New York Senate Bill 4008 (2023) - (Failed)

Packaging is defined as any part of a package or container, regardless of recyclability or compostability, including paper, plastic, glass, or metal, that is used for the containment, protection, handling, delivery, serving, and presentation of goods that are sold, offered for sale, or distributed to consumers in the state, including through an internet transaction, secondary packaging intended for the consumer market, tertiary packaging used for transportation or distribution directly to a consumer or retailer or packaging ordinarily disposed of after for a single or short-term use.

Paper products are defined as paper and other cellulosic fibers, whether or not they are used as a medium for text or images, containers or packaging used to deliver printed matter directly to the ultimate consumer, paper like flyers, brochures, booklets, catalogs, telephone directories, paper fiber, cardboard and writing paper.

Packaging exclusions include:

1. Packaging that could be come unsafe or unsanitary
2. Literary, text, and reference bound books
3. Newspapers, magazines, and periodicals
4. beverage containers subject to deposit return systems
5. packaging used in industrial or manufacturing processes exclusively
6. Medical device packaging under the Federal Food, Drug, and Cosmetic Act
7. Packaging for animal biologics like vaccines and diagnostic kits and products under the Federal Insecticide, Fungicide, and Rodenticide Act
8. packaging used for long-term storage or protection of a durable product that can be expected to be usable for that purpose for a period of at least five years
9. reusable packaging still functioning for its intended purpose

Single or multi-family residential units are Covered Entities.

Schools and state or local agencies are Covered Entities.

Businesses or institutions are Covered Entities.

Producer is defined in a hierarchy. The first order is the person or company who uses the packaging or paper product under such person's own name or brand and who sells or offers for sale a product that uses the packaging or paper product in the state.

Producer is also defined as the person who imports the packaging or paper product as the owner or licensee of a trademark or brand under which the packaging or paper products are sold or distributed in the state.

If there is no brand or licensee, the person or company that offers for sale, sells, or distributes a product that uses the packaging or paper product in the state is the producer.

Producer exemptions include those who in the most recent calendar year have gross sales sales of less than one million dollars in the state, generate less than one ton of packaging and paper products supplied to the state consumers, operate as a single point of retail sale, or produce, harvest, and package a raw agricultural commodity on the site where the agricultural commodity was grown or raised.

A municipality, local government planning unit, state government, or federal government is excluded from the definition of producer.

A registered 501(c)(3) charitable organization or 501(c)(4)social welfare organization is exempt from the definition of producer.

Producers may form a Producer Responsibility Organization (PRO) and discharge responsibilities to that organization.

Producers may comply individually.

A PRO must be a nonprofit.

The producers or PRO are responsible for all financial costs of the program. The PRO will reimburse municipalities, either directly or through providers.

The program must cover collection, recovery, and processing of all covered materials.

The program must cover public education and outreach for consumers and other stakeholders.

The program must cover administrative costs associated with implementing the program.

The program must cover investments in market development of packaging and paper products.

The program must cover investments in new or upgraded infrastructure.

Producers have an initial producer registration fee in the following tiers in the most recent calendar year:

1. 500 dollars for producers with gross sales of less than five million dollars.
2. One thousand dollars for producers with gross sales of greater than five million dollars but less than twenty million dollars.
3. Ten thousand dollars for producers with gross sales of greater than twenty million dollars and less than fifty million dollars.
4. Twenty-five thousand dollars for producers with gross sales of greater than fifty million dollars.

The fee structure will be developed in the program plan. Within this structure, fees may vary based on costs associated with collection and processing, as well design features such as ease of recyclability or reusability (eco-modulation).

Fees in the program shall consider whether the percentage of post-consumer recycled content exceeds minimum post-consumer recycled content rates and that the content does not disrupt the potential for future recycling.

Fees in the program shall consider whether the packaging and paper product is nonfood contact packaging that is specifically designed to be reusable or refillable and has a high reuse or refill rate, as determined by the department in regulations, and if so, such product shall be excluded from any fees.

Fees in the program shall consider whether the packaging or paper product exceeds the minimum source reduction rate

Fees in the program shall consider whether the packaging or paper product would typically be readily-recyclable except that the product has the effect of disrupting recycling processes or the product includes labels, inks, or adhesives containing heavy metals that would contaminate the recycling process.

Producers or PROs shall meet a minimum recovery rate of thirty-five percent, and a minimum recycling rate of twenty-five percent within five years of the effective date of the legislation. Every five years thereafter, the recovery rate shall increase by ten percent until reaching eighty-five percent, and the recycling rate shall increase by ten percent until reaching seventy-five percent.

Within five years of the effective date of this title, a producer of packaging products shall meet the following minimum post-consumer recycled content rates:

1. All glass packaging shall contain, on average, at least thirty-five percent post- consumer recycled content. Every three years thereafter, the amount of post-consumer recycled content shall increase by five percent, until reaching fifty percent.
2. All metal packaging shall contain, on average, at least fifty percent post-consumer recycled content. Every three years thereafter, the amount of post-consumer recycled content shall increase by ten percent, until reaching ninety percent.
3. All rigid plastic packaging shall contain, on average, at least twenty percent post-consumer recycled content. Every three years thereafter, the amount of post-consumer recycled content shall increase by ten percent, until reaching fifty percent.
4. All non-rigid plastic packaging shall contain, on average, at least ten percent post-consumer recycled content. Every three years thereafter, the amount of post-consumer recycled content shall increase by five percent, until reaching forty percent.
5. All corrugated cardboard packaging shall contain, on average, at least fifty percent post-consumer recycled content. Every three years thereafter, the amount of post-consumer recycled content shall increase by five percent, until reaching seventy-five percent.
6. All paper packaging, other than corrugated cardboard packaging, shall contain, on average, at least thirty percent post-consumer recycled content. Every three years thereafter, the amount of post-consumer recycled content shall increase by ten percent, until reaching seventy percent.
7. Within five years of the effective date of this title, paper products sold or offered for sale in the state by a producer shall contain, on average, at least thirty percent post-consumer recycled content. Every three years thereafter, the amount of post-consumer recycled content shall increase by ten percent, until reaching seventy percent.

Any food-grade packaging or paper products are exempt from the post-consumer recycled content requirements of this section for a period of at least ten years from the effective date of this title.

A producer or producer responsibility organization may submit a request to the department for a waiver from the post-consumer recycled content requirements.

Within ten years of the effective date of this title, a producer or producer responsibility organization shall ensure that by weight or by unit, packaging products meet a source reduction rate of fifteen percent.

Producers or PROs shall provide for free, equitable and convenient system that is as convenient as waste collection, includes all entities participating in the recycling collection schema in the particular jurisdiction, and consistent with relevant state and local laws.

Producers shall register with the department by January 1, 2024.

Every producer with an individual extended producer responsibility program or any PRO, shall submit a producer responsibility program plan to the department for approval by January 1, 2026. Program implementation should begin within six months of plan approval.

Beginning January 1, 2027 no producer shall sell, offer for sale, or distribute packaging or paper products for use in New York unless the producer, or its designated producer responsibility organization, has a producer responsibility program plan approved by the department.

The department shall determine to approve the plan as submitted; approve the plan with conditions; or deny the plan within 90 days after submission.

The PRO shall have its report and data annually audited and verified by an independent third-party auditor, approved by the department.

Producers complying individually or PROs must submit a report to the department 15 months after the first plan is implemented and annually thereafter.

Civil penalties apply to producers who do not comply with the regulation.

Education and outreach from producers must include complying with current labeling rules, laws, or regulations with information to assist consumers in responsibly managing covered products.

Education and outreach from producers must include information on proper end-of-life management of packaging and paper products.

Education and outreach from producers must include information on how to prevent and minimize litter of packaging and paper products.

The PRO shall consult with the advisory committee during the development of the program plan, any updates, and prior to the submission of the plan. The PRO must also consult with stakeholders and the public in the development of the plan.

The advisory committee shall be established and appointed by the commissioner by June 1, 2024.

The members shall include:

1. An association representing municipalities and an additional municipal representative from a city with a population of one million or more residents
2. A municipal recycling program
3. Two representatives from environmental organizations
4. An environmental justice community or organization
5. A statewide waste recycling and disposal association
6. A recyclables handling and recovery facility located within the state of New York
7. A recycling collection provider
8. A manufacturer of packaging materials utilizing post-consumer recycled content
9. A manufacturer of paper materials utilizing post-consumer recycled content
10. A representative of an agriculture organization
11. A representative from the composting industry
12. A consumer advocate
13. A public health specialist

Nonvoting members shall include a representative from each of the following: the retail sector; the grocery sector; and a producer of packaging products, a producer of paper products, and a producer responsibility organization.

Recycling is defined as to separate, dismantle or process the materials, components or commodities contained in discarded packaging and paper products for the purpose of preparing the materials, components, or commodities for use or reuse in new products or components.

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 component materials.

This bill extends antitrust protections to members of a PRO for actions taken in accordance with this regulation.

No point-of-sale may be charged to consumers.

The department shall prepare a statewide needs assessment. An initial needs assessment shall be completed by the department, their contractors, or an independent third party, prior to the approval of any producer responsibility program plan. The needs assessment shall be updated every five years.

A producer implementing an individual extended producer responsibility program or a PRO shall adopt a minimum recyclables list, which lists the minimum types of recyclable paper products and packaging based on available collection and processing infrastructure and recycling markets for covered materials and products, as identified in the needs assessment and subsequent reports. Such a list shall be approved by the department prior to its adoption.

Reusable is defined as designed with the intent to be repeatedly refilled or reused for the same or similar purpose for which it was created for; compliant with any statutory or regulatory requirements for toxic substances; and safe for washing and sanitizing according to applicable state food safety laws.