DELAWARE STATE SENATE

153rd GENERAL ASSEMBLY

SENATE SUBSTITUTE NO. 1

FOR

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 food service 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 liquids 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 food service packaging products, 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.

(a) For purposes 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 or butchered meat, poultry, fish, seafood, eggs, fruits, or vegetables.

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

(5) “Expanded polystyrene foam product” means a product made from expanded foam thermoplastics using 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) “Pre-packaged” means bottled, canned, bagged, wrapped, or otherwise packaged at a food processing plant or before arriving at a retail store or wholesaler.

(8) “Retail store” means a person or establishment located in this State and engaged in the business of selling or exchanging goods for cash, barter, or any consideration with the intent that the purchaser of the goods has acquired the goods for ultimate consumption or use and not resale, and that sells, offers for sale, or distributes expanded polystyrene foam food service packaging, expanded polystyrene foam coolers, or expanded polystyrene foam loose fill packaging in this State. “Retail store” does not include a food establishment as defined in the Delaware Food Code, Regulation 4458 of Title 16 of the Delaware Administrative Code [16 DE Admin. Code 4458], as the use of polystyrene foam food service packaging in food establishments is covered under § 3004Q of Title 16.

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

(10) “Wholesaler” means a person or company located in this State and 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 food service packaging, expanded polystyrene foam coolers, or expanded polystyrene foam loose fill packaging in this State.

(b) A retail store or wholesaler may not sell, offer for sale, or distribute expanded polystyrene foam food service packaging, expanded polystyrene foam coolers, or expanded polystyrene foam loose fill packaging in this State, except for the following:

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

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

(3) Expanded polystyrene foam coolers if used to transport or ship food products that require cold storage.

(4) Expanded polystyrene foam coolers if used to transport or ship live fish or other marine life.

(5) Expanded polystyrene foam food service packaging containing pre-packaged food products.

(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 there is not a financially feasible and commercially available alternative for a specific expanded polystyrene foam product and the retail store or wholesaler can show that the ban will cause significant financial hardship. The 1-year waiver is renewable upon the approval of a written application to the Department.

(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 in this State expanded polystyrene foam food service packaging products, most expanded polystyrene foam coolers, and expanded polystyrene foam loose fill packaging, such as packing peanuts. These types of expanded polystyrene foam products 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 food service packaging products, expanded polystyrene foam coolers, and expanded polystyrene foam loose fill packaging, this Act helps protect the environment from harmful waste. The Act does allow for certain uses of expanded polystyrene packaging (e.g., trays for raw or butchered meat) when necessary for health and safety reasons.

This Act also allows for a temporary waiver of its prohibition on expanded polystyrene foam food packaging, expanded polystyrene foam coolers, and expanded polystyrene foam loose fill packaging if there is not a financially feasible or commercially available alternative for a specific expanded polystyrene foam product prohibited under this Act, and the retail store or wholesaler can show that the ban will cause a significant financial hardship.

This Act is a Substitute for Senate Bill No. 130. It differs from Senate Bill No. 130 as follows:

1. Specifies that the prohibition on expanded polystyrene foam products is limited to expanded polystyrene foam food service packaging, expanded polystyrene foam coolers, and expanded polystyrene foam loose fill packaging such as packing peanuts.

2. Clarifies that the prohibition on these products applies only to products sold in Delaware, by Delaware retail stores and wholesalers, and narrows the definitions of retail stores and wholesalers accordingly. This change is being made to alleviate concerns that the Act attempted to regulate expanded polystyrene foam products sales in other states.

3. Explicitly excludes food establishments such as restaurants from the definition of “retail store”, as the use of polystyrene foam food service products in food establishments is already regulated under § 3004Q of Title 16.

4. Removes language that had allowed the Department of Natural Resources and Environmental Control the discretion to create new exemptions.

5. Creates an exemption for expanded polystyrene coolers used to transport or ship live fish or other marine life.

6. Consolidates the waiver provisions into a single provision that allows for a 1-year renewable waiver in cases where compliance with is not a financially feasible and commercially available alternative for a specific expanded polystyrene foam product and the retailer or wholesaler can show that the ban will cause significant financial hardship.

This Act takes effect on January 1, 2027.

Author: Senator Paradee