We're Not Out to Undermine Producer Responsibility, CEA, ITI Say

“As manufacturers, we recognize that we play an important role -- but not the only role -- in providing product stewardship solutions,” they said. “Many of our members have instituted voluntary, nationwide producer responsibility programs and we and our members support reasonable recycling solutions that rely on shared responsibility between manufacturers, distributors, retailers, government and consumers. Unfortunately, the NYC program is not reasonable. Rather, it is a globally unprecedented mandate that will impose staggering costs on only one industry among several that are instrumental in transporting, selling and delivering electronics to consumers.”

On Kyle’s claims that CE and IT makers have repeatedly threatened litigation in states with strong e-waste laws, CEA and ITI said their objections are “specific” to New York City. “It is important to note that we do not oppose producer responsibility,” the trade groups said. “In fact, the consumer electronics and information technology industry, including manufacturers and retailers, exercises producer responsibility in other states where it is the law, and also voluntarily in states where it is not the law. Our industry recycles hundreds of millions of pounds of e-waste per year.”

This lawsuit “has always been about the unique and extraordinary burdens of the New York City program, not about the larger issues of producer responsibility,” CEA and ITI said. Contrary to claims by Natural Resources Defense Council senior attorney Kate Sinding in the same briefing that it was New York City’s direct collection mandate that pushed manufacturers “over the edge” and prompted them to sue where they haven’t sued elsewhere, she “is only partially correct,” the groups said. “There are a number of elements of the underlying law itself that are also globally unique and extremely burdensome,” they said. According to CEA and ITI, these include: (1) A requirement that a manufacturer offer free take-back of an old product of any brand whenever a retailer sells one of its new products anywhere in the city; (2) A requirement that manufacturers provide free collection and recycling of products “we never even made, regardless of a new sale”; (3) An “unprecedented and regressive penalty scheme that could force small manufacturers out of business.”

Sinding also “is simply wrong in her claim that manufacturers excel at figuring out how to get products into people’s homes and by extension that we will figure out how to get them out,” CEA and ITI said. “Manufacturers rely on a national network of wholesalers, distributors and retailers to transport our products (often across state lines), and subsequently distribute, stock, market, sell and deliver electronics to consumers. The city has ignored this complex distribution chain and decided to unilaterally impose all obligations on manufacturers alone.”

It’s also compelling CE and IT makers “to perform a traditional government service by providing free door-to-door collection of used products,” they said. “This is a stunning government over-reach that is illegal and unconstitutional.” Sinding also is wrong that manufacturers lobbied the city to drop mandatory minimum collection standards in favor of the direct collection requirement, they said. “Manufacturers never supported direct collection during the legislative process and vehemently opposed it during the rule-making,” they said. “Moreover, had we indeed lobbied for direct collection in place of minimum standards, then how is it that we ended up with both requirements?”

As for the possibility of settlement talks to resolve the legal fight, CEA and ITI “have always been willing to sit down with the city to try to reach an amicable solution that serves the interests of all parties, including the residents of New York City,” they said. In May, CEA and ITI wrote to the city “to raise concerns we had with respect to a number of aspects of the city’s program and asked to meet with city officials to try to resolve them, but the city refused to meet with us,” they said. As the July 24 complaint said, the CE and IT industries “are at the forefront of supporting sustainable and effective electronics take back programs around the country and many leading companies in our industry have their own extremely effective voluntary nationwide program in place. The New York City program, in its current form, undermines and jeopardizes the great strides that our industry has made in ensuring the safe disposal of electronics products at the end of their useful life.”

The “most critical point to make” about the recent New York City sanitation workers union amicus brief backing CE makers in their e-waste lawsuit is that the filing “does not in any way attack producer responsibility,” Sinding said in the Thursday briefing when we asked her to respond to it. In its brief, the union argued that waste collection, including collecting e-waste from residents’ homes, should stay the “exclusive province” of sanitation workers and not be shifted to manufacturers and their private contractors, as the city Sanitation Department’s (DSNY) rules require.

NRDC and Sinding previously declined comment on the union’s brief on the grounds that the filing attacked those rules and not the city’s e-waste law itself and NRDC intervened in the case only to defend the law. The union’s brief “does not take issue with the New York City law, it does not take issue with the fundamental issue of shifting the burden of managing and handling electronics at the end of their useful lives from the city and its taxpayers to the manufacturers,” Sinding said. “The sole point of that filing was that … the sanitation workers wanted to do the work. The manufacturers would pay for it, but they wanted to get the jobs.”

It’s a “legally possible outcome” that the court could uphold the city’s producer responsibility law but strike down the DSNY’s direct collection rules, Sinding said in Q-and-A. NRDC “intervened to defend the law, but not the regulations, because we do believe it’s possible that the court could parse its decision between those two aspects and uphold the underlying principles of product stewardship for producer responsibility even were it to have qualms about the implementing regulations,” she said. The U.S. District Court in Manhattan has rescheduled oral argument on CE makers’ preliminary injunction motion to Feb. 10 at 9:45 a.m.