BILL NUMBER: AB 87 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY APRIL 27, 2009
AMENDED IN ASSEMBLY MARCH 18, 2009
INTRODUCED BY Assembly Member Davis
(Coauthors: Assembly Members Blumenfield, Chesbro, De Leon, and
Nava)
JANUARY 5, 2009
An act to amend Sections 42250, 42251, 42252, 42253, and 42254 of,
to amend the heading of Chapter 5.1 (commencing with Section 42250)
of Part 3 of Division 30 of, to add Sections 42252.5 and 42252.7 to,
and to repeal and add Sections 42256 and 42257 of, the Public
Resources Code, relating to single-use carryout bags.
LEGISLATIVE COUNSEL'S DIGEST
AB 87, as amended, Davis. Single-use carryout bags: environmental
effects: mitigation.
Existing law requires, until January 1, 2013, an operator of a
store, as defined, to establish an at-store recycling program that
provides to customers the opportunity to return clean plastic
carryout bags to that store. Existing law imposes various
requirements on at-store recycling programs, including requiring a
store to maintain records describing the collection, transport, and
recycling of plastic carryout bags collected by the store.
Existing law also requires, until January 1, 2013, the
manufacturer of plastic carryout bags to develop educational
materials to encourage the reducing, reusing, and recycling of
plastic bags and make those materials available to stores required to
comply with the program.
This bill would instead prohibit, on and after July 1, 2010, a
store, as defined, from providing a single-use carryout bag,
including a green carryout bag, to a customer unless the store
charges a fee of not less than $0.25 per bag at the point of sale.
The bill would exempt certain customers from paying the fee. The bill
would establish the Bag Pollution Fund in the State Treasury and, by
January 31, 2011, would require a store that collects the single-use
carryout bag fees to remit the fees, less a specified amount to be
used as required, to the State Board of Equalization for deposit in
that fund, and do so on a quarterly basis thereafter.
This bill would instead require the manufacturer of a single-use
carryout bag to develop educational materials to encourage the
reducing, reusing, and recycling of single-use bags and make those
materials available to stores required to comply with the program.
The bill would require moneys in the fund, upon appropriation by
the Legislature, to be expended by the Integrated Waste Management
Board (board) as specified, including, but not limited to,
for administrative costs, developing and implementing
programs to encourage and support mitigating the environmental
effects of single-use carryout bags, and payments to cities and
counties for activities to reduce and prevent single-use carryout bag
litter and the environmental impacts of single-use carryout bags.
The bill would require the board to administer and enforce the
single-use carryout bag provisions and would require the State Board
of Equalization to administer and collect the fees imposed on those
bags. The bill would require the board to submit a biennial report to
the Legislature, in coordination with other state agencies and
stakeholders, on the effectiveness of the program and recommendations
to further encourage the use of reusable bags.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. The Legislature finds and declares all of the
following:
(a) Single-use carryout bags that are provided by stores impose
hidden costs on consumers, local governments, the state, taxpayers,
and the environment.
(b) Litter from plastic carryout bags poses a significant burden
to California's economy and a serious threat to the marine ecosystem.
It is estimated that Californians consume 19 billion plastic
carryout bags per year. However, according to the California
Integrated Waste Management Board, the recycling rate for these bags
is less than 5 percent. Public agencies in California also spend more
than three hundred seventy-five million dollars ($375,000,000)
annually in litter cleanup, and plastic carryout bags contribute
disproportionately to the litter stream.
(c) Despite past efforts to control marine debris, the quantity of
trash in the coastal and ocean environment is increasing
dramatically worldwide. It is estimated that 60 to 80 percent of all
marine debris, and 90 percent of floating debris is plastic. It may
take hundreds of years for this plastic to break down and some
plastics never truly biodegrade in the marine environment. Streams
and storm drains carry plastic bags to the ocean where they are
frequently mistaken as food by marine life. Over 267 species
worldwide have been impacted by plastic litter such as plastic bags
through entanglement or ingestion.
(d) On February 8, 2007, the California Ocean Protection Council
adopted a comprehensive resolution on marine debris calling for
statewide action targeting the reduction of single-use plastic
packaging, including plastic carryout bags. The council adopted an
implementation strategy for this resolution, which in part calls for
instituting a statewide fee on single-use plastic grocery bags, with
the collected fees utilized to help fund litter abatement and
stormwater capture, and reduce the incidence of litter.
(e) Over 15 countries and over 40 U.S. states and cities have
either taken action or have proposed to take action on plastic
carryout bags in the form of bans or point-of-purchase fees.
(f) While paper bags are recyclable and degrade in the
environment, they are not an acceptable alternative to plastic since
the production and transport of paper bags leads to significantly
greater water pollution and air emissions, including greenhouse gas
emissions.
(g) Carryout bags marketed as "biodegradable" or "compostable" are
also not a viable alternative because these bags have not proven to
biodegrade in the marine environment, are only able to biodegrade
under specific conditions found in certain industrial composting
facilities that are not widely available throughout the state, and
will not reduce the litter problem since they have the same
characteristics as plastic bags.
(h) It is the intent of the Legislature to encourage the use of
reusable bags by consumers to reduce the consumption of single-use
bags, such as conventional plastic, paper, and biodegradable or
compostable plastic bags.
(i) The fees imposed pursuant to Section 42252.5 of the Public
Resources Code will mitigate the environmental, public health, and
other public-financed impacts caused by the use of single-use bags by
offsetting the costs of programs to prevent and reduce the littering
and environmental impacts of single-use carryout bags and
encouraging the reduction of the use of single-use carryout bags.
(j) Requiring stores to end the subsidy of single-use carryout
bags and charge their full economic and environmental costs will
provide consumers with an appropriate market signal to make informed
decisions regarding carryout bag reduction and reuse options.
(k) Requiring stores to charge and remit a fee for the
distribution of single-use carryout bags will help the state and
local governments to offset the environmental and social costs of
single-use carryout bags.
(l) The imposition of the fee pursuant to Section 42252.5 of the
Public Resources Code would not result in the imposition of a tax
within the meaning of Article XIII A of the California Constitution
because the amount and nature of the fee have a fair and reasonable
relationship to the environmental, public health, and societal
burdens imposed by the use of single-use carryout bags, and there is
a sufficient nexus between the fees imposed and the use of those fees
to support programs to prevent the litter of single-use carryout
bags, reduce the environmental impacts of single-use carryout bags,
and encourage the reduction of the use of single-use carryout bags.
(m) (1) There is a clear nexus between the type and amount of the
fees imposed pursuant to this act and the environmental, public
health, and societal costs resulting from single-use carryout bags.
(2) It is the intent of the Legislature that the fees that are
imposed pursuant to Section 42252.5 of the Public Resources Code be
consistent with Sinclair Paint Co. v. State Bd. of Equalization
(1997) 15 Cal.4th 866.
SEC. 2. The heading of Chapter 5.1 (commencing with Section 42250)
of Part 3 of Division 30 of the Public Resources Code is amended to
read:
CHAPTER 5.1. SINGLE-USE CARRYOUT BAGS
SEC. 3. Section 42250 of the Public Resources Code is amended to
read:
42250. For purposes of this chapter, the following definitions
shall apply:
(a) "Biodegradable or compostable bag" means a carryout bag
provided by a store to a customer at the point of sale that is
certified and labeled as meeting the current American Society for
Testing and Materials (ASTM) Standard Specification pursuant to
Chapter 5.7 (commencing with Section 42355).
(b) (1) "Green carryout bag" means a single-use carryout bag that
is provided by a store to a customer at the point of sale and meets
all of the following requirements:
(A) Is composed of at least 40 percent post-consumer recycled
content material.
(B) Is accepted in curbside recycling programs serving at least 80
percent of households in the state.
(C) Is capable of composting within 180 days, as determined by the
board.
(2) "Green carryout bag" does not include a reusable bag.
(c) "Manufacturer" means the producer of a single-use carryout bag
sold to a store.
(d) "Operator" means a person in control of, or having daily
responsibility for, the daily operation of a store, which may
include, but is not limited to, the owner of the store.
(e) "Paper carryout bag" means a paper carryout bag provided by a
store to a customer at the point of sale that is not a reusable bag
as defined in subdivision (g).
(f) "Plastic carryout bag" means a plastic carryout bag provided
by a store to a customer at the point of sale that is not a reusable
bag as defined in subdivision (g).
(g) "Reusable bag" means either of the following:
(1) A bag made of cloth or other machine washable fabric that has
handles.
(2) A durable plastic bag with handles that is at least 2.25 mils
thick and is specifically designed and manufactured for multiple
reuse.
(h) "Single-use carryout bag" means a carryout bag provided by the
store to a customer at the point of sale that is not a reusable bag
as defined in subdivision (g), and includes biodegradable or
compostable bags.
(i) "Store" means a retail establishment that provides single-use
carryout bags to its customers as a result of the sale of a product
and that meets any of the following requirements:
(1) Meets the definition of a "supermarket" as found in Section
14526.5.
(2) Has over 10,000 square feet of retail space that generates
sales or use tax pursuant to the Bradley-Burns Uniform Local Sales
and Use Tax Law (Part 1.5 (commencing with Section 7200) of Division
2 of the Revenue and Taxation Code) and has a pharmacy licensed
pursuant to Chapter 9 (commencing with Section 4000) of Division 2 of
the Business and Professions Code.
(3) Is a chain of convenience food stores primarily engaged in
retailing a limited line of goods that includes milk, bread, soda,
and snacks, with a total combined square footage of 10,000 square
feet or more within the state.
SEC. 4. Section 42251 of the Public Resources Code is amended to
read:
42251. (a) The operator of a store that provides plastic carryout
bags to customers shall establish an at-store plastic carryout bag
recycling program pursuant to this chapter that provides an
opportunity for a customer of the store to return to the store clean
plastic carryout bags.
(b) A retail establishment that does not meet the definition of a
store, as specified in Section 42250, and that provides plastic
carryout bags to customers at the point of sale may also adopt an
at-store recycling program, as specified in this chapter.
SEC. 5. Section 42252 of the Public Resources Code is amended to
read:
42252. An at-store plastic carryout bag recycling program
provided by the operator of a store shall include all of the
following:
(a) A plastic carryout bag provided by the store shall have
printed or displayed on the bag, in a manner visible to a consumer,
the words "PLEASE RETURN TO A PARTICIPATING STORE FOR RECYCLING."
(b) A plastic carryout bag collection bin shall be placed at each
store and shall be visible, easily accessible to the consumer, and
clearly marked that the collection bin is available for the purpose
of collecting and recycling plastic carryout bags.
(c) All plastic bags collected by the store shall be collected,
transported, and recycled in a manner that does not conflict with the
local jurisdiction's source reduction and recycling element,
pursuant to Chapter 2 (commencing with Section 41000) and Chapter 3
(commencing with Section 41300) of Part 2.
(d) The store shall maintain records describing the collection,
transport, and recycling of plastic bags collected for a minimum of
three years and shall make the records available to the board or the
local jurisdiction, upon request, to demonstrate compliance with this
chapter.
(e) The operator of a store shall make reusable bags available to
customers within the store, which may be purchased and used in lieu
of using a single-use carryout bag. This subdivision is not
applicable to a retail establishment specified pursuant to
subdivision (b) of Section 42251.
SEC. 6. Section 42252.5 is added to the Public Resources Code, to
read:
42252.5. (a) Except as provided in subdivision (f), on and after
July 1, 2010, a store shall not provide a single-use carryout bag,
including a green carryout bag, to a customer at the point of sale,
unless the store charges the customer not less than twenty-five cents
($0.25) per bag.
(b) The amount charged pursuant to subdivision (a) shall not be
subject to sales tax, shall be separately stated on the receipt
provided to the customer at the time of sale, and shall be identified
as the Bag Pollution Cleanup Fee.
(c) (1) A store charging a fee pursuant to subdivision (a) may
retain a portion of the fee, as specified in subdivision (d). The
store shall remit the remainder of the fee to the State Board of
Equalization pursuant to Section 42252.7.
(2) A store shall coordinate with its host jurisdiction in
expending any revenue retained pursuant to this subdivision.
(3) A store shall not retain more than five cents ($0.05) of the
fee for each single-use carryout bag that is not a green carryout
bag. For a single-use carryout bag that is a green carryout bag, a
store shall not retain more than seven cents ($0.07) of the fee for
each bag.
(d) A store charging a fee pursuant to this section shall use the
amount of the fee retained pursuant to subdivision (c) for all of the
following:
(1) Reimbursement of the store's costs associated with the
collection and remittance of the fee.
(2) The development of in-store educational materials for
distribution to customers encouraging the use of reusable bags.
(3) The development and implementation of an educational campaign
encouraging the use of reusable bags, including, but not limited to,
public service announcements.
(4) Reimbursement of the store's costs associated with providing
reusable bags to customers or as donations to community
organizations, nonprofit organizations, and other similar entities.
(5) Reimbursement of the store's costs associated with the
purchase of single-use carryout bags.
(e) Any other transaction fee charged by a store in relation to
providing a single-use carryout bag shall be identified separately
from the Bag Pollution Cleanup Fee.
(f) The fee imposed pursuant to this section shall not be charged
to either of the following:
(1) A customer participating in the California Special
Supplemental Food Program for Women, Infants, and Children (Article 2
(commencing with Section 123275) of Chapter 1 of Part 2 of Division
106 of the Health and Safety Code).
(2) A customer participating in the State Department of Social
Services Food Stamp Program.
SEC. 7. Section 42252.7 is added to the Public Resources Code, to
read:
42252.7. (a) The Bag Pollution Fund is hereby established in the
State Treasury. All fees collected by the State Board of Equalization
pursuant to this chapter shall be deposited in the fund. By January
31, 2011, and quarterly thereafter, a store that collects the Bag
Pollution Cleanup Fee pursuant to subdivision (a) of Section 42252.5
shall calculate the amount of moneys collected and shall remit the
moneys to the State Board of Equalization for deposit into the Bag
Pollution Fund, less funds retained by the store pursuant to
subdivision (c) of Section 42252.5.
(b) The moneys in the Bag Pollution Fund shall be expended by the
board, upon appropriation by the Legislature, for the following
purposes:
(1) The board shall expend no more than 3 percent of the revenue
deposited into the Bag Pollution Fund for reimbursement of the board'
s costs for administration, collection, enforcement, and auditing
requirements associated with this chapter, as well as making refunds
associated with the chapter.
(2) The State Board of Equalization shall expend no more than 3
percent of the revenue deposited into the Bag Pollution Fund for
reimbursement of the state board's costs for administration and
collection of the fee.
(2)
(3) The board shall, in consultation with the
California Environmental Protection Agency, the State Water Resources
Control Board, and the Department of Toxic Substances Control,
expend no more than 5 percent of the revenue deposited into the Bag
Pollution Fund to develop and implement programs related to the use
of single-use carryout bags to encourage and support pollution
prevention, abatement and cleanup, enforcement, green chemistry,
water quality protection and cleanup, and environmental and public
education and outreach.
(3)
(4) The board shall expend the remaining moneys for
payments to counties and cities, on a per capita basis, for the
following activities to prevent and reduce the litter and
environmental impacts of single-use carryout bags:
(A) To establish and maintain local programs, including those in
partnership with nonprofit community-based organizations, for
purposes of litter cleanup activities, source reduction and recycling
efforts, educational and litter prevention programs, and other
programs to mitigate the environmental impacts of single-use carryout
bags.
(B) Mitigation projects relating to stormwater pollution,
including devices to prevent single-use carryout bag litter from
entering storm drain systems.
(C) Reusable bag giveaway programs, including those targeting
low-income residents.
(c) To receive these funds, a city, county, or city and county
shall fill out and return a funding request form to the board. The
form shall specify the activities to prevent and reduce the litter
and environmental impacts of single-use carryout bags for which the
funds will be used. Jurisdictions may also jointly fill out a funding
request for the purposes of pooling their funds.
(d) The board shall annually prepare and distribute a funding
request form to each city, county, or city and county. The form shall
specify the amount of funds for which the jurisdiction is eligible.
The form shall not exceed four double-sided pages in length, and may
be submitted electronically. If a city, county, or city and county
submits the funding request form and the board deems that the
proposed projects meet the funding purposes specified in subdivision
(b), the board shall distribute the funds on a per capita basis as
defined in subdivision (e). If a city, county, or city and county
does not return the funding request form within 120 days of receipt
of the form from the board, the city, county, or city and county is
not eligible to receive the funds for that funding cycle.
(e) For the purposes of this section, per capita population shall
be based on the total population of the incorporated area of a city
and the unincorporated area of a county.
(f) The revenues deposited in the Bag Pollution Fund that are
generated from the fee imposed pursuant to this chapter shall not be
expended for activities unrelated to the prevention or reduction of
litter or the environmental impacts of single-use carryout bags.
(g) If a city, county, or city and county prohibits the use of all
single-use carryout bags, including green carryout bags, and no fees
are collected pursuant to Section 42252.5 within that jurisdiction,
that city, county, or city and county shall not be eligible for grant
funds pursuant to this section.
SEC. 8. Section 42253 of the Public Resources Code is amended to
read:
42253. The manufacturer of a single-use carryout bag shall
develop educational materials to encourage the reducing, reusing, and
recycling single-use carryout bags and shall make those materials
available to stores required to comply with this chapter.
SEC. 9. Section 42254 of the Public Resources Code is amended to
read:
42254. (a) The Legislature finds and declares that all of these
are matters of statewide interest and concern:
(1) Requiring a store to collect, transport, or recycle plastic
carryout bags.
(2) Imposing a plastic carryout bag fee upon a store.
(3) Requiring a store to conduct auditing or reporting with regard
to plastic carryout bags.
(b) Unless expressly authorized by this chapter, a city, county,
or other public agency shall not adopt, implement, or enforce an
ordinance, resolution, regulation, or rule to do any of the
following:
(1) Require a store that is in compliance with this chapter to
collect, transport, or recycle plastic carryout bags.
(2) Impose a single-use carryout bag fee upon a store that is in
compliance with this chapter.
(3) Require auditing or reporting requirements that are in
addition to what is required by subdivision (d) of Section 42252,
upon a store that is in compliance with this chapter.
(c) This section does not prohibit the adoption, implementation,
or enforcement of any local ordinance, resolution, regulation, or
rule governing curbside or drop off recycling programs operated by,
or pursuant to a contract with, a city, county, or other public
agency, including any action relating to fees for these programs.
(d) This section does not affect any contract, franchise, permit,
license, or other arrangement regarding the collection or recycling
of solid waste or household hazardous waste.
SEC. 10. Section 42256 of the Public Resources Code is repealed.
SEC. 11. Section 42256 is added to the Public Resources Code, to
read:
42256. On or before January 1, 2012, and biennially thereafter,
the board, in coordination with the State Water Resources Control
Board, the State Air Resources Board, the regional
water quality control boards , and stakeholders, shall
submit a report to the Legislature regarding the effectiveness of
this chapter. The report shall also include recommendations to
further encourage the use of reusable bags by consumers and retailers
and to reduce the consumption of single-use carryout bags,
including, at a minimum, the following:
(a) Expanding the definition of stores that are subject to this
chapter to all other stores and retail establishments distributing
single-use carryout bags, including the retail establishments
specified pursuant to subdivision (b) of Section 42251.
(b) Increasing the fee imposed pursuant to Section 42252.5 to
increase this chapter's effectiveness.
SEC. 12. Section 42257 of the Public Resources Code is repealed.
SEC. 13. Section 42257 is added to the Public Resources Code, to
read:
42257. (a) Except as otherwise provided by this chapter, the
board shall administer and enforce this chapter.
(b) The State Board of Equalization shall administer and collect
the Bag Pollution Cleanup Fee pursuant to the Fee Collection
Procedures Law (Part 30 (commencing with Section 55001) of Division 2
of the Revenue and Taxation Code).
(c) The State Board of Equalization may adopt rules and
regulations to carry out this chapter, including, but not limited to,
provisions governing collections, reporting, refunds, and appeals.
(d) (1) The Bag Pollution Cleanup Fee shall be due and payable
quarterly on or before the 25th day of the month following each
calendar quarter.
(2) Payments shall be accompanied by a form, as prescribed by the
State Board of Equalization, including, but not limited to,
electronic media.
(e) The State Board of Equalization may require the payment of the
fee for other than quarterly periods.