S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   4850
 
                        2019-2020 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             February 5, 2019
                                ___________
 
 Introduced  by  M. of A. COLTON, ENGLEBRIGHT, JAFFEE, ABINANTI, BLAKE --
   Multi-Sponsored by -- M. of A. RIVERA -- read once and referred to the
   Committee on Environmental Conservation
 
 AN ACT to amend the environmental conservation law, in relation  to  the
   reduction and recycling of packaging

   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Short title. This act shall be known and may  be  cited  as
 the "environmentally sound packaging act".
   §  2.  Legislative  findings  and  declaration. The legislature hereby
 finds and declares that a solid waste crisis exists in New  York  state,
 and  that  the amount of solid waste requiring disposal has continued to
 increase. The legislature further finds  that  over  thirty  percent  of
 municipal  solid waste is comprised of packaging, that the production of
 packaging has more than doubled in the last twenty years, and that  this
 portion  of  the  municipal  solid  waste  stream could be significantly
 reduced through source reduction and material changes  to  increase  the
 reusability,  recycled content, and recyclability of such packaging. The
 legislature further finds that the reduction of packaging waste and  the
 success of municipal recycling is dependent on greatly increasing demand
 for  post-consumer  materials  in  the  manufacturing  sector, that this
 demand is very limited at present, and attributable to a lack of  incen-
 tives for manufacturers to increase the reusability, recycled content or
 recyclability  of  their  packaging,  with no federal or state standards
 applied to packaging based on such  attributes  or  the  lack  of  same.
 Therefore,  the legislature finds and determines that there is a need to
 reduce packaging in the solid waste stream, by requiring that all  pack-
 aging sold in New York state meet certain standards for reduction, reus-
 ability, recycled content, or recyclability.
   §  3.  The  environmental  conservation law is amended by adding a new
 section 27-0721 to read as follows:
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD04111-01-9

 A. 4850                             2
 
 § 27-0721. PACKAGING REDUCTION AND RECYCLING.
   1.  DEFINITIONS. AS USED IN THIS SECTION: (A) "CONCENTRATE FORM" SHALL
 MEAN A PRODUCT SOLD IN A CONCENTRATED FORM THAT IS ONE-THIRD OR LESS  OF
 THE VOLUME OF THE PRODUCT IN ITS INTENDED USE FORM.
   (B)  "ENVIRONMENTALLY  SOUND  PACKAGING"  SHALL MEAN PACKAGING THAT IS
 REDUCED OR REUSABLE OR RECYCLED OR RECYCLABLE.
   (C) "INTERMEDIATE PACKAGE" SHALL MEAN  A  WRAP,  BOX  OR  BUNDLE  THAT
 CONTAINS  TWO  OR MORE UNIT PACKAGES OF IDENTICAL ITEMS, AND THAT MAY BE
 ENCLOSED BY A SHIPPING CONTAINER.
   (D) "MANUFACTURER" SHALL MEAN A PERSON, FIRM, ASSOCIATION, PARTNERSHIP
 OR CORPORATION ENGAGED IN THE PRODUCTION OF PACKAGING.
   (E) "MATERIAL" SHALL MEAN ANY SUBSTANCE FROM WHICH PACKAGING IS  MADE,
 INCLUDING,  BUT  NOT LIMITED TO, PAPER, GLASS, PLASTIC, AND METAL OR ANY
 COMBINATION THEREOF.
   (F) "PACKAGER" SHALL MEAN:
   (I) FOR PACKAGING IN WHICH PRODUCTS ARE PLACED PRIOR  TO  THEIR  ENTRY
 INTO  THE  STATE,  THE  PACKAGER IS THE PERSON WHO RECEIVES TITLE TO THE
 SHIPMENT BEFORE OR UPON ENTRY INTO THE  STATE;  PROVIDED  THAT  IF  SUCH
 PERSON  IS THE PURCHASER IN A RETAIL SALE INVOLVING DIRECT SHIPMENT FROM
 OUTSIDE THE STATE, THEN THE PACKAGER IS THE SELLER;
   (II) FOR PACKAGING IN WHICH A PRODUCT IS PLACED WITHIN THE STATE PRIOR
 TO THE SALE OF THE PRODUCT, THE PACKAGER IS THE PERSON  WHO  PLACES  THE
 PRODUCT IN SUCH PACKAGING;
   (III)  FOR PACKAGING PROVIDED BY A RETAIL SELLER TO A PURCHASER AT THE
 POINT OF PRODUCT DELIVERY, THE PACKAGER IS THE RETAIL SELLER.
   (G) "PACKAGING" SHALL MEAN  ANY  CONTAINER  USED  TO  PROTECT,  STORE,
 CONTAIN,  TRANSPORT,  DISPLAY  OR  SELL  PRODUCTS.  PACKAGING  SHALL NOT
 INCLUDE ANY DETACHABLE CLOSURE DEVICE SUCH AS A CAP, CLIP,  COVER,  LID,
 TAB, OR TAMPER RESISTANT CONTRIVANCE.
   (H)  "PERSON"  SHALL  MEAN  ANY  INDIVIDUAL,  TRUST, FIRM, JOINT STOCK
 COMPANY, CORPORATION, PARTNERSHIP, OR ASSOCIATION, INCLUDING  THE  STATE
 OF NEW YORK AND ANY POLITICAL SUBDIVISION OF THE STATE OF NEW YORK.
   (I)  "PRODUCT"  MEANS  ANY  COMMODITY DESTINED FOR WHOLESALE OR RETAIL
 SALE.
   (J) "RECYCLABLE" SHALL MEAN PACKAGING MADE OF  A  MATERIAL  FOR  WHICH
 EITHER  OF THE FOLLOWING STANDARDS ARE MET, AS DETERMINED BY THE DEPART-
 MENT:
   (I) ACCESS TO MUNICIPAL RECYCLABLE RECOVERY PROGRAMS FOR THAT MATERIAL
 IS AVAILABLE TO NO LESS THAN SEVENTY-FIVE PERCENT OF THE  POPULATION  OF
 THE STATE;
   (II) A STATEWIDE RECYCLING RATE OF FIFTY PERCENT HAS BEEN ACHIEVED FOR
 THE PACKAGING MATERIAL; OR
   (III)  A  MANUFACTURER,  DISTRIBUTOR  OR RETAILER ACHIEVES A STATEWIDE
 RECYCLING RATE OF FIFTY PERCENT FOR THE PACKAGE SOLD WITHIN THE STATE.
   PACKAGING COMPOSED OF MORE THAN ONE TYPE  OF  MATERIAL  SHALL  NOT  BE
 CONSIDERED RECYCLABLE UNLESS EACH MATERIAL IN THE PACKAGING THAT REPRES-
 ENTS MORE THAN AN INSUBSTANTIAL PART OF THE PACKAGING MEETS ONE OF THESE
 STANDARDS.
   (K)  "RECYCLED"  SHALL  MEAN  PACKAGING  MADE WITH SECONDARY MATERIALS
 CONTENT, WHICH MEETS THE RECYCLED CONTENT STANDARDS SPECIFIED  IN  REGU-
 LATIONS  PROMULGATED  BY  THE  DEPARTMENT PURSUANT TO SUBDIVISION TWO OF
 SECTION 27-0717 OF THIS TITLE; PROVIDED, HOWEVER, THAT WITHIN FIVE YEARS
 OF THE EFFECTIVE DATE OF THIS SECTION, RECYCLED SHALL MEAN A MINIMUM  OF
 FORTY-FIVE  PERCENT  BY  WEIGHT  OF  POST-CONSUMER  RECYCLED CONTENT, AS
 DEFINED BY THE DEPARTMENT.

 A. 4850                             3
 
   (L) "REDUCED" SHALL MEAN PACKAGING THAT IS  EITHER  REDUCED  AT  LEAST
 FIFTEEN  PERCENT BY WEIGHT WHEN COMPARED WITH THE PACKAGING USED FOR THE
 SAME PRODUCT BY THE SAME PACKAGER FIVE YEARS EARLIER OR  PACKAGING  THAT
 MEETS  A  MINIMUM  EFFICIENCY  RATIO  OF  NINETY  PERCENT PRODUCT TO TEN
 PERCENT PACKAGING BY WEIGHT, WHEN MEASURED AS THE COMBINED WEIGHT OF THE
 INTERMEDIATE  PACKAGE AND THE UNIT PACKAGE IF THE PRODUCT IS CONVEYED TO
 THE CONSUMER IN MULTIPLE LAYERS OF  PACKAGING,  PROVIDED  HOWEVER,  THAT
 PACKAGING  EXEMPTED  PURSUANT TO SUBDIVISION THREE OF THIS SECTION SHALL
 NOT BE INCLUDED IN SUCH MEASUREMENT. IN NO CASE MAY PACKAGING  REDUCTION
 BE  ACHIEVED  BY THE SUBSTITUTION OF A DIFFERENT MATERIAL CATEGORY FOR A
 MATERIAL THAT CONSTITUTED A SUBSTANTIAL PART OF THE PACKAGING  IN  QUES-
 TION.
   (M)  "RETAIL  SALE" SHALL MEAN ANY SALE TO A PURCHASER FOR CONSUMPTION
 OR USE OTHER THAN RESALE OR FURTHER PROCESSING OR MANUFACTURING.
   (N) "REUSABLE" SHALL MEAN PACKAGING THAT IS DESIGNED FOR REFILLING  OR
 REUSE  A MINIMUM OF FIVE TIMES IN A PROGRAM ESTABLISHED BY A MANUFACTUR-
 ER, DISTRIBUTOR OR RETAILER FOR REFILLING OR REUSE OF THE PACKAGING.
   (O) "SHIPMENT" SHALL MEAN PACKAGED PRODUCTS CONVEYED BY TRUCK OR OTHER
 MEANS OF TRANSPORT, AND ACCOMPANIED BY AN INVOICE.
   (P) "SHIPPING CONTAINER" SHALL MEAN PACKAGING THAT IS USED IN COMMERCE
 FOR PACKING, STORING, AND SHIPPING PRODUCTS.
   (Q) "UNIT PACKAGE" SHALL MEAN A PACKAGE WHICH CONTAINS A SINGLE  ITEM,
 A  QUANTITY  OF  THE  SAME ITEM, A SET OR AN ITEM WITH ALL ITS COMPONENT
 PARTS.
   2. ENVIRONMENTALLY SOUND PACKAGING. EXCEPT AS PROVIDED IN  SUBDIVISION
 THREE  OF  THIS  SECTION,  NO PACKAGER SHALL USE OR CAUSE TO BE USED ANY
 PACKAGING THAT IS NOT  ENVIRONMENTALLY  SOUND  PACKAGING  AFTER  JANUARY
 FIRST, TWO THOUSAND TWENTY-TWO.
   3.  EXEMPTIONS. (A) THE FOLLOWING TYPES OF PACKAGING SHALL BE UNCONDI-
 TIONALLY EXEMPT FROM THE PROVISIONS OF THIS SECTION:
   (I) PACKAGING WHICH IS IN DIRECT CONTACT WITH FOOD PRODUCTS,  AND  HAS
 NOT RECEIVED PRIOR AUTHORIZATION FROM THE FEDERAL FOOD AND DRUG ADMINIS-
 TRATION  TO  INCORPORATE  RECYCLED  CONTENT IN SUCH PACKAGING, PROVIDED,
 HOWEVER, SUCH PACKAGING ALSO DOES  NOT  COMPLY  WITH  THE  STANDARDS  AS
 DEFINED IN THIS SECTION FOR REUSABLE OR REDUCED OR RECYCLABLE;
   (II)  PACKAGING  ASSOCIATED  WITH  DRUGS,  DRUG  PRODUCTS,  COSMETICS,
 MEDICAL FOOD AND MEDICAL DEVICES, AS THOSE TERMS ARE DEFINED  UNDER  THE
 FEDERAL  FOOD,  DRUG AND COSMETIC ACT AND REGULATIONS PROMULGATED THERE-
 UNDER;
   (III) PACKAGING ASSOCIATED WITH PRODUCTS OFFERED FOR SALE IN A CONCEN-
 TRATE FORM;
   (IV) PACKAGING FOR PRODUCTS DESTINED FOR EXPORT FROM THE STATE IF  THE
 PACKAGING IS NOT SEPARATED FROM THE PRODUCT BEFORE EXPORT;
   (V)  THOSE  PACKAGES OR PACKAGING COMPONENTS WHICH HAVE BEEN DELIVERED
 TO A PACKAGER PRIOR TO JANUARY FIRST, TWO THOUSAND TWENTY-TWO; AND THOSE
 PACKAGES OR PACKAGING COMPONENTS WITH A CODE INDICATING DATE OF MANUFAC-
 TURE THAT WERE MANUFACTURED PRIOR TO JANUARY FIRST, TWO  THOUSAND  TWEN-
 TY-TWO;
   (VI)  PACKAGING  ASSOCIATED  WITH  RETAIL SALES OF USED MERCHANDISE BY
 INDIVIDUAL CONSUMERS SUBSEQUENT TO INITIAL RETAIL SALE;
   (VII) PACKAGING ASSOCIATED WITH SALES OF FOOD PRODUCTS BY OR ON BEHALF
 OF A NOT-FOR-PROFIT CORPORATION, IF SUCH CORPORATION HAS  ESTABLISHED  A
 PATTERN,  OVER A PERIOD EXCEEDING TWENTY YEARS, OF RELYING ON SUCH SALES
 FOR A SIGNIFICANT PORTION OF ITS FINANCIAL SUPPORT.
   (B) EVERY PACKAGER SEEKING A CONDITIONAL EXEMPTION  PURSUANT  TO  THIS
 SUBDIVISION  SHALL  SUBMIT  A  WRITTEN APPLICATION TO THE DEPARTMENT AND

 A. 4850                             4
 
 SHALL PAY AN APPLICATION FEE, AS DETERMINED BY  THE  DEPARTMENT,  SUFFI-
 CIENT  TO MEET ONLY THE COSTS ASSOCIATED WITH THE IMPLEMENTATION OF THIS
 SUBDIVISION.
   (C)  PURSUANT  TO RULES AND REGULATIONS PROMULGATED BY THE DEPARTMENT,
 THE COMMISSIONER MAY GRANT A CONDITIONAL EXEMPTION FROM ANY  REQUIREMENT
 OF  THIS  SECTION  IF  HE  OR  SHE DETERMINES THAT THE REQUIREMENT, WHEN
 APPLIED TO A PARTICULAR TYPE OF PACKAGING, WOULD IMPOSE  UNDUE  HARDSHIP
 ON THE GENERAL PUBLIC.
   A  PACKAGER  APPLYING FOR A CONDITIONAL EXEMPTION UNDER THIS PARAGRAPH
 SHALL BEAR THE BURDEN OF PROOF IN  ESTABLISHING  UNDUE  HARDSHIP.  UNDUE
 HARDSHIP SHALL BE ESTABLISHED BY PROVIDING CLEAR AND CONVINCING EVIDENCE
 THAT THERE IS NO ENVIRONMENTALLY SOUND PACKAGING AVAILABLE FOR THAT TYPE
 OF PRODUCT OR THE PACKAGING IS NECESSARY TO COMPLY WITH HEALTH OR SAFETY
 LAWS  AND  THERE  IS  NO  ENVIRONMENTALLY SOUND PACKAGING AVAILABLE THAT
 COMPLIES WITH THOSE HEALTH AND SAFETY LAWS. EXEMPTIONS GRANTED  PURSUANT
 TO THIS PARAGRAPH SHALL BE FOR A PERIOD NOT TO EXCEED FIVE YEARS.
   (D)  WITHIN  THIRTY  DAYS  AFTER  THE  RECEIPT OF AN APPLICATION FOR A
 CONDITIONAL EXEMPTION PURSUANT TO PARAGRAPH (C) OF THIS SUBDIVISION, THE
 DEPARTMENT SHALL PUBLISH A NOTICE OF OPPORTUNITY FOR PUBLIC  COMMENT  ON
 THE  APPLICATION,  AND SHALL ACCEPT WRITTEN COMMENTS FROM THE PUBLIC FOR
 SIXTY DAYS THEREAFTER. BEFORE  GRANTING  A  CONDITIONAL  EXEMPTION,  THE
 DEPARTMENT  SHALL  MAKE A WRITTEN FINDING OF UNDUE HARDSHIP. THE DEPART-
 MENT SHALL MAIL WRITTEN NOTICE OF ITS  DETERMINATION  TO  THE  APPLICANT
 WITHIN  ONE  HUNDRED  TWENTY  DAYS  AFTER  THE RECEIPT OF AN APPLICATION
 PURSUANT TO PARAGRAPH (C) OF THIS SUBDIVISION AND SHALL PUBLISH A NOTICE
 OF SUCH DETERMINATION.
   4. LABELING REQUIREMENTS. (A) ON OR AFTER JANUARY FIRST, TWO  THOUSAND
 TWENTY-TWO,  EVERY  PACKAGER  SHALL ENSURE THAT THE WORDS "COMPLIES WITH
 NEW YORK STATE PACKAGING LAW," OR ABBREVIATIONS THEREOF, ARE AFFIXED  TO
 ALL  ENVIRONMENTALLY  SOUND PACKAGING. THE PRESENCE OF SUCH STATEMENT ON
 PACKAGING SHALL INDICATE THAT THE MANUFACTURER OF SUCH PACKAGING  CERTI-
 FIES  THAT  THE  PACKAGING IS REDUCED, REUSABLE, RECYCLED, RECYCLABLE OR
 EXEMPT FROM THE REQUIREMENTS OF THIS SECTION. USE OF THIS  STATEMENT  ON
 ANY OTHER PACKAGING SHALL CONSTITUTE A VIOLATION OF THIS SECTION.
   (B)  FOR  PURPOSES OF INTERMEDIATE OR UNIT PACKAGING CONTAINING ONE OR
 MORE LAYERS, ONLY ONE COMPLIANCE LABEL IS REQUIRED, WHICH  SHALL  APPEAR
 ON  THAT  PORTION  OF  THE  PACKAGED  PRODUCT VISIBLE TO THE CONSUMER AT
 RETAIL SALE.
   5. REGULATIONS. ON OR BEFORE SEPTEMBER FIRST, TWO THOUSAND TWENTY, THE
 DEPARTMENT SHALL ADOPT RULES AND REGULATIONS NECESSARY TO CARRY OUT  THE
 PROVISIONS  OF  THIS  SECTION. SUCH RULES AND REGULATIONS SHALL INCLUDE,
 BUT NEED NOT BE LIMITED TO:
   (A) REQUIREMENTS FOR PACKAGERS  TO  DEMONSTRATE  COMPLIANCE  WITH  THE
 ENVIRONMENTALLY SOUND PACKAGING STANDARDS ESTABLISHED PURSUANT TO SUBDI-
 VISION TWO OF THIS SECTION, AND PROCEDURES TO ENSURE EFFECTIVE OVERSIGHT
 OF PACKAGER COMPLIANCE WITH THOSE STANDARDS BY THE DEPARTMENT;
   (B)  A METHODOLOGY FOR THE CALCULATION OF RECYCLING RATES FOR MATERIAL
 USED IN RECYCLABLE PACKAGING, INCLUDING THE CONDITIONS AND  CRITERIA  TO
 BE  MET  BY  A  PACKAGER  SEEKING  TO QUALIFY A PACKAGE AS RECYCLABLE BY
 COMPOSTING SUCH MATERIAL; AND
   (C) PROCEDURES FOR DEPARTMENT REVIEW OF EXEMPTIONS  UNDER  SUBDIVISION
 THREE OF THIS SECTION.
   6.  REPORTS  ON  RECYCLING  RATES.  BY  APRIL  FIRST OF EACH YEAR, THE
 DEPARTMENT OF ECONOMIC DEVELOPMENT, SHALL SUBMIT A REPORT TO THE  GOVER-
 NOR  AND  THE  LEGISLATURE  STATING THE RECYCLING RATES FOR THE PREVIOUS
 CALENDAR YEAR FOR THE TYPES OF MATERIALS USED  IN  PACKAGING,  ASSESSING

 A. 4850                             5
 
 THE  LEVELS OF POST-CONSUMER RECYCLED CONTENT IN A REPRESENTATIVE SAMPLE
 OF PACKAGING, AND REVIEWING THE STATUS  OF  REUSABLE  PACKAGING  IN  THE
 STATE.  FOR RECYCLABLE PACKAGING, THE REPORT SHALL SPECIFY THOSE MATERI-
 ALS  WHICH QUALIFY AS RECYCLABLE PURSUANT TO EACH CRITERION SET FORTH IN
 PARAGRAPH (J) OF SUBDIVISION ONE OF THIS SECTION.
   7. ENFORCEMENT AND VIOLATIONS. (A) THE DEPARTMENT OF  AGRICULTURE  AND
 MARKETS OR THE DEPARTMENT OR, IN A CITY WITH A POPULATION OF ONE MILLION
 OR  MORE, THE CITY'S DEPARTMENT OF CONSUMER AFFAIRS, MAY INSPECT PACKAG-
 ING TO DETERMINE WHETHER IT IS ENVIRONMENTALLY SOUND. IF, ON  THE  BASIS
 OF  SUCH  INSPECTION,  A  DETERMINATION  IS MADE THAT ANY PACKAGER IS IN
 VIOLATION OF THE PROVISIONS OF THIS SECTION OR ANY  RULE  OR  REGULATION
 PROMULGATED THEREUNDER, THE DEPARTMENT OF AGRICULTURE AND MARKETS OR THE
 DEPARTMENT,  OR, IN A CITY WITH A POPULATION OF ONE MILLION OR MORE, THE
 DEPARTMENT OF CONSUMER AFFAIRS, MAY ISSUE AN ORDER REQUIRING  COMPLIANCE
 OR  ISSUE NOTICE OF AN ADMINISTRATIVE ENFORCEMENT HEARING, OR BOTH. ONLY
 ONE SUCH AGENCY  SHALL ISSUE SUCH ORDER, NOTICE, OR HOLD  A  HEARING  ON
 ANY  ONE  VIOLATION.  THE  PACKAGER  SHALL BE GIVEN AN OPPORTUNITY TO BE
 HEARD DURING ANY SUCH HEARING.
   (B) AS DETERMINED BY A CIVIL OR ADMINISTRATIVE HEARING, ANY PERSON WHO
 VIOLATES ANY OF THE PROVISIONS OF, OR WHO  FAILS  TO  PERFORM  ANY  DUTY
 IMPOSED  BY  THIS  SECTION  OR ANY RULE OR REGULATION PROMULGATED THERE-
 UNDER, OR ANY FINAL DETERMINATION OR ORDER OF THE  COMMISSIONER  OF  THE
 DEPARTMENT OF AGRICULTURE AND MARKETS OR THE COMMISSIONER OF THE DEPART-
 MENT,  OR IN A CITY WITH A POPULATION OF ONE MILLION OR MORE, THE CITY'S
 DEPARTMENT OF CONSUMER AFFAIRS, SHALL BE LIABLE FOR A CIVIL PENALTY  NOT
 TO EXCEED FIFTY DOLLARS FOR EACH UNIT PACKAGE WHICH IS NOT IN COMPLIANCE
 WITH  THE  PROVISIONS  OF THIS CHAPTER, OR FIVE HUNDRED DOLLARS FOR EACH
 INTERMEDIATE PACKAGE OR SHIPPING CONTAINER WHICH IS  NOT  IN  COMPLIANCE
 WITH THE PROVISIONS OF THIS CHAPTER, PROVIDED THAT NO PERSON SHALL PAY A
 PENALTY  IN  EXCESS  OF  TWENTY THOUSAND DOLLARS FOR ANY ONE SHIPMENT OF
 PACKAGING. IN CONSIDERING THE AMOUNT OF THE PENALTY TO  BE  IMPOSED  FOR
 EACH  VIOLATION,  THE COMMISSIONER OF THE DEPARTMENT OR THE COMMISSIONER
 OF THE DEPARTMENT OF AGRICULTURE AND MARKETS OR THE COMMISSIONER OF  THE
 DEPARTMENT  OF  CONSUMER  AFFAIRS  SHALL CONSIDER ANY EVIDENCE PRESENTED
 REGARDING THE FOLLOWING FACTORS: COST, SIZE, WEIGHT OF THE  PRODUCT  AND
 PACKAGE, COMPLIANCE HISTORY OF THE VIOLATOR, AND ANY OTHER FACTORS WHICH
 JUSTICE REQUIRES.
   (C)  ANY  PERSON  MAY COMMENCE A CIVIL ACTION IN SUPREME COURT AGAINST
 ANY PACKAGER WHO IS ALLEGED TO BE IN VIOLATION OF ANY PROVISION OF  THIS
 SECTION  OR ANY REGULATION PROMULGATED PURSUANT TO THIS SECTION. NO SUCH
 ACTION MAY BE COMMENCED:
   (I) PRIOR TO SIXTY DAYS AFTER THE PLAINTIFF OR PLAINTIFFS  HAVE  GIVEN
 NOTICE  OF  THE VIOLATION TO THE ALLEGED VIOLATOR, THE ATTORNEY GENERAL,
 THE DEPARTMENT OF AGRICULTURE AND MARKETS AND, IN A CITY  WITH  A  POPU-
 LATION  OF  ONE  MILLION  OR  MORE,  THE  CITY'S  DEPARTMENT OF CONSUMER
 AFFAIRS; OR
   (II) IF THE  ATTORNEY  GENERAL,  THE  DEPARTMENT  OF  AGRICULTURE  AND
 MARKETS,  OR,  IN  A  CITY WITH A POPULATION OF ONE MILLION OR MORE, THE
 CITY'S DEPARTMENT OF CONSUMER AFFAIRS HAS COMMENCED A CIVIL OR  ADMINIS-
 TRATIVE  ACTION  TO REQUIRE COMPLIANCE WITH THE PROVISION OR REGULATION;
 OR
   (III) IF  AN  ALLEGED  VIOLATOR  HAS  A  PENDING  APPLICATION  FOR  AN
 EXEMPTION FILED WITH THE DEPARTMENT.
   THE  COURT, IN ISSUING ANY FINAL ORDER IN AN ACTION COMMENCED OR MAIN-
 TAINED PURSUANT TO THIS SUBDIVISION,  MAY  AWARD  COSTS  OF  LITIGATION,

 A. 4850                             6
 
 INCLUDING REASONABLE ATTORNEY AND EXPERT WITNESS FEES, TO ANY PREVAILING
 COMPLAINANT.
   (D) NO PACKAGER OF A PRODUCT WILL BE HELD IN VIOLATION OF THIS SECTION
 WHO  CAN SHOW THAT, IN THE PURCHASE OF A PACKAGE OR PACKAGING COMPONENT,
 HE OR SHE RELIED IN GOOD FAITH ON THE LABEL OF THE MANUFACTURER ON  SUCH
 PACKAGING OR PACKAGING COMPONENT THAT SUCH PACKAGING OR PACKAGING COMPO-
 NENT  EITHER  COMPLIED  WITH OR WAS EXEMPT FROM THE REQUIREMENTS OF THIS
 SECTION.
   (E) NO PACKAGER WHO IS ENGAGED IN RETAIL  SALE  OF  FOOD  PRODUCTS  ON
 BEHALF OF A NOT-FOR-PROFIT CORPORATION WILL BE HELD IN VIOLATION OF THIS
 SECTION  UNLESS  SUCH  PACKAGER  IS  AN  EMPLOYEE OF SUCH CORPORATION OR
 UNLESS SUCH PACKAGER ACTS KNOWINGLY AND IN BAD FAITH.
   § 4. Severability. The provisions of this act shall be severable,  and
 if any part of this act shall be held invalid, the remainder of this act
 and the application thereof shall not be affected thereby.
   § 5.  This act shall take effect immediately.