HOUSE DOCKET, NO. 3596        FILED ON: 2/19/2021

HOUSE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 869

The Commonwealth of Massachusetts

_________________

PRESENTED BY:

Michelle L. Ciccolo

_________________

To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
Court assembled:

The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:

An Act to reduce single-use plastics from the environment.

_______________

PETITION OF:

HOUSE DOCKET, NO. 3596        FILED ON: 2/19/2021

HOUSE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 869

The Commonwealth of Massachusetts

_______________

In the One Hundred and Ninety-Second General Court
(2021-2022)

_______________

An Act to reduce single-use plastics from the environment.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:
 

SECTION 1. Prevent Plastic Grocery Bags from Entering the Environment

Title II of the General Laws is hereby amended by inserting after chapter 21O the following chapter:

CHAPTER 21P: PLASTIC BAG REDUCTION

Section 1. As used in this chapter, the following words shall have the following meanings unless the context clearly requires otherwise:

“Postconsumer recycled material”, a material that would otherwise be destined for solid waste disposal, having completed its intended end use and product life cycle. Postconsumer recycled material does not include materials and byproducts generated from, and commonly reused within, an original manufacturing and fabrication process.

“Recycled paper bag”, a paper bag that is (i) 100 per cent recyclable; (ii) contains a minimum of 40 per cent postconsumer recycled materials, provided, however, that an 8 pound or smaller recycled paper bag shall contain a minimum of 20 per cent postconsumer recycled material; and (iii) displays the words "Recyclable" and "made from 40% post-consumer recycled content" or other applicable amount in a visible manner on the outside of the bag.

“Reusable grocery bag”, a sewn bag with stitched handles that is (i) specifically designed and manufactured for at least 175 uses; (ii) can carry 25 pounds over a distance of 300 feet; and (iii) is made of cloth or other machine-washable fabric other than polyethylene or polyvinyl chloride.

“Single-use carryout bag”, a bag made of plastic, paper, or other material that is provided by a Retail establishment to a customer at the point of sale and that is not a recycled paper bag or a reusable grocery bag. A single-use carryout bag does not include the following: (i) a paper bag provided by a pharmacy to a customer purchasing a prescription medication; (ii) a non-handled bag used to protect items from damaging or contaminating other purchased items placed in a recycled paper bag, a reusable grocery bag; (iii) a bag provided to contain an unwrapped food item; or (iv) a non-handled bag that is designed to be placed over articles of clothing on a hanger.

“Retail establishment”, a store or premises in which a person is engaged in the retail business of selling or providing merchandise, goods, groceries, prepared take-out food and beverages for consumption off-premises or the servicing of an item, directly to customers at such store or premises, including, but not limited to, grocery stores, department stores, pharmacies, convenience stores, restaurants, coffee shops and seasonal and temporary businesses, including farmers markets and public markets; provided, however, that a “retail establishment” shall also include a food truck or other motor vehicle, mobile canteen, trailer, market pushcart or moveable roadside stand used by a person from which to engage in such business directly with customers and business establishments without a storefront, including, but not limited to, a business delivering prepared foods or other food items, web-based or catalog business or delivery services used by a retail establishment; provided further, that a “retail establishment” shall include a non-profit organization, charity or religious institution that has a retail establishment and holds itself out to the public as engaging in retail activities that are characteristic of similar type retail businesses, whether or not for profit when engaging in such activity.

Section 2. (a) Eighteen months after the enactment of this law, a Retail establishment may only make available for purchase at the point of sale a reusable grocery bag, or recycled paper bag.

(b) For up to 180 days from the date of enactment, a Retail establishment may make available for purchase at the point of sale a single-use carryout bag, reusable grocery bag, or recycled paper bag.

(c) 180 days after the enactment of this law, a Retail establishment may make available for purchase a recycled paper bag, for a charge of $0.10.

(d) 180 days after the enactment of this law, a Retail establishment may make available for purchase a reusable grocery bag, for a charge of no less than $0.10.

(e) All moneys collected pursuant to this section shall be retained by the Retail establishment.

(f) The department of environmental protection shall promulgate regulations with regard to the enforcement of this chapter. The department of environmental protection shall establish a small business exemption process by which a Retail establishment may elect to be exempt from the provisions of subsections (b) through (d) of this section. A Retail establishment electing for said exemption must provide to the department a self-audit attesting that they meet the following criteria:

1.the owner of the Retail establishment has 3 or fewer store locations under the same ownership; and

2.each Retail establishment has less than 4,000 square feet of retail selling space; and

3.each Retail establishment has 15 or fewer employees employed at the store location; and either

4.the Retail establishment is not a food establishment as defined by 105 CMR 590.001(C); or

5.the Retail establishment provided to consumers at the point of sale less than 15,000 carry-out bags or checkout bags in total during the previous calendar year.

Section 3. Any municipality with an existing ordinance, rule, regulation or by-law banning or regulating single-use carryout bags, recycled paper bags, or reusable grocery bags in the commonwealth shall be null and void 180 days after the enactment of this law. The exclusive authority in regulating the labeling, distribution, sale, storage, transportation, use, and disposal of single-use carryout bags, recycled paper bags, and reusable grocery bags in the commonwealth shall be determined by this chapter. 

SECTION 2. Reduce Polystyrene in the Environment

The General Laws are hereby amended by inserting after chapter 21P the following chapter:

Chapter 21Q.

Section 1. Definitions. As used in this chapter, the following words shall have the following meanings unless the context clearly requires otherwise:

“Disposable Food Service Ware” shall mean single-use or disposable products for heating, storing, packaging, serving, consuming, or transporting prepared or ready-to-consume food or beverages including, but not limited to, bowls, plates, trays, cartons, cups, lids, hinged or lidded containers, spoons, forks and knives. This includes any containers used by food establishments to heat, cook, or store food or beverages prior to serving, regardless of whether such containers are used to serve such food or beverages. Disposable Food Service Ware also includes any such implements sold by Retail Establishments to consumers for personal use.

“Foam Polystyrene” shall mean polystyrene in the form of a foam or expanded material, processed by any number of techniques including, but not limited to, fusion of polymer spheres (expandable bead polystyrene), injection molding, foam molding, and extrusion-blow molding (extruded foam polystyrene).

“Food Establishment” shall mean any operation that serves, vends or otherwise provides food or other products to third-parties for consumption and/or use on or off the premises, whether or not a fee is charged, but not including the service of food within a home or other private setting.  Any facility requiring a food permit in accordance with the Massachusetts State Food Code, 105 CMR 590.000, et seq. and/or regulations of the Board of Health shall be considered a “food establishment” for purposes of this bylaw.

“Health Agent” shall mean the Health Agent for the city or town of the facility, or his/her designee.

“Packing Material” shall mean material used to hold, cushion, or protect items packed in a container for shipping transport or storage.

“Prepared Food” shall mean food or beverages, which are serviced, packaged, cooked, chopped, sliced, mixed, brewed, frozen, squeezed, or otherwise prepared (collectively “prepared”) for individual customers or consumers. Prepared Food does not include raw eggs or raw, butchered meats, fish, seafood, and/or poultry.

“Polystyrene” shall mean a synthetic polymer produced by polymerization of styrene monomer. Polystyrene includes both “Foam Polystyrene” and “Solid Polystyrene” as defined in this Bylaw. The International Resin Identification Code assigned to polystyrene materials is “6”. Polystyrene items may be identified by a "6" or "PS," either alone or in combination with other letters. The regulations and prohibitions relating to polystyrene in this law are intended to apply regardless of the presence or absence of an International Resin Identification Code or other identifying marks on the item.

“Retail Establishment” shall mean a store or premises engaged in the retail business of selling or providing merchandise, goods, groceries, prepared take-out food and beverages for consumption off-premises or the serving of an item directly to customers at such store or premises, including, but not limited to, grocery stores, department stores, pharmacies, convenience stores, restaurants, coffee shops and seasonal and temporary businesses, including farmers markets and public markets; provided, however, that a “retail establishment” shall also include a food truck or other motor vehicle, mobile canteen, trailer, market pushcart or moveable roadside stand used by a person from which to engage in such business directly with customers and business establishments without a storefront, including, but not limited to, a business delivering prepared foods or other food items, web-based or catalog business or delivery services used by a retail establishment; provided further, that a “retail establishment” shall include a non-profit organization, charity or religious institution that has a retail establishment and holds itself out to the public as engaging in retail activities that are characteristic of similar type commercial retail businesses, whether or not for profit when engaging in such activity.

“Solid Polystyrene” shall mean polystyrene, including clear (oriented) polystyrene, produced in a rigid form with minimal incorporation of air or other gas. Solid polystyrene is also referred to as ‘rigid polystyrene’.

Section 2. Regulated Conduct

a. One year after passage of this Act, no Food Establishment in the Commonwealth of Massachusetts may use, sell, offer for sale, or otherwise distribute disposable food service ware made from foam polystyrene or solid polystyrene.

b. One year after passage of this Act , no Retail Establishment in the Commonwealth of Massachusetts may sell, offer for sale, or otherwise distribute: 1. disposable food service ware made from foam polystyrene or solid polystyrene 2. meat trays, fish trays, seafood trays, vegetable trays, or egg cartons made in whole or in any part with foam polystyrene or solid polystyrene 3. distributing packing materials, including packing peanuts and shipping boxes made in whole or in any part with foam polystyrene that is not wholly encapsulated within a more durable material. 4. coolers, ice chests, or similar containers; pool or beach toys; and dock floats, mooring buoys, or anchor or navigation markers, which are made in whole or in any part with foam polystyrene that is not wholly encapsulated within a more durable material.

c. For the purposes of Section 2(b)(3), ‘distributing packing material’ does not include: 1. Re-using packing materials for shipping, transport, or storage within the same distribution system, where the packing materials are not sent to a customer or end user. 2. Receiving shipments within the Commonwealth that include polystyrene foam used as a packing material, provided that the goods were not packaged or repackaged within the Commonwealth of Massachusetts.

Section 3. Exemption

a) Nothing in this chapter shall prohibit individuals from using disposable food service ware or other items made of polystyrene purchased outside the Commonwealth of Massachusetts for personal use. b) Prepared food packaged outside the Commonwealth of Massachusetts is exempt from the provisions of this chapter, provided that it is sold or otherwise provided to the consumer in the same disposable food service ware in which it was originally packaged, and that the prepared food has not been altered or repackaged. c) The Commonwealth of Massachusetts Department of Environmental Protection or the Board of Health of the city or town in which the food or retail establishment is located may exempt a food establishment or retail establishment from any provision of this chapter for a period of up to six months upon written application by the owner or operator of that establishment. No exemption will be granted unless the Department of Environmental Protection or the Board of Health finds that (1) strict enforcement of the provision for which the exemption is sought would cause undue hardship; or (2) the food establishment or retail establishment requires additional time in order to draw down an existing inventory of a specific item regulated by this chapter. For purposes of this chapter, “undue hardship” shall mean a situation unique to a food establishment or retail establishment in which there are no reasonable alternatives to the use of materials prohibited by this chapter, and that compliance with this chapter would create significant economic hardship for the Establishment.

Section 4. Enforcement

Health Agents of the cities and towns of the Commonwealth of Massachusetts shall also have the authority to enforce this chapter. This chapter may be enforced through any lawful means in law or in equity, including but not limited to, noncriminal disposition pursuant to G.L. c. 40 § 21D and Article VI of the General Bylaws.  The town or city may enforce this chapter or enjoin violations thereof through any lawful process or combination of processes, and the election of one remedy by the town or city shall not preclude enforcement through any other lawful means.

Violations of this chapter are punishable by a fine of up to $300 per violation. Each successive day of noncompliance will count as a separate violation.

If non-criminal disposition is elected, then any Food or Retail Establishment that violates any provision of this chapter shall be subject to the following penalties:

First Offense: written warning

Second Offense: $50 penalty

Third and each subsequent offense: $300 penalty

Section 5. Regulations 

The Board of Health may adopt and amend rules and regulations to effectuate the purposes of this chapter.

Section 6.  Interaction with Other Laws 

In the case of a conflict between the requirements of this chapter and any other federal, state or local law concerning the materials regulated herein, the more stringent requirements shall apply.

Section 7. Severability

If any provision of this chapter is declared invalid or unenforceable the other provisions shall not be affected thereby.

SECTION 3. Reduce Plastic Straws in the Environment

The General Laws are hereby amended by inserting after chapter 21Q the following chapter:

Chapter 21R.

Section 1. Definitions. As used in this chapter, the following words shall have the following meanings unless the context clearly requires otherwise:

“Disability” shall mean a physical, intellectual, or sensory impairment that substantially limits one or more major life activities.

“Disposable plastic straw, stirrer, or splash stick” shall mean a drinking straw, stirrer, or splash stick made predominantly from synthetic polymers and that is not a reusable straw, stirrer, or splash stick. A disposable plastic straw, stirrer, or splash stick shall also include items made in whole or in part from synthetic polymers that are otherwise classified as ‘compostable’, ‘biodegradable’, ‘oxodegradable’, or ‘marine degradable’.

“Food Establishment” shall mean any operation that serves, vends or otherwise provides food or other products to third-parties for consumption and/or use on or off the premises, whether or not a fee is charged, but not including the service of food within a home or other private setting.  Any facility requiring a food permit in accordance with the Massachusetts State Food Code, 105 CMR 590.000, et seq. and/or regulations of the Board of Health shall be considered a “food establishment” for purposes of this bylaw.

“Health Agent” shall mean the Health Agent for the city or town of the facility or his/her designee. 

“Medical Condition” shall mean any illness, disease, or injury that requires medical treatment.

“Reusable straw, stirrer, or splash stick” shall mean a drinking straw, stirrer, or splash stick that is manufactured from durable materials, and is designed to be adequately and repeatedly cleaned and sanitized for reuse.

“Retail Establishment” shall mean a store or premises engaged in the retail business of selling or providing merchandise, goods, groceries, prepared take-out food and beverages for consumption off-premises or the serving of an item, directly to customers at such store or premises, including, but not limited to, grocery stores, department stores, clothing stores, pharmacies, convenience stores, restaurants, coffee shops and seasonal and temporary businesses, including farmers markets and public markets; provided, however, that a “retail establishment” shall also include a food truck or other motor vehicle, mobile canteen, trailer, market pushcart or moveable roadside stand used by a person from which to engage in such business directly with customers and business establishments without a storefront, including, but not limited to, a business delivering prepared foods or other food items, web-based or catalog business or delivery services used by a retail establishment; provided further, that a “retail establishment” shall include a non-profit organization, charity or religious institution that has a retail establishment and holds itself out to the public as engaging in retail activities that are characteristic of similar type commercial retail businesses, whether or not for profit when engaging in such activity.

Section 2. Regulated Conduct

a. One year after passage of this Act, no food establishment in the Commonwealth of Massachusetts may provide a disposable plastic straw, stirrer, or splash stick, as such term is defined in this chapter, to a customer.

b. One year after passage of this Act , no food establishment in the Commonwealth of Massachusetts may provide a disposable straw, stirrer, or splash stick that is not a reusable straw, stirrer, or splash stick to a customer, except upon that customer’s specific request for such items or if the item is selected by a customer from a self-service dispenser.

c. One year after passage of this Act , retail establishments in the Commonwealth of Massachusetts are prohibited from selling or distributing disposable plastic straws, stirrers, or splash sticks to customers unless equivalent non-plastic or reusable straws, stirrers, or splash sticks are available for sale and are clearly labeled such that any customer can easily distinguish among the disposable plastic, disposable non-plastic, and reusable items.

Section 3. Exemptions

a. Nothing in this bylaw shall prohibit individuals from bringing and using their own personal straws, stirrers, or splash sticks of any type for personal use in a food establishment. b. Food establishments may provide a disposable plastic straw, stirrer, or splash stick, upon request, to a person in need due to a disability or medical condition. c. The Department of Environmental Protections or the Board of Health or health agent of the city or town in which the establishment is located may exempt a food establishment or retail establishment from any provision of this chapter for a period of up to six months upon written application by the owner or operator of that establishment. No exemption will be granted unless the Department or the Board of Health or health agent finds that the establishment requires additional time in order to draw down an existing inventory of a specific item regulated by this chapter.

Section 4. Enforcement

Health Agents shall have the authority to enforce this bylaw. This bylaw may be enforced through any lawful means in law or in equity, including but not limited to, noncriminal disposition pursuant to G.L. c. 40 § 21D and Article VI of the General Bylaws.  The city or town may enforce this chapter or enjoin violations thereof through any lawful process or combination of processes, and the election of one remedy by the city or town shall not preclude enforcement through any other lawful means.

Violations of this bylaw are punishable by a fine of up to $300 per violation. Each successive day of noncompliance will count as a separate violation.

If non-criminal disposition is elected, then any Food Establishment or Retail Establishment that violates any provision of this bylaw shall be subject to the following penalties:

First Offense: Written Warning

Second Offense: $50 penalty

Third and each subsequent offense: $300 penalty

Section 5. Regulations 

The Board of Health may adopt and amend rules and regulations to effectuate the purposes of this chapter.

Section 6.  Interaction with Other Laws

In the case of a conflict between the requirements of this chapter and any other federal, state or local law concerning the materials regulated herein, the more stringent requirements shall apply.

Section 7. Severability

If any provision of this chapter is declared invalid or unenforceable the other provisions shall not be affected thereby.

SECTION 4. To Prevent the Release of Helium Balloons into the Environment

Chapter 131 of the General Laws, as appearing in the 2016 official edition, is hereby amended by adding the following new section:

Section 119. The sale, distribution and release of any type of balloon, including, but not limited to, plastic or latex, filled with any type of lighter than air gas, both for public or private use, is hereby prohibited. Whoever violates any provision of this section shall be punished by a fine of not more than one hundred dollars.

The provisions of this section shall not apply to (i) balloons released by or on behalf of any agency of the commonwealth or the United States for scientific or meteorological purposes, or (ii) hot air balloons that are recovered after launch.

SECTION 5. To Prevent the Release of Nips into the Environment

One year after passage of this Act, the sale of alcoholic beverages in containers less than or equal to 100 milliliters is prohibited within the Commonwealth of Massachusetts.

SECTION 6. To Prevent the Release of Wipes Containing Plastic into the Environment

Section 1. For purposes of this section, the following definition shall apply:

“Plastic Wipe”, a nonwoven disposable product manufactured and sold in this state or brought into the state for sale that is constructed from plastic resin (including, but not limited to, polyester and polypropylene) nonwoven sheets, including moist toilet tissue or cloth, that is designed, marketed to or commonly used by the general public for personal hygiene or cleaning purposes, including, but not limited to, diaper wipes, toilet wipes, household cleaning wipes, personal care wipes and facial wipes.

Section 2. No retailer shall sell or distribute plastic wet wipes other than those used for medical applications.

Section 3. This law shall not affect prescription products.

SECTION 7. To Prevent the Release of Hotel Toiletry Bottles into the Environment

Section 1. (a) For purposes of this section, the following definitions shall apply:

(1) “Hosted rental” means a house, apartment, or other livable space where the person providing sleeping accommodations is a permanent resident who lives on the premises.

(2) “Lodging establishment” means an establishment that contains one or more sleeping room accommodations that are rented or otherwise provided to the public, including, but not limited to, a hotel, motel, resort, bed and breakfast inn, or vacation rental. “Lodging establishment” does not include a hospital, nursing home, residential retirement community, prison, jail, homeless shelter, boarding school, worker housing, long-term rental, or hosted rental.

(3) “Personal care product” means a product intended to be applied to or used on the human body in the shower, bath, or any part thereof and shall include only shampoo, hair conditioner, and bath soap.

(4) “Plastic” means any synthetic material made from organic polymers, such as polyethylene, polyvinyl chloride (PVC), or nylon, that can be molded into shape while soft and then set into a rigid or slightly elastic form. “Plastic” includes all materials identified with resin codes 1 to 7, inclusive.

(5) “Small plastic bottle” means a plastic bottle or container with less than a 6-ounce capacity that is intended to be nonreusable by the end user.

(b) Commencing January 1, 2023, for lodging establishments with more than 50 rooms, and January 1, 2024, for lodging establishments with 50 rooms or less, a lodging establishment shall not provide a small plastic bottle containing a personal care product to a person staying in a sleeping room accommodation, in any space within the sleeping room accommodation, or within bathrooms shared by the public or guests.

(c) A lodging establishment is encouraged to use bulk dispensers of personal care products to reduce plastic waste and lower operating costs, mindful of the health and safety of a person.

(d) A lodging establishment may provide personal care products in small plastic bottles to a person at no cost, upon request, at a place other than a sleeping room accommodation, a space within the sleeping room accommodation, or within bathrooms shared by the public or guests.

(e) A local agency with authority to inspect sleeping accommodations in a lodging establishment may issue a citation for a violation of subdivision (b). Upon a first violation, the local Board of Health shall issue a written warning, which shall recite the violation and advise that subsequent violations may result in citations. Upon a second or subsequent violation, the local agency may impose a penalty of five hundred dollars ($500) for each day the lodging establishment is in violation, but not to exceed two thousand dollars ($2,000) annually.

(f) A lodging establishment in violation of subdivision (b) is liable for a civil penalty of five hundred dollars ($500) for the first violation and two thousand dollars ($2,000) for a second or subsequent violation.

(g) (1) On and after January 1, 2022, a city, county, or city and county shall not pass or enforce an ordinance, resolution, regulation, or rule relating to personal care products in plastic bottles provided at lodging establishments, except as provided in paragraph (2).

Section 2. A city, county, or city and county that, before January 1, 2022, passed an ordinance, resolution, regulation, or rule relating to personal care products in plastic bottles provided at lodging establishments may enforce that ordinance, resolution, regulation, or rule, if it is at least as stringent as, and not in conflict with, this section. 

SECTION 8. To Prevent the Release of Plastic Water Bottles Into the Environment             

Section 1. (a) For purposes of this section, the following definitions shall apply:

"Single-serve plastic container" means a container with a volume of 1 litter or less made in whole or in part of plastic resin codes 1 through 6 (excluding the label or cap).

"Bottled Water" means non-sparkling, unflavored drinking water.

Section 2. Restrictions

No retailer shall sell or distribute any bottled water in a single-serve plastic container other than nutritive drinks, tea, coffee, or unflavored carbonated water.

Section 3. Exclusions

Sales or distribution of drinking water in plastic bottles occurring subsequent to a declaration by a duly authorized Town, state or Federal official of an emergency affecting the availability and/or quality of drinking water to residents of the Town shall be exempt from this bylaw until seven days after the declaration has ended.

Section 4. Effective Date

The provisions of this law shall take effect one year after passage of this Act. 

SECTION 9. To Prevent the Release of Black Plastic into the Environment

The General Laws are hereby amended by inserting after chapter 21R the following chapter:

Chapter 21S.

Section 1. Definitions. As used in this chapter, the following words shall have the following meanings unless the context clearly requires otherwise:

“Disposable Food Service Ware” shall mean single-use or disposable products for heating, storing, packaging, serving, consuming, or transporting prepared or ready-to-consume food or beverages including, but not limited to, bowls, plates, trays, cartons, cups, lids, hinged or lidded containers, spoons, forks and knives. This includes any containers used by food establishments to heat, cook, or store food or beverages prior to serving, regardless of whether such containers are used to serve such food or beverages. Disposable Food Service Ware also includes any such implements sold by Retail Establishments to consumers for personal use.

“Black Plastic” shall mean any plastic with any plastic resin codes #1-#7.

“Food Establishment” shall mean any operation that serves, vends or otherwise provides food or other products to third-parties for consumption and/or use on or off the premises, whether or not a fee is charged, but not including the service of food within a home or other private setting.  Any facility requiring a food permit in accordance with the Massachusetts State Food Code, 105 CMR 590.000, et seq. and/or regulations of the Board of Health shall be considered a “food establishment” for purposes of this bylaw.

“Health Agent” shall mean the Health Agent for the city or town of the facility or his/her designee.

“Prepared Food” shall mean food or beverages, which are serviced, packaged, cooked, chopped, sliced, mixed, brewed, frozen, squeezed, or otherwise prepared (collectively “prepared”) for individual customers or consumers. Prepared Food does not include raw eggs or raw, butchered meats, fish, seafood, and/or poultry.

“Retail Establishment” shall mean a store or premises engaged in the retail business of selling or providing merchandise, goods, groceries, prepared take-out food and beverages for consumption off-premises or the serving of an item directly to customers at such store or premises, including, but not limited to, grocery stores, department stores, pharmacies, convenience stores, restaurants, coffee shops and seasonal and temporary businesses, including farmers markets and public markets; provided, however, that a “retail establishment” shall also include a food truck or other motor vehicle, mobile canteen, trailer, market pushcart or moveable roadside stand used by a person from which to engage in such business directly with customers and business establishments without a storefront, including, but not limited to, a business delivering prepared foods or other food items, web-based or catalog business or delivery services used by a retail establishment; provided further, that a “retail establishment” shall include a non-profit organization, charity or religious institution that has a retail establishment and holds itself out to the public as engaging in retail activities that are characteristic of similar type commercial retail businesses, whether or not for profit when engaging in such activity.

Section 2. Regulated Conduct

a. One year after passage of this Act, no Food Establishment in the Commonwealth of Massachusetts may use, sell, offer for sale, or otherwise distribute disposable food service ware made from black plastic.

b. One year after passage of this Act, no Retail Establishment in the Commonwealth of Massachusetts may sell, offer for sale, or otherwise distribute: 1. disposable food service ware made from black plastic. 2. meat trays, fish trays, seafood trays, vegetable trays, or egg cartons made in whole or in any part with black plastic.

Section 3. Exemption

a) Nothing in this chapter shall prohibit individuals from using disposable food service ware or other items made of black plastic purchased outside the Commonwealth of Massachusetts for personal use. b) Prepared food packaged outside the Commonwealth of Massachusetts is exempt from the provisions of this chapter, provided that it is sold or otherwise provided to the consumer in the same disposable food service ware in which it was originally packaged, and that the prepared food has not been altered or repackaged. c) The Commonwealth of Massachusetts Department of Environmental Protection or the Board of Health of the city or town in which the food or retail establishment is located may exempt a food establishment or retail establishment from any provision of this chapter for a period of up to six months upon written application by the owner or operator of that establishment. No exemption will be granted unless the Department of Environmental Protection or the Board of Health finds that (1) strict enforcement of the provision for which the exemption is sought would cause undue hardship; or (2) the food establishment or retail establishment requires additional time in order to draw down an existing inventory of a specific item regulated by this chapter. For purposes of this chapter, “undue hardship” shall mean a situation unique to a food establishment or retail establishment in which there are no reasonable alternatives to the use of materials prohibited by this chapter, and that compliance with this chapter would create significant economic hardship for the Establishment.

Section 4. Enforcement

Health Agents of the cities and towns of the Commonwealth of Massachusetts shall also have the authority to enforce this chapter. This chapter may be enforced through any lawful means in law or in equity, including but not limited to, noncriminal disposition pursuant to G.L. c. 40 § 21D and Article VI of the General Bylaws.  The town or city may enforce this chapter or enjoin violations thereof through any lawful process or combination of processes, and the election of one remedy by the town or city shall not preclude enforcement through any other lawful means.

Violations of this chapter are punishable by a fine of up to $300 per violation. Each successive day of noncompliance will count as a separate violation.

If non-criminal disposition is elected, then any Food or Retail Establishment that violates any provision of this chapter shall be subject to the following penalties:

First Offense: written warning

Second Offense: $50 penalty

Third and each subsequent offense: $300 penalty

Section 5. Regulations 

The Board of Health may adopt and amend rules and regulations to effectuate the purposes of this chapter.

Section 6.  Interaction with Other Laws 

In the case of a conflict between the requirements of this chapter and any other federal, state or local law concerning the materials regulated herein, the more stringent requirements shall apply.

Section 7. Severability

If any provision of this chapter is declared invalid or unenforceable the other provisions shall not be affected thereby.

SECTION 10. To Support Our Restaurants

Section 1. For purposes of this chapter, the following terms have the following definitions:

(a) “Disposable”, means designed to be discarded after a single or limited number of uses and not designed or manufactured for long-term multiple reuse.

(b) “Food service ware accessories”, include food service ware such as straws, stirrers, cup spill plugs, cup sleeves, condiments and condiment packets, utensils (including chopsticks), cocktail sticks/picks, toothpicks, napkins, and other similar accessory or accompanying food service ware used as part of food or beverage service or packaging. Detachable lids for beverage cups and food containers are not considered a food service ware accessory.

(c) “Food facility”, means an operation that stores, prepares, packages, serves, vends, or otherwise provides food to the public for human consumption.

(d) “Takeout food”, means prepared food requiring no further preparation, which is purchased to be consumed off a prepared food facility’s premises. Takeout food includes prepared food delivered by a food facility or by a third-party takeout food delivery service.

(e) “Takeout food delivery service”, is a service that delivers takeout food from a food facility to a customer for consumption off the premises. This service can be provided directly by the food facility or by a third party.

Section 2.

(a) No food facility shall provide any disposable food service ware accessories except:

1. Upon request by the consumer;

2. Upon acceptance by the consumer after being offered by the food facility; or

3. At a self-serve area and/or a dispenser.

(b) Food facilities shall only distribute disposable food service ware if they charge the customer what that food ware cost the food facility, or a dollar, whichever is greater.

(c) Takeout food delivery services that utilize digital ordering/point of sale platforms, including but not limited to the internet and smartphones, shall only offer disposable food service ware accessories by providing clear options for customers to affirmatively request these items separate from orders for food and beverages. The default option on the digital ordering/point of sale platforms shall be that no disposable food service ware accessories are requested. Each individual disposable food service ware accessory (e.g., each fork, knife, condiment packet, napkin, etc.) provided with prepared food must be specifically requested by the customer in order for a food facility to provide it.

(d) Takeout food delivery services shall only distribute disposable food service ware if they charge the customer what that food ware cost the food facility, or a dollar, whichever is greater.

SECTION 11. The provisions of this bill shall take effect one year after passage unless otherwise specified.