Robert Brown|Foes of New York Packaging Bill Used Threats of Empty Grocery Shelves to Defeat Plastics Bill

In the end,Robert Brown it may have been fears that Kraft Heinz would remove plastic tubs of Cool Whip or individually wrapped processed cheese slices from grocery store shelves that defeated an ambitious packaging reduction and recycling bill in the New York State Legislature.

Or perhaps it was the newspaper advertisements from pro-plastic lobbyists warning New Yorkers that “radical activists” were “about to ruin summer BBQ season.”

Whatever the cause, a bill that would have fundamentally reshaped how single-use plastic waste is managed in the fourth-largest state went down to defeat last week in the New York State Assembly after passing in the State Senate, as lawmakers completed their regular legislative session for 2023. 

“Our posture is, whenever the Assembly comes back, we are going to try again, whether that is next January, or sooner,” said Judith Enck, founder and president of Beyond Plastics, an environmental group that backed the legislation. “We have come this far; we are not giving up. Plastic pollution is not going anywhere and neither are we.”

The opposition to the legislation, which included provisions known as “extended producer responsibility,” or EPR, will be ready, too. Typically, EPR holds producers of products responsible for their management through the product’s lifecycle.

“We are not opposed to EPR for packaging,” said Ken Pokalsky, vice president of the Business Council of New York State, a business lobby organization. “We are opposed to this bill, which has a lot of flaws.”

Bill Was Touted as a Model

Several years in the making, the proposed Packaging Reduction and Recycling Infrastructure Act had followed a “polluter pays” philosophy, putting the financial burden for managing packaging waste on the companies that generate it, rather than taxpayers or government agencies. 

“It will take us away from single-use plastics that are obliterating our environment, our oceans or just being burned,” or sent to landfills, New York state Sen. Pete Harckham (D-Westchester), the bill’s main sponsor in the Senate, told Inside Climate News. Less waste also means fewer heat-trapping gases blamed for causing climate change, he said.

Beyond Plastics saw the bill as a national model, and the most comprehensive in the country. It sought to address not only recycling and waste reduction but also would have banned some of the most toxic chemicals found in plastic packaging.

Five other states have passed EPR laws for plastic packaging, from Maine in 2021 to Minnesota, the latest, earlier this year. Maine and Minnesota both left many of the details to be worked out by state agencies. 

“We need a state to do it right.”

California’s bill, passed in 2022, is the most ambitious to become law so far—seeking to cut single-use plastic packaging and food service ware by 25 percent; recycle 65 percent of single-use plastic packaging and food service ware; and make 100 percent of single-use packaging and plastic food service ware recyclable or compostable.

But some critics, Beyond Plastics among them, worry that the California law allows for easy exemptions, gives the industry too much control over itself and may have left the door open to chemical recycling, which in some common forms environmental groups consider to be tantamount to incineration, not actual recycling.

“We need a state to do it right,” said Enck, a former Environmental Protection Agency regional director during the Obama administration who got her start in environmental advocacy by successfully lobbying for New York’s state’s 1982 Returnable Container Act, known as the bottle bill. 

Pokalsky agreed that lawmakers and environmental advocates alike won’t give up on a plastics packaging bill for New York. But he called for scrapping the language in the Packaging Reduction and Recycling Infrastructure Act and looking to Minnesota’s approach as a model.

“We would like to see a different starting point,” Polasky said.

Time Ran Out in the Assembly

Harckham, whose district includes Westchester County and part of the Hudson Valley, navigated the bill through the Senate, where it passed 37-23 on Friday, after vigorous debate and some concessions. But even though advocates backing the bill had counted enough votes in the Assembly to carry it through, it nonetheless failed to get across the finish line, following a fierce push by the pro-plastics lobby. 

“We won the battle but lost the war,” Harckham said in an interview on Tuesday. Undeterred, he praised his colleague and co-sponsor, Assemblymember Deborah J. Glick (D-Manhattan), who steered the bill through the committee process but then “ran out of time for a floor debate,” in the session’s final hours. 

In a sign that last-minute lobbying worked, several cosponsors in the Assembly took their names off the bill, Enck said.

Harckham said he’s ready to go back to work on the bill either in a special session later this year if there is one, or during the next regular session that opens in January.

“There are lots of bills that take some time,” he said.

Lobbyists who opposed the bill complained Harckham wasn’t open to enough compromise, but there was some.

The legislation, for example, had previously required a 50 percent reduction in plastic packaging waste in 12 years, but that was lowered to 30 percent. And, an agreement allowing the state legislature to revisit the definition of recycling every three years would allow for technological advances to be regularly considered. Harckham said more than 99 percent of the farm operations in the state were exempted, following objections from farming interests.

Still, a robust industry coalition of state and national business and trade associations fought the bill, including Kraft Heinz, which told lawmakers in a memo that products like Philadelphia Cream Cheese, manufactured at a company plant in Lowville, New York, were threatened by the bill if it passed. The memo also featured pictures of other products packaged in plastic, including mayonnaise, Cool Whip, coffee and salad dressing, suggesting they might no longer be sold in the state.

Those ads warning of an end to summer barbecues sounded an alarm that there would be “fewer choices for burgers and hotdogs and chips by banning their packaging.”

Upstate Sen. Pamela Helming (R-Ontario), whose district includes the outskirts of Rochester, mounted a vigorous defense on the Senate floor Friday of plastic-wrapped frozen chicken nuggets, fish sticks and Tater Tots. “Some of these products are products that busy parents know their kids will eat,” she said.

Kraft Heinz did not return requests to comment on the legislation.

Enck described the claims of empty New York grocery shelves as false.

“This is a sign you are getting close when the companies start outright lying,” she said. The amount of plastic packaging can be reduced, she said, adding that companies would not stop selling their products in a market as large as New York, with a population of about 20 million.

A Siena College poll of 1,191 registered New York voters taken in the last month of the legislative session found the bill had widespread backing—77 percent of Democrats, 65 percent of Independents and 48 percent of Republicans.

Opponents of the bill included the American Chemistry Council, whose members manufacture plastic.

“New Yorkers should be relieved that this deeply flawed bill failed again and won’t be raising costs on New York’s families while undermining our goals of reducing packaging waste by including a ban on new recycling technologies,” said Ross Eisenberg, president of America’s Plastic Makers, part of the ACC, in a written statement. “Moving on from this bill means it is time for all stakeholders to come together and craft a real producer responsibility bill—one that reduces pollution and promotes circular, sustainable solutions.”