Break Free reintroduced in Congress; industry groups call it ‘even worse'

Washington — Democrats in Washington are bringing back their most comprehensive plastics environmental legislation with what they say are stronger targets aimed at reducing single-use plastics, eliminating toxic substances in packaging and strengthening environmental justice provisions.

The new version of the sprawling Break Free From Plastic Pollution Act, which was introduced Oct. 25 by Sen. Jeff Merkley, D-Ore., and Rep. Jared Huffman, D-Calif., renews a call for national extended producer responsibility programs requiring companies to pay more to support recycling and it includes a 10-cent national bottle deposit.

Environmentalists praised the bill for putting more onus on companies for cleaning up plastic pollution, including an EPR similar to that passed in California and three other states.

Industry groups said the law is more extreme than earlier versions of Break Free and moves further away from what they consider workable.

Merkley and Huffman framed the bill as addressing public health and toxic emissions problems, in addition to recycling, and said it incorporates other Democratic legislation on Capitol Hill that would limit permits for new plastics factory construction and require EPA to crack down on pellet leakage from manufacturing plants.

"Plastic pollution is a public health crisis that can only be solved with bold actions," Merkley said. "Additionally, plastics produce greenhouse gas emissions and release toxins throughout their entire lifespan, and it is front-line communities who are disproportionately exposed to the dangers from plastic production."

In a statement, Huffman noted his opposition to chemical recycling. The bill would prevent labeling plastics from chemical recycling as post-consumer for purposes of meeting the bill's recycled-content requirements.

"Plastic pollution isn't just a problem for our oceans and climate. It's a massive environmental injustice. Communities are overburdened with plastics' toxic air and water emissions and the false promises of so-called chemical recycling," Huffman said.

The legislation would also require resin makers and importers to pay a fee on materials sold into beverage and covered packaging materials, to be used for environmental cleanup and to support infrastructure for reusable packaging. That echoes a tax on single-use resin proposed by others in the Senate.

Industry groups say this latest version of Break Free, first introduced in 2020, is moving in the wrong direction.

"Instead of working towards compromise and common-sense policies, this new iteration of the Break Free From Plastic Pollution Act is even worse and less collaborative than previously, moving further from a realistic proposal," said Matt Seaholm, president and CEO of the Plastics Industry Association.

"The plastics industry stands ready to work with both sides of the aisle to develop real solutions to the environmental concerns this measure supposedly addresses," he said. "We believe there are answers to the environmental challenges we face, such as investments in recycling infrastructure and greater demand for recycled content through minimum requirements and stronger end markets."

Seaholm argued that restricting plastics could lead to substituting packaging materials that use more energy and have higher greenhouse gas emissions, and the association said plastics make up 12 percent of municipal solid waste, and packaging five percent.

Overall, it said the legislation could prompt plastics factories to "move offshore to countries with less environmental safeguards."

The American Chemistry Council called the bill "even more extreme than previous versions that failed legislatively."

"Its purpose is not to address plastic pollution," said Ross Eisenberg, president of ACC's America's Plastics Makers unit. "It is intended to shut down domestic plastic manufacturing, prevent the American public from using a wide range of everyday plastics, provide a fundraising platform for anti-plastic organizations and vilify a material essential to a more sustainable and lower-carbon future.

"We cannot 'break free' from the very materials that help us drive down greenhouse gas emissions throughout critical sectors of our economy," he said.

As an alternative, Eisenberg pointed to an ACC 2021 federal legislative plan that proposed national standards for 30 percent recycled content in plastic products, as well as support in Washington for advanced recycling and other provisions.

That plan, however, has yet to be translated into its own federal legislation, suggesting some hurdles for it.

Some industry officials, though, said this latest iteration of Break Free and its 45 congressional sponsors, is significantly down from the more than 80 who signed on in the last Congress.

The sprawling, 208-page legislation includes some specific targets and comes as Merkley has been hosting a series of Senate hearings on plastics issues in the Environment and Public Works Committee.

Merkley's bill would set what it calls "aggressive" source reduction goals for single-use plastics and beverage containers, reducing them by weight and plastic component by 25 percent by 2032 — in line with California's Senate Bill 54 EPR law — and by 40 percent by 2040 and 50 percent by 2050.

It would require recycling rate targets under EPR programs for products covered by the bill at 50 percent in 2030, rising to 75 percent by 2050, and said recycled content requirements for plastic beverage containers starting at 15 percent in 2025 and rising to 60 percent by 2040.

As well, it would ban single-use plastic bags and require a 10-cent fee on reusable bags or single-use paper bags and ban single-use plastic products that are not recyclable, including foam foodservice items, plastic utensils, single-use condiment packaging and small plastics.

It includes language, in section 12109, that could appear to ban retailers from selling PET beverage containers two years after it passes.

A summary of the legislation expanding on those bans pointed to the U.S. Plastics Pact's list of problematic or unnecessary packaging to phase out by 2025, including PVC, polystyrene, PFAS, and glycol-modified PET in rigid containers.

The legislation would also include permit moratoriums under the Clean Air Act or Federal Water Pollution Control Act for new plastic plants, set new air and water emissions standards for plastic facilities and establish environmental justice requirements for plastic facilities.

If it became law, it would also direct the Food and Drug Administration to study microplastics in food and have the National Institutes of Health research the presence of microplastics in people.

It would also set up a grant program and other measures to increase reusable and refillable containers and prevent plastic waste from being exported to countries that are not in the Organization for Economic Co-Operation and Development.

Environmental groups praised the bill, saying it would put more responsibilities on companies for the impact of pollution, including for air and water pollution. A statement from Merkley said plastic production is expected to triple globally by 2050.

"Companies continue to pile onto our country's plastic pollution problem without taking any responsibility or being held to account," said Heather McTeer Toney, executive director of Beyond Petrochemicals and a former EPA regional administrator.

"This legislation will begin to change that," she said. "While plastic packaging, bottles, and bags may be the most visible, the waste and pollution created by the petrochemical plants manufacturing these products is harming the communities around them and fueling the climate crisis."

The head of Beyond Plastics praised the bill for its opposition to chemical recycling.

"This is a terrific bill which focuses on the urgent need to reduce plastic pollution at the source and wisely not embracing the false solution of chemical recycling," said Judith Enck, who is also a former EPA regional administrator.

Anja Brandon, the associate director of U.S. plastics policy for Ocean Conservancy, said the new bill seems to pick up elements of California's SB-54 plastics and EPR law, passed last year, including by setting up a cleanup fund financed by industry.

"This latest version ... is a reflection of not only the hard work of members of Congress who have led the charge to tackle plastics on a national level, but also of the achievement of advocates and legislators in California who have pushed us towards the bigger and bolder action that our ocean needs," Brandon said.