H-3531

AN ACT Relating to waste reduction and environmental labeling; amending RCW 70.95H.030; adding a new chapter to Title 70 RCW; and prescribing penalties.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION. Sec. 1. Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter.

(1) "Composite packaging" means packaging that contains two or more of the following materials: Glass, metal, plastic, or paper. Packaging that contains two or more types of metals, plastics, or papers is composite packaging.

(2) "Department" means the department of ecology.

(3) "Director" means the director of the department of ecology.

(4) "Package" or "packaging" means a container providing a means of marketing, protecting, or handling a product and includes a unit package, an intermediate package, and a shipping container as defined in "Standard Terminology of Packaging and Distribution Environments" (American Society for Testing and Materials, designation: D996-90). "Package" also means such unsealed receptacles as carrying cases, crates, cups, pails, rigid foils and other trays, wrappers and wrapping films, bags, and tubs.

(5) "Packager" means:

(a) In the case of a product placed in a package before entry into Washington state, the distributor or wholesaler who causes the product to be brought into Washington state;

(b) In the case of a product placed in a package in Washington state before retail sale of the product, the person who places the product in the package; and

An entity with gross sales of less than five million dollars is not a packager.

(6) "Paper" means corrugating medium, bleached packaging paper, solid unbleached kraft, boxboard, or linerboard.

(7) "Person" means an individual, firm, association, copartnership, political subdivision, government agency, municipality, industry, public or private corporation, or any other entity.

(8) "Plastic" means one or more of the resins identified under RCW 70.95F.020.

(9) "Postconsumer waste" means a material or product that has served its intended use to an end-use consumer and has been discarded for recovery by that consumer. Postconsumer waste does not include factory-generated waste that is routinely returned to the manufacturing system.

(10) "Recovery rate" means the rate at which a material is recovered or diverted annually from municipal solid waste for reuse or recycling purposes, including export for such purposes, expressed as a percentage of the total amount of the material that would be destined for municipal solid waste in a year if diversion or recycling did not occur. Recovery or diversion for combustion is not reuse or recycling for purposes of determining recovery rate.

(11) "Recycled content" means the percentage, by weight, of postconsumer recycled material contained within a package.

NEW SECTION. Sec. 2. Effective December 31, 1994, a packager using paper, glass, metals, or plastic resins in a package shall meet one of the following requirements:

(1) The package shall be designed to be refilled or reused for its original purpose at least five times, and fifty percent or more of all such packages produced shall actually be returned for refilling or reuse; or

(2) The packaging material shall be reduced in volume or weight by at least twenty percent when compared to a package used for the same purpose or product by the packager as of January 1, 1989.

Effective December 31, 1999, the packaging material shall be reduced in volume or weight by an additional twenty percent when compared to a package made five years earlier. A packager may not satisfy the reduction requirements under this subsection by using a different packaging material, unless that packaging material has a recovery rate higher than the one being substituted; or

(3)(a) The package shall be made with recycled content materials meeting the following standards:

(i) Effective December 31, 1994, until December 31, 1997:

Plastics Twenty-five percent

Paper Forty percent

Steel or tin-coated steel Twenty-five percent

Glass Forty percent

Aluminum Forty-five percent

(ii) Effective January 1, 2000, and thereafter:

Plastics Fifty percent

Paper Fifty percent

Steel or tin-coated steel Thirty-five percent

Glass Fifty percent

Aluminum Sixty percent

(b) A packager using paper that elects to meet the requirements under this subsection shall report the state-wide percentage of recycled paper content used in paper packaging in the state. The recycled content percent shall be calculated as a state-wide average of all recycled paper used in paper packaging in the state.

(c) A packager using plastic that elects to meet the requirements under this subsection (3) shall report, for each resin used by that packager, the nation-wide percentage of recycled resin content used in plastic packaging in the nation. The recycled content percentage shall be calculated and reported for each resin type and shall not be calculated as the average percentage content of all resin types.

NEW SECTION. Sec. 3. Composite packaging shall meet all the applicable requirements of section 2 of this act for all materials contributing more than ten percent, by weight, of the package.

NEW SECTION. Sec. 4. (1) The following types or parts of packages are exempt from the requirements of this chapter:

(a) Any part of a package consisting of a flexible film that is in direct contact with food and that is necessary to prevent spoilage; and

(b) Packages determined by the director, by rule, to be de minimis.

(2) Rules implementing section 2(2) of this act shall allow full credit for any packaging innovation that decreases total packaging used by the amounts required under that section. Rules shall also allow for exemptions if the packager demonstrates, to the department's satisfaction, that the package has been reduced to the maximum extent practicable.

NEW SECTION. Sec. 5. Effective December 31, 1994, each packager subject to this chapter shall certify to the department, with respect to each type of package used by the packager, that the package is in compliance with the requirements of this chapter, or, in the case of a package that is exempt from the requirements of this chapter under section 4 of this act, the specific basis upon which the exemption is granted. The certification shall be contained in a certificate of compliance signed by an authorized official of the packager. The certificate shall be submitted to the department once every three years, as well as each time a package is reformulated or replaced. A copy of the certificate shall be kept on file by the packager. Acceptance of the certificate by the department shall not constitute acceptance of the facts contained in the certificate.

NEW SECTION. Sec. 6. Each packager subject to this chapter shall maintain records sufficient to document compliance with this chapter. The packager shall make such records available for inspection by the department.

NEW SECTION. Sec. 7. Each packager or manufacturer subject to this chapter who violates section 2, 3, or 5 of this act is subject to the following penalties:

(1) For a first violation, the packager or manufacturer is liable for an administrative penalty in an amount not to exceed ten thousand dollars. In lieu of a penalty, the department may send the packager or manufacturer a letter notifying the manufacturer that it is in violation of this chapter and warning the manufacturer of additional penalties if the violation continues.

(2) For a second violation, the packager or manufacturer is liable for an administrative penalty in an amount not to exceed twenty-five thousand dollars.

(3) For a third violation, the packager or manufacturer is liable for an administrative penalty in an amount not to exceed fifty thousand dollars.

(4) For any violation after a third violation, the department may ban the sale in commerce of the product or package concerned.

(5) After initiating an enforcement action for a violation of section 2, 3, or 5 of this act, the department shall allow thirty days to be in compliance before initiating a subsequent enforcement action.

NEW SECTION. Sec. 8. Any penalties collected under section 7 of this act shall be deposited in the clean Washington account created in RCW 70.95H.800.

NEW SECTION. Sec. 9. The department shall adopt rules to implement this chapter. The rules establishing standards and criteria for environmental marketing claims shall be adopted by June 30, 1994.

NEW SECTION. Sec. 10. After June 30, 1994, no person may make an environmental marketing claim governed by rules adopted under this chapter that cannot be substantiated in accordance with the standards and criteria contained in this chapter or the rules adopted under it.

NEW SECTION. Sec. 11. (1) Rules adopted under section 9 of this act shall be designed to reduce negative environmental impacts of packaging.

(2) The rules adopted under section 9 of this act shall include standards for claims and criteria for substantiating claims that a product or package:

(a) Is source reduced;

(b) Is refillable;

(d) Is recyclable;

(e) Has a recycled content;

(f) Is compostable;

(g) Is ozone neutral;

(h) Is nontoxic;

(i) Is photodegradable;

(j) Is biodegradable;

(k) Is degradable; or

(l) Is decomposable.

The department shall include standards and criteria for substantiating such other claims related to a specific environmental impact or attribute of a product or package as the department considers appropriate.

(3) The department shall ensure that the criteria and standards contained in the rules are sufficient to allow the office of the attorney general to determine whether an environmental marketing claim is false, misleading, or deceptive with respect to a specific environmental impact or attribute.

(4) The department shall attempt to ensure that the criteria and standards contained in the rules are based on the best available scientific information.

(5) The department may distinguish among product or package categories in setting standards and criteria in the rules.

(6) In adopting the rules, the department shall ensure that environmental marketing claims make a clear distinction between the product and any accompanying packaging unless the claim applies to both.

(7) The department shall include the following requirements in the rules:

(a) An environmental marketing claim stating that a product or package is "recycled" or has "recycled content" shall be used only in connection with a product or package containing postconsumer materials if the percentage of recovered material is specified in the claim and, the percentage of postconsumer materials is not less than twenty-five percent by weight until December 31, 1999, and is not less than fifty percent by weight on or After January 1, 2000.

(b) An environmental marketing claim relating to the recyclable nature of a product or package shall be used only in connection with a product or package for which a manufacturer, retailer, distributor, or other person responsible for the use of such environmental marketing claim is able to demonstrate, using standards and criteria contained in the rules, the following:

(i) Until December 31, 1999, twenty-five percent or more of all of such type of products or packages produced in the United States are recycled annually;

(ii) Beginning January 1, 2000, fifty percent or more of all of such type of products or packages produced in the United States are recycled annually.

(c) An environmental marketing claim relating to the reusable or refillable nature of a product or package shall be used only in connection with a product or package that is reused for the original purpose of the product or package an average of five times or more.

(d) No environmental marketing claim relating to the compostable, photodegradable, biodegradable, degradable, or decomposable nature of a product, package, or material, or any similar description, may be used in connection with a product, package, or material unless the manufacturer, retailer, distributor, or other person responsible for the use of such environmental marketing claim is able to demonstrate, using standards and criteria contained in the rules that:

(i) Until December 31, 1999, twenty-five percent or more of all of such type of products, packages, or materials produced in the United States are managed annually in a waste management system that is protective of human health and the environment, and for which the director has determined the claim is a relevant and environmentally desirable and significant characteristic; and beginning January 1, 2000, fifty percent or more of all of such type of products, packages, or materials produced in the United States are managed annually in such a waste management system;

(ii) The product, package, or material will decompose safely in such a waste management system though natural chemical and biological processes into basis constituents, containing no toxic residues, within an amount of time compatible with such system; and

(iii) The product, package, or material will not release or produce at any time toxic substances or other substances that may otherwise be harmful to human health or the environment, including during the management process and any subsequent application or use of by-products of the process, such as use of the product or by-product of composting as a soil amendment or mulch.

An environmental marketing claim under this subsection (7)(d) shall clearly specify the applicable management system and specify that the claim applies only to products, packages, or materials that are managed in such a system.

(8) Notwithstanding the requirements of subsection (7) of this section, an environmental marketing claim of a type covered by that subsection may be made with respect to a package, product, or material that does not itself qualify under that subsection for the claim, if:

(a) The claim is made at a retail outlet by use of a point-of-purchase display sign for the package, product, or material, and does not appear on the package, product, or material itself;

(b) The community in which the retail outlet is located has a program for the recycling, reuse, composting, or other activity with respect to which the claim is made; and

NEW SECTION. Sec. 12. Not later than June 30, 1997, and every three years thereafter, the department, in consultation with the attorney general, shall review the rules adopted under section 9 of this act. In reviewing these rules, the department shall take into account new technologies that have developed since the most recent adoption of rules, and if determined appropriate by the department, shall revise the standards and criteria contained in the rules to reflect these new technologies.

NEW SECTION. Sec. 13. Waste reduction and environmental labeling is a matter affecting the public interest for the purpose of applying chapter 19.86 RCW. A violation of sections 9 through 12 this act is not reasonable in relation to the development and preservation of business. A violation of this chapter constitutes an unfair or deceptive act or practice in trade or commerce and an unfair method of competition for the purpose of applying chapter 19.86 RCW.

Sec. 14. RCW 70.95H.030 and 1991 c 319 s 205 are each amended to read as follows:

The center shall:

(1) Provide targeted business assistance to recycling businesses, including:

(a) Development of business plans;

(b) Market research and planning information;

(d) Referral and information on market conditions; and

(e) Information on new technology and product development;

(2) Negotiate voluntary agreements with manufacturers to increase the use of recycled materials in product development. If voluntary agreements for newsprint, printing and writing papers, and tissue products are not established by December 31, 1995, the department of ecology shall adopt rules by July 1, 1996, requiring manufacturers producing those products to contain, in the aggregate, at least forty percent recycled content;

(3) Support and provide research and development to stimulate and commercialize new and existing technologies and products using recycled materials;

(4) Undertake an integrated, comprehensive education effort directed to recycling businesses to promote processing, manufacturing, and purchase of recycled products, including:

(a) Provide information to recycling businesses on the availability and benefits of using recycled materials;

(b) Provide information and referral services on recycled material markets;

(d) Participate in projects to demonstrate new market uses or applications for recycled products;

(5) Assist the departments of ecology and general administration in the development of consistent definitions and standards on recycled content, product performance, and availability;

(6) Undertake studies on the unmet capital needs of reprocessing and manufacturing firms using recycled materials;

(7) Undertake and participating in marketing promotions for the purposes of achieving expanded market penetration for recycled content products;

(8) Coordinate with the department of ecology to ensure that the education programs of both are mutually reinforcing, with the center acting as the lead entity with respect to recycling businesses, and the department as the lead entity with respect to the general public and retailers;

(9) Develop an annual work plan. The plan shall describe actions and recommendations for developing markets for commodities comprising a significant percentage of the waste stream and having potential for use as an industrial or commercial feedstock. The initial plan shall address, but not be limited to, mixed waste paper, waste tires, yard and food waste, and plastics; and

(10) Represent the state in regional and national market development issues.

NEW SECTION. Sec. 15. Sections 1 through 13 of this act shall constitute a new chapter in Title 70 RCW.

NEW SECTION. Sec. 16. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.