Three years ago, New York City banned single-use food containers and packing peanuts made out of polystyrene foam. Some suburban counties like Westchester and Nassau soon followed.
Now, the rest of the state is going to give it a try.
New York will become the fourth state to ban single-use foam products when its new law takes effect Jan. 1, following in the footsteps of the city law first implemented at the start of 2019.
The city is exempt from the state law and will continue to implement its local ban. But the rest of New York will be subject to the state ban, which mirrors the city’s rules and aims to dramatically reduce the amount of difficult-to-recycle foam that finds its way into landfills.
“We all grew up with these Styrofoam cups blowing around the street and waterways and parks,” said Basil Seggos, the state environmental conservation commissioner. “That stuff doesn’t biodegrade. So, we’ve seen a good increase in cleanliness in the city and where these bans have been in place, and we’re looking forward to seeing that statewide now.”
Here’s what to know about the state’s new polystyrene foam ban:
What type of foam products will be prohibited in New York?
Much like New York City’s ban, the state ban applies to two categories of foam products:
- Single-use, disposable food containers that contain expanded polystyrene foam (which many people colloquially call Styrofoam, a trademarked brand name.) That includes foam takeout containers, cups, bowls, and the like.
- Packing peanuts, the polystyrene loose fill often found in packages.
Beginning Jan. 1, no manufacturers or retail stores will be allowed to sell or distribute packing peanuts in New York, while no stores or “food service establishments” – think restaurants, delis, grocery stores, cafeterias – will be able to distribute or sell disposable foam food containers, according to the state law.
Are there any exceptions?
There are, and once again – they mirror the city’s rules.
The foam tray that, say, a pound of ground beef comes on? That’s OK under the state law, just as it’s permitted under the city ban. The law specifically exempts polystyrene foam containers that are used for raw meat, pork, seafood or poultry that a customer buys to cook at home.
The law also exempts foam containers used for prepackaged food that is sealed by the time it reaches a restaurant or deli or grocery store.
Meanwhile, non-profit organizations like food pantries and churches can apply for a one-year waiver from the state foam ban that can be renewed with state approval.
Small food-service providers can also apply for a one-year waiver – provided they are not a franchise and they have less than 10 locations with less than $500,000 annual gross income each, according to the law.
So far, not many businesses have even tried for a waiver. Outside of New York City, fewer than 100 had applied as of late December, according to Seggos.
New York City has a similar waiver process for small businesses. As of Dec. 22, the city Department of Small Business Services had issued a total of 64 waivers, according to the agency.
Who will be enforcing the foam ban?
New York City’s existing foam ban will remain in place and will still be enforced by city agencies including the Department of Sanitation, as it has been since it took effect in 2019. The state law specifically exempted the city from the state ban, citing the local rules already in place.
In the rest of New York, several state agencies – including the Department of Environmental Conservation — will have the authority to enforce the new statewide ban, according to the law.
That includes counties like Westchester, Nassau and Suffolk, which had implemented their own polystyrene foam bans shortly after the city did in 2019.
Under the new state law, counties could choose to enforce their own local bans so long as they file a written declaration with the DEC; As of mid-December, none had. (Westchester, in fact, filed a declaration saying they would cede enforcement to the state beginning Jan. 1, according to DEC.)
What are the penalties for violating the foam ban?
The penalties for violating the state ban are the same as the city’s ban: $250 for a first offense, $500 for a second offense, and $1,000 for a third and subsequent offenses in a 12-month period.
Since 2019, the city Department of Sanitation has issued summons for 186 foam-ban violations, including 75 in Manhattan and 50 in the Bronx, according to the agency.
At least two other agencies, including the Department of Health and Mental Hygiene, also have the ability to enforce the city ban.
“We remain committed to working with businesses to ensure that they understand the law and help them transition away from foam products,” Department of Sanitation spokesman Vincent Gragnani said in an email. “We are always happy to provide educational materials, free training or educational site visits to New York City businesses.”
When the state law first takes effect, businesses outside the city can expect something of a grace period: The DEC intends to educate them about the ban first before resorting to penalties, Seggos said.
What kind of food containers will be allowed?
Basically anything other than expanded polystyrene foam.
The city has seen restaurants switch to a variety of materials – aluminum, rigid plastics and uncoated paper among them, Gragnani said.
Judith Enck, president of advocacy group Beyond Plastics, said she’s hoping to see more and more people get in the habit of bringing their own reusable containers to restaurants when they go out to eat, not unlike the way people now bring reusable bags to grocery stores.
“If you go to a coffee shop, you can bring your own coffee mug with you and not have to rely on polystyrene cups,” she said. “If you go out to eat, if you have leftovers, bring your own container with you to reuse.”
Will polystyrene foam manufacturers sue?
The New York City Council initially passed the law that allowed for a polystyrene foam ban in 2013. But it was locked up in court on and off for years before the city’s ban ultimately took effect in 2019.
The legal effort to fight the city ban was led by Dart Container Corporation, the largest manufacturer of foam cups, which sued in an attempt to stop it before its attempts were ultimately dismissed.
Might Dart make an attempt at stopping the state’s foam ban, too?
Don’t count on it, according to Margo Burrage, Dart’s director of corporate communications.
“Although we’re extremely disappointed in the legislation, we do not intend to challenge it,” Burrage said in an email.
This article was updated on Dec. 27, 2021 to include information from Basil Seggos, the state environmental conservation commissioner, additional details from Judith Enck, president of advocacy group Beyond Plastics, and background on legal efforts to fight the city ban.