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SB5377 Text:

                STATE OF NEW YORK
                               2015-2016 Regular Sessions
                    IN SENATE
                                      May 14, 2015
        Introduced  by  Sen.  AVELLA -- read twice and ordered printed, and when
          printed to be committed to the Committee on Environmental Conservation
          -- recommitted to  the  Committee  on  Environmental  Conservation  in
          accordance  with  Senate  Rule 6, sec. 8 -- committee discharged, bill
          amended, ordered reprinted as amended and recommitted to said  commit-
        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-
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.

        S. 5377--A                          2
     1  aging sold in New York state meet certain standards for reduction, reus-
     2  ability, recycled content, or recyclability.
     3    §  3.  The  environmental  conservation law is amended by adding a new
     4  section 27-0721 to read as follows:
     5  § 27-0721. Packaging reduction and recycling.
     6    1. Definitions. As used in this section: (a) "Concentrate form"  shall
     7  mean  a product sold in a concentrated form that is one-third or less of
     8  the volume of the product in its intended use form.
     9    (b) "Environmentally sound packaging" shall  mean  packaging  that  is
    10  reduced or reusable or recycled or recyclable.
    11    (c)  "Intermediate  package"  shall  mean  a  wrap, box or bundle that
    12  contains two or more unit packages of identical items, and that  may  be
    13  enclosed by a shipping container.
    14    (d) "Manufacturer" shall mean a person, firm, association, partnership
    15  or corporation engaged in the production of packaging.
    16    (e)  "Material" shall mean any substance from which packaging is made,
    17  including, but not limited to, paper, glass, plastic, and metal  or  any
    18  combination thereof.
    19    (f) "Packager" shall mean:
    20    (i)  for  packaging  in which products are placed prior to their entry
    21  into the state, the packager is the person who  receives  title  to  the
    22  shipment  before  or  upon  entry  into the state; provided that if such
    23  person is the purchaser in a retail sale involving direct shipment  from
    24  outside the state, then the packager is the seller;
    25    (ii) for packaging in which a product is placed within the state prior
    26  to  the  sale  of the product, the packager is the person who places the
    27  product in such packaging;
    28    (iii) for packaging provided by a retail seller to a purchaser at  the
    29  point of product delivery, the packager is the retail seller.
    30    (g)  "Packaging"  shall  mean  any  container  used to protect, store,
    31  contain, transport,  display  or  sell  products.  Packaging  shall  not
    32  include  any  detachable closure device such as a cap, clip, cover, lid,
    33  tab, or tamper resistant contrivance.
    34    (h) "Person" shall mean  any  individual,  trust,  firm,  joint  stock
    35  company,  corporation,  partnership, or association, including the state
    36  of New York and any political subdivision of the state of New York.
    37    (i) "Product" means any commodity destined  for  wholesale  or  retail
    38  sale.
    39    (j)  "Recyclable"  shall  mean  packaging made of a material for which
    40  either of the following standards are met, as determined by the  depart-
    41  ment:
    42    (i) access to municipal recyclable recovery programs for that material
    43  is  available  to no less than seventy-five percent of the population of
    44  the state;
    45    (ii) a statewide recycling rate of fifty percent has been achieved for
    46  the packaging material; or
    47    (iii) a manufacturer, distributor or  retailer  achieves  a  statewide
    48  recycling rate of fifty percent for the package sold within the state.
    49    Packaging  composed  of  more  than  one type of material shall not be
    50  considered recyclable unless each material in the packaging that repres-
    51  ents more than an insubstantial part of the packaging meets one of these
    52  standards.
    53    (k) "Recycled" shall mean  packaging  made  with  secondary  materials
    54  content,  which  meets the recycled content standards specified in regu-
    55  lations promulgated by the department pursuant  to  subdivision  two  of
    56  section 27-0717 of this title; provided, however, that within five years

        S. 5377--A                          3
     1  of  the effective date of this section, recycled shall mean a minimum of
     2  forty-five percent by  weight  of  post-consumer  recycled  content,  as
     3  defined by the department.
     4    (l)  "Reduced"  shall  mean  packaging that is either reduced at least
     5  fifteen percent by weight when compared with the packaging used for  the
     6  same  product  by the same packager five years earlier or packaging that
     7  meets a minimum efficiency  ratio  of  ninety  percent  product  to  ten
     8  percent packaging by weight, when measured as the combined weight of the
     9  intermediate  package and the unit package if the product is conveyed to
    10  the consumer in multiple layers of  packaging,  provided  however,  that
    11  packaging  exempted  pursuant to subdivision three of this section shall
    12  not be included in such measurement. In no case may packaging  reduction
    13  be  achieved  by the substitution of a different material category for a
    14  material that constituted a substantial part of the packaging  in  ques-
    15  tion.
    16    (m)  "Retail  sale" shall mean any sale to a purchaser for consumption
    17  or use other than resale or further processing or manufacturing.
    18    (n) "Reusable" shall mean packaging that is designed for refilling  or
    19  reuse  a minimum of five times in a program established by a manufactur-
    20  er, distributor or retailer for refilling or reuse of the packaging.
    21    (o) "Shipment" shall mean packaged products conveyed by truck or other
    22  means of transport, and accompanied by an invoice.
    23    (p) "Shipping container" shall mean packaging that is used in commerce
    24  for packing, storing, and shipping products.
    25    (q) "Unit package" shall mean a package which contains a single  item,
    26  a  quantity  of  the  same item, a set or an item with all its component
    27  parts.
    28    2.  Environmentally sound packaging. Except as provided in subdivision
    29  three of this section, no packager shall use or cause  to  be  used  any
    30  packaging  that  is  not  environmentally  sound packaging after January
    31  first, two thousand nineteen.
    32    3. Exemptions. (a) The following types of packaging shall be  uncondi-
    33  tionally exempt from the provisions of this section:
    34    (i)  packaging  which is in direct contact with food products, and has
    35  not received prior authorization from the federal food and drug adminis-
    36  tration to incorporate recycled content  in  such  packaging,  provided,
    37  however,  such  packaging  also  does  not  comply with the standards as
    38  defined in this section for reusable or reduced or recyclable;
    39    (ii)  packaging  associated  with  drugs,  drug  products,  cosmetics,
    40  medical  food  and medical devices, as those terms are defined under the
    41  Federal Food, Drug and Cosmetic Act and regulations  promulgated  there-
    42  under;
    43    (iii) packaging associated with products offered for sale in a concen-
    44  trate form;
    45    (iv)  packaging for products destined for export from the state if the
    46  packaging is not separated from the product before export;
    47    (v) those packages or packaging components which have  been  delivered
    48  to  a  packager prior to January first, two thousand nineteen; and those
    49  packages or packaging components with a code indicating date of manufac-
    50  ture that were manufactured prior to January first, two  thousand  nine-
    51  teen;
    52    (vi)  packaging  associated  with  retail sales of used merchandise by
    53  individual consumers subsequent to initial retail sale;
    54    (vii) packaging associated with sales of food products by or on behalf
    55  of a not-for-profit corporation, if such corporation has  established  a

        S. 5377--A                          4
     1  pattern,  over a period exceeding twenty years, of relying on such sales
     2  for a significant portion of its financial support.
     3    (b)  Every  packager  seeking a conditional exemption pursuant to this
     4  subdivision shall submit a written application  to  the  department  and
     5  shall  pay  an  application fee, as determined by the department, suffi-
     6  cient to meet only the costs associated with the implementation of  this
     7  subdivision.
     8    (c)  Pursuant  to rules and regulations promulgated by the department,
     9  the commissioner may grant a conditional exemption from any  requirement
    10  of  this  section  if  he  or  she determines that the requirement, when
    11  applied to a particular type of packaging, would impose  undue  hardship
    12  on the general public.
    13    A  packager  applying for a conditional exemption under this paragraph
    14  shall bear the burden of proof in  establishing  undue  hardship.  Undue
    15  hardship shall be established by providing clear and convincing evidence
    16  that there is no environmentally sound packaging available for that type
    17  of product or the packaging is necessary to comply with health or safety
    18  laws  and  there  is  no  environmentally sound packaging available that
    19  complies with those health and safety laws. Exemptions granted  pursuant
    20  to this paragraph shall be for a period not to exceed five years.
    21    (d)  Within  thirty  days  after  the  receipt of an application for a
    22  conditional exemption pursuant to paragraph (c) of this subdivision, the
    23  department shall publish a notice of opportunity for public  comment  on
    24  the  application,  and shall accept written comments from the public for
    25  sixty days thereafter. Before  granting  a  conditional  exemption,  the
    26  department  shall  make a written finding of undue hardship. The depart-
    27  ment shall mail written notice of its  determination  to  the  applicant
    28  within  one  hundred  twenty  days  after  the receipt of an application
    29  pursuant to paragraph (c) of this subdivision and shall publish a notice
    30  of such determination.
    31    4. Labeling requirements. (a) On or after January first, two  thousand
    32  nineteen,  every packager shall ensure that the words "Complies with New
    33  York state packaging law," or abbreviations thereof, are affixed to  all
    34  environmentally sound packaging. The presence of such statement on pack-
    35  aging  shall  indicate that the manufacturer of such packaging certifies
    36  that the packaging is reduced, reusable, recycled, recyclable or  exempt
    37  from  the  requirements  of  this  section. Use of this statement on any
    38  other packaging shall constitute a violation of this section.
    39    (b) For purposes of intermediate or unit packaging containing  one  or
    40  more  layers,  only one compliance label is required, which shall appear
    41  on that portion of the packaged  product  visible  to  the  consumer  at
    42  retail sale.
    43    5.  Regulations. On or before September first, two thousand seventeen,
    44  the department shall adopt rules and regulations necessary to carry  out
    45  the  provisions  of  this  section.  Such  rules  and  regulations shall
    46  include, but need not be limited to:
    47    (a) requirements for packagers  to  demonstrate  compliance  with  the
    48  environmentally sound packaging standards established pursuant to subdi-
    49  vision two of this section, and procedures to ensure effective oversight
    50  of packager compliance with those standards by the department;
    51    (b)  a methodology for the calculation of recycling rates for material
    52  used in recyclable packaging, including the conditions and  criteria  to
    53  be  met  by  a  packager  seeking  to qualify a package as recyclable by
    54  composting such material; and
    55    (c) procedures for department review of exemptions  under  subdivision
    56  three of this section.

        S. 5377--A                          5
     1    6.  Reports  on  recycling  rates.  By  April  first of each year, the
     2  department of economic development, shall submit a report to the  gover-
     3  nor  and  the  legislature  stating the recycling rates for the previous
     4  calendar year for the types of materials used  in  packaging,  assessing
     5  the  levels of post-consumer recycled content in a representative sample
     6  of packaging, and reviewing the status  of  reusable  packaging  in  the
     7  state.  For recyclable packaging, the report shall specify those materi-
     8  als which qualify as recyclable pursuant to each criterion set forth  in
     9  paragraph (j) of subdivision one of this section.
    10    7.  Enforcement  and violations. (a) The department of agriculture and
    11  markets or the department or, in a city with a population of one million
    12  or more, the city's department of consumer affairs, may inspect  packag-
    13  ing  to  determine whether it is environmentally sound. If, on the basis
    14  of such inspection, a determination is made  that  any  packager  is  in
    15  violation  of  the  provisions of this section or any rule or regulation
    16  promulgated thereunder, the department of agriculture and markets or the
    17  department, or, in a city with a population of one million or more,  the
    18  department  of consumer affairs, may issue an order requiring compliance
    19  or issue notice of an administrative enforcement hearing, or both.  Only
    20  one  such  agency   shall issue such order, notice, or hold a hearing on
    21  any one violation. The packager shall be  given  an  opportunity  to  be
    22  heard during any such hearing.
    23    (b) As determined by a civil or administrative hearing, any person who
    24  violates  any  of  the  provisions  of, or who fails to perform any duty
    25  imposed by this section or any rule  or  regulation  promulgated  there-
    26  under,  or  any  final determination or order of the commissioner of the
    27  department of agriculture and markets or the commissioner of the depart-
    28  ment, or in a city with a population of one million or more, the  city's
    29  department  of consumer affairs, shall be liable for a civil penalty not
    30  to exceed fifty dollars for each unit package which is not in compliance
    31  with the provisions of this chapter, or five hundred  dollars  for  each
    32  intermediate  package  or  shipping container which is not in compliance
    33  with the provisions of this chapter, provided that no person shall pay a
    34  penalty in excess of twenty thousand dollars for  any  one  shipment  of
    35  packaging.  In  considering  the amount of the penalty to be imposed for
    36  each violation, the commissioner of the department or  the  commissioner
    37  of  the department of agriculture and markets or the commissioner of the
    38  department of consumer affairs shall  consider  any  evidence  presented
    39  regarding  the  following factors: cost, size, weight of the product and
    40  package, compliance history of the violator, and any other factors which
    41  justice requires.
    42    (c) Any person may commence a civil action in  supreme  court  against
    43  any  packager who is alleged to be in violation of any provision of this
    44  section or any regulation promulgated pursuant to this section. No  such
    45  action may be commenced:
    46    (i)  prior  to sixty days after the plaintiff or plaintiffs have given
    47  notice of the violation to the alleged violator, the  attorney  general,
    48  the  department  of  agriculture and markets and, in a city with a popu-
    49  lation of one  million  or  more,  the  city's  department  of  consumer
    50  affairs; or
    51    (ii)  if  the  attorney  general,  the  department  of agriculture and
    52  markets, or, in a city with a population of one  million  or  more,  the
    53  city's  department of consumer affairs has commenced a civil or adminis-
    54  trative action to require compliance with the provision  or  regulation;
    55  or

        S. 5377--A                          6
     1    (iii)  if  an  alleged  violator  has  a  pending  application  for an
     2  exemption filed with the department.
     3    The  court, in issuing any final order in an action commenced or main-
     4  tained pursuant to this subdivision,  may  award  costs  of  litigation,
     5  including reasonable attorney and expert witness fees, to any prevailing
     6  complainant.
     7    (d) No packager of a product will be held in violation of this section
     8  who  can show that, in the purchase of a package or packaging component,
     9  he or she relied in good faith on the label of the manufacturer on  such
    10  packaging or packaging component that such packaging or packaging compo-
    11  nent  either  complied  with or was exempt from the requirements of this
    12  section.
    13    (e) No packager who is engaged in retail  sale  of  food  products  on
    14  behalf of a not-for-profit corporation will be held in violation of this
    15  section  unless  such  packager  is  an  employee of such corporation or
    16  unless such packager acts knowingly and in bad faith.
    17    § 4. Severability. The provisions of this act shall be severable,  and
    18  if any part of this act shall be held invalid, the remainder of this act
    19  and the application thereof shall not be affected thereby.
    20    § 5.  This act shall take effect immediately.
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