The coronavirus pandemic has resulted in increased use of disposable plastics and plastic waste reduction efforts have experienced setbacks as the need for these products grows. Nonetheless,

proponents of a federal bill aimed at reducing plastic waste, the “Break Free From Plastic Pollution Act,” (the Act) continue to advocate for its passage.  Recently, Sen. Tom Udall (D-NM) and Rep. Alan Lowenthal (D-CA) authored an open letter urging states to use the Act as a blueprint for passing state legislation to reduce plastic waste. The bill would require manufacturers of items including packaging and paper to support recycling programs and use more recycled plastics feedstock in addition to mandating more stringent US EPA standards for the sector. It would also restrict use of disposable plastic products by retail establishments.

The Act would place the burden on manufacturers of products including packaging, food service products, paper, and certain single-use products to minimize or eliminate waste from the products’ life cycle by participating in product stewardship programs to ensure products are recycled or otherwise appropriately managed. The Act sets forth certain performance targets that the product stewardship programs must meet.  For example, it would mandate that by December 31, 2027, 65% of all covered products (except paper) be reused or recycled; 75% of all beverage containers and covered paper products be recycled; and 50% of all industrially compostable products composted. The performance targets would increase in stringency by December 31, 2032. Plastic beverage containers are subject to requirements mandating that producers meet minimum recycled content requirements, starting at 25% recycled content by 2025 and increasing to 80% by 2040.

In addition to the specified performance targets and minimum content requirements, the Act would require that the US EPA issue guidance to standardize recycling and composting collection across communities and states. US EPA would also have to require producers of covered products and beverage containers to design the products to generally “minimize the environmental and health impacts” of such products. Finally, the Act would prohibit covered retail and service establishments from providing single-use plastic carryout bags and plastic utensils and would require a reduction in the provision of plastic straws.

If passed, the Act would impose significant requirements on manufacturers of the covered products and affect retailers and food service establishments that use disposable plastic products. Efforts to prohibit or reduce single-use plastics and increase recycling of those plastic products that remain in use are already in effect in the European Union, and the European Commission is in the process of revising its Packing and Packaging Waste Directive with plans to make a legislative proposal in 2021. The Act was introduced in February 2020 but has been largely overshadowed by the effects of the coronavirus pandemic. As noted above, supporters of the Act recently called for states to pass their own versions of the bill. Meanwhile, the Act remains pending in the U.S. Congress.

Squire Patton Boggs will continue to monitor this developing issue and provide updates.