Restaurant Action Alliance NYC Files Suit Against Mayor de Blasio, DSNY Over Foam Ban

In 2015, New York City banned single-use expanded polystyrene (EPS) foam items and packaging after the New York City Department of Sanitation (DSNY) determined that EPS foam cannot be recycled. As part of the ban, businesses were given a six-month grace period before being fined.

Two months after the ban went into effect, the New York State Supreme Court overturned the city’s ban, calling the New York City Sanitation Commissioner’s decision “arbitrary and capricious.” Recyclers and restaurant owners applauded the decision, with the hope that it will spur EPS foam recycling. Shortly after that, New York City filed an appeal against the Supreme Court's decision to overturn the ban.

Now, the Restaurant Action Alliance of New York City (RAANYC), a coalition of restaurant owners and various foam manufacturers, recyclers and foodservice industry leaders have filed a lawsuit against the Mayor Bill de Blasio Administration that seeks to block the city’s second attempt to ban polystyrene foam.

The lawsuit, which was filed in State Supreme Court, debunks the city’s false claims that polystyrene foam is not recyclable. In addition, the lawsuit claims that the city cherry picked critical information to suit its narrative in developing the latest Department of Sanitation Determination issued May 12 and flouted a previous directive from the New York State Supreme Court.

“Once again, Mayor de Blasio and his sanitation commissioner have ignored the facts confirmed by environmental scientists, foodservice manufacturers, recycling industry participants and independent experts that prove expanded polystyrene foam is recyclable—facts already found by a New York court but ignored by city officials,” said Randy Mastro, the lead attorney for the coalition’s lawsuit, in a statement. “The de Blasio Administration should comply with the court’s directive, drop its latest misguided attempt to ban soft foam and implement the comprehensive recycling program proposed and financially supported by industry participants. Indeed, a comprehensive program recycling all polystyrene will be more environmentally effective and economically feasible than a limited soft foam ban alone, saving the city millions of dollars in landfill costs and protecting the many smaller restaurant businesses that depend upon cost-effective, soft-foam foodservice items to survive.”

The lawsuit also urges the city to forego its misguided plans to ban foam in early November and instead establish a post-consumer recycling program that would be consistent with the court’s previous findings.

In September 2015, the Supreme Court ruled that foam is, indeed, recyclable and halted the de Blasio Administration’s previous attempt to ban foam products. The court also directed the city to reissue a determination consistent with its findings.

According to a study by the independent Berkeley Research Group, the cost of foam alternatives for businesses and consumers is more than $51 million annually. The study also shows that foam alternatives have added environmental costs, too. For example, popular foam cup alternatives emit double the amount of greenhouse gas and create almost five times the amount of solid waste as foam cups.

“Foam containers are essential to the operations of Caribbean, Asian and other ethnic restaurants,” said Akisha Freeman, president of the Restaurant Action Alliance NYC, in a statement. “In fact, for many of us, 40 to 60 percent of our business model relies on takeout orders. If the city moves forward with this ban, it will surely increase our costs of doing business—at a time when many small restaurant owners are fighting for survival. We urge the mayor to reconsider his foam ban.”

In addition, Freeman stated that the RAANYC strongly supports Intro 1480—legislation in the City Council that would establish a curbside program to recycle polystyrene foam across the city—and urged concerned citizens to call on their City Council members to support the bill.