New York’s “Bag Waste Reduction Act” and the regulations promulgated by the New York State Department of Environmental Conservation (NYSDEC) to enforce this law become effective on March 1, 2020. The law bans the distribution of plastic carryout bags, also referred to as film plastic bags, commonly associated with grocery stores. The ban, however, is much broader than that. The law also includes several exemptions. Here’s a summary of some of the pertinent provisions.
First of all, the ban does not apply to shoppers. While shoppers are encouraged to switch to reusable bags, they can bring any type of bag into stores. Rather, the law bans the distribution of plastic carryout bags by anyone who is required to collect tax in New York State. In other words, stores that collect sales tax are banned from using plastic carryout bags for their customers’ purchases. The ban applies even if a particular transaction may be tax-exempt. The most common example is a grocery store that provides single-use plastic carryout bags to pack up groceries at the checkout counter. It also applies to clothing stores, home improvement stores and other retailers that are required to collect tax.
Certain bags are exempt from the ban. These include bags listed in ECL § 27-2801, as further refined in the newly finalized regulations found in 6 NYCRR Part 351. Exempt bags include those that are:
• Used solely to contain or wrap uncooked meat, fish, seafood, poultry, other unwrapped or non-prepackaged food, flower, plant, or other item for the purpose of separating it from other items to prevent contamination, moisture damage, or for sanitary, public health or environmental protection reasons
• Used by a customer solely to package items from bulk containers, such as fruits, vegetables, grains, candy, small hardware items (such as nuts, bolts and screws), live insects or fish or other aquatic items needing a waterproof bag
• Used solely to contain food sliced or prepared to order
• Used solely to contain newspapers for delivery to a subscriber
• Sold in bulk to a consumer at the point of sale
• Sold as trash bags
• Sold as food storage bags, such as snack, sandwich, quart and gallon size bags
• Used as garment bags, such as over-the-hanger bags or used by dry cleaners or laundry service
• Plastic carryout bags provided by a restaurant, tavern or similar food service establishment
• Provided by a pharmacy to carry prescription drugs
• Reusable bags
A “reusable bag” is any bag (a) made of cloth or other machine washable fabric; or (b) other non-film plastic washable bag (such as a thicker plastic bag that can be washed). These bags must have at least one handle or strap that does not stretch, meet certain strength and durability standards, and have a minimum lifespan of 125 uses and the ability to carry at least 22 pounds for at least 175 feet.
Paper carryout bags may be made available by these stores and can be subject to a paper carryout bag reduction fee of 5 cents if this fee is adopted by a municipality. This paper carryout bag reduction fee, however, is not applicable to any customer using supplemental nutritional assistance program (SNAP) or women, infant and children (WIC) benefits as full or partial payment for the items purchased.
Any person required to collect tax who violates the law is subject to civil penalties. The first violation will result in a warning notice. If a violation occurs after the warning notice, a civil penalty of $50 will be imposed and any subsequent violation in the same calendar year will result in a $500 civil penalty.
The law also includes a pre-exemption provision that expressly provides that the state has exclusive jurisdiction of all matters pertaining to plastic carryout bags, thereby foreclosing a local municipality from imposing plastic carryout bag bans or other restrictions.
Some retailers covered by the law already have stopped using plastic carryout bags in their operations. All of them must do so by March 1st. Remember to “BYOB” – bring your own bag on your next shopping trip.