In continuing with the Biden-Harris Administration's goal to combat plastic pollution, on July 19, 2024, the Interagency Policy Committee on Plastic Pollution and a Circular Economy (IPC)¹ released a new joint strategy to tackle plastic pollution entitled "Mobilizing Federal Action on Plastic Pollution: Progress, Principles, and Priorities" (Plastic Strategy). In the cover letter to the Plastics Strategy, the IPC indicates that the "Federal government is – for the first time – formally acknowledging the severity of the plastic pollution crisis and the scale of the response that will be required to effectively confront it."

The White House's Plastic Strategy presents ongoing and proposed federal actions to combat plastic pollution across the life cycle of plastics, "from the extraction of raw materials used to create plastic polymers, such as fossil fuels, to pollution resulting from mismanaged waste." It pays particular attention to the elimination of single-use plastic across the federal government and national supply chain, announcing the new Biden-Harris Administration goal to phase out federal procurement of single-use plastics from food service operations, events and packaging by 2027 and from all federal operations by 2035.

Specifically, the Plastic Strategy focuses on the following three components:

1. the progress that the federal government has taken to combat plastic pollution, such as those that address pollution from plastic production and advance environmental justice, marine debris clean-up, infrastructure investment, catalyzing the clean energy industry and federal sustainability and the Reduction of Single-Use Plastic Packaging Rule
2. the five principles guiding federal actions to combat plastic pollution, such as building meaningful partnerships, advancing environmental justice, collaboration with Tribal Nations, using the best available science and strengthening federal interagency coordination
3. the priority federal actions to address problems during the life cycle of plastics, including during production, product design, waste generation and waste management, as well as with respect to pollution

Unlike previous proposed plastics-related strategies with sweeping policy implications such as the U.S. Environmental Protection Agency's (EPA) Draft National Strategy to Prevent Plastic Pollution, the White House's Plastic Strategy is not open for public comments. (See Holland & Knight's previous alert, "EPA Releases Draft of National Strategy to Prevent Plastic Pollution," June 13, 2023.) Instead, it indicates that this strategy is for planning purposes and outlines several actions that will be implemented by agencies that will eventually be subject to a comment period.

While the Plastic Strategy focuses on deploying federal actions to combat plastic pollution, it recognizes the need for international collaboration. The document promotes ongoing collaboration with international actors and calls for these efforts to not only persist but increase. The "Priorities" section calls for the ratification of the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, which adopted Plastic Waste amendments in 2019 that subjects the majority of plastic waste and scrap exports to the Convention's prior informed consent requirement. Ratifying this convention would have significant impacts on downstream plastic pollution. Notably, the Plastic Strategy does not mention U.S. participation in the United Nations' (U.N.) Intergovernmental Negotiating Committee (INC) to develop a legally binding treaty to combat plastic pollution, which sets the ambitious goal of ending plastic pollution by 2040 through international collaboration.

This Holland & Knight alert outlines how the Plastic Strategy defines single-use plastics and provides a deep dive into the progress, principals and priorities outlined in the Plastic Strategy.

Single-Use Plastic

For those following the patchwork of regulations across the country and globe, the critical questions is always, "What is a single-use plastic?"

Across the U.S., states and municipalities have banned the use of plastic bags and straws, for example, with Extended Producer Responsibility rules issued in states – such as Colorado, California, Maine, Maryland and Oregon – that are focused on single-use packaging comprised of plastic and other materials. At the federal level, the U.S. Department of Interior on June 8, 2022, issued Order No. 3407 to reduce the procurement, sale and distribution of "single-use plastic products" on more than 480 million acres of public lands and identify more sustainable alternatives like compostable or biodegradable materials by 2032. In the Order, the term "single-use plastic products" is defined as "plastic intended to be disposed of immediately after use, including plastic and polystyrene food and beverage containers, bottles, straws, cups, cutlery, and disposable plastic bags."

Similarly, the European Union (EU) recently issued their own ban on single-use plastics, taking an itemized approach rather targeting a general category of products. The EU Directive explicitly targets the 10 single-use plastic items most frequently found in plastic pollution cleanup efforts and outlines limitations for other single-use plastic products, including 1) cotton bud sticks, 2) cutlery, plate, straws and stirrers, 3) balloons and sticks for balloons, 4) food containers, 5) cups for beverages, 6) beverage containers, 7) cigarette butts, 8) plastic bags, 9) packets and wrappers and 10) wet wipes and sanitary items.

While the Plastic Strategy does not explicitly include a definition of single-use plastic, it confirms that it is using the term as defined in the U.S. General Services Administration's (GSA) final rule, which became effective on July 8, 2024, to encourage and highlight the availability of single-use plastic-free packaging in Federal Supply Schedule (FSS) contracts. Therefore, the definition of "single-use plastics" for the Plastic Strategy, which is now included in 48 C.F.R. 502.101, as amended by the GSA Acquisition Regulation: Reduction of Single Use Plastic Packaging, is:

… any plastic used for the containment, protection, handling, delivery, or presentation of goods by a producer for a consumer with the intent of being used once and then discarded, recycled or disposed of immediately after its contents have been used or unpackaged, and typically not refilled or otherwise reused by the producer. Packaging includes, but is not limited to brand packaging, grouped packaging, shipping packaging, ancillary packaging, and redundant packaging.

GSA's final rule also created definitions of several key terms within the definition of single-use packaging, including packaging,² plastic,³ brand packaging,⁴ grouped packaging or secondary packaging,⁵ shipping packaging,⁶ ancillary packaging⁷ and redundant packaging.⁸ Most notably, plastic is defined as a "synthetic or semisynthetic material chemically synthesized by the polymerization of organic substances that can be shaped into various rigid and flexible forms, and includes coatings and adhesives." The definition of plastic "excludes natural rubber or naturally occurring polymers such as proteins or starches."

Progress

The Progress section of the Plastic Strategy details IPC's ongoing and previously taken actions. These actions provide the foundation for which the plan intends to build upon. In addition to drawing attention to specific agency actions, this section draws attention to Executive Order 14057, which established the Federal Sustainability Plan, and Executive Orders 14096 and 14008, which established the Biden-Harris Administration's Justice40 initiative to promote environmental justice. These orders serve as further justification for future actions and demonstrate a history of commitment to combatting plastic pollution.

1. Actions that Address Pollution from Plastic Production and Advance Environmental Justice. This subsection discusses how the EPA's recent rulemakings that target chemicals often utilized in the plastic production process also advance the overarching strategy to combat plastic pollution. The Plastic Strategy argues that curtailing and regulating the usage of chemicals used in plastic manufacturing reduces upstream plastic pollution while simultaneously protecting vulnerable communities from chemical exposures and accidents.
2. Catalyzing Clean Energy Industries and Jobs Through Federal Sustainability. This subsection centers around Executive Order 14057, "Catalyzing Clean Energy Industries and Jobs Through Federal Sustainability," which sparked the development of agency sustainable procurement plans and laid the groundwork for the federal goal of phasing out federal procurement of single-use plastics from food service operations, events and packaging by 2027 and from all federal operations by 2035. This goal is anticipated to have cascading effects on the demand for plastics by removing a key consumer of plastics.
3. Reduction of Single-Use Plastic Packaging Rule. This category of actions focuses on the ongoing utilization of federal procurement powers to limit the sale and distribution of single-use plastic products and packaging within the federal government. It spotlights Secretary of the Interior Debra Haaland's Secretary Order 3407 to phase out the procurement, sale and distribution of single-use plastic products by 2032, discussed above, as well as the U.S. Department of Defense Commissary Agency's similar efforts to eliminate the use of single-use plastic bags. The order stems from Executive Order 14057, calling for federal agencies to minimize waste and support markets for recycled products and could serve as a blueprint for other agencies working to meet the overarching federal goal of phasing out single-use plastic from their operations by 2035.
4. Investing in Infrastructure. This section discusses collaborative efforts to bolster the nation's waste management infrastructure. The federal actions described in this subsection are primarily driven by the Save Our Seas 2.0 Act, highlighting the collaborative approach required to combat plastic pollution. The Save Our Seas Act authorized the Solid Waste Infrastructure for Recycling Program and mandated the EPA release a National Strategy to Prevent Plastic Pollution, two key agency tools to support and fund waste management infrastructure. The document also discusses how collaboration with stakeholders has advanced infrastructural developments in the U.S. and fostered international synchronization.
5. Marine Debris Cleanup. The majority of actions discussed in this section were carried out by the National Oceanic and Atmospheric Administration (NOAA), highlighting the $70 million in federal funding spent to clean up marine debris in federal waters in the Marine Debris Program. As oceans span across the globe, unconstrained by federal borders, the U.S. also engaged in international cleanup efforts through the U.S. Agency for International Development's (USAID) Save Our Seas Initiative. This initiative also relied on private-sector engagement for resources, underscoring the vital role industry plays in combatting plastic pollution and how public-private partnerships stretch federal dollars to their full potential.

Principles

The Principles section of the Plastic Strategy synthesizes the lessons learned from the progress made to combat plastic pollution, as well as Biden-Harris Administration policies to formulate the following principles for future action.

1. Build Meaningful Partnerships to Support Solutions Across the Plastic Life Cycle. The Plastic Strategy indicates that the actions outlined in the document will be most effective with input and efforts from all stakeholders and requires strategies and solutions from all levels of government.
2. Advance Environmental Justice as Part of Addressing the Plastic Pollution Crisis. The Plastic Strategy states that the Biden-Harris Administration recognizes that plastic pollution is a serious environmental justice concern and is committed to advancing the goal of environmental justice as part of implementing plastic pollution actions outlined in this document.
3. Respect the Sovereignty of Tribal Nations and Incorporate Indigenous Knowledge in Decision-Making and Research on Plastic Pollution. The Plastic Strategy indicates that the Biden-Harris Administration is committed to honoring federal trust and treaty obligations, engaging in government-to-government consultation and incorporating indigenous knowledge to the extent that Tribal Nations and other indigenous people choose to share such knowledge.
4. Use the Best Available Science on Plastic Pollution. The Plastic Strategy confirms that the actions outlined in the document are supported by the best available scientific evidence and are expected to reduce plastic pollution and associated environmental, occupational and public health risks. It calls for research and development to close critical information gaps, enhance decision-making and guide and measure effectiveness, as well as update and adjust plans as new data is collected.
5. Strengthen Federal Interagency Coordination on Plastic Pollution. The Plastic Strategy acknowledges that multiple categories of federal activities can affect plastic pollution, including grantmaking, procurement and rulemaking. It confirms that agencies will continue to coordinate and align their work through the IPC.

Priorities

The Priorities section of the Plastic Strategy extrapolates on planned actions to combat plastic pollution. The document organizes the actions by where they intervene in the plastic production life cycle, creating upstream and downstream solutions that are intended to build upon one another.

1. Assessing and Reducing Pollution from Plastic Production. This stage and associated actions discuss "upstream" measures of plastic pollution reduction such as regulations on the methods, feedstocks and chemicals used in plastic production. This stage also features data collection efforts to ensure regulations are the most effective at preventing plastic pollution. This presents an opportunity for industry to present best practices to ensure that solely plastic waste and pollution are curtailed rather than an overinclusive strategy that undermines all plastic use and production. Specific actions at this stage include:

• explore updates such as to rule, guidance, labeling or other policies under foundational pieces of legislation such as the Clean Air Act, Clean Water Act, Occupational Safety and Health Act and other statutes that may affect pollution related to the production or use of plastic, polymers, precursors and related chemicals
• leverage federal resources to gather and evaluate data on the volumes, effects, and prevention methods associated with plastic pollution.

2. Innovating Materials and Product Design: This stage seeks to align design standards and innovate materials across the plastic supply chain so they are compatible with waste management systems and have minimal impacts on human health and the environment. This includes the innovation of new materials, techniques and services, as well as the institution of standards, in order to promote circular plastic production. Specific actions include:

• promote research, development and deployment activities associated with reuse, recycling and other circular solutions for products reaching the end of their primary use
• encourage alignment with and acceptance of international standards (e.g., International Organization for Standardization (ISO) and ASTM International) for performance or design criteria, labeling and recycling specifications for plastic products, as appropriate, in the U.S. and abroad

3. Decreasing Plastic Waste Generation: This category centers the government's procurement and purchasing powers as a means of decreasing plastic waste generation. The actions target initial plastic use and promoting reuse and recycling strategies for plastic products that cannot be phased out altogether. Specific actions include:

• identify the scope and scale at which plastic is purchased and used across federal government operations and determine the product and services where alternatives to plastic are currently available to meet federal procurement needs
• develop priority strategies to replace, reduce and phase out unnecessary use and purchase of plastic products by the federal government, such as addressing single-use plastic and updating procurement policies
• support innovative measures, research and programs to expand reuse, refill and repair of materials in order to reduce plastic waste generation
• lead a federal government-wide public awareness campaign to educate the American public about plastic pollution, proper management of plastic and alternative materials, and actions to take to reduce plastic use

4. Improving Environmentally Sound Waste Management: This category of actions acknowledges and seeks to remedy the burden placed on increasingly strained state, territory, Tribal, and local waste management systems. This category builds upon the actions discussed in the Plastic Strategy's "Innovating Materials and Product Design," finding that product reuse and recycling capabilities are obsolete if the waste management systems they enter are incapable of fulfilling their uses. Actions to ensure waste management systems keep the same pace as product innovation include:

• develop recommendations for a national extended producer responsibility⁹ initiative that allows states, Tribes, local governments and territories to develop approaches that are best for them, provides a vision for a harmonized national system and goals for plastic waste management, and aims to level the playing field for producers across all states and territories, along with supports the initiative's implementation
• support the development and deployment of and investment in technologies and infrastructure for the collection, recycling and disposal of plastic waste, as well as source separation and industrial composting
• identify and measure pathways by which plastic pollution enters and persists in the environment
• examine and improve U.S. exports of plastic waste and scrap to prevent it from becoming plastic pollution
• explore potential ways to illustrate support for U.S. ratification of the Basel Convention on Control of Transboundary Movements of Hazardous Wastes and their Disposal

5. Informing and Conducting Capture and Removal of Plastic Pollution: The final stage of actions address existing plastic pollution within terrestrial and aquatic ecosystems. This includes:

• develop standardized methods for the collection, extraction, quantification and physical and chemical characterization of microplastics and nanoplastics
• support removal and proper disposal of marine debris, plastic pollution and derelict fishing gear
• share and deploy best practices, policies, guidance, lessons learned and technologies for trash interception

Conclusion

In summary, there continues to be mass-scale changes with respect to plastics across the globe, and it takes a scorecard to keep track of proposed, finalized and challenged strategies. For more information or questions, please contact the authors or a member of Holland & Knight's Emerging Contaminants and PFAS Team.

Notes

¹ The IPC is co-chaired by the White House Council on Environmental Quality and the White House Office of Domestic Climate Policy.

² Packaging means the material used to protect an item. Packaging includes but is not limited to brand packaging, grouped packaging, shipping packaging, ancillary packaging and redundant packaging.

³ Plastic means a synthetic or semisynthetic material chemically synthesized by the polymerization of organic substances that can be shaped into various rigid and flexible forms, and includes coatings and adhesives. "Plastic" excludes natural rubber or naturally occurring polymers such as proteins or starches.

⁴ Brand packaging, sales packaging or primary packaging means packaging intended to provide the user or consumer with the individual unit of the product such as plastic casing.

⁵ Grouped packaging or secondary packaging means packaging intended to bundle, sell in bulk, brand or market/display products.

⁶ Shipping packaging means packaging that serves as protection for the goods to ensure safe transport to the end customer, including ancillary packaging.

⁷ Ancillary packaging or transport packaging or tertiary packaging means packaging intended to secure the product such as packing peanuts, wrapping materials or molded materials. Ancillary packaging (or all shipping packaging) is typically outside of brand packaging.

⁸ Redundant packaging or unnecessary packaging means packaging that does not add any measurable protection to the supply being shipped such as multiple layers of bubble wrap to an already-durable product that is encased in a cardboard box. An example of this is a home testing kit with all plastic components already packaged in a cardboard box with cardboard inserts to absorb shock that is then shipped in multiple layers of bubble wrap. In this example, the bubble wrap is the redundant single-use plastic packaging.

⁹ The EPA Plastics Regulation and Policy describes extended producer responsibility as an "environmental policy approach that gives producers financial or physical responsibility for a product's entire life cycle, including the management or disposal of post-consumer products."