The crux of the confusion is whether or not reusable plastic bags are allowed under the terms of a state law.
Since its passage in April 2019, the Bag Waste Reduction Act has been fraught with legal challenges by plastic manufacturers and supermarket industry groups concerning a statute that bans the use of all plastic bags.
The state Department of Environmental Conservation, the agency in charge of enforcement, has added to the confusion by exempting certain types of reusable plastic bags — a carve-out that was not in the law. Food industry groups have argued that the law could not be enforced on its intended start date because it is not clear what type of bags are allowed.
“ ‘Reusable plastic bag’ is not a term defined or used in the Bag Waste Reduction law,” said Cristin Clark general counsel for the DEC. “Non-woven polypropylene bags that meet the definition of a reusable bag are not banned from distribution.”
In August a judge in Albany upheld the ban but ruled that the department has no right to exempt any reusable plastic bags.
The supermarket and bodega industry is mulling how to respond.
“We’re considering ignoring the law, but I’m not sure we’re going to yet,” said Nick D’Agostino III, owner of D’Agostino supermarkets. “Any reusable bags have some sort of plastic in them.”
A second lawsuit has been launched by industry groups tied to supermarkets, bodegas and a manufacturer of polypropylene plastic.
The DEC said it does not comment on pending litigation and said it would begin enforcement Monday.
“The supermarkets are resisting in terms of cost and convenience,” said Burt Flickinger, managing director at the Strategic Resource Group. “Food retailers in the city are losing record amounts of money from the dramatic amount of worker and resident departures.”