State Recycled Content Laws

Laws requiring certain percentages of post-consumer resin content in plastic packaging are  gaining traction in some states.  According to the Association of Plastics Recyclers (APR), by late 2023, seven states were in various stages of implementing such laws, with existing laws in CA, ME, WA and NJ, and a new law in CT and proposed laws in MD and NY.

State laws in effect have scheduled recycled percentage requirements for plastic beverage bottles, shopping bags, trash bags, and household cleaning and personal care products.  However,   New Jersey’s Recycled Content Law (P.L. 2021, c. 391) goes beyond these items to cover “rigid plastic containers” which could cover houseware products such as measuring cups and laundry baskets.

               The law requires six categories of goods to be made of a scheduled percentage of post-consumer recycled content (PRC).  Categories that don’t appear to pose issues for the housewares industry are Paper Carryout Bag, Plastic Carryout Bag, and Plastic Trash Bag.

Categories that might merit a closer look are Plastic Beverage Container, which means an individual, separate bottle, can, jar, carton, or other container made of plastic that is hermetically sealed or made airtight with a metal or plastic cap, and that contains a beverage – Plastic Beverage Container shall not include any label, cap, closure, or other item affixed to the container; and Glass Container, which means a container made of glass that is filled with a food or beverage.

The Rigid Plastic Container category is the most problematic as it means a container made of plastic that has a relatively inflexible finite shape or form, has a minimum capacity of eight fluid ounces or its equivalent volume and a maximum capacity of five fluid gallons or its equivalent volume, and is capable of maintaining its shape while empty or while holding other products.

The NJ law was signed Jan. 18, 2022, and products shipped into NJ this year should contain from 5% to 40% PRC based on category and schedule.  However, a waiver can be sought per three separate avenues which must be substantiated and supported by third-party documentation:

• The manufacturer can’t achieve the post-consumer recycled content requirements and remain in compliance with applicable rules and regulations of the U.S. Food and Drug Administration, or any other State or Federal law, rule, or regulation.
• It is not technically feasible for the manufacturer to achieve the post-consumer recycled content requirements.
• The manufacturer can’t comply with the post-consumer recycled content requirements due to inadequate availability of recycled material or a substantial disruption in the supply of recycled material.

A major task for IHA’s tracking of state recycled content laws is to identify other national groups that have similar concerns about this movement.  The Consumer Brands Association has been involved in this issue and established the Recycling Leadership Council to unite a diverse group of stakeholders.  Members include the National Retail Federation and Retail Industry Leaders Association, and IHA is in the process of pursuing a webinar on this subject for its members.