NYS Hazardous Packaging Act
New York State adopted legislation in 1990 under Article 37 of the New York State Environmental Conservation Law (link leaves DEC's website), that set forth specific requirements and restrictions on the use of four toxic heavy metals when used in packaging. The restricted metals include lead, mercury, cadmium and hexavalent chromium. This Hazardous Packaging Law was adopted from model legislation originally developed by the Coalition of Northeast Governors (CONEG) and was designed to reduce the use of these four metals in packaging. Packaging comprises approximately one-third of the waste stream. The law was intended to reduce the toxicity of this waste stream prior to disposal, without impeding the continued use of post-consumer materials in the production of packaging.
In addition to New York, toxics in packaging legislation has now been adopted by nineteen states and various other countries including the European Union. General interpretation and administration of the provisions of the toxics in packaging legislation are handled by the Toxics in Packaging Clearinghouse (TPCH) (leaves DEC's website) of which New York State is a member. The TPCH is presently operated under the Northeast Recycling Council, Inc. (NERC). Specific interpretation and administration of New York's Hazardous Packaging law are handled by the DEC's Division of Materials Management, Bureau of Waste Reduction and Recycling.
The Hazardous Packaging Law establishes maximum concentrations allowable for lead, cadmium, mercury or hexavalent chromium which can be present in any packaging or packaging component sold in New York State:100 parts per million (ppm) by weight total. The Law also sets forth definitions, exemptions, and violation provisions.
While there are exemptions for certain packaging or packaging components, the law is very specific on what packaging and packaging components qualify and why. For example, packaging or packaging components used to comply with health or safety requirements of federal law may be exempt. Please see NYSECL, section 37-0207 for a complete list of these exemptions. If your product meets exemption requirements, you should maintain records documenting the exemption.
Types of Packaging Covered by the Law
All packaging and packaging components used for products that are sold, distributed or promoted in New York State must comply with this law. These range from the containers that hold products from the point of purchase to paints and pigments used in packaging, to metal bands and twist ties.
Resposibility for ensuring compliance
Manufacturers and distributors
All manufacturers and distributors must ensure and certify that their packaging or packaging components do not contain these regulated metals if they are sold, distributed or promoted in New York State. This requirement also applies to packaged products sold, distributed or promoted in New York State. Manufacturers and distributors must maintain a Certificate of Compliance as an assurance that their packaging or packaging components meet these requirements. Additionally, manufacturers and suppliers may need to provide certificates of compliance and documentation of compliance, if requested by DEC.
If you are a purchaser of packaging or packaging components, you should verify that the products you sell, distribute or promote are compliant or have the proper exemption from the law. If your manufacturer or supplier does not provide you with a Certificate of Compliance, you should ask for one.
Additional prohibitions related to PFASs in food packaging (effective 12/31/2022)
Effective December 31, 2022, New York State will also restrict the sale of food packaging containing intentionally added per- and polyfluoroalkyl substances (PFAS). Additional information on these restrictions can be found on the PFAS in Food Packaging Law webpage.