California’s Governor Jerry Brown signed the nation’s first state plastic bag ban into law on September 30, 2014. The law prohibits “stores”—supermarkets, groceries, retail stores that sell food or contain pharmacies, and convenience stores that also sell liquor—from providing single-use carryout bags to customers at the point of sale.
It also requires that stores offer reusable grocery bags for sale, and it establishes a certification program to ensure that only reusable grocery bags meeting California’s performance requirements are available. The ban goes into effect on July 1, 2015 for supermarkets and pharmacies, and then July 1, 2016 for convenience stores.
The law prohibits providing plastic or paper bags to customers at the point of sale that are not a “recycled paper bag” or a “reusable grocery bag.”
The bill defines a “recycled paper bag” as containing between 20 and 40 percent post-consumer recycled material, depending upon the bag characteristics. Recycled paper bags must also have the name of the manufacturer and country of manufacture printed on the bag, as well as a statement of the amount of postconsumer content.
A “reusable grocery bag” must, among other requirements, be designed for 125 uses, hold 15 liters, be machine washable or made from material that can be cleaned and disinfected, not contain lead, cadmium, or other toxics, and contain between 20 and 40 percent postconsumer recycled material, if made from plastic.
The ban applies to “stores,” which it breaks down into five categories of “retail establishments” based on their size and the items they offer for sale:
- Stores that sell “a line of dry groceries, canned goods, or nonfood items, and some perishable items” and have gross annual sales of $2 million or more; or
- Stores that contain at least “10,000 square feet of retail space that generates sales or use tax” under California law and a licensed pharmacy; or
- A “convenience food store, foodmart, or other entity” that sells “a limited line of goods, generally including milk, bread, soda, and snack foods” and holds a liquor license; or
- A “convenience food store, foodmart, or other entity” that sells “goods intended to be consumed off the premises” and holds a liquor license; or
- Stores that are not any of the above, but voluntarily agree to comply and notify the state that they are doing so.
The ban takes effect on January 1, 2015 for the first two categories, and January 1, 2016 for the remaining three.
Certification of reusable grocery bags
The ban requires that stores make reusable grocery bags available for purchase, and it also permits stores to offer recycled paper bags for sale. Stores may not sell either type of bag for less than $0.10.
Reusable grocery bag producers must also obtain independent third party verification that the bags meet the standards in the bill (number of uses, volume, composition and performance, etc.), as well as pay a certification fee to the state.
The bill authorizes the Attorney General, district attorneys, and city attorneys to seek civil penalties against any store that knowingly violates, or reasonably should have known it violated, the ban. The bill authorizes civil penalties of up to $1,000 per day for the first violation, $2,000 per day for the second violation, and $5,000 per day for subsequent violations. Public enforcers also could tack on California Unfair Competition Law claims, which authorize penalties of up to $2,500 per violation.
One silver lining is that the bill contains an explicit preemption provision, stating that it “occupies the whole field of regulation of reusable grocery bags, single-use carryout bags and recycled paper bags.” This at least makes it clear that the bill preempts any effort to expand the patchwork of local California regulations prohibiting plastic bags, eliminating the need to continually review existing municipal law in California to determine how to comply.
Even though the California bill provides a statewide approach, companies are still faced with developing compliance solutions to address the burgeoning patchwork of regulations in other states, from communities in Massachusetts to Texas. However, California’s law may be a sign of things to come. A number of states, including Massachusetts, New Jersey, New York, and Rhode Island, have had recent legislation banning or imposing fees on plastic bags die in the legislature. Some success stories from California, or a national policy from a significant grocery or retail chain in reaction to California, may be enough to get new bills over the hump.