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Are packing peanuts illegal?

Containers and Packaging Affected Under the Ban Polystyrene loose fill packaging (commonly referred to as packing peanuts) is also banned.

on.ny.gov - Go Foam Free - NYS Dept. of Environmental Conservation - NY.gov
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Go Foam Free

Polystyrene Foam Ban

Retail and wholesale stores can no longer sell, offer for sale, or distribute banned foam items into NY state (including online sales to NY customers). See DEC's updated EPS Alternatives Reference Guide (PDF, 3 MB) available in English and Spanish for foam alternatives. DEC also has outreach materials available regarding the Expanded Polystyrene Foam Container and Polystyrene Loose Fill Packaging Ban. Financial Hardship Waiver Request Form (PDF, 2 MB) available for eligible covered food service providers and facilities. DEC provides additional information about the Financial Hardship Waiver process.

Expanded Polystyrene Foam Container and Polystyrene Loose Fill Packaging Ban

EPS Foam is difficult to recycle and litters communities and natural areas.

EPS Foam is difficult to recycle and litters communities and natural areas.

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, (link leaves DEC's website) 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; (link leaves DEC's website) Retail food stores as defined in article 28 of the Agriculture and Markets Law; (link leaves DEC's website)

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) is allowed to sell, offer for sale, or distribute disposable food service containers or loose fill packaging that contains expanded polystyrene foam, in New York State. This applies to any non-food retail or wholesale establishment, and includes online sales to customers in New York State, and sales or distribution to covered food service providers or facilities that have approved financial hardship waivers.

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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 (link leaves DEC's website); 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 foamban@dec.ny.gov for information about filing a written declaration with DEC. 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 use up any remaining supply of foam containers that could not be used up by January 1, 2022. No store (retail or wholesale) is allowed to sell, offer for sale, or distribute food service containers that contain expanded polystyrene foam, in New York State. This includes online sales to NY state customers, and sales or distribution to covered food service providers or facilities 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, 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.

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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, and the purchase or use of an alternative product would create an undue financial hardship. 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. 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.

​Foam Free NY Outreach Materials

DEC provides a variety of Foam Free NY Outreach Materials

DEC provides a variety of Foam Free NY Outreach Materials

These educational resources about NY's Foam Ban are available for download.

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.

Alternative Container and Packaging Guidance (The following links leave DEC's website)

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 (leaves DEC's website)

PFAS Chemicals in Food Packaging Report- Safer Chemicals Healthy Families (leaves DEC's website)

DEC's PFAS in Food Packaging Law

For Schools (The following link leaves DEC's website)

Ditching Disposables: A Toolkit for Healthier Foodware in K-12 Schools

Waste Reduction (The following link leaves DEC's website)

Going Zero Waste: A How to Guide For Businesses- NYS Pollution Prevention Institute

For Residents (The following links leave DEC's website)

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 foamban@dec.ny.gov if you have questions.

To get the latest information, sign up to receive Expanded Polystyrene Foam Container and Loose Fill Packaging Ban information. When you sign up, you will receive information or updates relating to NY State's Foam Ban.

More about Go Foam Free:

on.ny.gov - Go Foam Free - NYS Dept. of Environmental Conservation - NY.gov
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