Requires manufacturers to meet certain standards with their packaging in New York state to reduce waste; establishes the guidelines and sets a timetable by which manufacturers must comply with these provisions.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A2089
SPONSOR: Colton (MS) TITLE OF BILL:
An act to amend the environmental conservation law, in relation to the
reduction and recycling of packaging
PURPOSE OR GENERAL IDEA OF BILL/PROVISIONS:
This bill would require all packaging sold in New York State after Janu-
ary 1, 2014, to be "environmentally sound." Packaging would qualify as
"environmentally sound" if it is "reduced," "reusable," "recycled" or
"recyclable." Standards defining these terms would rely on existing DEC
regulations as adopted pursuant to the State Solid Waste Management Act
of 1988. Within five years of enactment, however, to qualify as a "recy-
cled" package, 45% post-consumer recycled content would be required.
Labels indicating compliance from the Act's provisions would be required
on all packaging. Unconditional exemptions are provided for packaging
necessary to comply with federal food, drug and cosmetic laws and regu-
lations, packaging for products in concentrate form, and certain not-
for-profit organizations and inventories of packaging manufactured prior
to 2002. Conditional exemptions may be authorized by DEC for packaging
for which no alternative is available.
The Departments of Agriculture and Markets, and Environmental Conserva-
tion would assume primary enforcement responsibility, civil penalties
would be established for violations of the law, and a private right of
action would also be authorized.
Civil penalties would be established of up to $50 for each unit of pack-
aging not in compliance, or $500 for each intermediate package or ship-
ping container not in compliance., with the maximum penalty not to
exceed $20,000 for any shipment of packaging. Civil actions would also
be established.
JUSTIFICATION:
The State Solid Waste Management Act of 1988 directed all municipalities
to engage in mandatory source separation of recyclable materials from
trash. The State Solid Waste Management Plan and 19 corresponding DEC
regulations require municipalities to demonstrate a 40% level of solid
waste recycling. Packaging comprises more than one-third of the munici-
pal solid waste stream and at the same time, is recognized as a major
potential market for secondary materials collected under municipal
programs. Municipalities, with limited State assistance, now bear virtu-
ally sole responsibility for marketing source-separated recyclables.
This bill would require packaging manufacturers to share in that respon-
sibility by requiring packaging sold in New York State to be specif-
ically designed for reduction, reuse or recycling, or contain a signif-
icant percentage of recycled materials. The legislation is modeled after
existing and proposed laws in other states, and builds upon an existing
New York State law restricting the heavy metal content of packaging sold
in the State. This initiative is also consistent with recent State laws
vesting the manufacturers and retailers of materials that often must be
managed as solid waste (e.g., lead acid batteries and motor oil), with
increased responsibility for the reduction, reuse and recycling of those
materials.
LEGISLATIVE HISTORY:
2013-14: A.1691/EnCon
2011-12:A.3543/Encon
2009-10: A.4109/Encon
This bill dates back to the 1993-94 legislation session and has been
re-introduced in almost every session since them.
FISCAL IMPLICATIONS:
Some increased costs to DEC for revisions of existing regulations and
review of applications for conditional exemptions, with authorization to
establish fees sufficient to cover agency costs.
EFFECTIVE DATE:
This act shall take effect immediately.
STATE OF NEW YORK
________________________________________________________________________
2089
2023-2024 Regular Sessions
IN ASSEMBLY
January 23, 2023
___________
Introduced by M. of A. COLTON -- Multi-Sponsored by -- M. of A. RIVERA
-- read once and referred to the Committee on Environmental Conserva-
tion
AN ACT to amend the environmental conservation law, in relation to the
reduction and recycling of packaging
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Short title. This act shall be known and may be cited as
2 the "environmentally sound packaging act".
3 § 2. Legislative findings and declaration. The legislature hereby
4 finds and declares that a solid waste crisis exists in New York state,
5 and that the amount of solid waste requiring disposal has continued to
6 increase. The legislature further finds that over thirty percent of
7 municipal solid waste is comprised of packaging, that the production of
8 packaging has more than doubled in the last twenty years, and that this
9 portion of the municipal solid waste stream could be significantly
10 reduced through source reduction and material changes to increase the
11 reusability, recycled content, and recyclability of such packaging. The
12 legislature further finds that the reduction of packaging waste and the
13 success of municipal recycling is dependent on greatly increasing demand
14 for post-consumer materials in the manufacturing sector, that this
15 demand is very limited at present, and attributable to a lack of incen-
16 tives for manufacturers to increase the reusability, recycled content or
17 recyclability of their packaging, with no federal or state standards
18 applied to packaging based on such attributes or the lack of same.
19 Therefore, the legislature finds and determines that there is a need to
20 reduce packaging in the solid waste stream, by requiring that all pack-
21 aging sold in New York state meet certain standards for reduction, reus-
22 ability, recycled content, or recyclability.
23 § 3. The environmental conservation law is amended by adding a new
24 section 27-0721 to read as follows:
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD02857-01-3
A. 2089 2
1 § 27-0721. Packaging reduction and recycling.
2 1. Definitions. As used in this section: (a) "Concentrate form" shall
3 mean a product sold in a concentrated form that is one-third or less of
4 the volume of the product in its intended use form.
5 (b) "Environmentally sound packaging" shall mean packaging that is
6 reduced or reusable or recycled or recyclable.
7 (c) "Intermediate package" shall mean a wrap, box or bundle that
8 contains two or more unit packages of identical items, and that may be
9 enclosed by a shipping container.
10 (d) "Manufacturer" shall mean a person, firm, association, partnership
11 or corporation engaged in the production of packaging.
12 (e) "Material" shall mean any substance from which packaging is made,
13 including, but not limited to, paper, glass, plastic, and metal or any
14 combination thereof.
15 (f) "Packager" shall mean:
16 (i) for packaging in which products are placed prior to their entry
17 into the state, the packager is the person who receives title to the
18 shipment before or upon entry into the state; provided that if such
19 person is the purchaser in a retail sale involving direct shipment from
20 outside the state, then the packager is the seller;
21 (ii) for packaging in which a product is placed within the state prior
22 to the sale of the product, the packager is the person who places the
23 product in such packaging;
24 (iii) for packaging provided by a retail seller to a purchaser at the
25 point of product delivery, the packager is the retail seller.
26 (g) "Packaging" shall mean any container used to protect, store,
27 contain, transport, display or sell products. Packaging shall not
28 include any detachable closure device such as a cap, clip, cover, lid,
29 tab, or tamper resistant contrivance.
30 (h) "Person" shall mean any individual, trust, firm, joint stock
31 company, corporation, partnership, or association, including the state
32 of New York and any political subdivision of the state of New York.
33 (i) "Product" means any commodity destined for wholesale or retail
34 sale.
35 (j) "Recyclable" shall mean packaging made of a material for which
36 either of the following standards are met, as determined by the depart-
37 ment:
38 (i) access to municipal recyclable recovery programs for that material
39 is available to no less than seventy-five percent of the population of
40 the state;
41 (ii) a statewide recycling rate of fifty percent has been achieved for
42 the packaging material; or
43 (iii) a manufacturer, distributor or retailer achieves a statewide
44 recycling rate of fifty percent for the package sold within the state.
45 Packaging composed of more than one type of material shall not be
46 considered recyclable unless each material in the packaging that repres-
47 ents more than an insubstantial part of the packaging meets one of these
48 standards.
49 (k) "Recycled" shall mean packaging made with secondary materials
50 content, which meets the recycled content standards specified in regu-
51 lations promulgated by the department pursuant to subdivision two of
52 section 27-0717 of this title; provided, however, that within five years
53 of the effective date of this section, recycled shall mean a minimum of
54 forty-five percent by weight of post-consumer recycled content, as
55 defined by the department.
A. 2089 3
1 (l) "Reduced" shall mean packaging that is either reduced at least
2 fifteen percent by weight when compared with the packaging used for the
3 same product by the same packager five years earlier or packaging that
4 meets a minimum efficiency ratio of ninety percent product to ten
5 percent packaging by weight, when measured as the combined weight of the
6 intermediate package and the unit package if the product is conveyed to
7 the consumer in multiple layers of packaging, provided however, that
8 packaging exempted pursuant to subdivision three of this section shall
9 not be included in such measurement. In no case may packaging reduction
10 be achieved by the substitution of a different material category for a
11 material that constituted a substantial part of the packaging in ques-
12 tion.
13 (m) "Retail sale" shall mean any sale to a purchaser for consumption
14 or use other than resale or further processing or manufacturing.
15 (n) "Reusable" shall mean packaging that is designed for refilling or
16 reuse a minimum of five times in a program established by a manufactur-
17 er, distributor or retailer for refilling or reuse of the packaging.
18 (o) "Shipment" shall mean packaged products conveyed by truck or other
19 means of transport, and accompanied by an invoice.
20 (p) "Shipping container" shall mean packaging that is used in commerce
21 for packing, storing, and shipping products.
22 (q) "Unit package" shall mean a package which contains a single item,
23 a quantity of the same item, a set or an item with all its component
24 parts.
25 2. Environmentally sound packaging. Except as provided in subdivision
26 three of this section, no packager shall use or cause to be used any
27 packaging that is not environmentally sound packaging after January
28 first, two thousand twenty-six.
29 3. Exemptions. (a) The following types of packaging shall be uncondi-
30 tionally exempt from the provisions of this section:
31 (i) packaging which is in direct contact with food products, and has
32 not received prior authorization from the federal food and drug adminis-
33 tration to incorporate recycled content in such packaging, provided,
34 however, such packaging also does not comply with the standards as
35 defined in this section for reusable or reduced or recyclable;
36 (ii) packaging associated with drugs, drug products, cosmetics,
37 medical food and medical devices, as those terms are defined under the
38 Federal Food, Drug and Cosmetic Act and regulations promulgated there-
39 under;
40 (iii) packaging associated with products offered for sale in a concen-
41 trate form;
42 (iv) packaging for products destined for export from the state if the
43 packaging is not separated from the product before export;
44 (v) those packages or packaging components which have been delivered
45 to a packager prior to January first, two thousand twenty-six; and those
46 packages or packaging components with a code indicating date of manufac-
47 ture that were manufactured prior to January first, two thousand twen-
48 ty-six;
49 (vi) packaging associated with retail sales of used merchandise by
50 individual consumers subsequent to initial retail sale;
51 (vii) packaging associated with sales of food products by or on behalf
52 of a not-for-profit corporation, if such corporation has established a
53 pattern, over a period exceeding twenty years, of relying on such sales
54 for a significant portion of its financial support.
55 (b) Every packager seeking a conditional exemption pursuant to this
56 subdivision shall submit a written application to the department and
A. 2089 4
1 shall pay an application fee, as determined by the department, suffi-
2 cient to meet only the costs associated with the implementation of this
3 subdivision.
4 (c) Pursuant to rules and regulations promulgated by the department,
5 the commissioner may grant a conditional exemption from any requirement
6 of this section if he or she determines that the requirement, when
7 applied to a particular type of packaging, would impose undue hardship
8 on the general public.
9 A packager applying for a conditional exemption under this paragraph
10 shall bear the burden of proof in establishing undue hardship. Undue
11 hardship shall be established by providing clear and convincing evidence
12 that there is no environmentally sound packaging available for that type
13 of product or the packaging is necessary to comply with health or safety
14 laws and there is no environmentally sound packaging available that
15 complies with those health and safety laws. Exemptions granted pursuant
16 to this paragraph shall be for a period not to exceed five years.
17 (d) Within thirty days after the receipt of an application for a
18 conditional exemption pursuant to paragraph (c) of this subdivision, the
19 department shall publish a notice of opportunity for public comment on
20 the application, and shall accept written comments from the public for
21 sixty days thereafter. Before granting a conditional exemption, the
22 department shall make a written finding of undue hardship. The depart-
23 ment shall mail written notice of its determination to the applicant
24 within one hundred twenty days after the receipt of an application
25 pursuant to paragraph (c) of this subdivision and shall publish a notice
26 of such determination.
27 4. Labeling requirements. (a) On or after January first, two thousand
28 twenty-six, every packager shall ensure that the words "Complies with
29 New York state packaging law," or abbreviations thereof, are affixed to
30 all environmentally sound packaging. The presence of such statement on
31 packaging shall indicate that the manufacturer of such packaging certi-
32 fies that the packaging is reduced, reusable, recycled, recyclable or
33 exempt from the requirements of this section. Use of this statement on
34 any other packaging shall constitute a violation of this section.
35 (b) For purposes of intermediate or unit packaging containing one or
36 more layers, only one compliance label is required, which shall appear
37 on that portion of the packaged product visible to the consumer at
38 retail sale.
39 5. Regulations. On or before September first, two thousand twenty-
40 four, the department shall adopt rules and regulations necessary to
41 carry out the provisions of this section. Such rules and regulations
42 shall include, but need not be limited to:
43 (a) requirements for packagers to demonstrate compliance with the
44 environmentally sound packaging standards established pursuant to subdi-
45 vision two of this section, and procedures to ensure effective oversight
46 of packager compliance with those standards by the department;
47 (b) a methodology for the calculation of recycling rates for material
48 used in recyclable packaging, including the conditions and criteria to
49 be met by a packager seeking to qualify a package as recyclable by
50 composting such material; and
51 (c) procedures for department review of exemptions under subdivision
52 three of this section.
53 6. Reports on recycling rates. By April first of each year, the
54 department of economic development, shall submit a report to the gover-
55 nor and the legislature stating the recycling rates for the previous
56 calendar year for the types of materials used in packaging, assessing
A. 2089 5
1 the levels of post-consumer recycled content in a representative sample
2 of packaging, and reviewing the status of reusable packaging in the
3 state. For recyclable packaging, the report shall specify those materi-
4 als which qualify as recyclable pursuant to each criterion set forth in
5 paragraph (j) of subdivision one of this section.
6 7. Enforcement and violations. (a) The department of agriculture and
7 markets or the department or, in a city with a population of one million
8 or more, the city's department of consumer affairs, may inspect packag-
9 ing to determine whether it is environmentally sound. If, on the basis
10 of such inspection, a determination is made that any packager is in
11 violation of the provisions of this section or any rule or regulation
12 promulgated thereunder, the department of agriculture and markets or the
13 department, or, in a city with a population of one million or more, the
14 department of consumer affairs, may issue an order requiring compliance
15 or issue notice of an administrative enforcement hearing, or both. Only
16 one such agency shall issue such order, notice, or hold a hearing on
17 any one violation. The packager shall be given an opportunity to be
18 heard during any such hearing.
19 (b) As determined by a civil or administrative hearing, any person who
20 violates any of the provisions of, or who fails to perform any duty
21 imposed by this section or any rule or regulation promulgated there-
22 under, or any final determination or order of the commissioner of the
23 department of agriculture and markets or the commissioner of the depart-
24 ment, or in a city with a population of one million or more, the city's
25 department of consumer affairs, shall be liable for a civil penalty not
26 to exceed fifty dollars for each unit package which is not in compliance
27 with the provisions of this chapter, or five hundred dollars for each
28 intermediate package or shipping container which is not in compliance
29 with the provisions of this chapter, provided that no person shall pay a
30 penalty in excess of twenty thousand dollars for any one shipment of
31 packaging. In considering the amount of the penalty to be imposed for
32 each violation, the commissioner of the department or the commissioner
33 of the department of agriculture and markets or the commissioner of the
34 department of consumer affairs shall consider any evidence presented
35 regarding the following factors: cost, size, weight of the product and
36 package, compliance history of the violator, and any other factors which
37 justice requires.
38 (c) Any person may commence a civil action in supreme court against
39 any packager who is alleged to be in violation of any provision of this
40 section or any regulation promulgated pursuant to this section. No such
41 action may be commenced:
42 (i) prior to sixty days after the plaintiff or plaintiffs have given
43 notice of the violation to the alleged violator, the attorney general,
44 the department of agriculture and markets and, in a city with a popu-
45 lation of one million or more, the city's department of consumer
46 affairs; or
47 (ii) if the attorney general, the department of agriculture and
48 markets, or, in a city with a population of one million or more, the
49 city's department of consumer affairs has commenced a civil or adminis-
50 trative action to require compliance with the provision or regulation;
51 or
52 (iii) if an alleged violator has a pending application for an
53 exemption filed with the department.
54 The court, in issuing any final order in an action commenced or main-
55 tained pursuant to this subdivision, may award costs of litigation,
A. 2089 6
1 including reasonable attorney and expert witness fees, to any prevailing
2 complainant.
3 (d) No packager of a product will be held in violation of this section
4 who can show that, in the purchase of a package or packaging component,
5 he or she relied in good faith on the label of the manufacturer on such
6 packaging or packaging component that such packaging or packaging compo-
7 nent either complied with or was exempt from the requirements of this
8 section.
9 (e) No packager who is engaged in retail sale of food products on
10 behalf of a not-for-profit corporation will be held in violation of this
11 section unless such packager is an employee of such corporation or
12 unless such packager acts knowingly and in bad faith.
13 § 4. Severability. The provisions of this act shall be severable, and
14 if any part of this act shall be held invalid, the remainder of this act
15 and the application thereof shall not be affected thereby.
16 § 5. This act shall take effect immediately.
