- 12 ered product meets a standard described in 13 subclause (I); 14 ‘‘(ii) is certified as a compostable 15 product by an independent party that is 16 approved by the Administrator; or 17 ‘‘(iii) comprises only— 18 ‘‘(I) wood without any— 19 ‘‘(aa) coatings; 20 ‘‘(bb) additives; or 21 ‘‘(cc) effective beginning on 22 February 1, 2023, toxic sub- 23 stances; or 24 ‘‘(II) natural fiber without any— 25 VerDate Sep 11 2014 22:11 Apr 18, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S984.IS S984 kjohnson on DSK79L0C42PROD with BILLS 6 •S 984 IS ‘‘(aa) coatings; 1 ‘‘(bb) additives; or 2 ‘‘(cc) effective beginning on 3 February 1, 2023, toxic sub- 4 stances. 5 ‘‘(B) EXCLUSIONS.—The term 6 ‘compostable’ shall not apply to— 7 ‘‘(i) paper; or 8 ‘‘(ii) effective beginning on February 9 1, 2023, any covered product that contains 10 a toxic substance. 11 ‘‘(5) COVERED PRODUCT.— 12 ‘‘(A) IN GENERAL.—The term ‘covered 13 product’ means, regardless of recyclability, 14 compostability, and material type— 15 ‘‘(i) packaging; 16 ‘‘(ii) a food service product; 17 ‘‘(iii) paper; 18 ‘‘(iv) a single-use product that is not 19 subject to the prohibition under section 20 12202(c); and 21 ‘‘(v) a container for a beverage that is 22 not described in subparagraphs (A) and 23 (B) of paragraph (3), such as a carton, 24 pouch, or aseptic packaging, such as a 25 VerDate Sep 11 2014 22:11 Apr 18, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S984.IS S984 kjohnson on DSK79L0C42PROD with BILLS 7 •S 984 IS drink box, the responsible party for which 1 does not elect to participate in the pro- 2 gram under section 12104. 3 ‘‘(B) EXCLUSION.—The term ‘covered 4 product’ does not include a beverage container. 5 ‘‘(6) COVERED RETAIL OR SERVICE ESTABLISH- 6 MENT.— 7 ‘‘(A) IN GENERAL.—Subject to subpara- 8 graph (B), the term ‘covered retail or service 9 establishment’ means— 10 ‘‘(i) any restaurant; or 11 ‘‘(ii) any business that— 12 ‘‘(I) sells food, alcohol, or any 13 other good or product to the public at 14 retail; or 15 ‘‘(II) elects to comply with the 16 requirements under, as applicable— 17 ‘‘(aa) section 12201; or 18 ‘‘(bb) section 12202. 19 ‘‘(B) EXCEPTION.— 20 ‘‘(i) IN GENERAL.—The term ‘covered 21 retail or service establishment’ does not in- 22 clude any entity described in subparagraph 23 (A) if the State, or any local government 24 or political subdivision thereof, in which 25 VerDate Sep 11 2014 22:11 Apr 18, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S984.IS S984 kjohnson on DSK79L0C42PROD with BILLS 8 •S 984 IS that entity is located has been granted a 1 waiver pursuant to clause (ii). 2 ‘‘(ii) WAIVER.—The Administrator 3 shall prescribe regulations providing for 4 the waiver of the application of section 5 12201 or 12202 with respect to any State, 6 or any local government or political sub- 7 division thereof, that has enacted require- 8 ments that are similar to the requirements 9 imposed under that section. 10 ‘‘(7) FOOD SERVICE PRODUCT.—The term ‘food 11 service product’ means an item intended to deliver a 12 food product, regardless of the recyclability or 13 compostability of the item, including— 14 ‘‘(A) a utensil; 15 ‘‘(B) a straw; 16 ‘‘(C) a drink cup; 17 ‘‘(D) a drink lid; 18 ‘‘(E) a food package; 19 ‘‘(F) a food container; 20 ‘‘(G) a plate; 21 ‘‘(H) a bowl; 22 ‘‘(I) a meat tray; and 23 ‘‘(J) a food wrap. 24 VerDate Sep 11 2014 22:11 Apr 18, 2021 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S984.IS S984 kjohnson on DSK79L0C42PROD with BILLS 9 •S 984 IS ‘‘(8) MICROFIBER.—The term ‘microfiber’ 1 means a particle that— 2 ‘‘(A) has a fibrous shape; 3 ‘‘(B) is less than 5 millimeters in any di- 4 rection; and 5 ‘‘(C) is released at any point during the 6 full life cycle of a textile, including production, 7 use, cleaning, recycling, and disposal. 8 ‘‘(9) ORGANIZATION.—The term ‘Organization’ 9 means a Producer Responsibility Organization estab- 10 lished under section 12102(a)(1). 11 ‘‘(10) PACKAGING.— 12 ‘‘(A) IN GENERAL.—The term ‘packaging’ 13 means— 14 ‘‘(i) any package or container, regard- 15 less of recyclability or compostability; and 16 ‘‘(ii) any part of a package or con- 17 tainer, regardless of recyclability or 18 compostability, that includes material that 19 is used for the containment, protection, 20 handling, delivery, and presentation of 21 goods that are sold, offered for sale, or dis- 22 tributed to consumers in the United 23 States, including through an internet 24 transaction. 25 VerDate Sep 11 2014 22:11 Apr 18, 2021 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S984.IS S984 kjohnson on DSK79L0C42PROD with BILLS 10 •S 984 IS ‘‘(B) INCLUSIONS.—The term ‘packaging’ 1 includes packaging described in subparagraph 2 (A) that is— 3 ‘‘(i) intended for the consumer mar- 4 ket; 5 ‘‘(ii) service packaging designed and 6 intended to be used or filled at the point 7 of sale, such as carry-out bags, bulk good 8 bags, take-out bags, and home delivery 9 food service packaging; 10 ‘‘(iii) secondary packaging used to 11 group products for multiunit sale; 12 ‘‘(iv) tertiary packaging used for 13 transportation or distribution directly to a 14 consumer; and 15 ‘‘(v) ancillary elements hung or at- 16 tached to a product and performing a 17 packaging function. 18 ‘‘(C) EXCLUSION.—The term ‘packaging’ 19 does not include packaging described in sub- 20 paragraph (A) that is— 21 ‘‘(i) used for the long-term protection 22 or storage of a product; and 23 ‘‘(ii) with a life of not less than 5 24 years. 25 VerDate Sep 11 2014 22:11 Apr 18, 2021 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S984.IS S984 kjohnson on DSK79L0C42PROD with BILLS 11 •S 984 IS ‘‘(11) PAPER.— 1 ‘‘(A) IN GENERAL.—The term ‘paper’ 2 means paper that is sold, offered for sale, deliv- 3 ered, or distributed to a consumer or business 4 in the United States. 5 ‘‘(B) INCLUSIONS.—The term ‘paper’ in- 6 cludes— 7 ‘‘(i) newsprint and inserts; 8 ‘‘(ii) magazines and catalogs; 9 ‘‘(iii) direct mail; 10 ‘‘(iv) office paper; and 11 ‘‘(v) telephone directories. 12 ‘‘(C) EXCLUSIONS.—The term ‘paper’ does 13 not include— 14 ‘‘(i) a paper product that, due to the 15 intended use of the paper product, could 16 become unsafe or unsanitary to recycle; or 17 ‘‘(ii) a bound book. 18 ‘‘(12) PLAN.—The term ‘Plan’ means a Prod- 19 uct Stewardship Plan described in section 12105. 20 ‘‘(13) PROGRAM.—The term ‘Program’ means a 21 Product Stewardship Program established under sec- 22 tion 12102(a)(2). 23 VerDate Sep 11 2014 22:11 Apr 18, 2021 Jkt 019200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S984.IS S984 kjohnson on DSK79L0C42PROD with BILLS 12 •S 984 IS ‘‘(14) RECYCLABLE.—The term ‘recyclable’ 1 means, with respect to a covered product or beverage 2 container, that— 3 ‘‘(A) the covered product or beverage con- 4 tainer can be economically and technically recy- 5 cled in current United States market condi- 6 tions; 7 ‘‘(B) United States processing capacity is 8 in operation to recycle, with the geographical 9 distribution of the capacity aligned with the 10 population of geographical regions of the 11 United States, of the total quantity of the cov- 12 ered product or beverage container— 13 ‘‘(i) for each of calendar years 2021 14 through 2024, not less than 25 percent; 15 ‘‘(ii) for each of calendar years 2025 16 through 2029, not less than 35 percent; 17 ‘‘(iii) for each of calendar years 2030 18 through 2034, not less than 50 percent; 19 and 20 ‘‘(iv) for calendar year 2035 and each 21 calendar year thereafter, not less than 60 22 percent; 23 ‘‘(C) the consumer that uses the covered 24 product or beverage container is not required to 25 VerDate Sep 11 2014 22:11 Apr 18, 2021 Jkt 019200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S984.IS S984 kjohnson on DSK79L0C42PROD with BILLS 13 •S 984 IS remove an attached component of the covered 1 product or beverage container, such as a shrink 2 sleeve, label, or filter, before the covered prod- 3 uct or beverage container can be recycled; and 4 ‘‘(D) effective beginning on February 1, 5 2023, the covered product or beverage container 6 does not contain a toxic substance. 7 ‘‘(15) RECYCLE.— 8 ‘‘(A) IN GENERAL.—The term ‘recycle’ 9 means the series of activities by which a cov- 10 ered product is— 11 ‘‘(i) collected, sorted, and processed; 12 and 13 ‘‘(ii)(I) converted into a raw material 14 with minimal loss of material quality; 15 ‘‘(II) used in the production of a new 16 product, including the original product; or 17 ‘‘(III) in the case of composting or or- 18 ganic recycling, productively used for soil 19 improvement. 20 ‘‘(B) EXCLUSION.—The term ‘recycle’ does 21 not include— 22 ‘‘(i) the method of sorting, processing, 23 and aggregating materials from solid waste 24 that does not preserve the original material 25 VerDate Sep 11 2014 22:11 Apr 18, 2021 Jkt 019200 PO 00000 Frm 00013 Fmt 6652 Sfmt 6201 E:\BILLS\S984.IS S984 kjohnson on DSK79L0C42PROD with BILLS 14 •S 984 IS quality, and, as a result, the aggregated 1 material is no longer usable for its initial 2 purpose or a substantially similar product 3 and can only be used for inferior purposes 4 or products (commonly referred to as 5 ‘downcycling’); 6 ‘‘(ii) the use of waste— 7 ‘‘(I) as a fuel or fuel substitute; 8 ‘‘(II) for energy production; 9 ‘‘(III) for repurposing into infra- 10 structure, including— 11 ‘‘(aa) pavement for streets 12 or sidewalks; 13 ‘‘(bb) building materials; 14 and 15 ‘‘(cc) other infrastructure 16 projects, as determined by the 17 Administrator; 18 ‘‘(IV) for alternate operating 19 cover; or 20 ‘‘(V) within the footprint of a 21 landfill; or 22 ‘‘(iii) the conversion of waste into al- 23 ternative products, such as chemicals, feed- 24 stocks, fuels, and energy, through— 25 VerDa [Text truncated for display. 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