In New York, whether you can bring your own container still depends on where you shop, what you are buying, and how the law is interpreted. The state still does not provide clear statewide BYO rights for takeout and prepared food settings.
This is not a problem of public readiness. BYO is already familiar, mainstream, and gaining visible public support. Our February 2026 collaboration with Hila the Earth, a New York City artist, reached more than 100,000 views in about a month. The real obstacle is legal structure: New York’s rules are split, incomplete, and still vulnerable to patchwork implementation.
New York does not need another partial, problematic patchwork passed off as a fix. It needs a clear statewide framework that authorizes BYO across food settings, removes the retail food barrier, and prevents the practice from being narrowed again through weak implementation or discretionary rulemaking.
Zero Waste Ithaca and grassroots allies have been engaged with this legislation since 2022. In May 2025, at the bill sponsors (Sen. Fahy and Assemblymember Kelles)’ invitation, we prepared and submitted proposed amendment language to expand the bill to establish the statewide BYO right, cover takeout, strengthen its enforceability, and address the separate regulatory barrier on the New York State Department of Agriculture and Markets side, 1 NYCRR § 271-8.3(e), which the bill as introduced does not reach. That is the work this page documents.
Unfortunately, it appears to have received little meaningful consideration. Despite our repeated expressions of concern since then, Assemblymember Kelles’ office disregarded most of those concerns and introduced a troubling amendment on March 27, 2026.
The new amendment introduced by Assemblymember Kelles’ office on March 27, 2026, risks making an already inadequate bill even more confusing for New Yorkers and harmful for the BYO movement by introducing problematic “may opt-in” language. We oppose this amendment and urge legislators to correct the bill properly by establishing BYO as a clear statewide right in New York, as set out in our original amendment language.
One of the new problems introduced in Assemblymember Kelles’ new amendment is §4 takeout opt-in. “May opt” means a business can simply never participate. McDonald’s corporate, Dunkin’s corporate, any chain’s legal team can issue a systemwide no-BYO-takeout policy and that is not a violation. Nothing in the statute prevents it.
We oppose this weak amendment.
TL;DR
New York still does not provide clear statewide BYO rights for takeout and prepared food.
Why?
- BYO rules are still split between different kinds of food businesses.
- Some settings are treated more favorably than others.
- Grocery deli and similar retail food settings still face a separate legal barrier.
- A weaker amendment approach would still leave takeout dependent on establishment discretion instead of creating a clear statewide rule.
- That would leave BYO even more uneven, confusing, unreliable, and difficult to implement.
What New York needs instead:
- clear statewide authorization for BYO takeout and prepared food
- direct removal of the retail food barrier in 1 NYCRR § 271-8.3(e)
- protection against patchwork implementation that leaves rights uncertain in practice
Bottom line: New York does not need a symbolic fix. It needs a real statewide BYO framework. We oppose Assemblymember Kelles’ patchwork amendment, and urge legislators to correct the bill properly by establishing BYO as a clear statewide right in New York.
What this page explains:
- Why New York still lacks clear BYO rights for takeout and prepared food settings
- What a strong amendment must do
- The current bill (A8007A/S7408A) with a new amendment, and why we oppose this amendment
- The barriers to BYO, and what closing them requires
- Why a fragmented “opt-in” approach is problematic
- Why “May Opt-In” Is a Problem and will createadditional layers of patchwork
- How other states handle BYO, and what New York should learn
- Why this matters beyond convenience
- Where to find our proposed amendment, sponsor brief, petition, and source documents
The core structure
New York State regulates food businesses under two separate legal frameworks:
- NYSDOH rules (Title 10 NYCRR) governing restaurants and food vendors do not contain the same explicit prohibition, but they also do not establish clear statewide BYO rights. In practice, this has left BYO uneven, uncertain, and vulnerable to inconsistent interpretation.
- NYS Department of Agriculture and Markets regulations govern grocery store delis and other retail food stores. Those regulations include explicit language prohibiting BYO, specifically in 1 NYCRR § 271‑8.3(e).
What must be done to create statewide BYO rights for all New Yorkers
That split is one reason BYO in New York remains inconsistent and confusing. The problem is clearly not public readiness. It is legal structure, conflicting frameworks, and restrictive agency interpretation, which can be compounded by the troubling amendment introduced by Assemblymember Kelles’ office on March 27, 2026, despite our opposition. Any serious amendment must close that gap by establishing a clear statewide rule. Assemblymember Kelles’ patchwork approach would potentially make the problem worse.
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To end New York’s patchwork BYO system, a strong amendment must do three things:
- Establish clear statewide authorization for customer-provided containers in covered settings
- Remove the explicit regulatory barrier in 1 NYCRR Part 271 (Circular 962), § 271-8.3(e)
- Avoid a fragmented opt-in structure in which BYO depends on local discretion, business-by-business uptake, or an opt-in framework that leaves rights uneven and uncertain
New York does not need a symbolic fix. It needs a clear, workable statewide framework.
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The bill: New York’s Right to Refill Act (A8007A / S7408A)
The Right to Refill Act is the legislative effort to address that gap on the NYSDOH side. It has been introduced in successive legislative sessions since 2019, when it was first introduced by Assemblymember Patricia Fahy and Senator Jen Metzger. The bill has carried the same core text across all sessions. In the current 2025-2026 session, Senator Fahy — now in the Senate — carries the Senate companion bill S7408A, introduced April 15, 2025. Assemblymember Kelles carries the Assembly companion A8007A, introduced on April 21, 2025, and amended on March 27 and 30, respectively.
As originally introduced in this session, the bill would amend New York’s Public Health Law to require food service establishments to accept customer-provided reusable containers, but only for two narrow purposes: beverages served in single-use containers and leftover food from partially consumed meals. Takeout food was not covered. A customer who wanted to bring their own container for a takeout order had no right under the bill as written.
The new amendments introduced in late March 2026 do not solve that problem. They still do not establish a clear statewide right to bring your own container for takeout food across food settings, and they still do not address the separate retail food barrier in 1 NYCRR § 271-8.3(e) on the Department of Agriculture and Markets side. Instead of fixing the bill properly, the amendment risks making New York’s BYO framework even more confusing by creating a partial and inadequate structure that can be presented as progress without securing the rights New Yorkers actually need.
Zero Waste Ithaca and allies oppose the current amendment and continue to urge legislators to adopt the stronger amendment language we previously submitted. New York does not need another narrow and confusing patchwork. It needs a clear statewide framework that authorizes BYO across food settings, removes the retail food barrier, and prevents the practice from being narrowed again through weak implementation or rulemaking.
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Why § 271‑8.3(e) Is the Barrier
Section 271‑8.3(e), located in 1 NYCRR Part 271 (Ag & Markets retail food store sanitation regulations; Circular 962), states:
“Take‑out containers are to be provided by the retail food store or food service establishment. Personal containers are not allowed.”
That explicit prohibition blocks customers from bringing their own containers for prepared foods in grocery delis and other retail food settings.
It is important to note that the prohibition comes from New York’s own code text, not from automatic legal effect of the 2001 Federal Food Code adoption itself. New York State Agriculture and Markets as having adopted the 2001 Food Code by long-form adoption, which means New York developed its own regulatory text using the FDA model. The prohibition therefore exists in New York law because New York put it into its own regulation, and repeal or amendment of § 271-8.3(e) is within New York State’s authority. (See the FDA adoption-status report for different adoption methods between long-form and short-form).
What closing those gaps requires
The restaurant takeout gap exists because the bill as introduced was written narrowly. That is fixable with a direct amendment adding takeout coverage using “shall not refuse” language paired with defined safety conditions.
The retail gap is more structural. Grocery store delis and retail food settings are not governed by the Department of Health — they fall under a separate regulatory framework administered by the NYS Department of Agriculture and Markets. That framework contains an explicit prohibition on customer-provided containers in 1 NYCRR §271-8.3(e). No amendment to the Public Health Law automatically reaches that provision. Closing the retail gap requires either direct repeal of §271-8.3(e) by Ag & Markets, or a statutory coordination provision directing the commissioner to transmit recommended amendments to Ag & Markets within a defined timeframe.
Without both fixes, a customer at a restaurant has different rights than a customer at a grocery store deli counter two blocks away.
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Why the structure of the amendment matters
Not all amendments are equal.
A strong approach removes the barrier directly and creates clear statewide BYO rights. A weaker approach may appear to address the problem while preserving uneven access, confusion for businesses, and uncertainty for the public.
Structural comparison
| Question | Strong amendment approach | Weak patchwork approach |
|---|---|---|
| Legal effect | Removes the barrier directly | Leaves BYO dependent on uneven uptake or discretionary structure |
| Scope | Statewide clarity | Fragmented implementation |
| Public understanding | Easier to understand and use | Confusing and inconsistent |
| Business compliance | Clearer rule across settings | More uncertainty and mixed practice |
| Long-term result | Real rights and broader normalization | A partial fix that may leave the core problem in place |
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Why “May Opt-In” Is a Problem and will create additional layers of patchwork
The difference is not just wording. It affects whether takeout BYO becomes a clear statewide right or remains a voluntary program.
Zero Waste Ithaca’s proposed amendments would establish a statewide BYO right by using “shall not refuse” language, paired with case-specific safety safeguards and liability protection for businesses.
The amendment introduced by Assemblymember Kelles — despite our opposition — uses an “opt-in” structure under which establishments “may opt to” allow takeout BYO. That means refusal is not a violation. It leaves participation discretionary, weakens enforceability, and patchwork access remains likely. A single business, or even an entire chain, may simply decline to participate across all of its locations.
The introduced amendment now also directs the commissioner to establish safe-handling standards and incorporate them into health inspections, while still omitting any anti-backsliding clause or bar on narrower local interpretation.
Additional Layers of confusion and patchwork in the Kelles amendment:
- By sector: it excludes retail food stores.
- By use: it treats beverages and leftovers differently from food takeout. BYO for food takeout remains “opt-in,” making non-participation is the statute’s implicit default.
- By establishment: it leaves food takeout to business discretion rather than creating a clear statewide right. That means an entire chain, such as McDonald’s or Dunkin’, could adopt a no-BYO-takeout policy across New York, and the statute would not prohibit it.
- By implementation:it leaves key matters to future rulemaking and local health department interpretation without any anti-backsliding protection. This creates a real risk of county-by-county patchwork, with some local health departments potentially allowing broader BYO practices while others adopt narrower interpretations or additional restrictions.
Our technical note below explains this issue in more detail. Although the note was written in February 2026 in response to a draft version shown to us before formal introduction, its core analysis remains directly relevant after comparison with the amendment introduced on March 27, 2026.
The later amendment changes some wording and adds new sections, but it leaves the same structural weaknesses in place. The introduced amendment adds takeout signage, more detailed handling language, and new rulemaking provisions, but it leaves the same structural weaknesses in place.
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How other states have approached BYO
Several states have already enacted BYO legislation. Their approaches vary in strength, but none uses the specific opt-in structure — under which a business’s refusal is simply not a violation — that appears in the Kelles amendment in New York.
California (AB 619, 2019) established that clean consumer-owned containers may be filled at food facilities, with defined safety conditions including isolation of the container from serving surfaces or sanitization after each filling. The law sets a statewide standard with written food safety procedures required of participating establishments.
Illinois (HB 2086, 2023) provide the strongest statewide baseline among the comparison states. It allows restaurants and retailers to fill consumer-owned containers with ready-to-eat or dry bulk foods, and — critically — includes explicit anti-preemption language: local governments and municipalities “may regulate but shall not prohibit” BYO. That clause prevents local health departments from blocking a practice the state has authorized.
Oregon (SB 545, 2023) directed the Oregon Health Authority to adopt rules allowing restaurants to permit consumer-owned container filling, with those rules to take effect by June 2024. Oregon used a rulemaking mandate rather than establishing the right directly in statute.
Maine (LD 2091, 2024) took a different approach, directing its department to ensure its rules explicitly allow businesses, on a voluntary basis, to accept consumer-supplied containers. Maine also explicitly preserves the right of a business to refuse. This is a permissive framework — it removes regulatory barriers to participation.
Note: Maine is explicitly voluntary and permissive; New York’s amendment introduced by Assemblymember Kelles’ office, by contrast, is best described as hybrid and internally conflicted. Maine directs its agency to ensure that rules and guidance allow businesses, on a voluntary basis, to accept consumer-supplied containers and explicitly preserves each business’s right to refuse, so the statute and its intent are aligned around “you may, never must.” The Kelles amendment, by contrast, uses “shall not refuse” language for on-premises beverages and leftovers, which on its face reads like a consumer right, but then pairs that with a “may opt” clause for takeout and a broad exemption stating that “nothing in this section shall require” an establishment to fill a customer container based on “reasonable” safety or operational concerns. Taken together, that structure in the Kelles’ amendment signals a statutory right in name but voluntary in practice, making it more internally conflicted and more ambiguous than Maine’s openly permissive model, and far weaker than a clear, enforceable statewide right.
What this means for New York
The New York amendment by Assemblymember Kelles creates a different structure than any of these states.
It uses “shall not refuse” language for on‑premises beverages and leftovers, which on its face reads like a consumer right, but then pairs that with a “may opt” clause for takeout and a broad exemption saying “nothing in this section shall require” an establishment to fill a customer container based on “reasonable” safety or operational concerns. The Kelles amendment creates a broad carveout by making participation voluntary at the business level first (Section 4), and still allows case-specific refusal second (Section 5). A business can adopt a blanket refusal “no BYO for takeout” policy and simply never exercise that option.
This creates patchwork on multiple levels. It excludes retail food stores, creating one divide between grocery and restaurant settings. It then creates another divide within restaurants themselves by protecting BYO for beverages and leftovers on one hand but leaving takeout to establishment discretion on the other. Even within covered settings, the Kelles amendment preserves broad refusal discretion, allowing establishments to decline without a clearly defined, specific food safety basis. It also invites local health department input in rulemaking without barring more restrictive local interpretation, leaving the potential for uneven implementation across jurisdictions. The result is a right in name only – one that is difficult for consumers to rely on or enforce.
Unlike Illinois’s explicit anti-preemption floor or Oregon’s statewide rulemaking mandate, the New York Kelles amendment omits any mechanism to prevent local health authorities from narrowing the practice further, as the Kelles version does not include any anti-backsliding or preemption mechanism (See our technical note for details). Maine, at least, is coherent about being a voluntary framework.
Taken together, that structure of the Kelles amendment signals a statutory right in name but voluntary in practice, which is weaker and more ambiguous than Maine’s openly permissive model and far weaker than a clear, enforceable statewide right. The Kelles amendment gestures at a right without delivering one.
New York has an opportunity to match or exceed the strongest of these models. The question is whether the amendment it passes establishes BYO as a clear statewide right — or merely permits businesses to opt in if they choose, leaving New Yorkers with access that is uneven, uncertain, and difficult to enforce.
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Why this matters beyond convenience
BYO is a practical reuse strategy. It helps reduce single-use packaging, cut exposure to chemicals leaching from plastic containers, and normalize everyday waste prevention.
New York currently has no clear statewide BYO authorization. That has already produced inconsistency — a coffee shop may accept your cup while the grocery store deli two blocks away cannot. But the more urgent concern is what happens if the wrong amendment passes.
Kelles’ amendment would layer additional discretion on top of the existing inconsistency. An opt-in structure combined with broad rulemaking authority means that whether takeout BYO is available could depend on county health department interpretation, local regulatory culture, and business-by-business choice. That is not a fix. It is a new source of patchwork — built into the statute itself — that could vary across counties and persist indefinitely.
The legal barrier in New York is out of step with modern reuse practice and with reforms already seen in California, Illinois and Oregon and other regions around the world.
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Our Position
Zero Waste Ithaca supports clear, enforceable statewide BYO rights for all New Yorkers — for beverages, leftovers, and takeout — established directly in statute with defined safety conditions, liability protection, and targeted removal of the regulatory barrier in 1 NYCRR Part 271 (Circular 962), §271-8.3(e).
We do not support the opt-in framework in the amendment introduced by Assemblymember Kelles, despite our opposition, would leave takeout BYO discretionary, create confusion and uneven access across the state, and substitute a voluntary program for a real statewide right. If New York is serious about reuse and waste reduction, the law should say so clearly — not leave it to businesses to opt in if they choose.
Proposed amendment and background materials
We are actively working to change New York law so the regulatory barrier blocking BYO in retail settings is removed.
- Our Proposed amendment to bill S7408 / A8007 (2025-2026)
- AM Kelles’ amendment introduced on March 27, 2026 despite our opposition
- Our targeted amendment brief for allies/potential sponsors
- Technical notes on “may opt-in” and broad rulemaking
Supporting materials and historical reference documents are included below for those who want to review the underlying regulation, background correspondence, and campaign materials in more detail.
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Call to Action
New York needs a strong BYO amendment — not a patchwork opt-in system that leaves access uneven and rights unenforceable.
Please add your name to the petition to help secure a clear statewide right to BYO for all New Yorkers:
When you sign, you’ll receive updates as this legislation moves forward. We will keep signers informed as the amendment process develops and let you know when it’s time to take action.
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Below is the PDF of 1 NYCRR Part 271 (Circular 962), Rules and Regulations Relating to Retail Food Stores, which this page discusses. The current page says this version was last revised in 2014 and that we received it from Carmen A. Valentino of the NYS Department of Agriculture and Markets in April 2022 in response to a request for clarification.
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Updated: 4/1/2026