JD Insider | Foam Ban

JD Insider | Foam Ban

Orion D. Karagiannis

New York City’s Foam Ban

Orion D. Karagiannis

After a long and litigious battle in New York City, the foam ban passed by the City Council in 2013 under then-mayor Michael R. Bloomberg is finally here to stay. The ban, enacted by Local Law 142 (2013), states that “[d]irty, post-consumer, single-service foam food and beverage containers cannot be recycled in a manner that is economically feasible, environmentally effective, and safe for employees as part of the city’s curbside recycling program.” Despite this conclusion on findings by the New York City Department of Sanitation, “[t]hese items [will] continue to be collected as trash.” Thus, as of January 1st, 2019, no single-use foam food containers may be used or possessed for commercial purposes.

As usual, though, there are notable exceptions to this ban:  pre-packaged food containers filled and sealed prior to shipment to the boroughs of New York City; foam containers used to store raw meat, fish, poultry, and other seafood from butchers, fishmongers, and similar vendors/retailers; and protective packaging in shipping containers. As with prohibitions of similar nature, such exemptions are necessary to ensure that Local Law 142 stands up to scrutiny that is likely to once-again present itself in the form of lengthy, adverse litigation. Seeing as vendors and businesses such as those exempted primarily rely on the sale of goods transported from regions outside the jurisdiction of New York City and the five boroughs, they would likely face an undue burden should they be subject to the ban. Moreover, the ban will not be completely implemented until the lapse of a six-month warning period for businesses. As of July 1st, 2019, any non-exempt businesses found to be acting in violation of this ban will be issued notices of violation and fined accordingly, with the fines for a first, second, and third offence being $250.00, $500.00, and $1,000.00—respectively. In the event that a previously-fined business continues to flout Local Law 142, they will be charged an additional fine of $1,000.00 per subsequent violation. In addition to fines, Local Law 142 also indicates the possibility of civil actions against businesses found to consistently disregard the foam ban.

Why is the foam ban necessary?

To understand why the foam ban is needed we must first understand the substance that is being banned. First, this ban is not for Styrofoam (although Styrofoam is a product that will be banned under Local Law 142); Styrofoam is a product manufactured and trademarked by Dow Chemical Company. Rather, the ban is on polystyrene, generally, which is a plastic made from petroleum and natural gas, combined with chemicals- such as PVC (polyvinyl chloride). This plastic is then used to make two “grades” of plastic:  expanded polystyrene foam (EPS), which is used to make disposable cups, plates, and take-out containers, as well as packing material; and solid polystyrene foam, which is used to make a wider- usually more durable- variety of plastic products including plastic utensils, CD and DVD cased, and even smoke detector casings.

Polystyrene is problematic for various reasons, most notable that it does not biodegrade, cannot be recycled, is confused for food by many animals—leading to the death of wildlife due to consumption, and contains toxins that can contaminate soil and water supplies. Furthermore, polystyrene contains the chemical styrene, which can be harmful in high concentrations. Related health effects of overexposure to the chemical are associates with the central nervous system, and are known to range from headaches to feeling intoxicated. Another chemical used in the production of foam products is TDI (toluene diisocyanate), a respiratory sensitizer, which chemical’s hazards led to the facilitation of information and innovation sharing between manufacturers by the PFA (Polyurethane Foam Association) and OSHA (the Occupational Health and Safety Administration).

Proposed Alternatives

The most-touted proposed alternatives for businesses and those affected by the foam ban are, in descending order:  aluminum products; rigid plastics of grades 01, 2, or 5; paper products made from 100% recycled paper; and compost products certified by BPI (the Biodegradable Products Institute). BPI certified plastics carry with them the verification that such plastics are capable of biodegrading “completely and safely when composted, leaving no residues.” Although many may attribute a negative connotation to composting, it is actually one of the least harmful waste-disposal policies available for our use, according to both the Green Action Centre and One Green Planet, as well as American Museum of Natural History Museum Educator  Alexander Koutavas (B.A., Environmental Studies). All BPI certified plastics are stamped with the BPI logo so as to avoid confusion among consumers and build recognition for plastic goods that meet standards set by ASTM International (American Society for Testing and Materials). These standards allow compost facilities to safely dispose of plastics meeting the Society’s standards, which plastics are becoming increasingly more “environmentally friendly,” offering an additional alternative to foams, which cannot biodegrade and contain hazardous chemicals.

Rigid plastics are what immediately comes to mind when we refer to “reusable, returnable, and/or refillable” containers. In fact, with proper sanitation standards, 01 grade rigid plastics can be safely returned, refilled, and reused with great success, as seen in Stony Brook University’s “Reusable Container Program” (a successful, ongoing program at the school’s campus, aimed at reducing plastic waste generated by students, staff, and faculty). In addition to rigid plastics and return, refill, reuse policies, an alternative to foam comes to businesses and consumers alike through paper goods. With the bans on plastic straws that have been implemented in various cities worldwide, there has been an increase in the circulation and consumption of paper variants of many single-use plastics and foams (i.e. straws, plates, and bags), a positive trend that is projected to grow as more jurisdictions join the ban of single-use plastics. In addition to the industry growth provided by this trend, paper goods are likely the best alternative to plastics, altogether. They more easily biodegrade in the ocean (where approximately 10% of our waste ends-up), biodegrade at a quicker pace, and are cheaper and easier to produce than plastics—foam included.

What is the financial impact of the foam ban on businesses?

To alleviate the burden on businesses in New York City, the Department of Sanitation is also allowing qualifying businesses (making less than $500,000.00 in gross annual sales) and non-profit organizations to apply for “temporary hardship exemptions,” should they prove that the new rule causes them a financial hardship. Such exemptions will be granted by the New York City Department of Small Business Services, which department opened the application process in Fall of 2018. Qualifying businesses and non-profit organizations would receive waivers for periods of one year, with the waivers beginning on July 1st, 2019, the first day that the ban will be in full force and effect, citywide.

That said, the price differences between foam single-use goods and those made from paper or rigid plastic is, on average, only $0.01 more expensive than their foam counterparts—as documented by Clean Water Action. Surprisingly, the price difference is beneficial for consumers with regard to single-use plates, as paper variants were approximately $0.02 cheaper per unit than foam variants. Admittedly, however, the price difference of approximately $0.04 per unit for hinge containers may be great enough to show that compliance would result in financial hardship for many restaurants relying on take-out containers to fulfill delivery or pick-up orders—as these single-use products are preferred for such uses.

How meaningful is a ban such as this to achieving a more environmentally stable future?

“For every single-use foam product trashed, the ecological threats posed by our waste becomes more severe. We, as consumers, need to change our habits for a more sustainable future, and consider laws and regulations to wipe-out the mentality of convenience over consciousness. This ban is a big step in the right direction.” – Alexander Koutavas, B.A. Environmental Studies

Sources

• https://www1.nyc.gov/assets/dsny/site/resources/recycling-and-garbage-laws/collection-setout-laws-for-business/foam-ban
• http://www.manhattanswab.org/home-page-archive/2019/1/2/nycs-foam-ban-and-foam-alternative-product-suggestions
• https://www.nytimes.com/2018/12/31/nyregion/styrofoam-ban-new-laws-ny.html
• https://storyofstuff.org/blog/styrofoam-bans-are-sweeping-across-the-nation/
• https://www.madesafe.org/avoid-toxic-chemicals-plastics/
• https://legistar.council.nyc.gov/LegislationDetail.aspx?ID=1444213&GUID=71AB91E9-EC77-47F0-B904-4D4B4A607568&Options=ID%7cText%7c&Search=142
• https://ohsonline.com/Articles/2015/05/01/Working-with-a-Hazardous-Substance.aspx?Page=3
• https://www.osha.gov/SLTC/styrene/
• https://www.bpiworld.org/BPI-Public
• https://greenactioncentre.ca/reduce-your-waste/why-should-i-compost/
• https://www.onegreenplanet.org/lifestyle/5-reasons-why-composting-is-the-greenest-thing-you-can-do/
• http://www.cleanwateraction.org/files/publications/CWA%20EPS%20Foam%20Cost%20Comparison.pdf

Video Format

1. After a long and litigious battle in New York City, the foam ban passed by the City Council in 2013 under then-mayor Michael R. Bloomberg is finally here to stay.
2. As of January 1st, 2019, no single-use foam food containers may be used or possessed for commercial purposes as the ban states that, “[d]irty, post-consumer, single-service foam food and beverage containers cannot be recycled in a manner that is economically feasible, environmentally effective, and safe for employees as part of the city’s curbside recycling program.”
3. To understand why the foam ban is needed we must first understand the substance that is being banned. First, this ban is not for Styrofoam (although Styrofoam is a product that will be banned under Local Law 142). Rather, the ban is on polystyrene, which  is then used to make two ‘grades’ of plastic: expanded polystyrene foam (EPS), which is used to make disposable cups, plates, and take-out containers, as well as packing material; and solid polystyrene foam, which is used to make a wider- usually more durable- variety of plastic products including plastic utensils, CD and DVD cased, and even smoke detector casings.
4. Polystyrene is problematic for various reasons, most notable that it does not biodegrade, cannot be recycled, is confused for food by many animals—leading to the death of wildlife due to consumption, and contains toxins that can contaminate soil and water supplies.
5. As usual, though, there are notable exceptions to this ban:  pre-packaged food containers filled and sealed prior to shipment to the boroughs of New York City; foam containers used to store raw meat, fish, poultry, and other seafood from butchers, fishmongers, and similar vendors/retailers; and protective packaging in shipping containers.
6. Moreover, the ban will not be completely implemented until the lapse of a six-month warning period for businesses.
7. As of July 1st, 2019, any non-exempt businesses found to be acting in violation of this ban will be issued notices of violation and fined accordingly - 1 =  $250.00, 2= $500.00, 3= $1,000.00
8. To alleviate the burden on businesses in New York City, the Department of Sanitation is also allowing qualifying businesses (making less than $500,000.00 in gross annual sales) and non-profit organizations to apply for “temporary hardship exemptions,” should they prove that the new rule causes them a financial hardship.
9. Proposed Alternatives - The most-touted proposed alternatives for businesses and those affected by the foam ban are, in descending order:  aluminum products; rigid plastics of grades 01, 2, or 5; paper products made from 100% recycled paper; and compost products certified by BPI (the Biodegradable Products Institute).
10. So, how meaningful is this ban to achieving a more environmentally sustainable future? The ban is a step in the right direction, as it alleviates some of the ecological threats posed by our waste.