LEGISLATIVE REPORT

2021 Legislative Sessions Show Agendas for the Future

BY ALEX WALSH

Some of the legislatures in the associations’ eightstate region, including New York, have concluded their regular business for the year. As the year continues, they may be called back for special votes, however, for the most part, legislative issues will be at a near standstill until lawmakers reconvene in January. Some states, such as New Jersey, do continue their legislative sessions throughout the calendar year. The Northeast Dairy Foods Association and the Northeast Dairy Suppliers Association have been extremely active and engaged on a wide variety of issues in New York, New Jersey and all of the New England states. A few major pieces of legislation were passed at the very end of sessions, which is usually the case, and a few were thwarted because of the efforts of the Northeast Dairy Foods and Northeast Dairy Suppliers associations. BILL IN MAINE WALKS THE LINE BETWEEN RECYCLING AND COST

Let’s start in Maine, where the state passed the Extended Producer Responsibility Act, referred to as EPR. (Keep that term in mind, as you will see it mentioned more throughout this article.) This law stemmed out of two paralleling bills, an act to establish a Stewardship Program for Packaging, and An Act to Support and Improve Municipal Recycling Programs and Save Taxpayer Money. Sounds good on paper, right? Especially anything that has “save taxpayer money” in the title. Well, that can be misleading.

At face value, this issue seems like it would be rather cut and dry. However, the Northeast Dairy Foods Association needed to take a delicate approach and be cautious as to not come off as insensitive when it comes to recycling issues. We all know that the dairy industry is a leader in and remains committed to sustainability practices and the environment. The last thing the industry needs is bad PR because “we are the bad guys who don’t care about recycling.” Processors and manufacturers are taking more and more proactive approaches when it comes to their operations, including packaging. Companies are working more effi ciently, continually developing new technologies, reviewing sourcing options, reducing energy consumption, conserving water and recycling or repurposing production waste. The dairy industry and members of the Northeast Dairy Foods and Suppliers associations devoted their willingness to be engaged, educate lawmakers, listen and learn about different viewpoints in order to show good faith and fi nd common ground. The associations were relentless at reaching out to members of the Maine State Legislature and the governor’s offi ce to fi nd realistic and feasible solutions.

Unfortunately, even after providing testimony, letters and communications with key offi cials, as well as opposition

from many other organizations, the bill, which ended up being a hybrid of the Stewardship Program for Packaging Act and the Act to Support and Improve Municipal Recycling Programs and Save Taxpayer Money, passed through committee and the legislature. The battle is not over yet. As of mid-June, there were signs that Gov. Janet Mills may have concerns with the bill, as the complexity of instituting this program surfaced. The expense of implementing and operating the program could cost Mainers $134 million per year. So much for saving taxpayers money! The fact is that this program could increase the cost of consumer products by between $99 million and $134 million a year. Additionally, in a poll conducted by the Campaign for Recycling and the Environment, 64% of Maine residents oppose a state-run recycling program that would increase their costs, as it is estimated to lead to a potential cost increase for a family of four of between $32 and $59 per month. Ultimately, whatever costs the implementation of the EPR program would have on packaging, food and other industries that are targeted would be passed on down to the consumer. Notably, the poll also found that 47% of voters said that the state’s recycling system needs improving, while 43% said the system is working well overall.

There is no evidence that the bill in its current form will improve the recycling system, reduce local taxes or decrease the amount of packaging material sent to landfills. Like many other states, Maine is experiencing the highest increase in pricing for consumer goods that it has seen in a decade. The state also currently lacks the capabilities to accommodate the program. The Maine Department of Environmental Protection would be the responsible agency to manage the new EPR program, and there are many concerns about whether the department has the financial and human capital resources to take on this tremendous new burden. It is imperative that the state not expedite this program through to gain political points before these factors are considered and solutions are determined.

NDFA ADVOCATES FOR AMENDMENTS TO NYS HERO ACT, APPLAUDS NOURISH NY PROGRAM

Earlier in 2021, New York State also introduced an Extended Producer Responsibility Act. As a refresher, the state Senate had included the bill (S.1185-B) in its one-house budget. It must be highlighted that this bill was included with no hearings or input from industry on the issue. It felt as if this was put in the Senate’s budget through the workings of a smoke-filled room in Albany. Through conjoined efforts with industry partners, such as the Farm Bureau and the Food Industry Alliance, as well as other sectors, members of the Senate and assembly began seeing more flaws and complexities with the program. As support from the assembly dwindled and there was lack of engagement from Gov. Andrew Cuomo, the bill was removed from the Senate’s one-house budget. That bought more time for legislators to refine the bill and learn and hear more from industry, as well as for the Northeast Dairy Foods Association and the Northeast Dairy Suppliers Association to bolster ammunition for the fight that remained during the last two-and-a-half months or so of the session. Luckily, the assembly kept dormant on the issue. The bill remained

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in a holding pattern in the Senate, and there was no same as version1 in the assembly. In fact, the Senate and assembly were not in alignment at all on the issue. The legislative session concluded without the bill being brought to the floor for a vote.

What can be expected is that New York is seeing other states considering and passing EPR bills, and it will resurface again. Hopefully, when it is reintroduced, there will be opportunity for the public to comment and provide testimony from industries the program will impact, as well as an effort to find compromise to make sure it is feasible. The issue is not going away, and dairy processors, manufacturers and suppliers need to be prepared to adjust to what is coming. The Northeast Dairy Foods and Suppliers associations will remain on guard and ready to defend the industry and your interests on this matter.

A piece of legislation that was passed was the New York Health and Essential Rights Act. This bill will impose significant obligations on employers, regardless of size, in an effort to prevent exposure to airborne infectious disease. The law will put in place a burdensome amount of items that companies will need to comply with, including mandating covered employees to adopt and publish a written “airborne infectious disease exposure prevention plan.” The prevention plan must include and address a number of topics, including, but not limited to, employee health screenings, face coverings, required personal protective equipment, hand hygiene, regular cleaning and disinfection of high-risk areas, social distancing (for both employees and customers), compliance with mandatory or precautionary orders of quarantine, compliance with applicable engineering controls (such as ventilation), designation of one or more supervisory employees to enforce compliance with the prevention plan and any other applicable guidance, compliance with applicable laws, rules, regulations or guidance related to potential exposure to airborne infectious disease at the worksite; and verbal review of the prevention plan standards, related employer policies and rights under the law.

In addition to the above topics, the law also requires the prevention plan to include an anti-retaliation provision. The law specifically protects workers from retaliation, discrimination, adverse action or threats for exercising their rights under the law or under the implemented prevention plan; reporting violations of the law or applicable prevention plan, reporting an airborne infectious disease exposure concern or seeking assistance or intervention with respect to such concerns.

During the final weeks of session, the Senate and Assembly negotiated and put forth amendments to the bill, which the Northeast Dairy Foods Association advocated for. Some of the amendments passed include that the prevention plan be only applicable during a declared state of emergency, eliminating the workplace safety committees and eliminating the private right of action. Final changes will need the approval and sign-off from Cuomo and could continue to be amended moving forward.

The Northeast Dairy Foods Association has been outspoken on the New York Climate and Community Investment Act. This legislation calls for accelerated state-level actions to achieve broad and far-reaching climate change policies. This bill (S.4264/A.6967) includes a new 55-cents-per-gallon gas tax and increased taxes on heating oil, propane and natural gas, which is estimated to increase heating fuel costs by 26%. The Tax Foundation already ranks New York as the seventh highest gas tax in the nation at 43.12 cents per gallon, with California at 62.47 cents per gallon. This legislation would raise New York’s tax to 98.12 cent per gallon, an increase of more than 127%, making New York’s gas tax more than 57% higher than any other state! This bill remained in the Environmental Conservation Committee in both the Senate and Assembly this year. Look to see this issue also possibly gain traction during the 2022 legislative session.

On a positive note, the Nourish New York program was codified by the state this year. This program stemmed from the issues the state’s food supply chain experienced at the onset of the pandemic, In working with state legislators and New York State Department of Agriculture and Markets, the Northeast Dairy Foods Association was able to relinquish some of the stress placed on the dairy industry during this time when store shelves were empty of milk and other products, yet producers and processors were forced to dump surplus raw milk. This program has helped move food for consumers, commercial establishments and schools to pantries and food banks across the state. The Nourish New York program proved to be a vital lifeline to farmers and processors, as well as those in need of food assistance. As New York and the region continues to emerge from the pandemic, this program will remain in place, providing an outlet and possible new markets for dairy and other food products.

1 A “same as” version is an identical bill in the other House. Both Houses need to pass identical bills in order for the bill to be delivered to the governor for his/her signature to be signed into law.

HELPED WANTED! NDFA/ NDSA URGE CLOSER LOOK AT UNEMPLOYMENT BENEFITS

While state legislators may not be in the capitols as much moving forward, there are still many other issues the Northeast Dairy Foods Association remains focused and working with regulators on. At state levels, one common problem is finding employees to fill job vacancies. The economy continues to chug on, yet, many people who lost their jobs during the pandemic remain unemployed due to the continuation of unemployment benefits. For some, this is important, as they are seeking to gain employment, but others may be receiving more in unemployment benefits than they would be if they had a job and are essentially taking advantage of the system. The Northeast Dairy Foods and Suppliers associations have advocated to state labor departments to resume and enforce requirements for those currently receiving unemployment benefits and the actively seeking work requirements to get eligible people back into the workforce. Enforcing these requirements will be key to restarting and flourishing our economy once again.

SUMMER’S HERE BUT ASSOCIATIONS REMAIN ON HIGH ALERT

Even though state-level activities quiet down, there is always the possibility of bills being introduced, hearings conducted or other legislative activities. Additionally, the federal government continues its regular business throughout the year. The Northeast Dairy Foods Association and the Northeast Dairy Suppliers Association remain active on several national issues, including trade and reopening border access, disputes and enforcing trade agreements with Canada, rural broadband, Class I mover proposals, federal investments from the

We will continue to voice your concerns and advocate for your best interests.

USDA to strengthening the food system and making low-fat flavored milk in schools permanent, just to name a few.

This exhibits the broad scope of issues the Northeast Dairy Foods Association and the Northeast Dairy Suppliers Association are constantly monitoring and engaging with lawmakers and regulatory agencies on a daily basis. It goes beyond just bills and topics surrounding milk regulations. The associations are working on issues that impact your business in perhaps a more subtle way, such as sustainability, recycling, energy, transportation, healthcare, safety and more. This year’s legislative activities across the Northeast, to date, have seen many similarities, and it can be expected that these trends and issues will continue for the foreseeable future. Regardless, if it is a local, state or federal issue, the Northeast Dairy Foods Association and the Northeast Dairy Suppliers Association remain on high-alert for issues that may arise at any moment, and we will continue to voice your concerns and advocate for your best interests.

Alex Walsh is the associate vice president of regulatory affairs for the Northeast Dairy Foods Association.