NJ weighs most ‘expansive' recycled plastic law in US

New Jersey state lawmakers may be headed toward enacting one of the country's toughest mandates for recycled content in plastic packaging, with industry lobbyists saying the legislation could become law in coming weeks.

The measure would require 15-25 percent post-consumer content in plastic containers, 20 percent in retail bags and 10 percent in trash bags, with those percentages rising dramatically after a few years.

A lobbyist for several packaging and plastics trade groups who has been heavily involved with the bill expects a version to pass before lawmakers end their session in the next few weeks.

"This is likely, in my humblest of estimations, to become law at the end of this year," said Andrew Hackman, a lobbyist for the packaging trade association Ameripen as well as the Western Plastics Association, in comments to a Dec. 9 WPA webinar.

Hackman said the measure would immediately give New Jersey the strictest plastic recycled-content law in the country, ahead of the two other states that have taken similar steps.

"Washington state and California have laws on the books, but neither are as expansive as the legislation that's being considered here," Hackman said in comments at a Dec. 13 New Jersey legislative committee hearing, where he was testifying for Ameripen, a multi-material packaging association.

The Washington state legislation, which passed earlier this year, focuses on personal care and household products, while California has a 1991 law covering rigid plastic packaging and a 2020 law mostly for PET beverage containers.

The New Jersey bill also would put recycled-content requirements on paper shopping bags and glass bottles, and it would ban expanded polystyrene loose-fill packaging.

If it passes, it would be New Jersey's second major piece of plastics legislation, cementing the state as one of the most active. In 2020, Democratic Gov. Phil Murphy signed a law banning some retail plastic and paper bags and EPS food containers.

At the Dec. 13 hearing, many industry groups took issue with the recycled-content proposal, saying that while they agree with the goals, the plan is too strict and there isn't nearly enough recycled plastic to meet the law's demands.

"One of the huge challenges with this bill is the lack of availability of recycled-content material, particularly food grade appropriate material," said Mary Ellen Peppard, assistant vice president for government affairs at the New Jersey Food Council. "Given the supply chain and labor constraints right now, that is really being exacerbated."

She pointed to "extreme concern" among companies about contamination from using recycling plastic in food containers.

"The transition to a lot of these types of [post-consumer recycled plastic] for food contact purposes is in its infancy," she said. "We unfortunately still have very significant concerns with this legislation."

The bill passed the state Senate on a 22-14 vote in June and has been working its way through state Assembly, where it has passed several committees.

Supporters of the bill, including environmentalists, lawmakers and a trade association for recycling companies, said the mandates would provide stability for recycling markets and would be phased in over several years to let companies adjust.

"The recycling industry is totally supportive of this, we see that it's crucial to getting plastics out of the environment and to saving the recycling community and businesses," said Frank Brill, a lobbyist for the Washington-based Institute for Scrap Recycling Industries.

He told the hearing that recycled-content requirements will strengthen markets for waste plastics and other materials that can no longer be as easily exported, after China's 2018 National Sword ban on many kinds of plastic and paper scrap.

"It's not going to happen overnight, but manufacturers of products will be required to put more recycled content in there," Brill said. "The folks that told you, 'Well, there isn't enough out there already,' one of the reasons there isn't enough out there is they're not required to do it."

Another witness, Alexandra Ambrose from the Association of New Jersey Environmental Commissions, argued that technology exists to use more recycled plastic.

She said the Food and Drug Administration has approved more than 170 recycling processes and companies for food-contact materials, issuing so-called letters of no objection, with European food safety regulators approving more than 130.

"Plastic pollution is not a recycling problem, it is a manufacturing problem," she said, pointing to commitments from major soft drink makers to use 50 percent recycled plastic by 2030.

The New Jersey legislation would gradually phase in much higher levels of post-consumer content, although it gives state regulators authority to change targets based on market conditions and other factors.

For plastic containers, the mandates would first take effect two years after the bill becomes law. Five years after that, the recycled plastic targets would start to increase.

For plastic beverage bottles, the bill starts at 15 percent, and increases by 5 percentage points a year, topping out at 50 percent.

For other plastic containers, they start at 25 percent and, after a few years, begin a ramp up by 5 percentage points a year to a maximum of 50 percent.

Plastic carryout bags would start at 20 percent two years after the bill becomes law, increasing to 40 percent three years later. Plastic trash bags would start at 10 percent and increase to 20 percent.

Industry representative at the hearing pushed lawmakers to amend the bill to include more exemptions or be broadened to recognize different technologies.

A group representing plastic shipping container manufacturers argued their products are not recyclable in curbside programs and should not be included. The Consumer Brands Association pushed for carveouts for hot-fill beverages like fruit juices and for food packaging challenged to meet "purity" requirements of the Food and Drug Administration.

The Chemistry Industry Council of New Jersey urged lawmakers to change the bill to include chemical recycling technologies, which has been a national push for the plastics industry.

"Under this bill, there's no accounting for the materials from advanced recycling," said Ed Waters, senior director of government affairs with the council.

He offered the example of a company making shampoo containers with chemically recycled resin that would meet the goals of the bill but could not be counted as complying.

"This is an interesting bill for us, we really want to support it," Waters said. "But the goals of this bill… are just too lofty and too aspirational. We don't believe that our members will be able to meet those goals and will be required to seek costly waivers."

Many industry groups argued that the state's Department of Environmental Protection would be overwhelmed by the number of waivers that companies would seek.

But supporters of the proposal pushed back, saying that the DEP has been very involved with the writing of the legislation over the last 18 months, including its waiver provisions.

"We appreciate all the concern for the DEP, but they have been intensely involved in this process, and they are very comfortable with the waiver process," said Ambrose, from the association of local environment commissions. "We are just thrilled this bill is moving forward."

The bill passed the Assembly's appropriations committee Dec. 13 on a 7-4 vote.

Lawmakers in the minority criticized Democrats who control the chamber for not making the plan more workable for businesses. But ISRI's Brill said his group sees national implications for what legislators are doing.

"We think it'll be a model for the United States if this bill is passed in New Jersey," he said.