II 

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. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Farewell to Foam Act 

5 of 2023’’. 

6 SEC. 2. DEFINITIONS. 

7 In this Act: 


ssavage on DSKBC07HB2PROD with BILLS
2 

•S 3440 IS

1 (1) ADMINISTRATOR.—The term ‘‘Adminis2 trator’’ means the Administrator of the Environ3 mental Protection Agency. 

4 (2) BIOLOGICAL PRODUCT.—The term ‘‘biologi5 cal product’’ has the meaning given the term in sec6 tion 351(i) of the Public Health Service Act (42 

7 U.S.C. 262(i)). 

8 (3) COVERED POLYSTYRENE FOAM WARE.—The 

9 term ‘‘covered polystyrene foam ware’’ means— 

10 (A) an expanded polystyrene cooler; 

11 (B) an expanded polystyrene food service 

12 ware; and 

13 (C) expanded polystyrene loose fill. 

14 (4) DISTRIBUTOR.—The term ‘‘distributor’’ 

15 means any person that distributes covered poly16 styrene foam ware that is sold or offered for sale in 

17 the United States. 

18 (5) DRUG.—The term ‘‘drug’’ has the meaning 

19 given the term in section 201 of the Federal Food, 

20 Drug, and Cosmetic Act (21 U.S.C. 321). 

21 (6) EXPANDED POLYSTYRENE.—The term ‘‘ex22 panded polystyrene’’ means blown polystyrene and 

23 expanded or extruded foams that are thermoplastic 

24 petrochemical materials utilizing a styrene monomer 

25 and processed by any technique or combination of 


ssavage on DSKBC07HB2PROD with BILLS
3 

•S 3440 IS

1 techniques, including fusion of polymer spheres (ex2 pandable bead polystyrene), injection molding, foam 

3 molding, and extrusion-blow molding (extruded foam 

4 polystyrene). 

5 (7) EXPANDED POLYSTYRENE COOLER.— 

6 (A) IN GENERAL.—The term ‘‘expanded 

7 polystyrene cooler’’ means a portable container 

8 made entirely or partially of expanded poly9 styrene that is designed or intended to be used 

10 for cold storage. 

11 (B) EXCLUSION.—The term ‘‘expanded 

12 polystyrene cooler’’ excludes portable containers 

13 intended to be used for drugs, medical devices, 

14 or biological products. 

15 (8) EXPANDED POLYSTYRENE FOOD SERVICE

16 WARE.— 

17 (A) IN GENERAL.—The term ‘‘expanded 

18 polystyrene food service ware’’ means a product 

19 made of expanded polystyrene that is— 

20 (i) used for selling or providing food 

21 or beverages; and 

22 (ii)(I) intended by the manufacturer 

23 to be used once for eating or drinking; or 

24 (II) generally recognized by the public 

25 as an item to be discarded after 1 use. 


ssavage on DSKBC07HB2PROD with BILLS
4 

•S 3440 IS

1 (B) INCLUSIONS.—The term ‘‘expanded 

2 polystyrene food service ware’’ includes any 

3 product described in subparagraph (A) con4 sisting of a bowl, plate, hot or cold beverage 

5 cup, lid, clamshell, tray, carton for eggs or 

6 other food, or any other item used for serving 

7 or containing prepared food, including takeout 

8 food and leftovers from partially consumed 

9 meals prepared by food vendors. 

10 (9) EXPANDED POLYSTYRENE LOOSE FILL.— 

11 The term ‘‘expanded polystyrene loose fill’’ means a 

12 void-filling packaging product made of expanded pol13 ystyrene foam that is used as a packaging fill (com14 monly referred to as ‘‘packing peanuts’’). 

15 (10) FOOD SERVICE PROVIDER.—The term 

16 ‘‘food service provider’’ means a person engaged in 

17 the business of selling or distributing prepared food 

18 or beverages for on-premise or off-premise consump19 tion, including any— 

20 (A) food service establishment, caterer, 

21 temporary food service establishment, mobile 

22 food service establishment, and pushcart; 

23 (B) retail food store; 

24 (C) delicatessen; 

25 (D) grocery store; 


ssavage on DSKBC07HB2PROD with BILLS
5 

•S 3440 IS

1 (E) restaurant; 

2 (F) cafeteria; 

3 (G) coffee shop; 

4 (H) hospital, adult care facility, and nurs5 ing home; and 

6 (I) elementary or secondary school, college, 

7 and university. 

8 (11) MANUFACTURER.—The term ‘‘manufac9 turer’’ means any person that manufactures or im10 ports covered polystyrene foam ware that is sold, of11 fered for sale, or distributed in the United States. 

12 (12) MEDICAL DEVICE.—The term ‘‘medical de13 vice’’ has the meaning given the term ‘‘device’’ in 

14 section 201 of the Federal Food, Drug, and Cos15 metic Act (21 U.S.C. 321). 

16 (13) PREPARED FOOD.— 

17 (A) IN GENERAL.—The term ‘‘prepared 

18 food’’ means food or beverages that— 

19 (i) are cooked, chopped, sliced, mixed, 

20 brewed, frozen, heated, squeezed, com21 bined, or otherwise prepared on the prem22 ises of a food service provider for imme23 diate consumption; and 

24 (ii) require no further preparation to 

25 be consumed. 


ssavage on DSKBC07HB2PROD with BILLS
6 

•S 3440 IS

1 (B) INCLUSION.—The term ‘‘prepared 

2 food’’ includes ready-to-eat takeout foods and 

3 beverages described in subparagraph (A). 

4 (14) RETAILER.—The term ‘‘retailer’’ means 

5 any person that sells, supplies, or offers to con6 sumers covered polystyrene foam ware. 

7 SEC. 3. BAN ON EXPANDED POLYSTYRENE FOOD SERVICE 

8 WARE, LOOSE FILL, AND COOLERS. 

9 (a) EXPANDED POLYSTYRENE FOOD SERVICE

10 WARE.—Beginning on January 1, 2026, no food service 

11 provider, manufacturer, distributor, or retailer shall sell, 

12 offer for sale, or distribute expanded polystyrene food 

13 service ware. 

14 (b) EXPANDED POLYSTYRENE LOOSE FILL AND EX15 PANDED POLYSTYRENE COOLERS.—Beginning on Janu16 ary 1, 2026, no manufacturer, distributor, or retailer shall 

17 sell, offer for sale, or distribute expanded polystyrene loose 

18 fill or expanded polystyrene coolers. 

19 SEC. 4. ENFORCEMENT. 

20 (a) WRITTEN NOTIFICATION FOR FIRST VIOLA21 TION.—If a food service provider, manufacturer, dis22 tributor, or retailer violates section 3, the Administrator 

23 shall provide that food service provider, manufacturer, dis24 tributor, or retailer with written notification regarding the 

25 violation. 


ssavage on DSKBC07HB2PROD with BILLS
7 

•S 3440 IS

1 (b) SUBSEQUENT VIOLATIONS.— 

2 (1) IN GENERAL.—If a food service provider, 

3 manufacturer, distributor, or retailer, subsequent to 

4 receiving a written notification under subsection (a), 

5 violates section 3 again, the Administrator shall im6 pose a civil penalty on the food service provider, 

7 manufacturer, distributor, or retailer in accordance 

8 with this subsection. 

9 (2) AMOUNT OF PENALTY.—For each violation 

10 described in paragraph (1), the amount of the civil 

11 penalty under that paragraph shall be— 

12 (A) in the case of the second violation, 

13 $250; 

14 (B) in the case of the third violation, $500; 

15 and 

16 (C) in the case of the fourth, and any sub17 sequent, violation, $1,000. 

18 (3) LIMITATIONS.— 

19 (A) FOOD SERVICE PROVIDERS; RETAIL20 ERS.—In the case of a food service provider or 

21 retailer the annual revenue of which is less than 

22 $1,000,000, a penalty shall not be imposed 

23 under this subsection more than once during 

24 any 7-day period. 


ssavage on DSKBC07HB2PROD with BILLS
8 

•S 3440 IS

1 (B) MANUFACTURER; DISTRIBUTORS.—In 

2 the case of a manufacturer or distributor the 

3 annual revenue of which is less than 

4 $5,000,000, a penalty shall not be imposed 

5 under this subsection more than once during 

6 any 7-day period. 

7 (c) STATE ENFORCEMENT.—The Administrator may 

8 permit a State to carry out enforcement under this section 

9 if the Administrator determines that the State meets such 

10 requirements as the Administrator may establish. 

11 SEC. 5. REGULATIONS. 

12 The Administrator may promulgate such regulations 

13 as the Administrator determines necessary to carry out 

14 this Act. 

Æ 


ssavage on DSKBC07HB2PROD with BILLS