Article 27 of the Environmental Conservation Law (ECL) was amended to create a new Title 28 for the New York State Bag Waste Reduction Act (“Bag Waste Reduction Act”). The law takes effect March 1, 2020 and prohibits the distribution of plastic carryout bags by retailers in New York State. The law applies to any retailer required to collect New York State sales tax.
A plastic carryout bag is defined in the Bag Waste Reduction Act as “any plastic bag, other than an exempt bag, that is provided to a customer by a person required to collect tax to be used by the customer to carry tangible personal property, regardless of whether such person required to collect tax sells any tangible personal property or service to the customer, and regardless of whether any tangible personal property or service sold is exempt from tax.” Unlike virtually all local laws concerning plastic bags, New York’s statewide law does not exempt reusable bags from the ban on all plastic bags. Most bag laws in the U.S. set a thickness threshold for plastic film bags to be considered reusable. In New York, reusable checkout bags provided to the customer cannot be made out of plastic at all, regardless of thickness. For example, film plastic bags that are 2.25 millimeters or thicker are still considered plastic carryout bags and are not considered reusable bags.
Effective March 1, 2020, businesses are prohibited from distributing plastic carryout bags to customers unless such bags are specifically exempt by the State. At this time, the Bag Waste Reduction Act exempts the following plastic bags:
- Bags used solely to contain or wrap uncooked meat, fish or poultry;
- Bags used by a consumer solely to package bulk items such as fruits, vegetables, grains or candy;
- Bags used solely to contain food sliced or prepared to order;
- Bags used solely to contain a newspaper for delivery to a subscriber;
- Bags sold in bulk to a consumer at the point of sale;
- Trash bags;
- Food storage bags;
- Garment bags;
- Bags prepackaged for sale to a customer;
- Plastic carryout bags provided by a restaurant, tavern, or similar food service establishment, as defined in the state sanitary code, to carry out or deliver food ; or
- Bags provided by a pharmacy to carry prescription drugs.
Since the adoption of the Bag Waste Reduction Act, a new bill was introduced to remove the exemption for restaurants, taverns, or similar food establishments from the Bag Waste Reduction Act (S5185, A7365). However, no action has been taken at this time.
Jurisdiction in all matters pertaining to single-use plastic carryout bags is now vested exclusively in the State. For example, if a local government currently assesses a fee for plastic bags, that fee will be preempted as of March 1, 2020.
The Bag Waste Reduction Act does, however, allow municipalities to regulate paper carryout bags. A paper carryout bag is defined as a “paper bag, other than an exempt bag, that is provided to a customer by a person required to collect tax to be used by the customer to carry tangible personal property, regardless of whether such person required to collect tax sells any tangible personal property or service to the customer, regardless of whether any tangible personal property or service sold is exempt from tax.” One way all municipalities can regulate paper carryout bags is to ban the distribution of such bags. The Bag Waste Reduction Act does not ban paper carryout bags, and nothing in the law prohibits adoption of a local law banning paper carryout bags- this includes cities, counties, towns and villages.
Another method of regulating paper carryout bags is through a fee, but this method is limited. The Bag Waste Reduction Act includes an optional tax on paper bags that each county or city in New York may impose at their discretion. As of March 1, 2020, counties and cities are authorized to adopt local laws establishing a five (5) cent fee on paper carryout bags distributed to customers who do not bring reusable bags. Two (2) cents is given back to the counties or cities to be used for purchasing and distributing reusable bags, with priority given to low- and fixed-income communities. The remaining three (3) cents will be deposited into the State Environmental Protection Fund (EPF). If a county and a city wholly within such county both impose a paper bag fee, then the fee imposed by such county will not apply within the territorial limits of the city. There will be no fee imposed on paper bags unless the county or city chooses to act. Furthermore, the Bag Waste Reduction Act does not prohibit individual retailers from imposing their own fee on paper bags.
The Bag Waste Reduction Act also contains a provision to allow municipalities that adopted local laws establishing fees on paper bags prior to March 1, 2020 to continue to require the collection of such fees unless and until the county in which the municipality is located adopts a fee on paper bags. ECL § 27-2805(1)(d).
Additionally, the New York State Department of Environmental Conservation (“DEC”) has adopted a new rule to provide clarity to regulated entities and consumers to ensure Titles 27 and 28 of Article 27 of the Environmental Conservation Law are carried out in a coordinated and consistent manner with respect to plastic bag reduction and film plastic recycling. The regulations will become effective on March 14, 2020, and are available at:
https://www.dec.ny.gov/docs/materials_minerals_pdf/part351rvsdexptrmsfinal.pdf.
Municipalities should remind residents and businesses that starting March 1, 2020, all plastic carryout bags (other than an exempt bag) are banned from distribution. The law will affect anyone required to collect New York State sales tax, bag manufacturers and consumers.
Should you have any questions regarding the New York State Bag Waste Reduction Act, please contact Drew Gamils, Esq.
