BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  AB 158
                                                                  Page 1

          Date of Hearing:  April 1, 2013 

                       ASSEMBLY COMMITTEE ON NATURAL RESOURCES
                                Wesley Chesbro, Chair
                    AB 158 (Levine) - As Amended:  March 20, 2013
           
          SUBJECT  :  Solid waste:  single-use carryout bags 

           SUMMARY  :  Generally prohibits retail stores from providing  
          single-use plastic bags to customers.  Requires retailers to  
          make reusable grocery bags, as defined, available for purchase  
          by customers. 

           EXISTING LAW  : 

          1)Establishes the At-Store Recycling Program, which: 

             a)   Requires operators of stores, defined as supermarkets  
               and stores over 10,000 square feet that includes a  
               pharmacy, to establish an at-store recycling program.   
               Under the program: 

               i)     Plastic bags provided by the store must include a  
                 label encouraging customers to return the bag to the  
                 store for recycling.

               ii)    Stores must provide clearly labeled and easily  
                 accessible recycling bins for plastic bags.

               iii)   All plastic bags collected must be recycled in a  
                 manner consistent with the local jurisdiction's recycling  
                 plan.

               iv)    The store must maintain records relating to the  
                 program for at least three years and must make the  
                 records available to the local jurisdiction or the  
                 Department of Resources Recycling and Recovery  
                 (CalRecycle) upon request.

               v)     The operator of the store must make reusable bags  
                 available to customers.

             a)   Requires plastic carryout bag manufacturers to develop  
               educational materials to encourage reducing and recycling  
               of plastic carryout bags and make those materials available  








                                                                  AB 158
                                                                  Page 2

               to stores. 

             b)   Authorizes a city, county, or the state to levy fines  
               for stores in violation of this law.  

             c)   Sunsets the above provisions on January 1, 2020.

          1)Establishes the Toxics in Packaging Prevention Act, which: 

             a)   Prohibits a person from offering for sale or for  
               promotional purposes in this state a product in a package  
               that includes a regulated metal in the package itself or in  
               a packaging component if the regulated metal has been  
               intentionally introduced into the package or packaging  
               component during manufacturing or distribution.

             b)   Defines "regulated metal" as lead, mercury, cadmium, or  
               hexavalent chromium.

             c)   Defines "package" as any container, produced either  
               domestically or in a foreign country that provides a means  
               of marketing, protecting, or handling a product from its  
               point of manufacture to its sale or transfer to a consumer,  
               including a unity package, an intermediate package, or a  
               shipping container.  "Package" also includes unsealed  
               receptacles, including carrying cases, crates, cups, pails,  
               rigid foil and other trays, wrappers and wrapping films,  
               bags (including single-use carryout bags), and tubs.

             d)   Excludes reusable bags from the definition of "package."

           THIS BILL  :

          1) Defines terms used in the bill, including: 

             a)    "Recycled paper bag" as a paper carryout bag that  
                contains a minimum of 40% postconsumer recycled content  
                (except certain smaller bags may contain at least 20%  
                postconsumer content); is accepted for recycling in  
                curbside programs in a majority of households that have  
                access to curbside recycling programs; is compostable; and  
                has printed on the bag the name of the manufacturer, the  
                location where manufactured, and the minimum percentage of  
                post-consumer content.  









                                                                  AB 158
                                                                 Page 3

             b)    "Reusable grocery bag" before June 30, 2016, means a  
                bag made of cloth or other machine washable fabric with  
                handles, or durable plastic bag with handles that is at  
                least 2.25 mils thick and designed for multiple uses.  On  
                and after July 1, 2016, is a bag designed and manufactured  
                for at least 125 uses, machine washable or made from a  
                material that can be cleaned and disinfected, and contains  
                certain information on a tag attached to the bag.  After  
                July 1, 2017, is also a plastic bag with at least 20%  
                postconsumer material designed for at least 125 uses, and  
                meets certain requirements.

             c)    "Single-use carryout bag" as a bag made of plastic,  
                paper, or other material that is provided by a store to a  
                customer at the point-of-sale and that is not a reusable  
                grocery bag.  Single-use carryout bag does not include a  
                bag provided at a pharmacy to a customer purchasing  
                prescription medication or a nonhandled bag used to  
                protect a purchased item from damage or from contaminating  
                other purchased items when placed in a recycled paper bag  
                or reusable grocery bag.  

             d)    "Store" as either a full-line, self-service retail  
                store with gross annual sales of $2 million or more that  
                sells certain food items; a store with at least 10,000  
                square feet that generates sales or use taxes and includes  
                a licensed pharmacy; or a convenience food store,  
                foodmart, or other entity engaged in the retail sale of a  
                limited line of goods that generally includes milk, bread,  
                soda, and snack foods and holds a liquor license, as  
                specified.  

          2) Prohibits a store, on and after January 1, 2015, from  
             providing a single-use carryout bag to a customer at the  
             point-of-sale.  

          3) Requires a store, on and after January 1, 2016, to only  
             provide a reusable grocery bag, as defined, a customer, which  
             may be made available for purchase.  

          4) Authorizes a store to make a recyclable paper bag, as  
             defined, available for purchase.  

          5) Authorizes a store to make a compostable reusable grocery  
             bag, as defined, available for purchase.  








                                                                  AB 158
                                                                  Page 4


          6) Requires a store to provide a customer participating in the  
             California Special Supplemental Food Program for Women,  
             Infants, and Children with a reusable grocery bag or recycled  
             paper bag at no cost.  

          7) Postpones compliance with the above provisions (bullets 2-5)  
             for convenience food stores and foodmarts that hold a liquor  
             license until July 1, 2016.  

          8) Requires a reusable grocery bag producer to certify to  
             CalRecycle by January 1, 2016, and every two years thereafter  
             that the bag meets the definition of a reusable grocery bag  
             and requires a producer to submit a fee to CalRecycle with  
             each certification to cover CalRecycle's costs associated  
             with the reusable bag certification and reporting  
             requirements. 

          9) Requires CalRecycle to publish a list on its website by July  
             1, 2016 of all reusable grocery bags that are in compliance  
             with the requirements in this bill, along with specified  
             information about the producer of the reusable bags.  

          10)Authorizes CalRecycle to perform audits and inspections of a  
             producer and to test any reusable bag to determine compliance  
             with the reusable bag requirements.  

          11)Authorizes CalRecycle to enter into an agreement with other  
             states that conduct inspections to provide enforcement of  
             these requirements.  Establishes civil penalties for  
             violating the reusable grocery bag certification  
             requirements.  

          12)Requires CalRecycle to submit a report to the Legislature by  
             January 1, 2017, regarding the effectiveness of this program  
             and recommendations for statutory changes to increase  
             effectiveness, which must include specified information  
             (e.g., compilation of state cleanup data to evaluate  
             pollution reduction, number and types of violations).  

          13)Authorizes a city, county, city and county, or the state to  
             impose civil liability of $500 for the first violation of  
             these requirements, $1,000 for the second violation, and  
             $2,000 for the third and subsequent violations.  These  
             penalties do not apply to the above certification procedures  








                                                                  AB 158
                                                                  Page 5

             for reusable grocery bags.  

          FISCAL EFFECT  :  While this bill has not been reviewed by a  
          fiscal committee, this bill is substantially similar to AB 298  
          (Brownley) of the 2011-2012 Session.  Based on the Senate  
          Appropriations analysis of AB 298, this bill may have a one-time  
          cost of around $200,000 to CalRecycle to develop regulations  
          (Integrated Waste Management Fund); ongoing costs of about  
          $600,000 per year to review and enforce reusable bag standards  
          on manufacturers, offset by fee revenues (Integrated Waste  
          Management Fund); and, minor ongoing costs to CalRecycle to  
          enforce the prohibition on single-use bags (Integrated Waste  
          Management Fund). 

           COMMENTS  :   

           1)Purpose of Bill  .  According to the author: 

               Nearly one-third of Californians [live in] more than 67  
               cities and counties [that] have taken action on single-use  
               bags by passing local ordinances that ban the use of these  
               bags.  Seven chain grocers, including Whole Foods and  
               Trader Joe's, have also made a business decision to use  
               only paper or reusable bags.  

               The environmental impact of single-use plastic bags is  
               well-documented, plastic bags comprise 10 percent of marine  
               debris and take more than 1,000 years to break down?   
               Reusable bags have a lower overall impact than single-use  
               bags.  

           2)Background  .  Every year California taxpayers spend around $25  
            million disposing of the 19 billion plastic bags used  
            annually. Although plastic represents a relatively small  
            fraction of the overall waste stream in California by weight,  
            plastic is the most prevalent form of marine debris.  Plastics  
            are estimated to compose 60-80 percent of all marine debris  
            and 90 percent of all floating debris.  According to the  
            California Coastal Commission, the primary source of marine  
            debris is urban runoff, of which lightweight plastic bags and  
            plastic film are particularly susceptible.  Due to the  
            interplay of ocean currents, marine debris tends to accumulate  
            in certain areas of the ocean.  The North Pacific Central Gyre  
            is where much of the marine debris originating from the  
            California coast ends up.  A study by the Algalita Marine  








                                                                  AB 158
                                                                  Page 6

            Research Foundation found an average of more than 300,000  
            plastic pieces per square mile of the Gyre and that the mass  
            of plastic was six times greater than zooplankton floating on  
            the water's surface. 

            Most plastic marine debris exists as small plastic particles  
            due to excessive UV radiation exposure and subsequent  
            photo-degradation.  These plastic pieces are ingested by  
            marine organisms and have been proven to negatively affect  
            over 250 animal species worldwide.  In addition, hydrophobic  
            chemicals present in the ocean in trace amounts (e.g., from  
            contaminated runoff and oil and chemical spills) have an  
            affinity for, and can bind to, plastic particles and may also  
            enter and accumulate in the food chain through the same  
            mechanism. 

           3)Local bag responses  .  Nearly 70 cities and counties throughout  
            California have adopted ordinances banning plastic bags  
            including San Francisco, San Jose, Long Beach, Los Angeles  
            County, Santa Clara County, Alameda County.  Many of these  
            local governments also require stores to charge a fee for a  
            paper carryout bag, and a few have banned both single-use  
            plastic and paper carryout bags.  AB 158 would provide  
            uniformity throughout the state; however, the bill does not  
            pre-empt local ordinances relating to single-use bags as long  
            as the ordinances do not conflict with the requirements of the  
            bill.  

           4)Related legislation  .  AB 2058 (Levine) of 2007 would have  
            prohibited the free dispensing of carryout plastic bags by a  
            store to its customers, unless the store can demonstrate to  
            the California Integrated Waste Management Board (CIWMB) that  
            70% of the plastic bags it dispensed had been diverted from  
            the waste stream.  AB 2058 was held in Senate Appropriations  
            Committee.

            SB 531 (DeSaulnier) of 2009 would have required manufacturers  
            of plastic carryout bags to consult with various entities,  
            including the CIWMB, when developing specified educational  
            materials to encourage the reduced use or recycling of those  
            bags, and authorized the CIWMB to modify those materials. SB  
            531 was held in Assembly Natural Resources Committee without  
            further action.

            AB 68 (Brownley) of 2009 and AB 87 (Davis) of 2009 both would  








                                                                  AB 158
                                                                  Page 7

            have required a 25-cent fee on the distribution of single-use  
            carryout bags.  Both bills were held in the Assembly  
            Appropriations Committee. 

            AB 2138 (Chesbro) of 2010 would have established recycling and  
            composting requirements for take-out food packaging, including  
            bags.  AB 2138 was held on the Assembly Appropriations  
            Committee suspense file.

            AB 1998 (Brownley) of 2010 would have repealed the at-store  
            recycling program and instead prohibited stores from providing  
            a single-use plastic carryout bag to a customer and required  
            stores to provide reusable bags for purchase or recycled paper  
            bags for a fee.  AB 1998 failed in the Senate on August 31,  
            2010 (14-21).

            SB 915 (Calderon) of 2011 would have established plastic bag  
            reduction and recycled content goals.  A hearing in the Senate  
            Environmental Quality Committee was canceled at the request of  
            the author.

            AB 1834 (Brownley) of 2012 would have defined reusable bags.   
            This bill was held on the Senate Floor. 

            SB 1106 (Strickland) of 2012 would have prohibited the  
            manufacture, distribution, and sale of reusable bags without a  
            warning label that both specifies the need for reusable bags  
            to be cleaned and disinfected between uses and outlines the  
            health risks associated with not cleaning or disinfecting  
            reusable bags between uses.  SB 1106 failed in the Senate  
            Environmental Quality Committee April 23, 2012 (2-5).

            AB 298 (Brownley) of 2011 was substantially similar to AB 158.  
             AB 298 was held in the Senate Appropriations Committee.  

            SB 405 (Padilla) in the current Session is substantially  
            similar to AB 158.  This bill is scheduled to be heard in the  
            Senate Environmental Quality Committee on April 3, 2013.  

            SB 700 (Wolk) in the current Session requires retail  
            establishments, as defined, to collect a fee of five cents for  
            every single-use carryout bag provided to a customer.  The  
            bill requires that the fees be remitted to the Board of  
            Equalization to be deposited into the Local Environmental  
            Enhancement Fund.  The fund will be available for grants to  








                                                                  AB 158
                                                                  Page 8

            cities and counties for local parks and local programs that  
            reduce and cleanup litter.  This bill authorizes the governing  
            body of a city or county to adopt an ordinance that exempts  
            the city or county from collecting the fee.  Any city or  
            county that adopts such an ordinance is not eligible for grant  
            funding.  This bill has been referred to the Senate Natural  
            Resources and Water Committee and the Senate Environmental  
            Quality Committee.  It is scheduled to be heard in the Senate  
            Natural Resources and Water Committee on April 9, 2013. 

           5)Suggested amendments  .   The committee may wish to make a  
            number of amendments to the bill to add clarity; streamline  
            the requirements for reusable bags to reduce the burden on  
            producers and CalRecycle, as well as significantly reducing  
            CalRecycle's costs associated with the bill; and, specify that  
            the unfair business practices provisions of the Business and  
            Professions Code apply to this chapter.  Specifically, the  
            amendments would: 

             a)   Make various technical clarifying and cleanup changes to  
               the bill, including: 

               i)     Clarifying the definition for paper bags and  
                 single-use carryout bags; 

               ii)    Striking out section 42282 and moving those  
                 provisions into section 42281 to clarify the  
                 implementation timeline for carryout bag requirements on  
                 stores and making related clean-up changes to that  
                 section; 

               iii)   Requiring that the recycling symbol used for  
                 reusable grocery bags is appropriate to the bag; 

               iv)    Specifying the Federal Trade Commission guidelines  
                 with which any environmental marketing claims must  
                 comply; and,

               v)     Striking an unnecessary reference to reusable  
                 grocery bags made from compostable plastic.  

             b)   Consolidate the requirements for the use of postconsumer  
               recycled material for plastic reusable grocery bags.  

             c)   Remove the certification requirements for reusable  








                                                                  AB 158
                                                                  Page 9

               grocery bags and clarify CalRecycle's authority to inspect,  
               audit, and test reusable grocery bags, and make related  
               technical changes. 

             d)   Clarify that all costs associated with inspections,  
               audits, and testing of reusable grocery bags by CalRecycle  
               shall be paid by the producer.   

             e)   Specify that nothing in the bill limits the application  
               of the unfair business practices provisions of the Business  
               and Professions Code to producers and stores subject to the  
               requirements of the bill.  

           REGISTERED SUPPORT / OPPOSITION  :

           Support 
           
          American Federation of State, County and Municipal Employees,  
          AFL-CIO
          Bag It
          Californians Against Waste
          California Coastal Coalition
          California Coastkeeper Alliance
          City of Encinitas
          City and County of San Francisco
          Clean Water Action/Clean Water Fund
          Environment California
          Environmental Working Group
          Green Sangha
          Heal the Bay
          Long Beach Coalition for a Safe Environment
          Los Angeles Waterkeeper
          Monterey County Board of Supervisors
          PlasticBagLaws.org
          Plastic Pollution Coalition
          Natural Resources Defense Council
          Seventh Generation Advisors
          Sierra Club California
          State Lands Commission staff
          Surfrider Foundation 
          Team Marine, Santa Monica High School
          Turtle Island Restoration Network
          United Food & Commercial Workers Western States Council
          Valley Industry and Commerce Association
          5 Gyres Institute








                                                                  AB 158
                                                                  Page 10


           Opposition 
           
          American Forest & Paper Association
          Association of California Cities, Orange County 
           

          Analysis Prepared by  :  Elizabeth MacMillan / NAT. RES. / (916)  
          319-2092