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 municipal solid 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) of which New York State is a member. The TPCH is presently operated under the Northeast Waste Management Officials' Association (NEWMO). 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.
Exemptions
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.
Responsibility 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.
Purchaser
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 Information Pursuant to Environmental Conservation Law § 37-0213
DEC continues to review toxic substances contained in packaging that could be included in the list of hazardous ingredients under this title. The intentional addition of lead, mercury, cadmium, or hexavalent chromium substances in packaging has largely been eliminated and replaced with substitutes that are widely considered to be safer while still maintaining functionality. Additionally, New York participates in the TPCH, which is a multi-state coalition that focuses on eliminating toxic chemicals in packaging. Packaging screening projects to determine potential continued use or incidental presence of these chemicals is coordinated by the TPCH member states and conducted periodically.
In December 2020, the Governor signed an amendment to this title that restricted intentionally added per- and polyfluoroalkyl substances (PFAS) in food packaging. Additional information on these restrictions can be found on the PFAS in Food Packaging Law webpage.
DEC has committed in its State Solid Waste Management Plan to partnering with the colleges and universities in New York to better understand the presence of toxic materials, such as PFAS, in products and to enhance DEC’s implementation of programs that restrict their use or require their disclosure. Further, the Department will partner with colleges and universities in New York to identify ways to reduce or eliminate toxic chemicals in products through process changes, safer chemistries or other options.
