New York Senate Bill 4246B (2024) - (Amended)

Packaging material means a discrete material or category of material, regardless of recyclability, including but not limited to such material types that are flexible, foam, or rigid, including paper, cardboard, plastic, glass, metal, or multi-material that is used for the containment, protection, handling, delivery, transport, distribution, or presentation of another product that is sold, offered for sale, imported, or distributed in the state, including through an internet transaction, and single-use plastic products that frequent the residential waste stream or are plastic products that have the effect of disrupting recycling processes, including, but not limited to, single-use plastic items such as straws, utensils, cups, plates, and plastic bags.

Packaging material does not include:

1. Medical devices and packaging included with products regulated as a drug, medical device, or dietary supplement by the United States FDA
2. Animal biologics, including vaccines, bacterins, antisera, diagnostic kits, and other products or biological origin, and other packaging materials regulated by the USDA
3. Packaging regulated by the Federal Insecticide, Fungicide, and Rodenticide Act
4. Packaging used to contain hazardous or flammable products regulated by the 2012 federal Occupational Safety and Health Administration
5. Beverage containers subject to a returnable container deposit
6. Infant formula
7. Medical foods
8. Architectural paint containers collected and managed

For packaging materials sold at a physical retail location:
If the packaging materials are sold under the manufacturer's own brand, or sold in packaging lacking a brand, the producer of the packaging material is the the person that manufactures the product.

For products sold or distributed to consumers in packaging materials via remote sale or distribution:
The producer of packaging materials used to directly protect or contain the product is the person that manufactures the product.

For packaging materials sold at a physical retail location:
The producer of the packaging materials is the person that is the licensee of a brand or trademark under which a product is sold or served to a consumer, whether or not the trademark is registered in this state, unless the manufacturer of the packaging materials has agreed to accept responsibility.

For products sold or distributed to consumers in packaging materials via remote sale or distribution:
If there is no brand, the producer of packaging materials used to ship the product to a consumer is the person that manufacturers the shipping material.

For a franchise, the producer is the franchisor, if such franchisor has franchisees that are resident in the state.

For packaging materials sold at a physical retail location:
If there is no brand or licensee, the producer of the packaging material is the person who imports the product into the United States for use in a commercial enterprise that sells, offers for sale, or distributes the product to consumers in this state.

A producer is exempt from the requirements if:

The producer realized less than five million dollars in total gross revenue during the prior calendar year or the producer sold, offered for sale, or distributed for sale products contained, protected, delivered, presented, or distributed in or using less than two tons of packaging material in total during the prior calendar year.

Local governments, state governments and the federal government are excluded from the definition of producer.

The state will select a PRO via a competitive bid process. The state will enter into a contract with a PRO to coordinate the operation of the packaging reduction and recycling program.

Producers shall be required to register with a packaging reduction organization.

There shall be only one PRO for ten years after the effective date. After this time period, the advisory council may recommend additional organizations. The department will issue a request for proposals for additional organizations and will promulgate regulations to have coordination among them all.

Packaging reduction and Recycling Organization means a registered 501(c)(3) not-for-profit charitable organization.

The PRO is responsible for all costs and must reimburse local governments. If the local government does not elect to provide service, a private sector service provider can be contracted.

Program funds will be used to reimburse local governments and private companies for the costs associated with the implementation of reduction, refill, and reuse programs, and costs to provide curbside collection, transportation and recycling, disposal or other processing of packaging materials.

Program funds will be used for education and outreach efforts.

Program funds will be used for reimbursing the department for the costs associated with conducting the statewide needs assessment, administration by the department, and the expenses of the advisory council and the toxic packaging task force.

Program funds will be used for investing in existing and future reuse and recycling infrastructure and market development, including, but not limited to, installing or upgrading equipment to improve sorting of covered materials or mitigating the impacts of materials to other commodities at existing sorting and processing facilities, and capital expenditures for new technology, equipment, and facilities.

Program funds will be used for investing in existing and future reuse and recycling infrastructure and market development, including, but not limited to, installing or upgrading equipment to improve sorting of covered materials or mitigating the impacts of materials to other commodities at existing sorting and processing facilities, and capital expenditures for new technology, equipment, and facilities.

Fees shall be calculated based on packaging material type and quantity of each packaging material type, by weight.

The list of packaging material types for which there is a specific fee shall include, at a minimum, the following material types: paper, cardboard, corrugated cardboard, wood, glass, polyethylene terephthalate (PET), high density polyethylene (HDPE), expanded polystyrene (EPS), polystyrene, bio-plastics, generic plastics, plastic film, other plastics, steel or ferrous, aluminum, tinplate, generic metals, and mixed materials including laminates and packaging containing more than one of the above materials.

Fees shall be structured in a way that provides producers with financial incentives to reduce waste at the source, increase recyclability, promote reuse, discourage contamination, and more.

The fees shall be adjusted, or the producers may be provided a credit, based upon the percentage of post-consumer recycled material content and such percentage of post-consumer recycled content shall be verified by the organization or through an independent third party approved to perform verification services to ensure that such percentage exceeds the minimum requirements in the packaging, as long as the percentage does not disrupt future recycling.

Program fees shall incentivize an increase in the proportion of a producer's total packaging that is managed within a reuse and refill system.

Program fees shall incentivize a reduction in total packaging as measured by unit weight used by producers, and discarded by consumers, businesses, institutions, etc. Weight reductions shall not be achieved by substituting plastic for other materials types.

Program fees shall incentivize a reduction in toxic components in packaging materials and a reduction in litter from packaging materials.

Program fees shall incentivize an increase in the proportion of a producer's total packaging that is deemed recyclable as determined by an annual review process by the department, and an increase in the proportion of a producer's total packaging that is ultimately recycled.

Producers are required to meet the following recycling rate standards, individually:

For non-plastic packaging:

1. Beginning January 1, 2028, a minimum of 35% percent of packaging material reported by the producer or an organization as supplied into the state shall be reused or recycled, with a minimum of 5% being reused.
2. Beginning January 1, 2035, a minimum of 50% of packaging material reported by the producer or an organization as supplied into the state shall be reused or recycled, with a minimum of 10% being reused.
3. Beginning January 1, 2050 a minimum of 75% percent of packaging material reported by the producer or an organization as supplied into the state shall be reused or recycled, with a minimum of 20% being reused.

For plastic packaging:

1. Beginning January 1, 2028 a minimum of 25% of plastic packaging material reported by the producer or an organization as supplied into the state shall be reused or recycled.
2. Beginning January 1, 2035 a minimum of 50% of plastic packaging material reported by the producer or an organization as supplied into the state shall be reused or recycled.
3. Beginning January 1, 2050 a minimum of 75% percent of plastic packaging material reported by the producer or an organization as supplied into the state shall be reused or recycled.

Any adjustment to the statewide recycling and reuse performance targets may not adjust the recycling rate target to less than 35% or more than 75%

Producers are required to meet the following requirements, individually:

Beginning two years after the effective date all glass containers manufactured in the state used by the producer shall contain, on average, at least 35% post-consumer recycled content, all paper carryout bags sold, offered for sale, or given away free in the state by a producer shall contain, on average, at least 40% post-consumer recycled content, with exceptions, all plastic trash bags sold or offered for sale in the state by a producer shall contain, on average, at least 20% post-consumer recycled content.

The requirements of this section shall not apply to reusable or refillable packaging or containers.

Beginning two years after the effective date packaging materials used by a producer shall meet the following recyclability criteria:

1. be capable of being sorted by entities that process recyclable material generated in the state
2. has a consistent regional market for purchase, by end users in the production of new products

Does not contain the following:

1. non-detectable pigments, including but not limited to carbon black
2. the toxic substances set forth in legislation and by the toxic packaging task force
3. opaque or pigmented polyethylene terephthalate
4. oxo-degradable additives, including oxo-biodegradable additives
5. polyethylene terephthalate glycol in rigid packaging
6. label constructions, including adhesives, inks, materials and formats, or features that render a package non-recyclable or disruptive to recycling processes
7. DoPS - polystyrene, including EPS (expanded polystyrene)

Producers are required to meet the following requirements, individually:

1. Three years after a producer first registers with a PRO, a producer shall reduce the amount of primary plastic packaging and the amount of non-primary packaging for all materials used to contain, protect, deliver, present, or distribute the products they sell, offer for sale, or distribute for sale into the state, by 10% by unit weight.
2. Five years after a producer first registers with a PRO, a producer shall reduce the amount of primary plastic packaging and the amount of non-primary packaging for all materials used to contain, protect, deliver, present, or distribute the products they sell, offer for sale, or distribute for sale into the state, by 25% by unit weight.
3. Eight years after a producer first registers with a PRO, a producer shall reduce the amount of primary plastic packaging and the amount of non-primary packaging for all materials used to contain, protect, deliver, present, or distribute the products they sell, offer for sale, or distribute for sale into the state, by 30% by unit weight.
4. Ten years after a producer first registers with a PRO, a producer shall reduce the amount of primary plastic packaging and the amount of non-primary packaging for all materials used to contain, protect, deliver, present, or distribute the products they sell, offer for sale, or distribute for sale into the state, by 40% by unit weight.
5. Twelve years after a producer first registers with a PRO, a producer shall reduce the amount of primary plastic packaging and the amount of non-primary packaging for all materials used to contain, protect, deliver, present, or distribute the products they sell, offer for sale, or distribute for sale into the state, by 50% by unit weight.

The reductions required shall be measured against the total amount of packaging the producer used to contain, protect, deliver, present, or distribute the products they sold, offered for sale, or distributed for sale, during the first year such producer registered with the PRO.

These reductions shall be achieved by eliminating single-use packaging, including secondary or tertiary packaging, elimination of packaging components, reduction of packaging components, or by transitioning to reusable or refillable packaging systems. The reductions shall not be achieved by substituting non-plastic materials with plastic materials or substituting recyclable materials with non-recyclable materials.

The program shall provide for widespread, convenient, and equitable access to collection opportunities for recyclable packaging materials at no additional cost. Such opportunities shall be provided to all residents of the state in a manner that is as convenient as the collection of municipal solid waste.

Within nine months of the effective date, the department shall issue a request for proposals for the operation of the packaging reduction and recycling program with applicable competitive bidding requirements.

Within fifteen months of the effective date, the department shall select and enter into a contract with a not-for-profit organization to act as the initial organization.

Within two years of the the effective date, the initial PRO shall develop and submit a plan to the department. The plan shall cover five years and be updated every five years following the approval of the original plan.

The PRO shall implement the approved plan no later than six months after the plan is approved.

Beginning thirty months after the effective date, a producer shall not sell, offer for sale, or distribute into the state a product contained, protected, delivered, presented, or distributed in packaging unless the producer is registered with an organization and in full compliance with all requirements.

Within sixty days of the advisory council making a recommendation to the department, the department shall make a determination to approve or deny the program plan.

The commissioner shall establish an independent office of recycling inspector general within the department.

The recycling inspector general shall evaluate the programs created on an annual basis and shall ensure such programs are functioning properly, and that all producers are in compliance with the requirements.

The recycling inspector general shall have the authority to investigate the compliance of producers and the organization and to bring enforcement actions for violations.

Annually each organization shall submit a report to the department.

Failure to comply with the requirements shall subject the organization or individual producer to penalties for violations. The department, the recycling inspector general, and the attorney general, may issue a notice of violation to, and impose an administrative civil penalty not to exceed one thousand dollars per day per violation on any entity not in compliance. Each product line that is sold, offered for sale, or distributed to consumers via retail commerce in the state, including through an internet transaction, shall be considered a separate violation.

Education and outreach should include Information on the proper end-of-life management of packaging material, including reuse, recycling, composting, and disposal, as well as, recycling instructions that are consistent statewide, except as necessary to take into account differences among local laws and processing capabilities, easy to understand, and easily accessible.

Education and outreach should include information on how to prevent litter of packaging material in the process of collection.

Education and outreach should include the location and availability of curbside collection and additional drop-off collection opportunities for packaging material, including deposit and take-back programs.

The educational outreach program shall be coordinated with and assist local government programs, local government contracted programs, solid waste collection companies, and other entities providing services.

The plan must include a detailed description of how the organization consulted with the advisory council, the public, and other stakeholders in the development prior to its submission, and to what extent the organization specifically incorporated the advisory council's input into the plan.

The advisory council shall include at least one member from each of the following:

1. A local governmental association or local government program, including an additional local government representative from cities with a population of one million or more residents
2. A statewide environmental organization
3. A representative of an environmental justice community affected by solid waste infrastructure
4. An environmental justice organization
5. A statewide waste disposal or recycling association
6. A materials recovery facility located within the state
7. A recycling collection provider
8. A manufacturer of packaging materials utilizing post-consumer recycled content
9. A consumer advocate
10. A retailer
11. A public health specialist
12. A producer and an organization as non-voting members

A PRO pays for the costs associated with the advisory council.

Recycling means to separate, dismantle or process the materials, components or commodities contained in discards 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, or waste-to-fuel, any chemical conversion process, or landfill disposal.

Beginning two years after the promulgation of rules and regulations, no person or entity shall sell, offer for sale, or distribute into the state any packaging containing toxic substances including: Ortho-phthalates, Bisphenols, Per- and polyfluoroalkyl substances (PFAS), Heavy metals and compounds, including lead, hexavalent, chromium, cadmium, and mercury, Benzophenone and its derivatives, Halogenated flame retardants, Perchlorate, Formaldehyde, Toluene, Antimony and compounds, Carbon black, UV 328 (2-(2H-benzotriazol-2-yl)-4,6-di-tert-pentylphenol), Polyvinyl chloride, including polyvinylidene chloride, Polystyrene, and Polycarbonate.

Within the department, a toxic packaging task force will be formed and review the toxicity in packaging in the state, and recommend to the department the designation of additional toxic substances which shall be subject to the same prohibition as substances listed.

Recycling rate means the percentage of any given packaging type that is ultimately recycled. The recycling rate for any packaging material shall be calculated as the total weight of packaging that is recycled in a given year divided by the total weight of packaging material generated in that year. Material losses, including contaminants and residues, accruing during collection, processing and manufacturing new products do not count as recycled and shall not be included in the numerator of the equation.

No retailer may charge a point-of-sale or other fee to consumers to facilitate a producer to recoup the costs associated with meeting obligations.

All local government or private recycling service providers shall provide for the collection and recycling of all packaging materials contained on the minimum recyclables lists, based on geographic regions, in order to be eligible for reimbursement. Nothing shall penalize a local government or private recycling service for recovering and recycling materials that are generated in the local government or geographic region that are not included on the minimum recyclables lists as long as it can be demonstrated that such materials have a consistent regional market for purchase as determined by the department in consultation with the producer or organization.

Reusable or refillable packaging and containers means packaging material and containers that are specifically designed and manufactured to maintain shape and structure, and be materially durable for repeated sanitizing, washing, and reuse.

Reuse means the return of packaging back into the economic stream for use in the same kind of application intended for the original packaging, without effectuating a change in the original composition of the package, the identity of the product, or the components thereof.

Each organization shall conduct an annual review process to determine whether packaging materials are recyclable.This review shall be conducted in consultation with representatives of end markets, including recycled commodities brokers and manufacturers who purchase post-consumer material for use in manufacturing new products, and in consultation with local governments. For the purposes of calculating producer payments and local government reimbursements, this annual process shall include a transitional period between the date the determination is finalized and the date it goes into effect.