STATE OF NEW YORK
________________________________________________________________________
5377--A
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-
tee
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.
LBD06526-02-6
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.
