[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[S. 3440 Introduced in Senate (IS)]

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118th CONGRESS
  1st Session
                                S. 3440

  To prohibit the sale and distribution of expanded polystyrene food 
service ware, expanded polystyrene loose fill, and expanded polystyrene 
                    coolers, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                            December 7, 2023

   Mr. Van Hollen (for himself, Mr. King, Mr. Welch, Mr. Wyden, Mr. 
   Merkley, Mr. Blumenthal, Mr. Sanders, Ms. Warren, and Mr. Markey) 
introduced the following bill; which was read twice and referred to the 
           Committee on Commerce, Science, and Transportation

_______________________________________________________________________

                                 A BILL


 
  To prohibit the sale and distribution of expanded polystyrene food 
service ware, expanded polystyrene loose fill, and expanded polystyrene 
                    coolers, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Farewell to Foam Act of 2023''.

SEC. 2. DEFINITIONS.

    In this Act:
            (1) Administrator.--The term ``Administrator'' means the 
        Administrator of the Environmental Protection Agency.
            (2) Biological product.--The term ``biological product'' 
        has the meaning given the term in section 351(i) of the Public 
        Health Service Act (42 U.S.C. 262(i)).
            (3) Covered polystyrene foam ware.--The term ``covered 
        polystyrene foam ware'' means--
                    (A) an expanded polystyrene cooler;
                    (B) an expanded polystyrene food service ware; and
                    (C) expanded polystyrene loose fill.
            (4) Distributor.--The term ``distributor'' means any person 
        that distributes covered polystyrene foam ware that is sold or 
        offered for sale in the United States.
            (5) Drug.--The term ``drug'' has the meaning given the term 
        in section 201 of the Federal Food, Drug, and Cosmetic Act (21 
        U.S.C. 321).
            (6) Expanded polystyrene.--The term ``expanded 
        polystyrene'' means blown polystyrene and expanded or extruded 
        foams that are thermoplastic petrochemical materials utilizing 
        a styrene monomer and processed by any technique or combination 
        of techniques, including fusion of polymer spheres (expandable 
        bead polystyrene), injection molding, foam molding, and 
        extrusion-blow molding (extruded foam polystyrene).
            (7) Expanded polystyrene cooler.--
                    (A) In general.--The term ``expanded polystyrene 
                cooler'' means a portable container made entirely or 
                partially of expanded polystyrene that is designed or 
                intended to be used for cold storage.
                    (B) Exclusion.--The term ``expanded polystyrene 
                cooler'' excludes portable containers intended to be 
                used for drugs, medical devices, or biological 
                products.
            (8) Expanded polystyrene food service ware.--
                    (A) In general.--The term ``expanded polystyrene 
                food service ware'' means a product made of expanded 
                polystyrene that is--
                            (i) used for selling or providing food or 
                        beverages; and
                            (ii)(I) intended by the manufacturer to be 
                        used once for eating or drinking; or
                            (II) generally recognized by the public as 
                        an item to be discarded after 1 use.
                    (B) Inclusions.--The term ``expanded polystyrene 
                food service ware'' includes any product described in 
                subparagraph (A) consisting of a bowl, plate, hot or 
                cold beverage cup, lid, clamshell, tray, carton for 
                eggs or other food, or any other item used for serving 
                or containing prepared food, including takeout food and 
                leftovers from partially consumed meals prepared by 
                food vendors.
            (9) Expanded polystyrene loose fill.--The term ``expanded 
        polystyrene loose fill'' means a void-filling packaging product 
        made of expanded polystyrene foam that is used as a packaging 
        fill (commonly referred to as ``packing peanuts'').
            (10) Food service provider.--The term ``food service 
        provider'' means a person engaged in the business of selling or 
        distributing prepared food or beverages for on-premise or off-
        premise consumption, including any--
                    (A) food service establishment, caterer, temporary 
                food service establishment, mobile food service 
                establishment, and pushcart;
                    (B) retail food store;
                    (C) delicatessen;
                    (D) grocery store;
                    (E) restaurant;
                    (F) cafeteria;
                    (G) coffee shop;
                    (H) hospital, adult care facility, and nursing 
                home; and
                    (I) elementary or secondary school, college, and 
                university.
            (11) Manufacturer.--The term ``manufacturer'' means any 
        person that manufactures or imports covered polystyrene foam 
        ware that is sold, offered for sale, or distributed in the 
        United States.
            (12) Medical device.--The term ``medical device'' has the 
        meaning given the term ``device'' in section 201 of the Federal 
        Food, Drug, and Cosmetic Act (21 U.S.C. 321).
            (13) Prepared food.--
                    (A) In general.--The term ``prepared food'' means 
                food or beverages that--
                            (i) are cooked, chopped, sliced, mixed, 
                        brewed, frozen, heated, squeezed, combined, or 
                        otherwise prepared on the premises of a food 
                        service provider for immediate consumption; and
                            (ii) require no further preparation to be 
                        consumed.
                    (B) Inclusion.--The term ``prepared food'' includes 
                ready-to-eat takeout foods and beverages described in 
                subparagraph (A).
            (14) Retailer.--The term ``retailer'' means any person that 
        sells, supplies, or offers to consumers covered polystyrene 
        foam ware.

SEC. 3. BAN ON EXPANDED POLYSTYRENE FOOD SERVICE WARE, LOOSE FILL, AND 
              COOLERS.

    (a) Expanded Polystyrene Food Service Ware.--Beginning on January 
1, 2026, no food service provider, manufacturer, distributor, or 
retailer shall sell, offer for sale, or distribute expanded polystyrene 
food service ware.
    (b) Expanded Polystyrene Loose Fill and Expanded Polystyrene 
Coolers.--Beginning on January 1, 2026, no manufacturer, distributor, 
or retailer shall sell, offer for sale, or distribute expanded 
polystyrene loose fill or expanded polystyrene coolers.

SEC. 4. ENFORCEMENT.

    (a) Written Notification for First Violation.--If a food service 
provider, manufacturer, distributor, or retailer violates section 3, 
the Administrator shall provide that food service provider, 
manufacturer, distributor, or retailer with written notification 
regarding the violation.
    (b) Subsequent Violations.--
            (1) In general.--If a food service provider, manufacturer, 
        distributor, or retailer, subsequent to receiving a written 
        notification under subsection (a), violates section 3 again, 
        the Administrator shall impose a civil penalty on the food 
        service provider, manufacturer, distributor, or retailer in 
        accordance with this subsection.
            (2) Amount of penalty.--For each violation described in 
        paragraph (1), the amount of the civil penalty under that 
        paragraph shall be--
                    (A) in the case of the second violation, $250;
                    (B) in the case of the third violation, $500; and
                    (C) in the case of the fourth, and any subsequent, 
                violation, $1,000.
            (3) Limitations.--
                    (A) Food service providers; retailers.--In the case 
                of a food service provider or retailer the annual 
                revenue of which is less than $1,000,000, a penalty 
                shall not be imposed under this subsection more than 
                once during any 7-day period.
                    (B) Manufacturer; distributors.--In the case of a 
                manufacturer or distributor the annual revenue of which 
                is less than $5,000,000, a penalty shall not be imposed 
                under this subsection more than once during any 7-day 
                period.
    (c) State Enforcement.--The Administrator may permit a State to 
carry out enforcement under this section if the Administrator 
determines that the State meets such requirements as the Administrator 
may establish.

SEC. 5. REGULATIONS.

    The Administrator may promulgate such regulations as the 
Administrator determines necessary to carry out this Act.
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