New York State Department of Environmental Conservation (DEC) Commissioner Basil Seggos announced proposed regulations to implement a ban on expanded polystyrene foam containers and loose fill packaging, commonly referred to as packing peanuts, that goes into effect January 1, 2022.
The ban builds on New York’s efforts to prevent litter and waste reduction through measures such as the ban on plastic carryout bags, the bottle bill, and food scrap recycling and food waste prevention efforts. New York is among the first states to ban polystyrene packaging and fill. DEC is accepting comments until November 22, 2021.
“New York’s proposed regulations to implement a ban on polystyrene foam containers and packing material will reduce the waste headed to landfills and combustors,” Seggos said. “The ban creates enormous long term benefits for the environment by helping to reduce litter, clean up the recycling stream, prevent macro/microplastic pollution, and bolster the ongoing transition to more sustainable alternatives. I encourage New Yorkers to review the draft regulations and provide comments as we work to remove these single-use plastic products from our waste stream to protect the environment, both now and into the future.”
The law and proposed regulations prohibit any person engaged in the business of selling or distributing prepared food or beverages for on or off premises consumption from selling, offering for sale, or distributing disposable food service containers that contain expanded polystyrene foam in New York. In addition, no manufacturer or store will be allowed to sell, offer for sale, or distribute polystyrene loose fill packaging in the state.
Examples of covered food service providers required to comply with the ban include:
•Food service establishments, caterers, temporary food service establishments, mobile food service establishments, and pushcarts as defined in the New York State Sanitary Code;
•Retail food stores, as defined in Article 28 of the Agriculture and Markets Law, which include any establishment where food and food products are offered to the consumer and intended for off-premises consumption;
•Delis, grocery stores, restaurants, cafeterias, and coffee shops;
•Hospitals, adult care facilities, and nursing homes; and
•Elementary and secondary schools, colleges, and universities.
Disposable food service containers made of expanded polystyrene that will be banned under the law and proposed regulations include bowls, cartons, hinged “clamshell” containers, cups, lids, plates, trays, or any other product designed or used to temporarily store or transport prepared foods or beverages, including containers generally recognized as designed for single use. Under the law, certain facilities and covered food service providers may request a financial hardship waiver, which may apply to one or more disposable food service containers. The proposed regulations detail the application process and approval criteria.
The law and proposed regulations include exemptions for raw meat, pork, seafood, poultry, or fish sold for the purpose of cooking or preparing off-site by the customer and prepackaged food filled or sealed prior to receipt at a covered food service provider. The law does not apply in New York City because the city has a local polystyrene ban in place and meets the law’s population threshold. Other local laws enacting a polystyrene ban are preempted by the state law, except any county law enacting a polystyrene ban providing environmental protection equal to or greater than the state law or regulations will not be preempted if the county files a written declaration with DEC of its intent to administer and enforce its local law.
The full text of the draft regulations, including express terms, hearing information, and related information pertaining to the proposed rulemaking, is available on NY DEC’s website.
Published in the October 2021 Edition