HB1646

SECTION 1. The legislature finds that there is no national legislation or standard for recycling labels. The triangular "chasing arrows" symbol or the word "recyclable" on plastics and other products has long been a source of confusion for consumers. The symbol appears on a wide variety of products, from those that are easily recycled, to those that are less so, to those that are not recyclable at all. Items that are not actually recyclable can display the symbol despite there being no tangible end-market to recycle those materials. This type of labeling means that recycling programs often see high rates of contamination when items that are not generally recyclable are mixed in with items that can be recycled. Sorting through contaminated items is costly, and often leads to most items being sent to the landfill, even though some materials would be viable for recycling had they been properly sorted.

Packaging and serviceware marketed to be compostable and biodegradable also contribute to this problem. Many items that are labeled compostable are only designed to break down under industrial-scale conditions and will not break down in an at-home compost pile. Compostable or biodegradable products often end up in landfills because they are touted as more environmentally friendly than other materials. Landfill conditions are not conducive to composting or biodegradation, so these materials tend to persist or break down anaerobically, which can produce greenhouse gas emissions. Some items labeled as compostable may contain toxic chemicals that would remain in the soil even after the composting process is completed.

The legislature further finds that the United States plastics industry will surpass coal-fired power plants as a major leading source of greenhouse gas emissions in less than a decade. A 2021 study found that plastics emit greenhouse gases in every stage of their lifecycle. As renewable energy increases across the country, fossil fuel companies are seeking to recoup lost profits by increasing plastics production. Therefore, combatting climate change will require less new plastic being produced and more plastic being recycled.

The purpose of this Act is to:

(1) Prohibit the sale or distribution of consumer goods for which a deceptive claim about the recyclability of the product or packaging is made;

(2) Establish standards for recyclability of products in the State;

(3) Require the department of health to collect data and issue a material characterization study on recyclable materials collected in the State; and

(4) Prohibit the sale of any product that is labeled as compostable or biodegradable unless the product meets specified criteria.

SECTION 2. Chapter 342G, Hawaii Revised Statutes, is amended by adding two new sections to be appropriately designated and to read as follows:

"§342G- Product labeling; recyclability. (a) Notwithstanding any other law to the contrary, no person may offer for sale, sell, manufacture, import, or distribute any product or packaging for which a deceptive or misleading claim about the recyclability of the product or packaging is made.

(b) A product or packaging that displays a chasing arrows symbol, a chasing arrows symbol surrounding a resin identification code, or any other symbol or statement indicating the product or packaging is recyclable, or otherwise directing the consumer to recycle the product or packaging, is deemed to be a deceptive or misleading claim pursuant to this section unless the product or packaging is considered recyclable in the State pursuant to subsections (e), (f), and (g) and is of a material type and form that routinely becomes feedstock used in the production of new products or packaging.

This subsection shall not apply to:

(1) Any product or packaging that is manufactured up to eighteen months after the date the department publishes the first material characterization study required pursuant to this section, or before January 1, 2024, whichever is later; and

(2) Any product or packaging manufactured up to eighteen months after the date the department updates the material characterization study pursuant to this section, if the product or packaging satisfied or, for a new product or packaging, would have satisfied, the requirements to be considered recyclable in the State pursuant to subsections (e), (f), and (g) before the publication of the updated study.

(c) Subject to subsection (b)(2), for a product or packaging that is not considered to be recyclable in the State pursuant to subsections (e), (f), and (g), all the following shall apply:

(1) Displaying a chasing arrows symbol or any other symbol or statement indicating the product is recyclable directly on the product shall be deemed to be deceptive or misleading pursuant to this section;

(2) If a product or packaging has multiple material types, a chasing arrows symbol or statement indicating recyclability may be displayed on the external packaging that is considered to be recyclable in the State pursuant to subsections (e), (f), and (g) if the chasing arrows symbol or statement makes clear in the same or greater font, font size, or symbol size that the other components of the product or packaging are not recyclable; and

(3) Displaying a chasing arrows symbol or any other symbol or statement indicating recyclability on packaging containing a consumable product shall, for purposes of this section, be deemed to refer only to the packaging. For purposes of this subparagraph, "consumable product" means a commodity that is intended to be used and not disposed of.

(d) For purposes of this section, none of the following constitutes a deceptive or misleading claim about the recyclability of a product or packaging:

(1) A person using a chasing arrows symbol in combination with a clearly visible line placed at a forty-five degree angle over the chasing arrows symbol to convey that an item is not recyclable;

(2) A consumer good that is required by any federal or state law or regulation, including but not limited to Section 103(b)(1) of the federal Mercury-Containing and Rechargeable Battery Management Act (42 U.S.C. 14322(b)(1)), to display a chasing arrows symbol;

(3) Directing a consumer to compost or properly dispose of a consumer good through an organics recycling program; and

(4) A resin identification code placed inside a solid equilateral triangle.

(e) On or before January 1, 2024, in order to provide information to the public sufficient for evaluating whether a product or packaging is recyclable in the State according to the criteria set forth in subsections (f) and (g) and are of material types and forms that routinely becomes feedstock used in the production of new products or packaging, the department shall:

(1) Issue rules pursuant to this chapter and chapter 91 to require all processing and solid waste disposal facilities operating in the State to submit the following information to the department:

(A) How any recovered material collected or processed by the operations and facilities was collected; and

(B) What material types and forms are actively recovered, and not considered contaminants, by the operation or facility;

(2) Publish the information required pursuant to paragraph (1) in a form the department deems appropriate for achieving the purpose of this section;

(3) Conduct and publish on its internet website a characterization study of material types and forms that are collected, sorted, sold, or transferred by solid waste facilities deemed appropriate by the department for inclusion in the study; provided that:

(A) The department shall update the material characterization study required pursuant to this paragraph every five years, with the first update being issued by the department in ;

(B) Notwithstanding subparagraph (A), the department may publish additional information that was not available at the time of the most recent periodic material characterization study regarding the appropriate characterization of material types and forms;

(C) For purposes of studying a representative sample of material types and forms in the State, within ninety days of a department request, a processing facility shall allow for periodic sampling conducted by a designated representative of the department on a mutually agreed upon date and time; provided that the department shall not request a periodic sampling of a processing facility if that facility was sampled during the previous twenty-four months; and

(D) For each material characterization study conducted pursuant to this paragraph, the department shall publish on its internet website the preliminary findings of the study and conduct a public meeting to present the preliminary findings and receive public comments. The public meeting shall occur at least thirty days after the department publishes the preliminary findings. After receiving and considering public comments, and within sixty days of the public meeting, the department shall finalize and publish on its internet website the findings of the study.

(f) Subject to subsection (g), a product or packaging is considered recyclable in the State if, based on information published by the department pursuant to subsection (e), the product or packaging is of a material type and form that meets both of the following requirements:

(1) The material type and form are collected for recycling by recycling programs for jurisdictions that collectively encompass at least sixty per cent of the population of the State; and

(2) The material type and form are sorted into defined streams for recycling processes by large volume transfer or processing facilities, as defined by this chapter, that process materials and collectively serve at least sixty per cent of recycling programs statewide, with the defined streams sent to and reclaimed at a reclaiming facility consistent with the requirements of the Basel Convention; provided that the department may adopt rules modifying this requirement to encompass transfer or processing facilities other than large volume transfer or processing facilities, as the department deems appropriate for achieving the purposes of this section.

(g) A product or packaging shall not be considered recyclable in the State unless the product or packaging meets all the following criteria, as applicable:

(1) For plastic packaging, the plastic packaging is designed to not include any components, inks, adhesives, or labels that prevent the recyclability of the packaging according to the APR Design Guide published by the Association of Plastic Recyclers;

(2) For plastic products and non-plastic products and packaging, the product or packaging is designed to ensure recyclability and does not include any components, inks, adhesives, or labels that prevent the recyclability of the product or packaging; and

(3) The product or packaging is not made from plastic or fiber that contains PFAS substances that meets either of the following criteria:

(A) PFAS substances that a manufacturer has intentionally added to a product or packaging and that have a functional or technical effect in the product or packaging, including the PFAS substance components of intentionally added chemicals and PFAS substances that are intentional breakdown products of an added chemical that also have a functional or technical effect in the product; or

(B) The presence of PFAS substances in a product or product component or packaging or packaging component at or above one hundred parts per million, as measured in total organic fluorine.

(h) Notwithstanding subsections (f) and (g), a product or packaging is recyclable in the State if the product or packaging has a demonstrated recycling rate of at least seventy-five per cent, meaning that not less than seventy-five per cent of the product or packaging sorted and aggregated in the State is reprocessed into new products or packaging.

(i) Notwithstanding subsections (f) and (g), a product or packaging not collected pursuant to a curbside collection program is recyclable in the State if:

(1) Before January 1, 2030, the non-curbside collection program recovers at least sixty per cent of the product or packaging in the program and the material has sufficient commercial value to be marketed for recycling and be transported at the end of its useful life to a transfer, processing, or recycling facility to be sorted and aggregated into defined streams by material type and form;

(2) On or after January 1, 2030, the non-curbside collection program recovers at least seventy-five per cent of the product or packaging in the program and the material has sufficient commercial value to be marketed for recycling and be transported at the end of its useful life to a transfer, processing, or recycling facility to be sorted and aggregated into defined streams by material type and form; or

(3) The product or packaging is part of, and in compliance with, a program established pursuant to state or federal law on or after January 1, , governing the recyclability or disposal of that product or packaging if the department determines that the product or packaging will not increase contamination of curbside recycling or deceive consumers as to the recyclability of the product or packaging.

(j) The information published by the department pursuant to subsection (e) shall not limit the discretion of a county agency under existing law to decide whether, and to what extent, a material type or form shall be accepted by a county recycling program.

(k) For the purposes of this section, "chasing arrows symbol" means an equilateral triangle, formed by three arrows curved at their midpoints, depicting a clockwise path, with a short gap separating the apex of each arrow from the base of the adjacent arrow. "Chasing arrows symbol" also includes variants of that symbol that are likely to be interpreted by a consumer as an implication of recyclability, including, but not limited to, one or more arrows arranged in a circular pattern or around a globe.

§342G- Sale of products; compostable or biodegradable; labeling. (a) Except as provided in paragraph (2), no person shall sell or offer for sale a product in the State that is labeled with the term "compostable" or "home compostable" unless:

(1) At the time of sale or offering for sale, the product meets the applicable ASTM standard specification or, if applicable, the product has OK compost HOME certification; provided that compliance with only a section or a portion of a section of an applicable ASTM standard specification does not constitute compliance with this section;

(2) Notwithstanding paragraph (1), a person may sell or offer for sale a product in the State that is labeled with a qualified claim for a term specified in paragraph (1) if the product meets the relevant standard adopted by the department pursuant to this section; or

(3) For a product labeled with the term "home compostable":

(A) The manufacturer of that product holds OK compost HOME certification with regard to that product;

(B) Notwithstanding subparagraph (A), if the ASTM adopts a standard specification for the term "home compostable" on or before January 1, , and the department determines that the ASTM standard specification is at least equal to, or more stringent than, the OK compost HOME certification, the product meets that ASTM standard specification; or

(C) If the department adopts a standard pursuant to this section, the product meets the standard adopted by the department and not the standard specified in subparagraphs (A) and (B).

(b) Except as provided in subsection (a) or (f), no person shall sell or offer for sale a product in the State that is labeled with the term "biodegradable", "degradable", or "decomposable", or any form of those terms, or in any way imply that the product will break down, fragment, biodegrade, or decompose in a landfill or other environment.

(c) The department may issue guidelines, consistent with this chapter, for determining whether a product is not compliant with the labeling requirements of this section and whether a product is designed, pigmented, or advertised in a manner that is misleading to consumers.

(d) A manufacturer or supplier, upon the request of a member of the public, shall submit to that member, within ninety days of the request, information and documentation demonstrating compliance with this chapter in a format that is easy to understand and scientifically accurate.

(e) A product that is in compliance with this chapter shall not, solely as a result of that compliance, be deemed to be in compliance with any other applicable marketing requirement or guideline established under state law or by the Federal Trade Commission.

(f) The department may adopt the European Committee for Standardization's standard specification EN 17033:2018 entitled "Plastics—Biodegradable mulch films for use in agriculture and horticulture—Requirements and test methods" or may adopt a standard that is equivalent to or more stringent than that standard as it read on January 1, 2020.

(g) A person may sell or offer for sale commercial agricultural mulch film labeled with the term "soil biodegradable" only if the department has adopted the standard specification, or an equivalent or more stringent standard, pursuant to subsection (f) and the commercial agricultural mulch film is certified to meet both that specification and the ASTM standard specification for compostability.

(h) No person shall sell or offer for sale a product in the State that is labeled with the term "compostable" or "home compostable" unless the product satisfies all the following:

(1) If any standard specification is applicable to the product pursuant to this chapter and the department has approved a third-party certification entity to certify products according to that standard specification, the product shall have certification that it meets at least one such standard from an approved third-party certification entity for the standard; provided that this requirement shall only apply on or after January 1, 2024, and it shall not apply unless there is, and has been for at least one year immediately prior to the product being sold or offered for sale, a third-party certification entity approved by the department to provide the applicable certification;

(2) On or after January 1, 2026, the product is an allowable agricultural organic input under the requirements of the United States Department of Agriculture national organic program; provided that:

(A) By January 1, 2024, the department, through a public stakeholder process, shall determine whether, for purposes of this section, it would be feasible to separate the collection of products in order to recover organic waste that is suitable for use in organic agricultural applications from the collection of products not suitable for use in organic agricultural applications; and

(B) If the department determines that such bifurcation is feasible and would enable efficient processing by solid waste processing facilities, the department shall adopt rules on or before January 1, 2026, to establish a bifurcated approach, and products that are not collected for the purpose of recovering organic waste that is suitable for use in organic agricultural applications shall comply with the department's rules and shall not be subject to the requirements of this subparagraph;

(3) The product does not have a total organic fluorine concentration of greater than one hundred parts per million, unless the department adopts a different standard that it determines would more effectively limit the presence of PFAS substances;

(4) The product is labeled in a manner that distinguishes the product from a non compostable product upon reasonable inspection by consumers and to help enable efficient processing by solid waste processing facilities; and

(5) The product is designed to be associated with the recovery of desirable organic wastes, such as food scraps and yard trimmings, that are collected for composting, unless the product complies with the department's rules pursuant to paragraph (2), to the extent the department elects to adopt those rules.

(i) The department may grant a five-year extension for complying with the requirements of subsection (h)(2) if either of the following apply:

(1) The product or substance has or will soon be, as determined by the department, included as allowed on the National List of Allowed and Prohibited Substances, title 7 Code of Federal Regulations sections 205.600 to 205.607; or

(2) The product or substance has or will soon be, as determined by the director, included as an allowable organic input for compost under federal law.

(j) The department may adopt rules for determining whether products comply with the requirements of subsection (h)(4). The department, in adopting rules pursuant to this section, may consider whether the rules are consistent with the product labeling requirements of other states, stakeholder input, and industry-standard guidelines. The rules may include requirements that products are not designed, pigmented, or advertised in a manner that is misleading to consumers.

(k) For purposes of this section:

"ASTM" means the ASTM International.

"ASTM standard specification" means either:

(1) The ASTM Standard Specification for Labeling of Plastics Designed to be Aerobically Composted in Municipal or Industrial Facilities D6400, as published in 2019; provided that if the ASTM standard specification is revised and the department determines that the new standard is more stringent and more protective of public health, public safety, and the environment, and is reflective of and consistent with state policies and programs, the department may adopt the new standard; or

(2) The ASTM Standard Specification for Labeling of End Items that Incorporate Plastics and Polymers as Coatings or Additives with Paper and Other Substrates Designed to be Aerobically Composted in Municipal or Industrial Facilities D6868, as published in 2019; provided that if the ASTM standard specification is revised and the department determines that the new standard is more stringent and more protective of public health, public safety, and the environment, and is reflective of and consistent with state policies and programs, the department may adopt the new standard.

"Commercial agricultural mulch film" means film plastic that is used only as a technical tool in commercial farming applications.

"OK compost HOME certification" means certification of conformity with the existing TUV Austria certification "OK compost HOME certification", which as of January 1, 2011, uses European Norm 13432 standard adapted to low-temperature composting in accordance with the TUV Austria program "OK 2-Home Compostability of Products."

"Product" includes but is not limited to:

(1) A consumer product;

(2) A package or a packaging component;

(3) A bag, sack, wrap, or other thin plastic sheet film product; and

(4) A food or beverage container or a container component, including but not limited to a straw, lid, or utensil."

SECTION 3. Section 342G-1, Hawaii Revised Statutes, is amended by adding two new definitions to be appropriately inserted and to read as follows:

""Consumer product" means a product or part of a product that is used, bought, or leased for use by a person for any purpose.

"Perfluoroalkyl or polyfluoroalkyl substances" or "PFAS substances" means all members of the class of fluorinated organic chemicals containing at least one fully fluorinated carbon atom."

SECTION 4. New statutory material is underscored.

SECTION 5. This Act shall take effect on July 1, 2022.

INTRODUCED BY:	_____________________________

HOUSE OF REPRESENTATIVES	H.B. NO.	1646
THIRTY-FIRST LEGISLATURE, 2022
STATE OF HAWAII