Affected Entities Include Restaurants, Grocery Stores, Hospitals, Schools, Universities, Retailers and Manufacturers

State Department of Environmental Conservation (DEC) Commissioner Basil Seggos today reminded affected stakeholders—including entities that sell or distribute disposable food service containers, such as retail food stores, restaurants, hospitals, and schools, among others—that New York’s ban on expanded polystyrene foam containers and loose fill packaging, commonly referred to as 'packing peanuts,' begins Jan. 1, 2022. The ban builds on New York's environmental leadership in preventing litter, reducing waste and supporting recycling 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 foam containers and loose fill. An estimated 65 percent of New Yorkers are already subject to local foam bans. Initially, DEC will focus its efforts on outreach and education to ensure a smooth transition for affected stakeholders, with enforcement to follow. 

"It’s simple, New York’s statewide ban on polystyrene foam containers and packing peanuts will reduce the waste headed to landfills and combustors," Commissioner Seggos said. "The foam ban will reduce litter, clean up the recycling stream, and support the state’s ongoing transition to more sustainable containers and packaging alternatives. This is the logical next step to remove single-use products from our waste stream to protect the environment for generations to come."

New York’s ban, which begins on Jan.1, prohibits 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. Disposable food service containers made of expanded polystyrene foam banned under the law 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. 

DEC is currently reviewing public comments received on proposed regulations to implement the ban. The proposed regulations were released earlier this year and DEC anticipates releasing final regulations in the coming months. DEC’s ongoing outreach to affected entities is focused on education, followed by potential enforcement.  

Expanded polystyrene (EPS) foam is a major contributor to environmental litter, causing negative impacts to wildlife, waterways, and natural resources. EPS foam is lightweight, breaks apart easily, and does not readily biodegrade, rendering it persistent in the environment and susceptible to becoming microplastic pollution. In addition, EPS foam containers and loose fill packaging are not accepted by most recycling programs in New York State because the foam is difficult to recycle, easily contaminates the recycling stream, is often soiled, and has low value.

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.
  

Under the law, any facility, regardless of its income, operated by a not-for-profit corporation or by a federal, state, or local government agency that provides food and meals to food insecure individuals at no or nominal charge may request a financial hardship waiver of the requirements of the law. Examples include:

• Community meal programs;
• Food pantries; and
• Places of worship.
  

Covered food service providers may also be eligible to request a hardship waiver if they meet the following criteria: have an annual gross income under $500,000 per location; do not operate 10 or more locations in New York State; and are not operated pursuant to a franchise agreement. Retail or wholesale stores that sell EPS foam food and beverage containers or loose fill packaging are not eligible to apply for financial hardship waivers.

The law and DEC’s proposed regulations to implement the law 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 if the county files a written declaration with DEC of its intent to administer and enforce its local law. Currently, an estimated 65 percent of New York State's population is subject to a ban on polystyrene foam containers and/or packing peanuts.

DEC’s outreach and education efforts about the ban are underway, helping those affected by the new law get up to speed with the requirements. DEC continues to conduct outreach and education through the website, educational webinars, newsletters, listservs, magazines, social media, phone calls, and e-mail communications with stakeholders and the public. In addition, DEC is working in close partnership with other State agencies such as the Departments of Health and Agriculture and Markets to distribute outreach materials to retailers and covered food service providers directly affected by this law. DEC is also working with other partners, such as the Pollution Prevention Institute, NYS Center for Sustainable Materials Management, and NYS Association for Reduction, Reuse and Recycling to ensure affected providers receive information regarding the ban.  

Please visit DEC’s website with more information about the proposed regulations to implement the Expanded Polystyrene Foam Container and Polystyrene Loose Fill Packaging Ban.