Carbon Black Survives Assault Ban in New York State

Extended Producer Responsibility (EPR) legislation once again failed to pass the New York State Legislature. While the legislation passed the state Senate, it was not voted on in the Assembly before the legislature adjourned for the year. Therefore, EPR will not be enacted in New York state in 2024. Earlier this year, PRINTING United Alliance reported that the legislature was considering an EPR program for packaging that would have set requirements for packaging reduction, incorporation of recycled content, and a ban on the use of certain toxic chemicals that included the use of carbon black-based materials such as black printing inks.

Due to efforts by the Alliance, its members, and other like-minded associations, the bill failed to pass the New York legislature when it officially adjourned for the year on June 8, 2024. The bill was reintroduced in February 2024 as an amended version of a 2023 bill. The EPR legislation created a very contentious debate between the environmental groups supporting it and the groups opposing it, including the printing industry, consumer goods companies, and even labor unions.

When the legislation was introduced, the Alliance immediately began working both independently and with several business coalitions that understood the significance of the carbon black ban. The carbon black ban not only threatened any printers involved in packaging or label converting, but it also meant any company selling a product into New York State would be prohibited from doing so, if it contained black ink or four-color process printed images.

The Alliance made carbon black the focal point of its opposition and prepared letters of opposition, a white paper on how carbon black is not toxic when incorporated into an ink, and how black plastic can be easily separated for recycling. The Alliance used its available resources to bring attention to the issue with its membership in New York and across the entire printing industry value chain.

The Alliance also launched an Action Alert and contacted each member in New York State, encouraging them to contact their legislators to voice their concerns with the bill and the carbon black ban. An Action Alert allows individuals to enter their address, which will then automatically identify their representatives. A pre-written letter will be delivered to their representatives email with a single click. In addition, some members contacted their representatives directly to express their opposition and explain the devastating consequences the bill would have on their businesses and their employees.

The New York legislature seemed to lack any understanding about lack of toxicity of carbon black incorporated into printing inks and how technology has solved the problem of sorting black plastic for recycling. The white paper developed by the Alliance clearly showed that carbon black used in printing inks is not toxic. This has been confirmed by several regulatory agencies including the Occupational Safety and Health Administration (OSHA) and under California’s Proposition 65 regulations. Black plastic can pose a challenge with some waste separation technology because it is not detected, but advances in this technology have eliminated this problem allowing black plastic to be separated and recycled. Therefore, the reasoning used to justify the carbon black ban was shown to be completely unfounded.

The ban on carbon black and other toxic chemicals also threatened the ability for companies to meet the mandates for incorporating recycled content in packaging. The bill did not contain any de minimis exclusions, which means the mere presence of one molecule of an identified substance would mean it was banned. This meant that recycled corrugated, recycled paperboard, and recycled black plastic would have been banned. In the case of recycled corrugated and paperboard the waste materials used to manufacture it are not de-inked prior to recycling so any chemicals in the ink that were banned would be present in the recycled substrate and thus would be banned. This outcome is counterproductive to the requirement to use an increasing amount of recycled content in packaging.

The intense opposition pressure ultimately caused the bill sponsors to amend the bill language just days before the legislature adjourned for the year, to address some of the most egregious requirements. One of the changes, and arguably the most important, was the removal of carbon black from the list of “toxic” chemicals. It was the only chemical material that was removed from the list. This change is a testament to the Alliance’s efforts to save black printing ink from being banned for use on packaging and labels.

Even with the removal of carbon black from the list of toxic chemicals, the Alliance remained opposed to the legislation because several other chemicals on the list of banned materials are used in printing inks and coatings. In addition, the legislation would dramatically increase the cost of packaged goods with no discernable environmental benefit.

The intensity of opposition increased when the Senate passed the amended version on the afternoon of Friday, June 7th. All attention was then directed toward the Assembly that extended its session until Saturday, June 8th. The session ended early Saturday morning with no vote occurring, which resulted in the bill's failure to pass.

Governor Hochul had signaled her displeasure with the bill and, if passed, she may have either vetoed it or initiated negotiations with the legislature to address her concerns. This is why having carbon black removed from the list of toxic chemicals was so critical, as it was “off the table” in terms of any additional attention.

The printing and packaging converting industry and its customers can now breathe a huge sigh of relief for 2024. However, be assured that since 2024 marks the third year where EPR legislation has been introduced in the state, it is expected to reappear in 2025.

The Alliance will remain diligent and continue to engage with legislators, monitor the status of legislation, and inform members about the situation. Members in New York State are encouraged to stay in contact with the Government Affairs team and be prepared to reengage, if necessary.

In this article, Gary Jones, Vice President, EHS Affairs, PRINTING United Alliance, addresses environmental state legislative issues. More information about these issues can be found at Business Excellence-EHS Affairs or reach out to Gary should you have additional questions specific to how these issues may affect your business: gjones@printing.org.     
   
To become a member of the Alliance and learn more about how our subject matter experts can assist your company with services and resources such as those mentioned in this article, please contact the Alliance membership team: 888-385-3588 / membership@printing.org.