The saga of the plastic bag ban defined.

The saga of the plastic bag ban defined.

By Jamie Decker, Sr. Marketing Director, Southtowns Regional Chamber of Commerce

March 4, 2020

I just read an article from the archives of the NY Times, dated, Nov. 17, 1984. It was titled, Battle of the grocery bags: plastic versus paper. The article is a battle back and forth from plastic and paper executives arguing the points for why consumers should use one product over the other. At that time, the conversation revolved around status and the trend of the future. The article only references anything close to “environment” by using the word biodegradable once and just in passing.  

Regardless of whether you think trends are decided by the almighty dollar or by something for the greater good, the reality is, the new law is upon us. As of March 1, 2020, consumers, retailers and vendors must comply with the NYSDEC rules for discontinuing plastic bag use and instead shop with a “bring your own” form of reusable receptacles. With numerous articles, news coverage, and hearsay thrown around, we wanted to go to the source and define some of the terms related to the who, what, and where of the plastic bag saga.

Although there has been considerable coverage and varying explanations of what a “ban on plastic bags” actually means, confusion still surrounds this new rule. According to a recent article in The Buffalo News, enforcement of the plastic bag ban is delayed to April 1, 2020, as some store owners in NYC have filed lawsuits opposing the ban. At some point soon, if things proceed in favor of the State, violators of the new rule could eventually face fines of $250 for a first violation and $500 for a second. However, people receiving food stamps or other public benefits are exempt from the imposed bag fees under the law, including programs like SNAP and WIC.  

As a consumer, you can reuse any type of vessel for collecting your goodies, including reusing plastic bags, you just won’t be getting more of them at the store. Retailers are allowed to charge 5 cents per paper bag if you prefer to use paper over something like a reusable bag. Two cents are given to local government and 3 cents goes to the state’s Environmental Protection Fund.

Plastic bags can still be used by retailers for uncooked meat, fruits and vegetables, bulk items, takeout at restaurants and prescription drugs. There are also exemptions for bags sold in bulk, such as trash bags, as well as garment bags and those given for carryout orders at restaurants. According to Erie County’s website, plastic bags are banned from distribution by anyone required to collect New York State sales tax. 

Here is where the confusion percolates though. All these terms are being interpreted in different ways. To help alleviate some confusion, we wanted to list how the regulator and enforcer of this new law, NYSDEC, 

defines it all. Although after you read this, you may have more questions. I did. If that is the case, websites to Erie County and the NYS Environmental Conservation Department are sited at the bottom of this article for you to direct your questions to. For compliance, we encourage you to contact the specific New York State county you live, shop, or sell goods within.

The following includes a few terms and their definitions that we get the most questions about.

‘Person required to collect tax’ means any vendor of tangible personal property required to collect New York State sales tax pursuant to subdivision (a) of Section 1105 of the New York State Tax Law, “Imposition of sales tax.” A list of products, services, and transactions subject to sales tax

A person required to collect tax shall not: (a) distribute any plastic carryout bag to its customers unless the bag is an exempt bag; (b) prevent a person from using a bag of any kind that they have brought for purposes of carrying goods; (c) distribute an exempt bag for any purpose other than for the intended use of the exempt bag; (d) distribute an exempt bag for use as a replacement for a plastic carryout bag, or distribute additional exempt bags to customers beyond the quantity of exempt bags required for a purchase

‘Plastic carryout bag’ means any plastic bag, other than an exempt bag, that is provided to a customer by a person required to collect tax to be used by the customer to carry tangible personal property, regardless of whether such person required to collect tax sells any tangible personal property or service to the customer, and regardless of whether any tangible personal property or service sold is exempt from tax under Article 28 of the New York State Tax Law.

‘Exempt bag’ means a bag that is:

(1) used solely to contain or wrap uncooked meat, fish, seafood, poultry, other unwrapped or non-prepackaged food, flower, plant, or other items for the purpose of separating it from other items to avoid contamination, prevent damage from moisture, or for sanitary, public health, or environmental protection purposes.

(2) used solely to package items from bulk containers, including fruits, vegetables, grains, candy, small hardware items (such as nuts, bolts, and screws), live insects, fish, crustaceans, mollusks, or other aquatic items requiring a waterproof bag.

(3) used solely to contain food sliced or prepared to order.

(4) used solely to contain a newspaper for delivery to a subscriber.

(5) sold in bulk quantities to a consumer at the point of sale that were specifically prepackaged in a manner to allow for bulk sale (for example, quantities of bags prepackaged in individual pre-sealed boxes) or prepackaged in individual boxes or containers for sale to a customer.

(6) sold as a trash bag.

(7) sold as a food storage bag, such as those in snack, sandwich, quart, and gallon sizes.

(8) used as a garment bag, such as over-the-hanger bags or those used by a dry cleaner or laundry service.

(9) made of plastic provided by a restaurant, tavern or similar food service establishment, as defined in the New York state sanitary code, to carry out or deliver prepared food.

(10) provided by a pharmacy to carry prescription drugs.

(11) a reusable bag.

‘Reusable bag’ is defined as a bag that:

(1) is either made of: (i) cloth or other machine washable fabric; or (ii) other non-film plastic washable material; (2) has at least one strap or handle that does not stretch and is fastened to the bag in such a manner that it allows the bag to meet the strength and durability standards in paragraphs 351-1.2 (n); (3) has a minimum lifespan of 125 uses, with a use equal to the ability to carry a minimum of 22 pounds over a distance of at least 175 feet; (4) has a minimum fabric weight of 80 grams per square meter (GSM) or equivalent for bags made of any non-film plastic of natural, synthetic, petroleum-based, or non-petroleum-based origin, including woven or nonwoven polypropylene (PP), polyethylene terephthalate (PET), cotton, jute, or canvas.

‘Store’ means a retail establishment that provided plastic carryout bags to its customers as a result of the sale of a product any time prior to March 1, 2020, and meets one or more of the following criteria: (1) has over 10,000 square feet of retail space; or (2) the retail establishment is part of a chain engaged in the same general field of business which operates five or more units of over 5,000 square feet of retail space in New York State under common ownership and management.

‘Paper carryout bag’ means a paper bag, other than an exempt bag, that is provided to a customer by a person required to collect tax, to be used by the customer to carry tangible personal property, regardless of whether such person required to collect tax sells any tangible personal property or service to the customer, and regardless of whether any tangible personal property or service sold is exempt from tax under Article 28 of the New York State Tax Law.

This isn’t just happening in NYS. It is all over the globe. Only about 5% of all plastic bags are recycled due to difficulties in the process to break them down. Several cities across the United States and abroad have already banned the use of plastic bags while some have enforced restricted laws against the use of plastic bags because of the negative effects of their usage. Whether the motivation to change people’s behavior comes from a sociological approach on what some would argue is one of the greatest issues humans are facing – plastic, or if it is simply due to too much supply and not enough demand, one thing is for certain, it is a cyclical interaction between humans, our environment, and the economy.

The New York Times, Battle of the Grocery Bags: Plastic versus Paper https://www.nytimes.com/1984/11/17/style/battle-of-the-grocery-bags-plastic-versus-paper.html

To read the full document that referenced the terms defined herein, visit, http://www.dec.ny.gov/docs/materials_minerals_pdf/part351rvsdexptrmsfinal.pdf

For more information on Erie County, New York Plastic Bag (BYOB) information click here, http://www2.erie.gov/environment/index.php?q=single-use-bag-pollution

NYS Department of Environmental Conservation regulatory information can be obtained here,  http://www.dec.ny.gov/regulations/118810.html  Please email [email protected] or call (518) 402-8706, if you have any questions.

Sources used for this article: The Buffalo News, Buffalo Business First, USA Today, New York State Department of Environmental Conservation, and Erie County, New York.

The Southtowns Chamber of Commerce is a not-for-profit business membership organization that focuses on helping its members achieve their goals, act as a resource, and help to foster economic growth in their represented communities. With membership over 1,000 members spanning 63 zip codes, gathering the voice of many to speak as one. For more information on this topic or other marketing resources, contact Jamie Decker at [email protected] or call 716-649-7917 www.southtownsregionalchamber.org.