New York Assembly Bill 10185 (2022) - (Failed)

Packaging material is any part of a package or container, regardless of recyclability or composability, including but not limited to paper, plastic, glass or metal, that is used for the containment, protection, handling, delivery, transport, distribution, and presentation of a product that is sold, offered for sale, or distributed in the state. Bags and secondary or transport packaging are also included.

Packaging that is used for long-term protection or storage of a product (over 5 years) is excluded from coverage. Several other exclusions are listed:

1. Packaging that is reusable
2. Beverage containers that already qualify for deposit/redemption regulations.
3. Medical devices and covered materials and products regulated as a drug, medical device, or dietary supplement.
4. Animal biologics, including vaccines, bacterins, antisera, diagnostic kits, and other products of biological origin.
5. Packaging used to contain toxic or hazardous materials

Producer is defined as a person who manufactures or uses in a commercial enterprise, sells, offers for sale, or distributes the packaging material in the state under the brand of the manufacturer. Producer includes a franchisor of a franchise located in the state but does not include the franchisee operating that franchise.

The definition of producer also includes the entity that is not the manufacturer of the packaging material, but is the owner or licensee of a trademark under which the packaging material is used in commercial enterprise, sold, offered for sale, or distributed in the state, whether or not the trademark is registered.

If the other definitions do not apply a producer can also be an entity that imports the packaging material into the United States or the state for use in a commercial enterprise, sale, offer for sale, or distribution in the state.

A producer is exempt if they realize less than 2 million dollars in total gross revenue or use less than one ton of total packaging material.

Municipalities are exempt from the definition of producer.

Producers are required to participate, either individually or collectively in a packaging producer responsibility program.

Producers may comply individually.

The producers or PRO are responsible for all financial costs of the program. The PRO will reimburse municipalities that choose to continue providing service, either directly or through providers. If a municipality does not choose to provide service, the PRO is responsible for contracting private service providers to fulfill program requirements.

The program must cover the costs of collecting and processing covered materials.

The program must describe the producer's public outreach education program.

The program must cover administrative costs to the department for implementation and oversight.

The program must include a proposed investment in recycling infrastructure.

The department shall promulgate regulations that recommend producer program fees based on packaging materials type, quantity, and weight.

Program fees will be based on eco-modulation. Charges will be structured to provide incentives for reducing waste, using reusable packaging, and disincentivize designs or practices that increase costs of managing the packaging products.

Fees will also be based on a package's contributions to greenhouse gas emissions from production, use, collection, processing, and marketing.

Fees will also be based on whether or not the packaging is specifically designed to be reusable, refillable, is contained within a reuse or refill system, and has a high return or refill rate.

Fees will also be based on whether or not the packaging product is readily recyclable.

Every producer shall ensure that non-reusable packaging is either: recycled at a rate consistent with the following schedule:

1. Fifty percent five years after implementation of the producer plan
2. Eighty percent eight years after plan implementation
3. Ninety percent twelve years after plan implementation

Or incorporates, on average and in the aggregate, the following amount by weight of post-consumer recycled material:

1. Fifty percent five years after plan implementation
2. Eighty percent five years after plan implementation
3. Ninety percent twelve years after plan implementation

There are separate targets for non-reusable and reusable packaging. Non-reusable packaging is required to be reduced (total amount by unit on average and and in the aggregate) by:

1. By ten percent two years after the implementation of the producer plan
2. By at least twenty percent four years after plan implementation
3. By at least thirty percent six years after plan implementation
4. By at least forty percent eight years after plan implementation
5. By at least fifty percent ten years after plan implementation

These reductions may be achieved by eliminating non-reusable packaging, including secondary packaging, or by transitioning away from non-reusable packaging to a reuse and refill system.

A producer or producers shall provide for widespread, convenient, and equitable access to collection opportunities at no additional cost to residents.

Each producer shall register within 6 months of the effective date of the legislation.

Each producer, either individually or collectively, shall submit a program plan to the department within 18 months of the effective date of the legislation.

Program implementation begins within 6 months after the plan approval or no later than 2 years of the effective date of the legislation. After 2 years following the effective date of this legislation a producer may not sell, offer for sale or distribute packaging for use in New York unless they are in compliance with all applicable requirements of the legislation.

The department will approve, approve with conditions, or deny program plans no later than 90 days after the submission.

The department can bring administrative enforcement actions against any producer or other entity in violation of any provision of the title, and to assess and recover penalties as provided in this title.

A producer or producers shall annually report to the department.

The education and outreach materials must be for diverse populations across the state, be accessible, and in multiple languages.

Education, outreach, and communication must label or mark packaging information in accordance with the law including: the percentage of post-consumer recycled material, whether or not the package is readily recyclable and how to recycle the package, or whether the package is compostable. All material must conform with the labeling requirements within 2 years of the effective date of the legislation.

Education, outreach, and communication must cover proper end-of-life management of covered materials and products.

The producer or PRO shall consult with municipalities and other stakeholders on the development of educational materials and may coordinate with municipalities on outreach and communication.

Recycling means the series of activities by which material is: collected, sorted, and processed; converted into a raw material with minimal loss of material quality; and used in the production of a new product to replace the use of virgin materials, including the original material.

Recycling does not include energy recovery or energy generation by any means, including but not limited to combustion, incineration, pyrolysis, gasification, solvolysis, waste to fuel or any chemical conversion process, or landfill disposal of discarded material or discarded product component materials.

Beginning 12/31/2024 no person may sell, offer for sale, distribute for sale, or distribute for use: any packaging material containing the following toxic substances above the practical quantification limit, as such term is defined in section 37-0901 of this chapter: ortho-phthalates; bisphenols; per and polyfluoroalkyl substances (PFAS); lead and lead compounds; hexavalent chromium and compounds; cadmium and cadmium compounds; mercury and mercury compounds; benzophenone and its derivatives; halogenated flame retardants; perchlorate; formaldehyde; and toluene.

Beginning one year after the effective date of this legislation, no person may sell, offer for sale, distribute for sale, or distribute for use in this state, any packaging products containing the following toxic substances above the practical quantification limit: polyvinyl chloride; polystyrene; or polycarbonate

No person may charge a consumer point-of-sale or point of collection fee to recoup the costs associated with meeting the obligations under this legislation.

Within 6 months of the effective date of the legislation, the department or a third party will conduct a needs assessment statewide. The assessment will identify barriers and opportunities for reducing, reusing, and recycling packaging including capacity costs, gaps and needs for the following factors: barriers, opportunities, funding needs, existing statutory provisions, and funding sources, capacities, costs, etc. The department is responsible for updating and revising the assessment every 3 years and shall post the results online and report to the legislature.

The producer or producers shall adopt a list of minimum types of readily recyclable materials and products based on the department's identification of available collection and processing infrastructure and recycling markets for packaging materials. The producer or producers shall update and adopt the list on an annual basis, in consultation with the department, in response to collection and processing improvements and changes in recycling end markets.

If there are multiple lists, the department shall compile the lists and shall publish a compiled list to the public. Such lists may vary by geographic region depending on regional markets and regional collection and processing infrastructure.

All municipalities or private recycling service providers shall provide for the collection and recycling of all identified materials and products contained on the list of minimum recyclables, based on geographic regions, in order to be eligible for reimbursement; provided, however, nothing shall penalize a municipality or private recycling service for packaging materials that are generated in the municipality or geographic region that are not included on the list of minimum types of recyclable packaging materials or products.

"Reusable" means: designed to be used repeatedly for a number of use cycles that exceeds the minimum number of times necessary to achieve the same over all environmental impact as the non-reusable or disposable product it replaces, based on a life cycle assessment of the product's impacts from extraction through production and through disposal or end of life management; compliant with any statutory or regulatory requirements for toxic substances; safe for washing and sanitizing according to applicable state food safety laws; and capable of being recycled at the end of use, with the exception of ceramic products.