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Plastic Bag Regulations Gain Momentum, Face Criticism

| Jan 23, 2014 | Analysis

The plastic bags that many consumers encounter daily – in the grocery store at checkout, in the restaurant take-out line, or encasing the morning newspaper on a rainy day – are increasingly subject to restrictive regulations.  More than a hundred cities and counties throughout the country have passed laws that place restrictions on single-use retail plastic bags since 2006.

Plastic bags flew from a landfillLegislative efforts at the state and local level have been propelled by environmental concerns associated with plastic bag use – including the negative impact of plastic bags on landfills, marine environments and open spaces, as well as their carbon footprint.  However, the plastic bag and recycling industries oppose these regulations, and one plastic bag manufacturer has argued that bag regulations actually have a negative effect on public health and the environment.

Although plastic bag laws can vary dramatically from state to state, legislation is typically structured in one of two ways: a tax or a ban.  Laws that tax the distribution of plastic bags in retail typically charge the consumer between five and twenty-five cents for each plastic bag used at checkout; some jurisdictions also apply the tax to paper bags.  Tax-based legislation often mandates or encourages suppliers to provide alternative packaging, such as biodegradable plastic bags, or to make reusable bags available for purchase. The profits earned from a tax on plastic bags typically go toward public education on litter reduction, environmental cleanup of local waterways, or to fund the operations of local recycling programs.

Some cities and counties have opted for more expansive laws that completely ban retail establishments from distributing single-use plastic bags.  Such sweeping ordinances are particularly common in the state of California, because of a 2006 state law that preempts cities from charging a fee for bags at checkout.  Certain exceptions from the bag bans may exist depending on the jurisdiction, such as bags provided for raw meat and seafood, self-serve bulk foods like nuts and grains, dry cleaners’ bags, restaurant to-go bags, or newspaper packaging.

Despite the momentum toward more plastic bag regulation at the local level, state and federal laws to tax or ban plastic bags are not common.  Legislators in eight states have passed laws to mandate in-store recycling and encourage non-plastic alternatives, but none of the fifty state legislatures have formally passed statewide legislation to tax or ban plastic bags.  However, Hawaii became subject to a de facto statewide ban in 2012, after all four of its counties independently passed legislation banning retailers from offering plastic bags to customers. Additionally, the unincorporated territory of American Samoa passed a law in 2011 that banned both retail and wholesale stores from distributing petroleum-based plastic bags.  As of mid-2013, at least eleven states were considering active legislation that would impose a tax or ban.  Federal legislation proposing a tax on single-use plastic bags was last introduced in the U.S. Congress in 2009, but never made it out of committee.

The surge of interest by cities and counties in restricting plastic bag consumption may have unintended impacts on public health, as consumers switch to reusable bags en masse.  For example, the New York Times reported in 2010 that some imported screen-printed reusable bags contained potentially unsafe levels of lead. (Sellers of reusable bags responded to the reports by pulling affected products off the shelves, and issuing public notices to assuage customers’ concerns.)

Reusable bags can also pose a public health threat when they are regularly used for groceries, because the bags are often exposed to a wide range of bacteria when carrying raw meat or unpackaged vegetables.  Remaining food particles in reusable bags can provide a medium for bacteria growth.  This type of exposure is particularly risky because consumers rarely wash reusable bags.  A recent study led by Jonathan Klick, a professor and economist at the University of Pennsylvania Law School, examined emergency room visits before and after San Francisco implemented a ban on plastic bags in 2007.  Klick’s research found a spike in emergency room admissions for foodborne illness caused by the types of bacteria commonly found on reusable bags in the period immediately after the city’s plastic bag ban went into effect.  The study found a statistical correlation between the introduction in the plastic bag ban and an increase in human mortality.

The Institute of Scrap Recycling Industries (ISRI), a trade association representing 1,700 recycling companies, is an opponent of the nationwide push for plastic bag regulation.  It issued a new policy in the summer of 2013 indicating that it would support a “competitive, market-based system for the trade of recyclable materials” and that it would categorically “oppose” bans and fees on bags.  The President of ISRI told the Huffington Post that members stand to lose jobs from a reduction in market share, arguing further that bans and taxes on plastic bags are shortsighted from an environmental standpoint.

ISRI has found an ally in the fight against plastic bag regulation in Hilex Poly, an “industry leading” manufacturer of plastic bag products.  Based on comparisons between one-time-use plastic bags and reusable alternatives, Hilex Poly suggests that “banning plastic bags could increase global warming, put more carbon in the air, require more trucks on the road and use up more water.”

Providing support for their argument, one study by the National Center for Policy Analysis in 2012 found that plastic bags require significantly less energy to produce than biodegradable plastic, paper or reusable bags.

Industry-backed lawsuits have challenged plastic bag regulations in three cities in California thus far, with some success.  The city of Oakland was the first city to be sued over a bag ban. Oakland’s 2007 ordinance banning plastic bags was invalidated by a state court in 2008. The court held that the city had failed to comply with a requirement under the California Environmental Quality Act (CEQA) to perform an environmental impact review.  Manhattan Beach’s plastic bag ban was overturned on a similar basis in 2009.  The city of Fairfax decided to withdraw its 2007 ordinance after a lawsuit was threatened, although voters subsequently re-introduced and passed a ban as a ballot initiative the following year, avoiding the CEQA environmental impact requirement.



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