Testimony – Proposed Part 351, Plastic Bag Reduction, Reuse, and Recycling (New 6 NYCRR Part 351)

Commissioner Seggos, members of the State Department of Environmental Conservation staff, first let me thank you for the opportunity to testify today and for your commitment to working with all the stakeholders interested and impacted in this new statute.

My name is Mike Durant, President and CEO of the Food Industry Alliance of New York State, Inc., which represents the full spectrum of the retail food industry. It goes without saying that my members are those most impacted by this statute.

My testimony today will focus on the draft regulations, which is the intent of this public hearing, but I will quickly list other concerns we have as a point of public record.

Our position on any single-use plastic bag legislation was for the state to implement a fee-based approach, i.e. the Suffolk County model. While not a ban, we felt that a fee on both single-use paper and plastic bags would strongly curb consumer reliance on single use bags and would be a sustainable solution for the environment. It should be noted that FIA and our members continue to work with the Suffolk County 5 and 5 Education and Effectiveness Working Group, providing store level data and education/outreach to both consumers and our store operators. To date, it also should be noted that plastic and paper bag use at stores has seen a reduction of 80% and nearly 63% of consumers are bringing their own bags or opting for no bag. I mention this because lost in the debate of a statewide standard was the fact that the retail food industry has been a leader in promoting best environmental practices at the store and consumer level.

When the final legislative agreement was announced, we were disappointed by a number of factors, including the lack of statewide consistency with respect to single use paper bags, the fact that retailers were not included in the receipt of any portion of the fee, that the fee based model was not accepted and a significant lack of clarity in what would or would not be an allowable reusable bag.

To the last point, we appreciate the communication and guidance that DEC has provided FIA and our members. The decision to propose these implementation regulations also help provide clarity as we get closer to the March 1st effective date.

Currently, retail food stores offer for purchase by consumers a variety of reusable shopping bag options. The determination in what to offer consumers depends upon numerous factors, from local economics, consumer demographics and interest. Among those offerings are a large number of reusable bags that are currently sold by retailers and utilized by consumers. With the original legislation, it appeared that most of those offerings would fall under the ban. These regulations address specifically many of those bags. By imposing reasonable durability standards, the allowance of petroleum and non-petroleum-based low and high density polyethylene reusable bags and woven or non-woven polypropylene reusable bags will help ensure retailers can continue to offer consumers the reusable bags they are currently utilizing.

Allowing these reusable bags to continue to be present in the marketplace will help mitigate some of the disruption our members face post March 1st. To this end, we support these implementation regulations specific to the definition of the reusable bags and feel that the thickness and durability standards are fair.

Concerns, however, still remain. Starting with, as the retail food industry evolves, the impact of the law and proposed regulations with respect to their application with the increased demand in home delivery of groceries and/or prepared meals? Reusable bags are not an option as the purchases are delivered to the home. Is this exempt from the single-use plastic bag ban? Specifically, to what extent does the law apply to orders placed online, including click and deliver and click and collect? Additionally, to what extent does the paper bag fee apply in the above scenarios in counties or cities that opt-in to the paper bag fee? Clarity and guidance are needed.

Recycling Responsibilities
As we know, retail food stores currently are required to establish and maintain an “at-store” recycling program. The intent was that consumers would return “clean and dry plastic carryout bags and other film plastic” to the store. Retail food stores have willingly participated in this program and encouraged consumers to do the same. Unfortunately, consumer participation ebbs and flows and often any film plastic returned to the stores often does not meet the definition of clean.

The proposed regulations state that retail food stores must continue to maintain this in-store recycling program. Which lends to the question of why? This has a cost to the store, and the lack of cleanliness in anything returned offers a host of issues within the store. Further, all plastic bags, except for exempt bags, are banned effective of March 1st. Most of any single-use plastic that remains will likely, as is the norm currently, be placed in curbside or other municipal recycling that exists. Continuing this mandate on the retailer is non-sensical.

Section 27-2803(3) of the Bag Waste Reduction Law states that “Nothing in this section shall be deemed to exempt the provisions set forth in title 27 of this article relating to at store recycling”. But title 27 (the Plastic Bag Reduction, Reuse and Recycling Law), by its terms, only applies to “stores,” defined as “…a retail establishment that provides plastic carryout bags to its customers as a result of the sale of a product…” By prohibiting the distribution of plastic carryout bags, the Bag Waste Reduction Law causes all retailers in the state to be exempt from the requirements of the Plastic Bag Reduction, Reuse and Recycling Law. The assertion that no provision of the Bag Waste Reduction Law creates a new exemption under the Plastic Bag Reduction, Reuse and Recycling Law does not change that. Please confirm.

Paper Bags
Though few localities as of today have publicly determined to opt-in to the paper bag fee, the law is open ended for localities to make that decision. Thus, we could have a constant fluidity relative to paper bags in the months or years moving forward. This lack of finality to the determination could have industry disruptions and confusion moving forward.

Additionally, among the immediate post March 1st concerns is the ability for retailers to meet consumer single-use paper bag demands. When the DEC Task force examined a potential single-use plastic bag ban, the concern of a dramatic increase in paper bags was highlighted. Simple supply and demand economics are going to dictate a dramatic increase in pricing for retailers and could result in a shortage, not only in New York, but throughout the northeast region of the United States. Paper bag supply for retailers operating in New York post the single-use plastic bag ban is impossible to project but considering the lack of manufacturers and minimal reserves within those manufacturers, New York retailers and consumers will be faced with a single-use paper bag shortage. This, coupled with the lack of inclusion for retailers with respect to the fee, is a significant issue moving forward. Our hope as we move forward that the DEC or state legislature will reexamine the fee structure.

Further, there is a lack of clarity with respect to the fee itself. Simply, in those localities that opt-in, is the fee set at five cents or can retailers charge more? Specifically, Section 27-2805(1)(b) states that “Such paper carryout bag reduction fee…shall be imposed at a rate of five cents on each paper carryout bag…” It does not specify whether this is a minimum or a fixed rate. We request that it be a minimum rate to offset that increased costs food retailers are going to be facing.

For example, a county that opts-in to the five-cent fee, with the distribution of the fee as set in the statute, could a retailer operating in that county charge seven or ten cents and retain the difference?

Further, in any locality that does not opt-in, is there any interpretation of this law that prohibits a retailer from charging any fee amount on single-use paper bags? In recent days there have been public announcements that some food retailers will be changing a fee on single-use paper bags statewide regardless of a locality determination.

Additionally, there remains confusion with regards to localities that have already enacted fees on paper carryout bags.

Specifically, section 27-2805(1)(b) of the Bag Waste Reduction Law states that “Such paper carryout bag reduction fee…shall be imposed at a rate of five cents on each paper carryout bag…; provided, however, that such paper carryout bag reduction fee shall not be imposed on paper carryout bags that are subject to a fee on the provision of such paper carryout bag pursuant to a local law…that was adopted prior to the effective date of this section.”
Accordingly, any paper carryout bag reduction fee adopted by a city or county prior to March 1, 2020 would not be deemed a paper carryout bag reduction fee authorized under Section 27-2805(1)(a) of the Bag Waste Reduction Law. Please confirm.

Enforcement
Our last concern to discuss today is with respect to enforcement. Retail food stores are making determinations based on communication with DEC through FIA or independently and in response to the proposed regulations. The Fall of 2019 is when orders are made through their suppliers with respect to their single-use and reusable bag needs. We all understand that single-use plastic bags are banned on March 1st. We also all understand that stores can offer single-use paper bags and there may or may not be fees affixed. But there are significant reusable bags being offered by retailers out of their current stock and what has been ordered for the first two quarters of 2020. With the comment period ending a few weeks before March 1st, when will we know what is allowable? If polyethylene, polypropylene reusable bags are determined to not be allowable, is enforcement immediate? Will stores be allowed to sell off existing stock? Is there going to be a retail and consumer education period?

While the proposed implementation regulations have provided some insight into where the state is headed, they are obviously not final. Retailers have reacted to the proposed regulations and the timing of all of this could have further disruption to the industry. We ask that any enforcement regardless of the final regulations is delayed for an appropriate amount of time. This will ensure retailers have the compliance information they need, can source allowable reusable bags, which it should be noted could prove problematic depending on the final regulations and allows education for store level operators and consumers.

While FIA held a position on this important issue that ran counter to the end result, the fight over single-use plastic bags is over. It is our position now to mitigate the economic impact on our members and ensure compliance. The concerns with the final legislation, even when these potential regulations are considered, remain. It is our hope that communication and partnership continue and that our concerns as presented today are strongly considered.

We thank you for the opportunity to testify today.

Respectfully submitted,
Michael P. Durant
President and CEO