SENATE DOCKET, NO. 1057        FILED ON: 2/10/2021

SENATE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 529

The Commonwealth of Massachusetts

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PRESENTED BY:

James B. Eldridge

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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 protecting water systems through the labeling of flushable wipes.

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PETITION OF:

SENATE DOCKET, NO. 1057        FILED ON: 2/10/2021

SENATE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 529

The Commonwealth of Massachusetts

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

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An Act protecting water systems through the labeling of flushable wipes.

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. Chapter 94 of the General Laws, as appearing in the 2018 Official Edition, is hereby amended by adding the following section:

Section 330. (a) As used in this section, the following words shall, unless the context otherwise requires, have the following meanings:

“Covered entity”, the manufacturer of a covered product that is sold in this state or brought into the state for sale. A covered entity shall not include a wholesaler, supplier or retailer that is not responsible for the labeling or packaging of a covered product.

“Covered product”, a nonwoven disposable product manufactured and sold in this state or brought into the state for sale that is constructed from 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. Covered products include both flushable and nonflushable wipes.  

“Flushable wipe”, a nonwoven disposable product that meets the performance standards.

“Label notice”, the phrase “Do Not Flush” of a size equal to at least 2 per cent of the surface area of the principal display panel; provided, however, that for covered products regulated pursuant to the Federal Hazardous Substances Act, 15 U.S.C. §§ 1261 to 1278a, under the jurisdiction of the United States Consumer Product Safety Commission, if the label notice requirements in subsection (d) would result in a type size larger than other cautionary material as outlined in 16 CFR § 1500.121, then the type size for the label notice shall be equal to or greater than the type size required for the other cautionary material; provided further, that for covered products required to be registered by the United States Environmental Protection Agency under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C.§§ 136 to 136y, if the label notice requirements would result in a type size on the principal display panel larger than a warning pursuant to FIFRA, then the type size for the label notice shall be equal to or greater than the type size required for the child hazard statement as outlined in 40 C.F.R. § 156.60.

“Labeling requirements”, the labeling provisions contained in subsection (d).

“Manufacturer”, any person or entity responsible for the manufacture, packaging or labeling of a covered product. “Manufacturer” shall not include a wholesaler, supplier or retailer that is not responsible for the manufacture, packaging or labeling of a covered product.

“Nonflushable wipe”, a covered product that does not meet the performance standards.  Nonflushable wipe includes wipes that are not manufactured or marketed to be flushed, such as premoistened wipes constructed from nonwoven sheets and designed and marketed for diapering, personal hygiene or household hard surface cleaning purposes. 

“Performance standards”, the testing methods and criteria for flushability outlined in the most current version of or an official update to the “Guidelines for Assessing the Flushability of Disposable Nonwoven Products,” Edition 4, May 2018 published by INDA/EDANA.

“Principal display panel”, the side of the product package that is most likely to be displayed, presented or shown under customary conditions of display for retail sale. In the case of a cylindrical or nearly cylindrical package, the surface area of the principal display panel constitutes 40 per cent of the product package as measured by multiplying the height of the container times the circumference. In the case of a flexible film package, in which a rectangular prism or nearly rectangular prism stack of wipes is housed within such film, the surface area of the principal display panel is measured by multiplying the length times the width of the aforementioned side of the package when the flexible packaging film is pressed flat against the stack of wipes on all sides of the stack.

“Representations”, product names, labels, endorsements, depictions, illustrations, trademarks, trade names and related displays or communications.

“Symbol”, the “Do Not Flush” symbol, or a gender equivalent thereof, as depicted in INDA/EDANA Code of Practice 2 and published within “Guidelines for Assessing the Flushability of Disposable Nonwoven Products,” Edition 4, May 2018.  The symbol shall be sized equal to at least 2 per cent of the surface area of the principal display panel, except as provided in clause (ii) of paragraph (1) of subsection (d).

(b) A covered entity shall not label a covered product as safe to flush, safe for sewer systems or safe for septic systems, unless the product is a flushable wipe. Unless a product is a flushable wipe, a covered entity shall not, in any manner, make any of the following representations regarding a covered product:

(1) The product can be flushed;

(2) The product is safe for sewer systems;

(3) The product is safe for septic systems;

(4) The product breaks apart shortly after flushing;

(5) The product will not clog household plumbing systems;

(6) The product will not clog household septic systems;

(7) The product is safe for plumbing;

(8) The product is safe to flush; or

(9) The product will dissolve or disperse in interaction with water.

A covered entity, directly or through any corporation, partnership, subsidiary, division, trade name or association in connection to the manufacturing, labeling, packaging, advertising, promotion, offering for sale, sale or distribution of a covered product that does not meet the performance standards, or that is otherwise a nonflushable wipe, shall not make any representation in any manner, expressly or by implication, including through the use of a product name, endorsement, depiction, illustration, trademark or trade name, about the flushable attributes, benefits, performance or efficacy of a nonflushable wipe.

(c) A covered entity shall test its covered products and verify that any covered product that is a flushable wipe meets the performance standards or comply with the labeling requirements. Within 90 days of this section taking effect, a covered entity shall submit, on a form designated by the department of environmental protection, documentation establishing that all covered products that are flushable wipes meet the performance standards, and shall certify that all covered products that do not meet the performance standards comply with the labeling requirements and that the covered entity is in compliance with the requirements of subsection (d). 

Within 90 days of publication of an update to the performance standards, a covered entity shall test its covered products and verify that any covered product that is a flushable wipe meets the performance standards or comply with the labeling requirements. Within 30 days of completion of this updated testing, a covered entity shall submit, on a form designated by the department of environmental protection, documentation establishing that all covered products that are flushable wipes meet the updated performance standards, and shall certify that all covered products that do not meet the performance standards comply with the labeling requirements and that the covered entity is in compliance with the requirements of subsection (d). 

For any covered product introduced for sale in this state after this section takes effect, a covered entity shall test such covered products and verify that any such covered product that is a flushable wipe meets the performance standards or comply with the labeling requirements.  At least 60 days prior to introduction of any such covered product for sale in this state, a covered entity shall submit, on a form designated by the department of environmental protection, documentation establishing that all covered products that are flushable wipes meet the updated performance standards, and shall certify that all covered products that do not meet the performance standards comply with the labeling requirements and that the covered entity is in compliance with the requirements of subsection (d).

(d) A covered product that does not meet the performance standards, or that is otherwise a nonflushable wipe, shall be labeled clearly and conspicuously in adherence with the labeling requirements as follows:

(1) In the case of cylindrical or near cylindrical packaging intended to dispense individual wipes, a covered entity shall:

(i) Place the symbol and label notice on the principal display panel in a location reasonably viewable each time a wipe is dispensed; or

(ii) Place the symbol on the principal display panel and either the symbol, label notice or the symbol and label notice in combination on the flip lid; provided, however, that if the label notice does not appear on the flip lid, the label notice shall be placed on the principal display panel; and the symbol, label notice, or the symbol and label notice in combination on the flip lid shall cover a minimum of 8 per cent of the surface area of the flip lid. If the symbol, label notice, or the symbol and label notice in combination on the flip lid are embossed, they shall not be required to comply with paragraph (6).

(2) In the case of flexible film packaging intended to dispense individual wipes, a covered entity shall place the symbol on the principal display panel and dispensing side panel and place the label notice on either the principal display panel or dispensing side panel in a prominent location reasonably visible to the user each time a wipe is dispensed; provided, however, that if the principal display panel is on the dispensing side of the package, 2 symbols shall not be required.

(3) In the case of refillable tubs or other rigid packaging intended to dispense individual wipes and be reused by the consumer for such purpose, a covered entity shall place the symbol and label notice on the principal display panel in a prominent location reasonably visible to the user each time a wipe is dispensed.

(4) In the case of packaging not intended to dispense individual wipes, a covered entity shall place the symbol and label notice on the principal display panel in a prominent and reasonably visible location.

(5) A covered entity shall ensure the symbol is not obscured by packaging seams, folds, or other package design elements.

(6) A covered entity shall ensure the symbol has sufficiently high contrast with the immediate background of the packaging to render it likely to be read by the ordinary individual under customary conditions of purchase and use.  In the case of printed symbol, “high contrast” is defined as follows:

(i) Provided with either a light symbol on a dark background or a dark symbol on a light background; and

(ii) A minimum level or percentage of contrast between the symbol artwork and the background of at least 70 per cent.  Contrast in per cent shall be determined as follows:

Contrast = (B1 – B2) x 100 / B1; where B1 = light reflectance value of the lighter area and B2 = light reflectance value of the darker area.

(e) No package or box containing a covered product that does not meet the performance standards, or that is otherwise a nonflushable wipe, manufactured on or before the effective date of this section may be offered for distribution or sale in the state, unless the product packaging complies with the labeling requirements in subsection (d).

(f) For covered products that do not meet the performance standards, or that are otherwise nonflushable wipes, sold in bulk at retail, both the package purchased in the store and the individual packages contained within shall comply with the requirements in subsection (d) applicable to the particular packaging types.

(g) The department of environmental protection has authority to enforce this section and to collect civil penalties for a violation of this section, subject to the conditions in this subsection.

Whoever violates this section may be enjoined in any court of competent jurisdiction.

Whoever violates this section may be liable for a civil penalty not to exceed $2,500 for each violation.  The civil penalty may be assessed and recovered in a civil action brought in any court of competent jurisdiction.

A specific violation is deemed to have occurred upon the sale of a noncompliant product package.  The repeated sale of the same noncompliant product package is considered part of the same, single violation.

In assessing the amount of a civil penalty for a violation of this section, the court shall consider:

(1) The nature, circumstances, extent, and gravity of the violation;

(2) The violator’s past and present efforts to prevent, abate, or clean up conditions posing a threat to the public health or safety or the environment;

(3) The violator’s ability to pay the proposed penalty;

(4) The effect that the proposed penalty would have on the violator and the community as a whole;

(5) Whether the violator took good faith measures to comply with this section and when these measures were taken;

(6) The deterrent effect that the imposition of the penalty would have on both the violator and the regulated community as a whole; and

(7) Any other factor that justice may require.

The department of environmental protection may refer violations of this section to the attorney general for enforcement and actions may be brought pursuant to this section by the attorney general in the name of the people of the state in any court of competent jurisdiction.

Any civil penalties collected pursuant to this section shall be paid to the enforcing governmental entity that brought the action.

The remedies provided by this section are not exclusive and are in addition to the remedies that may be available pursuant to chapter 93A or other consumer protection laws, if applicable.

In addition to penalties recovered under this section, the enforcing government entity may recover reasonable enforcement costs and attorneys’ fees from the liable covered entity.

SECTION 2. This act shall take effect on January 1, 2022.