New Jersey will likely soon have the country’s strictest plastic bag ban. Under a bill passed by the New Jersey Legislature on September 24, 2020, even single-use paper bags would be prohibited. The legislation, Senate Bill No. 864, also bans polystyrene foam food containers, and foodservice businesses would be prohibited from offering plastic straws except upon request.
Plastic and Paper Bags
Beginning 18 months after the effective date of Senate Bill 864, a store or food service business would be prohibited from providing or selling a single-use plastic carryout bag to a customer. In addition, a grocery store would be prohibited from providing or selling a single-use paper carryout bag to a customer. However, the prohibitions in the bill would not apply to the following:
- A bag used solely to contain or wrap uncooked meat, fish, or poultry;
- A bag used solely to package loose items such as fruits, vegetables, nuts, coffee, grains, baked goods, candy, greeting cards, flowers, or small hardware items;
- A bag used solely to contain live animals, such as fish or insects sold in a pet store;
- A bag used solely to contain food sliced or prepared to order, including soup or hot food;
- A laundry, dry cleaning, or garment bag;
- A bag provided by a pharmacy to carry prescription drugs;
- A newspaper bag; and
- Any similar bag, as determined by the New Jersey Department of Environmental Protection (NJDEP).
The prohibitions would also not apply to a reusable carryout bag, which is a bag that is made of polypropylene, PET nonwoven fabric, nylon, cloth, hemp products, or other machine washable fabric; has stitched handles; and is designed and manufactured for multiple reuses.
Polystyrene Foam Food Service Products
Beginning 18 months after the effective date of the bill, businesses would be prohibited from selling or offering for sale in the State any polystyrene foam foodservice product. Also, a food service business would be prohibited from providing or selling any food in a polystyrene foam foodservice product. However, the following items would be exempt from the prohibition on polystyrene foam foodservice products for a period of two years after the prohibition takes effect:
- Disposable, long-handled polystyrene foam soda spoons when required and used for thick drinks;
- Portion cups of two ounces or less, if used for hot foods or foods requiring lids;
- Meat and fish trays for raw or butchered meat, including poultry, or fish that is sold from a refrigerator or similar retail appliance;
- Any food product pre-packaged by the manufacturer with a polystyrene foam foodservice product; and
- Any other polystyrene foam foodservice product as determined necessary by the NJDEP.
The NJDEP would be authorized to extend any exemption listed above for additional periods not to exceed one year upon a written determination that there is no cost-effective and readily available alternative for the item. Additionally, the NJDEP would be authorized, upon written application by a person or food service business, to waive the prohibitions on polystyrene foam foodservice products for the person or food service business for a period of up to one year if: (1) there is no feasible and commercially available alternative for a specific polystyrene foam foodservice product; or (2) the person or foodservice business has less than $500,000 in gross annual income and there is no reasonably affordable, commercially-available alternative to the polystyrene foam foodservice product. The bill authorizes the NJDEP to prescribe the form and manner of an application for a waiver.
Beginning one year after the effective date of the bill, a food service business would only be permitted to provide a single-use plastic straw to a customer upon the request of the customer. A store, however, would be permitted to provide other types of straws, such as paper or reusable metal straws, without limitation.
Under the bill, the Department of State, in consultation with NJDEP, would be required to establish a program to assist businesses in complying with the new requirements. Such assistance would include developing and publishing on its website guidance on compliance with the bill, and establishing an online clearinghouse of vendors who provide environmentally sound alternatives to single-use plastic carryout bags, single-use paper carryout bags, polystyrene foam food service products, and single-use plastic straws.
Penalty for Violations
The NJDEP, a municipality, and any entity certified pursuant to the County Environmental Health Act would have the authority to enforce the bill's provisions; with the exception that the New Jersey Department of Health (NJDOH) would enforce the provisions of the bill concerning single-use plastic straws.
Businesses violating the bill would receive a warning on first offense, a fine up to $1,000 for a second offense, and a monetary fine of up to $5,000 for a third or subsequent offense. If the violation is of a continuing nature, each day during which it continues would constitute an additional, separate, and distinct offense.
A spokesman for Gov. Phil Murphy has stated that he plans to sign the bill. The ban would then begin 18 months after the legislation goes into effect. Once in effect, the state-wide law would preempt the dozens of municipal plastic bag ordinances enacted in recent years.
If you have questions, please contact us
If you have any questions or if you would like to discuss the matter further, please contact me, Dan McKillop, or the Scarinci Hollenbeck attorney with whom you work, at 201-896-4100.