August 2, 2021

Volume XI, Number 214

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July 30, 2021

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Washington State Plastics Bill Imposes Minimum Content Requirements on Many Household and Food Service Products

Key Takeaways

  • What Is Happening? On April 21, 2021, the Washington State legislature passed a sweeping new minimum recycled content bill, SB5022, which creates recycled content minimums for some plastic products sold in Washington State, bans the sale and distribution of certain types of plastic, and establishes registration and reporting requirements for manufacturers of specific plastic products. The bill also bans expanded polystyrene (EPS) and limits how the food service industry can provide consumers with single-use plastic products such as eating utensils and straws. Additionally, the bill also imposes reporting and registration requirements for manufacturers of certain plastic products. Governor Jay Inslee vetoed a similar bill last year, primarily due to costs and timing at the onset of the pandemic, but some news sources indicate that Governor Inslee is likely to sign this bill.

  • Why Does It Matter? This bill impacts the food service industry and entities at many points in the supply chain, including: manufacturers, distributors, and retailers of household and personal care products who distribute or sell products in Washington State; recycling facilities; beverage manufacturers that sell or distribute products in Washington State; manufacturers, distributors, and retailers who produce or use expanded polystyrene products; and food and beverage manufacturers, distributors, and restaurants in Washington State that use single-use products will now have additional responsibilities to ensure compliance with the bill. The bill will require manufacturers, producers, distributors, and retailers of the regulated products to examine and potentially revise their supply chains to account for the new requirements.

  • What Should I Do? Manufacturers, distributors, and retailers who sell or distribute products within the scope of the bill in Washington State should analyze the recycled content in their current product inventory and make arrangements to increase the percentage of recycled content in their products over the next several years. Manufacturers should also prepare to submit annual reports to the Washington Department of Ecology describing the postconsumer recycled content in their products by weight. Manufacturers, distributors, and retailers should prepare to phase out the use and distribution of expanded polystyrene products in Washington.

Minimum Recycled Content Requirements

The bill imposes recycled content minimums on several categories of plastic products, including many household and personal care products, plastic trash bags, beverages in plastic containers, and dairy milk containers. The covered household and personal care products include laundry detergent containers, cleaning products, oral hygiene products, and soap and shampoo bottles. The bill also covers manufacturers that sell or distribute beverages, including water, soda, and alcoholic beverages, in plastic containers within Washington State.

Additionally, the bill establishes deadlines by which many producers must register with and submit an annual report to the Department of Ecology. These reports must describe the amount, by weight, of virgin plastic and postconsumer recycled content by resin type by percentage of total weight for products that fall within the scope of the bill.

The bill gives the Department of Ecology the authority to conduct audits and investigations to ensure compliance with the recycled content minimums. Companies that do not meet these recycled content minimums are prohibited from selling or distributing their products in the State of Washington. Further, producers that do not meet these minimum postconsumer recycled content requirements are subject to penalties.

Additionally, the bill imposes new labeling and registration requirements on plastic trash bag producers. Beginning on January 1, 2023, plastic trash bag producers must label each container of plastic trash bags sold, offered for sale, or distributed in Washington State with the name and location of the producer or a uniform resource locator or QR code to a website that contains this information.

Expanded Polystyrene Ban in Food Service Products and Packaging

The bill prohibits the sale and distribution of several types of expanded polystyrene (EPS) products in Washington State including food service products such as plates, clamshell packaging, and hot and cold beverage cups. Additionally, the sale and distribution of EPS void-filling packaging products, such as packing peanuts, is prohibited. This prohibition will go into effect on June 1, 2023. Manufacturers, importers, and distributors in violation of the EPS policy may be assessed penalties after receiving two written notices of violation.

Additional Requirements for the Food Service Industry

The bill requires that the food service industry, including restaurants, coffee shops, fast food restaurants, grocery stores, business cafeterias, and any location that allows for the opportunity of on-site food consumption not provide customers with single-use food service products unless a customer specifically requests the product. Affected products include plastic utensils, straws, condiment packaging, and beverage cup lids in certain circumstances. A food service provider who violates this provision may incur civil penalties of up to $2,000 for each day that single-use food service products are provided.

Conclusion

For the last several years, Washington State has been at the forefront of regulating plastics and packaging. This bill reflects the growing likelihood that these recycled content and other design requirements will be imposed on new product categories and in new jurisdictions, despite the challenges that companies may face in obtaining enough the recycled content due to new amendments to the Basel Convention and limited domestic recycling infrastructure. To account for this uncertainty, the bill allows for the Department of Ecology to revise the recycled content minimums based on the availability of recycled plastic and the capacity of recycling or processing infrastructure. The bill originally included an Extended Producer Responsibility Program that was removed in this version.

© 2021 Beveridge & Diamond PC National Law Review, Volume XI, Number 117
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About this Author

K. Russell LaMotte Environmental Attorney Beveridge & Diamond Washington, DC
Principal

Russ helps global companies navigate international environmental regulatory regimes and develop product compliance and market-access strategies.

He served for over ten years as an international lawyer at the United States Department of State, representing the U.S. Government in designing, negotiating, or implementing most of the major multilateral environmental and oceans agreements. His experience and representative matters include: 

Chemicals, Substances in Articles, and Product-Related Environmental Compliance

  • Advising chemicals, pesticides,...
202-789-6080
Allyn L. Stern Environmental Attorney Beveridge & Diamond Seattle, WA
Of Counsel

Allyn brings over 30 years of insider understanding of government operations.

Her experience as former Region 10 Counsel at the Environmental Protection Agency (EPA) informs her deep policy, regulatory, and enforcement knowledge. Allyn draws on her breadth and depth of expertise to help clients comply with an array of environmental statutes and regulations applicable to their businesses, including Clean Water Act (CWA) and Resource Conservation and Recovery Act (RCRA) permit approvals, risk management under the Clean Air Act 112(r), civil and criminal enforcement, Superfund cleanup...

206-620-3027
Dacia T. Meng Producer Responsibility Initiatives Attorney Beveridge & Diamond Washington, DC
Associate

Dacie Meng advises clients on domestic and international circular economy and extended producer responsibility initiatives.

She specializes in end-of-life management of plastics, packaging, electronics, pharmaceuticals, and other products in the U.S. and globally.

Dacie regularly advises on requirements governing transboundary shipments of products for reuse, repair, and recycling. She also supports the development of product stewardship programs across the country in compliance with extended producer responsibility legislation.

In addition, Dacie counsels clients...

202-789-6017
Nicole J. Waxman Environmental Litigation Attorney Beveridge & Diamond Washington, DC
Associate

Nicole focuses on complex environmental litigation and a diverse array of regulatory matters.

Nicole untangles complex environmental law matters into manageable tasks to ensure that clients achieve their desired outcomes. She has experience with a variety of issues arising under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and handles regulatory compliance issues related to mobile source emissions under the Clean Air Act (CAA).

Prior to joining B&D, Nicole clerked in the civil litigation practice area of a mid-Atlantic law firm....

202-789-6081
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