Expanded Polystyrene Foam Container and Polystyrene Loose Fill Packaging Ban
In 2020, New York State adopted the nation's strongest statewide ban of expanded polystyrene, single-use foam food and beverage containers, and polystyrene loose fill packaging materials, commonly known as packing peanuts.
Polystyrene foam is a concern for people and the environment. Foam packaging is one of the top contributors of environmental litter, causing negative impacts to wildlife, waterways, and other natural resources, as well as littering our communities and natural areas. It is lightweight, breaks apart easily, and does not readily biodegrade. When polystyrene foam ends up as litter in the environment, it can persist for a long time and may also become microplastic pollution. In addition, foam containers and loose fill packaging, such as packing peanuts, are not accepted in most recycling programs in New York State because the foam is difficult to recycle and has a low value. For these reasons, certain expanded polystyrene foam products are now banned in New York State to protect the environment, our communities, and to support sustainable materials management.
Start Date of the Ban - January 1, 2022.
Foam Ban
Under the Expanded Polystyrene Foam Container and Polystyrene Loose Fill Packaging Ban, effective January 1, 2022, no covered food service provider or store (retail or wholesale) is allowed to sell, offer for sale, or distribute disposable food service containers that contain expanded polystyrene foam in New York State. In addition, no manufacturer or store is allowed to sell, offer for sale, or distribute polystyrene loose fill packaging (commonly referred to as packing peanuts) in the state.
- Environmental Conservation Law (ECL), Article 27, Title 30: Expanded Polystyrene Foam Container and Loose Fill Packaging Ban (PDF, 145 KB)
Covered Food Service Providers
A covered food service provider is any person engaged in the business of selling or distributing prepared food or beverages for on-premises or off-premises consumption.
Examples of covered food service providers include:
- Food service establishments, caterers, temporary food service establishments, mobile food service establishments and pushcarts as defined in the New York State Sanitary Code;
- Retail food stores as defined in article 28 of the Agriculture and Markets Law;
- Delis;
- Grocery stores;
- Restaurants;
- Cafeterias;
- Coffee shops;
- Hospitals, adult care facilities, and nursing homes; and
- Elementary and secondary schools, colleges, and universities.
Stores and Distributors
In addition to covered food service providers, no store (retail or wholesale establishment) is allowed to sell, offer for sale, or distribute disposable food service containers or loose fill packaging that contains expanded polystyrene foam in or into New York State. For stores, this prohibition also applies to:
- Sales or distribution of disposable food service containers or loose fill packaging by any retail or wholesale establishment in New York State, and any store outside of New York State, to any person in New York State;
- Online sales of foam containers or packaging to customers in New York State; and
- Sales or distribution to covered food service providers or facilities in New York State that have approved financial hardship waivers. See also Financial Hardship Waiver Overview.
Manufacturers
No person, firm, or corporation that produces or imports expanded polystyrene loose fill packaging is allowed to sell, offer for sale, or distribute expanded polystyrene loose fill packaging in New York State.
Containers and Packaging Affected Under the Ban
Disposable food service containers made of expanded polystyrene that are banned include bowls, cartons, hinged "clamshell" containers, cups, lids, plates, trays, or any other product designed or used to temporarily store or transport prepared foods or beverages, and includes any container generally recognized as designed for single use. Polystyrene loose fill packaging (commonly referred to as packing peanuts) is also banned.
Exemptions
This law does NOT apply to:
- Raw meat, pork, seafood, poultry, or fish sold for the purpose of cooking or preparing off-premises by the customer;
- Prepackaged food filled or sealed prior to receipt at a covered food service provider;
- Food service containers made from rigid polystyrene resin that has not been expanded, extruded, or foamed (e.g., clear plastic containers marked with a #6 resin identifier);
- A city with a population of one million or more which has a local polystyrene ban in place, including New York City ; and
- Any county that enacts a polystyrene ban by local law, ordinance, or regulation that provides environmental protection equal to or greater than the state law and the county files a written declaration with DEC. All other local laws are preempted by state law.
- Please e-mail [email protected] for information about filing a written declaration with DEC.
Alternatives
Any alternative may be used, as long as the alternative food/ beverage container or packaging product does not contain expanded polystyrene foam. DEC encourages the use of reusable, recyclable, and compostable items, source reduction and items made using recycled content where possible.
Financial Hardship Waiver Overview
Covered food service providers and facilities that meet certain criteria may apply for a renewable 12-month financial hardship waiver of these requirements from DEC. The primary purpose of the financial hardship waiver is to allow a covered food service provider/facility to use any remaining supply of foam containers that could not be used up by January 1, 2022.
No store (retail or wholesale establishment) located in New York State or outside of New York State is allowed to sell, offer for sale, or distribute disposable food service containers that contain expanded polystyrene foam, in New York State. This includes online sales to New York State customers, and sales or distribution to covered food service providers or facilities in New York State that have approved hardship waivers. A financial hardship waiver only applies to the facility or covered food service provided that is granted the waiver. It does not also cover the other entities in the same distribution chain as the facility/covered food service provider with a waiver, such as retail or wholesale establishments or distributors. Any covered food service provider or store without a waiver cannot make any sales or distribute any foam containers in or into New York State to any person (even a covered food service provider/facility with a financial hardship waiver), as of January 1, 2022.
Financial Hardship Waiver Eligibility
Eligible Facilities: Any facility, regardless of its income, operated by a not-for-profit corporation or by a federal, state, or local government agency that provides food and meals to food insecure individuals at no or nominal charge, may request a financial hardship waiver of the requirements of the law.
Examples include:
- Community meal programs;
- Food pantries; and
- Places of worship.
Eligible Covered Food Service Providers: To be eligible for a financial hardship waiver, covered food service providers must meet the following criteria:
- Have an annual gross income under $500,000 per location;
- Do not operate 10 or more locations in New York State; and
- Are not operated pursuant to a franchise agreement.
Requesting a Financial Hardship Waiver
Financial hardship waivers may be granted for one or more disposable food service containers, to an eligible facility or to an eligible covered food service provider that demonstrates that there is no alternative product of comparable cost that is not composed of expanded polystyrene foam, the purchase or use of an alternative product would create an undue financial hardship, and the main intent is to use up any remaining supply of foam containers.
- Waiver Request Form (PDF, 2 MB): This form may be used by eligible Covered Food Service Providers and Facilities who would like to request a waiver from the requirements of the Law and who are looking to use up an existing supply of foam containers.
Translated waiver request available in: Spanish, Chinese, Russian, Yiddish, Bengali, Korean, Haitian Creole, Italian, Arabic, Polish
Regulations
DEC is authorized to promulgate rules and regulations as necessary to implement the provisions of the new law.
- Adopted Part 353 Expanded Polystyrene Foam Container and Loose Fill Packaging Reduction: This rulemaking implements the provisions of the Expanded Polystyrene Foam Container and Polystyrene Loose Fill Packaging Ban.
Foam Free NY Outreach Materials
These educational resources about NY's Foam Ban are available for download.
- NY Foam Ban fact sheet
- NY Foam Ban tip strip
- Foam Free NY social media graphics and other resources
- EPS Alternatives Reference Guide (June, 2022) in English (PDF, 3 MB) and Spanish (PDF, 3 MB)
Submitting a Foam Ban Complaint
Polystyrene Foam Ban Complaint Form - This online fillable form is for complaints related to the NYS Expanded Polystyrene Foam Container and Polystyrene Loose Fill Packaging Ban (ECL § 27-3003(1)) and the corresponding regulations (6 NYCRR Part 353) outside of New York City.
Guidance and Resources
Alternative Container and Packaging Guidance
- Foam Container, Void Fill and Protective Packaging Alternatives Guide (NYS Center for Sustainable Materials Management)
- Green NY Approved EO4 Specifications: Specifications for Foodservice Containers and Wrappers
- Reuseables Cost Savings Calculator- Rethink Disposables
- Reuse Wins- The environmental, economic, and business case for transitioning from single-use to reuse in food service
- Guidelines and Best Practices for Reusable containers in food supply chains
- Toxics in Packaging Clearinghouse
- Manhattan Solid Waste Advisory Board foam alternatives page
- Buy Recycled Products Directory - Use the Green buttons at the top to click "More" and then "Packaging" to limit the results to packaging options
- Understanding Packaging Scorecard
- Green Screen for Safer Chemicals
PFAS Packaging Guidance
Effective December 31, 2022, the prohibition on PFAS in food packaging (ECL Article 37, Title 2) will ban the distribution and sale, in New York, of food packaging that contains intentionally added per- and polyfluoroalkyl substances (PFAS). Under this law, the term "intentionally added" means that the chemical "serves an intended function in the product component,", and, therefore, includes such chemicals as water-proofing or grease-proofing agents. This restriction applies to food packaging intended for direct food contact that is comprised mainly of paper, paperboard, or other materials originally derived from plant fibers. And further, under the definitions of this law, the term "package" includes items such as carrying cases, crates, cups, pails, trays, wrappers, bags and tubs.
As such, purchasers should avoid paper, paperboard, or molded fiber food packaging where PFAS has been added to provide water-proofing, grease-proofing, or other functions. The best source of information on whether food packaging contains intentionally-added PFAS is likely to be the packaging manufacturer or supplier.
Center for Environmental Health Single-Use Foodware Guidance
PFAS Chemicals in Food Packaging Report- Safer Chemicals Healthy Families
DEC's PFAS in Food Packaging Law
For Schools
Ditching Disposables: A Toolkit for Healthier Foodware in K-12 Schools
Waste Reduction
Going Zero Waste: A How to Guide For Businesses- NYS Pollution Prevention Institute
For Residents
Recycle Right NY Recyclopedia - how to recycle takeout containers and packing materials
Trash Free Waters- US Environmental Protection Agency
NYS Department of Environmental Conservation- Microplastics and Marine Debris video
Questions?
Please contact [email protected] if you have questions.
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