Virginia delays EPS ban for 5 years, noting supply chains, cost

Virginia is delaying its ban on expanded polystyrene to-go containers for five years, pushing implementation back to at least 2028 under a plan favored by the state's Republican governor.

State legislators originally adopted the EPS ban in restaurants in 2021. It was supposed to start July 1, 2023, for restaurants with 20 or more locations and July 1, 2025, for small businesses.

Now, restaurants with 20 or more locations have until 2028 and smaller businesses have until 2030 to phase out EPS to-go containers.

A change in state politics — Republican Glenn Youngkin was elected governor in November, turning out Democrats who had controlled the office for eight years — led to the delay.

Robert Melvin, director of government affairs for Virginia Restaurant, Lodging and Travel Association, said businesses and Youngkin support language in the 2022 state budget delaying the ban because alternative containers can be more expensive than polystyrene.

"We've always been of the impression that each restaurant should make the determination what to-go containers they want to offer to customers," Melvin said. "It does do a great job of keeping hot food hot and cold food cold; that [means] less food is thrown away."

Melvin also stated that supply chain issues meant that shipping of materials to restaurants and other companies have taken longer than usual.

A longer deadline would give manufacturers of alternative materials time to increase production, he said.

"It was something that we had a lot of concerns with, especially as we've seen a significant increase in carryout meals from restaurants, especially during the pandemic," Melvin said.

A supporter of the original ban, Clean Virginia Waterways, was disappointed in the change.

"We were delighted when Virginia, as other states had done, decided to phase out the use of this harmful type of plastic," said Katie Register, the group's executive director. "One of the issues of polystyrene, if you've ever broken up a polystyrene coffee cup, [is] you end up with a handful of little, tiny white pellets.

"Polystyrene is an ingestion issue," she said. "That could easily disappear if we would go to alternatives."

The original ban was signed into law last year by Democratic Gov. Ralph Northam. It was part of larger compromise legislation in 2021 that adopted the EPS ban in return for chemical recycling legislation favored by the plastics industry.

Supporters of the EPS ban said polystyrene can release hazardous air pollutants when manufactured and littered EPS can be harmful to wildlife. They point to alternatives like molded fiber, bagasse or paper lined with polylactic acid.

Register hopes restaurants voluntarily move away from EPS takeout containers.

"It will be an interesting question to see over the next five years if expanded polystyrene continues to be the problem that it has been for the last few years," she said. "But I do believe some restaurants are already proactively making the change to avoid polystyrene in their takeout service."

Register's group focuses on plastic pollution issues. In 2020, she co-founded the Virginia Plastic Pollution Prevention Network.

The new budget language that delays the ban also directs the state's Department of Environmental Quality to prepare a recycling, economic and environmental impact assessment for the use of polystyrene containers.

The original ban said that food vendors that violated it could receive up to a $50 fine per day. Penalties would have been deposited in a litter and recycling fund, with some of the money going to public information campaigns to reduce the use of polystyrene.