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On January 18, 2022, New Jersey Governor Phil Murphy signed into law a bill establishing postconsumer recycled content (PRC) requirements for rigid plastic containers, glass containers, paper and plastic carryout bags, and plastic trash bags (Recycled Content Law, or Law). The Law also prohibits the sale of polystyrene loose fill packaging, commonly referred to as "packaging peanuts." It was inspired, in part, by China's 2018 decision to stop accepting recycled material imports.1 The Law's sponsors, General Assembly Members Annette Quijana, D-Union, Mila M. Jasey, D-Essex, and John F. McKeon, D-Essex, explained that "[o]ver the past few years, other countries such as China have decided to no longer buy most plastic waste content. New Jersey has an opportunity to enhance our market for plastics, and this will allow us to be at the forefront of a transitioning recycling industry."2
The Law establishes the following PRC requirements for certain items sold, offered for sale, or used in association with such sale or offer for sale in the state of New Jersey:
The Law allows NJDEP to review and adjust any of these PRC requirements in consideration of market conditions, recycling rates, the availability of recycled material, the capacity of recycling or processing infrastructure, the progress made by manufacturers in meeting the PRC requirements, and any other relevant factors.10 It also authorizes NJDEP to assess civil penalties of up to $50,000 for failure to comply with the PRC requirements, which penalties may be collected in a summary proceeding pursuant to the Penalty Enforcement Law of 1999.11 Further, "any person who knowingly, purposely, or recklessly makes a false or misleading statement on any certification or registration submitted to the [NJDEP] pursuant to the [Recycled Content Law] must, upon conviction, be guilty of a crime of the third degree and . . . subject to a fine of not more than $50,000 and restitution."12
Notably, a number of products traditionally stored in plastic containers are exempt from the Recycled Content Law, including milk products, plant-based dairy substitute products, medical foods, food for special dietary use, and infant formula.13 More generally, with the exception of plastic or glass beverage containers, all food packages and containers will be exempt from the PRC requirements for five years.14
For manufacturers facing difficulty meeting the PRC requirements, the Law offers a waiver application process. The NJDEP may grant a waiver if it finds any of the following:
A waiver application must be supported by documentation from a federal or state agency or certified third-party expert showing that the manufacturer cannot comply. If a waiver is granted, however, the NJDEP can require the exempt manufacturer to prepare and submit an alternative compliance plan showing that it is taking all reasonable steps to comply.16
The Law will also require all manufacturers to register with the NJDEP, pay a registration fee,17 and keep detailed records.18 Beginning three years and six months after the Law's enactment, and annually thereafter, manufacturers must certify to the NJDEP that their plastic products either are or are not in compliance with the PRC requirements or are exempt.19
The Recycled Content Law is another in a line of recent statutes and regulations signaling a shift away from reliance on plastic products. For example, in November 2021, New Jersey enacted a law partially banning single-use plastic straws, unless customers specifically request them.20 Regulated businesses can expect similar laws in the future. For now, manufacturers and users of plastic packaging and containers in New Jersey should carefully review the Recycled Content Law and ensure conformance with its requirements to the greatest extent possible or otherwise communicate to the NJDEP an inability to comply.
1. https://www.wastedive.com/news/new-jersey-recycled-content-plastic-murphy/616975/
2. https://www.nj.com/politics/2022/01/nj-will-ban-packing-peanuts-require-more-recycled-materials-under-new-law-murphy-just-signed.html
3. See https://www.njleg.state.nj.us/Bills/2020/S3000/2515_R5.HTM, at Sec. 3(a)(1)-(2).
4. See id. at Sec. 4(a)(1)-(2).
5. See id. at Sec. 7(a)-(b).
6. See id. at Sec. 8(a)(1)-(2).
7. The Law defines "mixed-color cullet" as "cullet that does not meet the American Society for Testing and Materials (ASTM) standard specifications for the color mix of color-sorted, post-filled glass as a raw material for the manufacture of glass containers."
8. See https://www.njleg.state.nj.us/Bills/2020/S3000/2515_R5.HTM, at Sec 5(a).
11. See id. at Sec. 16(e).
13. See id. at Sec. 10(a).
14. See id. at Sec. 10(b)(1).
20. https://www.dailyprincetonian.com/article/2021/11/plastic-straws-ban-new-jersey
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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