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States Move to Enact Laws to Prevent Local Plastic Bag Bans and Taxes

June 20, 2016

Several states have either enacted or proposed laws that ban local governments from taxing or restricting the use of disposable plastic bags and other containers. Three of the most recent states to enact these types of laws are Indiana, Wisconsin, and Idaho. Indiana Gov. Mike Pence signed H.B. 1053 into law on March 23, 2016. The law, which became effective upon passage, prohibits a local government from imposing, adopting, or enforcing any ordinance or resolution to impose any prohibition, restriction, fee, or tax with respect to auxiliary containers. An auxiliary container is defined as a bag, box, cup, bottle, or similar container that is reusable or disposable; made of cloth, paper, plastic, extruded polystyrene, or a similar material; and designed for one time use or transporting merchandise or food from food or retail facilities.

In Wisconsin, AB 730 prohibits cities, villages, towns, and counties from enacting or enforcing ordinances or adopting or enforcing resolutions regulating the use, disposition, or sale of auxiliary containers; prohibiting or restricting auxiliary containers; and imposing fees, charges, or surcharges on auxiliary containers. The bill was signed into law by Gov. Scott Walker on March 29, 2016.

Idaho Gov. C.L. “Butch” Otter signed H.B. 372 on March 24, 2016. This bill stipulates that any regulation regarding the use, disposition, or sale or any prohibition, restriction, fee, or taxation of auxiliary containers at the retail, manufacturer, or distributor setting shall be done only by statute enacted by the state Legislature. An exception is made for recycling programs. Idaho’s definition for auxiliary containers is similar to Indiana’s. The law will become effective on July 1, 2016.

Florida has had a law prohibiting local governments from enacting plastic bag laws since 2008. The law directs the Florida Department of Environmental Protection (DEP) to analyze methods used to regulate auxiliary containers, wrappings, and disposable plastic bags and to submit a report with conclusions and recommendations to the Legislature on the analysis. The law further states:

“Until such time that the Legislature adopts the recommendations of the [DEP], no local government, local governmental agency, or state government agency may enact any rule, regulation, or ordinance regarding use, disposition, sale, prohibition, restriction, or tax of such auxiliary containers, wrappings, or disposable plastic bags.” (See Florida Law Title 29, Chapter 403, Section 7033.)

While the Florida DEP submitted the report on February 1, 2010, the ban on plastic bag regulations by local governments remains in place. However, a bill to allow pilot programs authorizing small coastal municipalities to regulate or ban disposable plastic bags was introduced in the Florida Senate during the 2015/16 session. That bill, SB 306, died in committee, though.

Arizona also has a law that prohibits local governments from regulating or taxing auxiliary containers. Arizona defines auxiliary containers as “reusable bags, disposable bags, boxes, beverage cans, bottles, cups and containers that are made out of cloth, plastic, extruded polystyrene, glass, aluminum, cardboard or other materials that are used for transporting merchandise or food to or from a business or multifamily housing property.” SB 1241 was signed into law on April 13, 2015, by Gov. Douglas Ducey.

Shortly after the New York City Council voted in May 2016 to impose a $0.50 fee on disposable plastic bags, a bill was introduced in the New York State legislature to prohibit the imposition of any tax, fee, or local charge on carryout merchandise bags. The bill, S. 7336 was passed by the Senate on June 7, 2016, and has been sent to the state Assembly. The effective date of the New York City plastic bag tax, originally scheduled for October 1, 2016, has been postponed to February 15, 2017.

On the other end of the spectrum, California passed the first statewide ban on plastic bags in September 2014 when Gov. Jerry Brown signed SB 270 into law. In addition to banning single-use carryout bags, the law directs retail outlets to charge a minimum of $0.10 for recycled paper bags or reusable grocery bags made from plastic film. However, before the law was scheduled to go into effect in July 2015, it was put on hold when a measure to repeal the ban qualified for the ballot. The American Progressive Bag Alliance (APBA) submitted more than 800,000 signatures by the December 29, 2014 deadline in support of a referendum on the law. With at least 555,236 of the signatures determined to be valid, the California Secretary of State announced in February 2015 that the referendum qualified for the November 2016 ballot.

In a related move, APBA announced that it would submit approximately 600,000 signatures to the California county registrar’s office to qualify an initiative, titled, “Environmental Fee Protection Act,” for the November 2016 ballot. The Act mandates that all money generated or collected from consumers for carryout bags be given to an environmental fund, rather than be retained by grocers or other retail outlets.