DELAWARE STATE SENATE

153rd GENERAL ASSEMBLY

SENATE BILL NO. 130

AN ACT TO AMEND TITLE 7 OF THE DELAWARE CODE RELATING TO EXPANDED POLYSTYRENE FOAM PRODUCTS.

WHEREAS, discarded and fugitive single-use expanded polystyrene foam products such as food and beverage containers and other products constitute a significant and growing portion of litter found in Delaware’s parks, beaches, streams, and streets; and

WHEREAS, expanded polystyrene foam cannot be readily recycled in Delaware in the curbside program, and the small percentage that is recycled only has one more life cycle, and is not able to be recycled repeatedly; and

WHEREAS, once used for food or liquids, expanded polystyrene foam may not be recycled; and

WHEREAS, non-compostable and non-recyclable materials pose a challenge to any environmentally and financially responsible solid waste management program with a goal of circularity; and

WHEREAS, regulation of food packaging is necessary to encourage a culture of reuse and circularity, and to reduce the volume of solid waste disposed of in Delaware’s landfills and the economic and environmental costs of waste management; and

WHEREAS, expanded polystyrene foam products are either discarded in our landfills, become litter where they can harm humans and wildlife, including marine animals, or break down into microparticles that enter our ecosystem and food chain; and

WHEREAS, expanded polystyrene foam contains the toxic substances styrene and benzene, which are suspected carcinogens and neurotoxins that are hazardous to humans; and

WHEREAS, hot foods and liquid, in particular, start to break down expanded polystyrene foam upon contact, causing some toxins to be absorbed into the bloodstream and tissue of anyone who consumes foods or liquids that have been in expanded polystyrene foam packaging; and

WHEREAS, disadvantaged communities are often the most impacted by improper disposal of waste items such as those made of expanded polystyrene foam; and

WHEREAS, 2.3 million tons of expanded polystyrene foam end up in landfills each year worldwide; and

WHEREAS, expanded polystyrene foam has an expected lifetime of 500 years in landfills; and

WHEREAS, at least 9 states and many local governments have banned all or most uses of expanded polystyrene foam, including California, Maryland, New Jersey, New York, Maine, Vermont, Colorado, Oregon, Washington State, Santa Cruz, Los Angeles, and Washington DC.

NOW, THEREFORE:

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:

Section 1. Amend Subchapter IX, Chapter 60, Title 7 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:

§ 6099B. Expanded polystyrene foam products.

(a) For the purpose of this section:

(1) “Department” means the Department of Natural Resources and Environmental Control.

(2) “Expanded polystyrene foam cooler” means a portable container made of expanded polystyrene foam that is designed or intended to be used for cold storage of food. “Expanded polystyrene foam cooler” does not include expanded polystyrene foam containers used for drugs, medical devices, or biological materials.

(3) “Expanded polystyrene foam food service packaging” means food service packaging made from expanded polystyrene foam, including cups, plates, bowls, trays, and hinged or lidded containers. “Expanded polystyrene foam food service packaging” does not include expanded polystyrene foam products that are used to contain, transport, or package raw, uncooked, or butchered meat, poultry, fish, seafood, eggs, fruits, or vegetables.

(4) “Expanded polystyrene foam loose fill packaging” means a void-filing product made of expanded polystyrene foam that is used as a packing filler, such as packing peanuts.

(5) “Expanded polystyrene foam product” means a product made from expanded foam thermoplastics utilizing a styrene monomer. “Expanded polystyrene foam product” does not include products made from rigid polystyrene.

(6) “Food service packaging” means as defined in § 3001Q of Title 16.

(7) “Manufacturer” means the producer of an expanded polystyrene foam product that is provided or sold to a retail store or wholesaler.

(8) “Pre-packaged” means as defined in § 3001Q of Title 16.

(9) “Retail store” means a person or establishment engaged in the business of selling or exchanging goods for cash or barter or any consideration with the intent that the purchaser of such goods has acquired the goods for ultimate consumption or use and not resale, and that sells, offers for sale, or distributes expanded polystyrene foam products.

(10) “Rigid polystyrene” means polystyrene made from rigid, polystyrene resin that has not been expanded, extruded, or foamed.

(11) “Wholesaler” means a person or company engaged in the business of selling goods primarily to retailers, merchants, or industrial, institutional, or commercial users mainly for resale or business use and that sells, offers for sale, or distributes expanded polystyrene foam products.

(b) A retail store or wholesaler may not sell, offer for sale, or distribute expanded polystyrene foam food service packaging, expanded polystyrene foam loose fill packaging, expanded polystyrene foam coolers, or other expanded polystyrene foam products except for the following products, which are exempt from this subsection:

(1) Portion cups of 2 ounces or less, if used for hot foods or foods requiring lids.

(2) Meat and fish trays for raw or butchered meat, including poultry, or fish that is sold from a refrigerator or similar appliance, except that under no circumstance may black expanded polystyrene foam packaging be used.

(3) Expanded polystyrene foam coolers, but only if used to ship food that requires cold storage.

(4) Any food product pre-packaged by the manufacturer with expanded polystyrene foam packaging.

(5) Any other expanded polystyrene foam product as determined by the Department.

(c) The Department may, upon written application, waive the provisions of subsection (b) of this section for a retail store or wholesaler for a period not to exceed 1 year, if either of the following apply:

(1) There is no feasible and commercially available alternative for a specific expanded polystyrene foam product.

(2) The retail store or wholesaler has less than $500,000 in gross annual income and there is no reasonably affordable, commercially available alternative to the expanded polystyrene foam product.

(d) The Department shall prescribe the form and manner of the application for a waiver under subsection (c) of this section.

(e) The Department may adopt rules, regulations, and procedures necessary to implement this section.

Section 2. Amend § 6099A of Title 7 of the Delaware Code by making deletions as shown by strike through and insertions as shown by underline as follows:

§ 6099A. At-store recycling program.

(a) For purposes of this subchapter, section, the following definitions shall apply:

Section 3. This Act takes effect on January 1, 2027.

SYNOPSIS

This Act prohibits retail stores and wholesalers from selling, distributing, or offering for sale expanded polystyrene foam products, including expanded polystyrene foam food service packaging, expanded polystyrene foam coolers used for cold storage of food, and expanded polystyrene foam loose fill packaging. Expanded polystyrene foam packaging such as single use expanded polystyrene foam food containers or loose fill expanded polystyrene foam products such as packing peanuts are difficult to recycle and are not accepted in Delaware’s curbside recycling program. Such products typically end up in landfills, where they take hundreds of years to break down. By prohibiting the sale of expanded polystyrene foam products, this Act helps to protect the environment from harmful waste.

This Act allows for a temporary waiver of the prohibition on expanded polystyrene foam products under either of the following circumstances:

1. There is no feasible or commercially available alternative for a specific expanded polystyrene foam product.

2. The retail store or wholesaler seeking the waiver has less than $500,000 in gross annual income and there is no reasonably affordable, commercially available alternative to the expanded polystyrene foam product.

This Act takes effect on January 1, 2027.

Author: Senator Paradee