BILL ANALYSIS Ó
SB 405
SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
Senator Jerry Hill, Chair
2013-2014 Regular Session
BILL NO: SB 405
AUTHOR: Padilla
AMENDED: April 2, 2013
FISCAL: Yes HEARING DATE: April 17, 2013
URGENCY: No CONSULTANT: Joanne Roy
SUBJECT : SOLID WASTE: CARRYOUT BAGS
SUMMARY :
Existing law , under the At-Store Recycling Program (Public
Resources Code §42250 et seq.) (part of the California
Integrated Waste Management Act of 1989):
1) 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:
a) Plastic bags provided by the store must include a
label encouraging customers to return the bag to the
store for recycling.
b) Clearly labeled and easily accessible recycling bins
for plastic bags must be provided.
c) All plastic bags collected must be recycled in a
manner consistent with the local jurisdiction's
recycling plan.
d) 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 Recovery and Recycling
(CalRecycle) upon request.
e) The operator of the store must make reusable bags
available to customers.
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2) Requires plastic carryout bag manufacturers to develop
educational materials to encourage reducing and recycling
of plastic carryout bags and make those materials available
to stores.
3) Allows cities and counties to adopt, implement, and enforce
local laws related to local curbside or drop-off recycling
programs.
4) Authorizes a city, county, or the state to levy fines for
stores in violation of this law.
5) Defines "reusable bag" as a bag with handles and made of
either cloth or durable plastic. Requires a reusable bag
made of plastic to be at least 2.25 mils thick and
specifically designed for multiple uses.
6) Sunsets the above provisions on January 1, 2020.
This bill :
1) Defines terms in the bill, including:
a) "Postconsumer recycled material" as material that
would otherwise be destined for solid waste disposal.
b) "Recycled paper bag" as a paper carryout bag provided
by a store to a customer at the point of sale and
contains a minimum of 40% postconsumer recycled
materials. For a bag with the capacity to hold eight
pounds or less, the bag must contain at least 20%
postconsumer recycled materials. A recycled paper bag
must be accepted for recycling in a majority of
households in curbside recycling programs in the state,
as well as have specified information printed on the
bag.
c) "Reusable grocery bag" as, on and after July 1, 2016,
a bag that meets requirements specified in (2) below.
d) "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 with specified
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exceptions including a bag provided by a pharmacy for a
prescription purchase and a nonhandled bag used to
protect an item from damaging or contaminating other
items when placed in a recycled paper bag or reusable
grocery bag.
e) "Store" as either: 1) a full-line self-service retail
store with gross annual sales of at least $2 million and
sells a line of dry grocery, canned goods, or nonfood
items and some perishables; 2) has at least 10,000
square feet of retail space and a pharmacy; or, 3) a
convenience food store or foodmart.
2) Requires the following of a reusable grocery bag on and
after July 1, 2016: a) able to be used a minimum of 125
times as specified; b) can be cleaned; c) have specified
information visibly on the bag; d) cannot contain lead,
cadmium, or any other heavy metal in toxic amounts; and, e)
must be consistent with federal regulations related to
recyclable claims if the bag producer claims the bag is
recyclable.
3) Provides additional requirements of a reusable grocery bag
if made from plastic.
4) Authorizes CalRecycle to do the following: 1) inspect and
audit a reusable bag producer and requires the producer to
pay for costs associated with the audit; 2) test a reusable
bag for compliance with the provisions of this bill; 3)
enter into an agreement with other state agencies to
conduct inspections necessary for enforcement; and, 4)
assess administrative civil penalties for violations of
provisions of this bill.
5) Requires penalties to be deposited into the Reusable Bag
Account for purposes of implementing this bill upon
appropriation by the Legislature.
6) Prohibits a single-use carryout bag (i.e. paper, plastic,
or other material) from being available at the point of
sale to a customer:
a) On and after January 1, 2015, at either a full-line
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grocery store or retailer with at least 10,000 square
feet of retail space and a pharmacy.
b) On and after July 1, 2016, at a convenience food
store and foodmart.
7) Requires a store, on and after July 1, 2016, to make
available a reusable grocery bag at the point of sale.
8) Authorizes a store to make available a recycled paper bag
for purchase at the point of sale.
9) Requires a store to provide a customer participating in the
California's Special Supplemental Food Program for Women,
Infants, and Children with a reusable grocery bag or
recycled paper bag at no cost.
10)Authorizes a store to make a compostable bag (i.e., meeting
certain compostable and other requirements) available for
purchase.
11)Requires CalRecycle to submit a report to the Legislature
by January 1, 2017, regarding the effectiveness of the
proposed law, and includes information on violations, data
to evaluate pollution reduction, evaluation of reusable bag
requirements, and recommendations to further encourage the
use of reusable grocery bags.
12)Authorizes a city, county, city and county, or the state to
impose civil liability of $500 for the first violation of
the proposed law, $1,000 for the second violation, and
$2,000 for each subsequent violation. Collected penalties
must be paid to whichever agency brought the action.
Provides that these remedies are not exclusive, but are in
addition to remedies available under the state's Unfair
Competition Law.
COMMENTS :
1) Purpose of Bill . The author states, "California uses an
estimated 14 billion single-use plastic bags a year.
According to CalRecycle, less than 5% of single-use plastic
bags are recycled. Plastic bags cause litter, slow sorting
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and jam machinery at recycling centers costing California
more than an estimated $25 million each year to collect and
bury the plastic bag waste. By banning plastic bags on a
statewide level, the amount of litter and plastic marine
debris caused by plastic bags can be significantly
reduced."
2) Background . Plastic bags and plastic film together
represent 2.2% of the waste stream, and every year
California taxpayers spend $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, plastic waste is the predominate form
of marine debris. Plastics are estimated to compose 60-80%
of all marine debris and 90% 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 preferentially accumulates in certain areas
throughout the ocean. The North Pacific Central Gyre is
the ultimate destination for much of the marine debris
originating from the California coast. A study by the
Algalita Marine 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 aquatic organisms and have already negatively
affected 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 ordinances . Approximately 70 local governments
throughout California have adopted ordinances banning
plastic bags including San Francisco, San Jose, Long Beach,
Los Angeles County, Santa Clara County, Alameda County and
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others. Most of these cities and counties 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.
Concern has been raised that this bill would preempt local
ordinances banning plastic bags. The legal test for
determining if state law preempts local regulation consists
of deciding whether the regulation in question is of
statewide concern or a municipal affair. If a regulation
is a matter of statewide concern, then it is not a
municipal affair, and therefore the regulation is
considered to conflict with state law. Determining
"statewide concern" entails a three-prong test. A local
regulation is preempted if the court finds one of the
following: 1) the ordinance duplicates state law; 2) the
ordinance contradicts a state statute that expressly
occupies the field; or, 3) the state occupies the
legislative area by implication. As noted by Mendocino
Solid Waste Management Authority, there is concern that
"this bill would open the door to credible litigation
against local ordinances on the theory of 'implied
preemption' because they 'fully occupy the field' of retail
bags."
In addition, California courts have developed tests for
determining when local regulations are not preempted. One
approach is known as the balancing of state and local
interests. The balancing test requires the local
regulation be shown to reflect a strong local interest
which will prevail when balanced against a state regulation
which it conflicts. In the case of single-use carryout
bags, there may be circumstances in individual communities
that warrant stricter local regulations than state law.
This bill provides uniformity throughout the state, but
whether it would preempt each and every local ordinance
pertaining to single-use carryout bags is debatable. Is it
the author's intent that this bill preempts local
regulations? If so, it should be explicitly stated in the
bill.
4) No corresponding litter and pollution program funded by
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fees . Although, SB 405 authorizes a store to make a
recycled paper bag available for purchase at the point of
sale, this bill does not provide a funding mechanism to
deal with litter and pollution, as well as stormwater,
sewer and water treatment facility problems associated with
bag debris. Some previous legislation included fees to be
placed on bags to directly address those problems. SB 405,
like AB 298 (Brownley) of 2012 and AB 1998 (Brownley) of
2010, does not establish a funding mechanism for these
programs.
On the other hand, some local governments place requirements
on how stores may expend the money collected from bag
purchases. For example, Los Angeles County allows the
money generated by bag purchases and retained by stores to
be used only for the stores' costs of compliance, actual
costs of providing recyclable paper carryout bags, or costs
for educational materials/campaigns encouraging the use of
reusable bags.
Should the stores use the funds generated by fees on bags to
address single-use bag problems?
5) Reusable bags are not perfect . Concern has been raised
that reusable grocery bags may have public health
implications. For example, reusable bags can harbor
bacteria such as coliform bacteria, but washing the
reusable bags can eliminate 99.9% of bacteria. However, a
2011 study examining reusable bags in California and
Arizona showed that 97% of people reported that they never
wash their bags.
In addition, a 2012 study, by Jonathan Klick and Joshua
Wright, from University of Pennsylvania and George Mason
University, respectively, on the public health impact of
plastic bag bans showed that emergency-room admissions
related to E. coli infections increased in San Francisco
after the ban compared to nearby counties that did not show
the increase. The San Francisco ban was also associated
with increases in salmonella and other bacterial
infections. Similar effects were found in other California
local jurisdictions that adopted similar ordinances.
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SB 405 addresses such public health implications by requiring
cleaning/care instructions on the reusable bag.
6) Related legislation . SB 700 (Wolk) requires grocery stores
and restaurants to collect a charge of $0.05 for each
single-use carryout bag provided to a customer and requires
the funds collected to be allocated to reducing and
cleaning up litter in local parks and programs. SB 700 is
double-referred to Senate Committees on Natural Resources &
Water and Environmental Quality. SB 700 passed out of
Committee on Natural Resources & Water on April 9, 2013
(6-2) with amendments.
SB 405 and SB 700 are incompatible with one another. SB 405
bans single-use plastic bags in grocery stores but
authorizes paper bags to be sold and allows the store to
retain the fee. SB 700 requires a fee on both plastic and
paper single-use bags in grocery stores and restaurants,
and requires the revenue to be used for local public
purposes.
If both SB 405 and SB 700 are enacted, they will directly
conflict with each other. The Committee may wish to
consider supporting only one policy and move that measure
forward.
AB 158 (Levine) is similar to SB 405 and generally prohibits
grocery stores from providing single-use plastic bags to
customers, and requires stores to make reusable grocery
bags available for purchase by customers. AB 158 passed
out of Assembly Natural Resources Committee (6-3) on April
1, 2013.
7) Past legislation . SB 1219 (Wolk), Chapter 384, Statutes of
2012, extended the sunset of the At-Store Recycling Program
requirements from January 1, 2013 to January 1, 2020 and
repealed the provisions preempting local regulatory action
related to the at-store recycling program requirements.
SB 1106 (Strickland) of 2012 prohibits 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
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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 2012, would have generally prohibited
stores from providing single-use plastic bags to customers,
required stores to make reusable grocery bags, as defined,
available for purchase by customers, and created standards
for reusable bags. AB 298 was held on the Senate
Appropriations Committee suspense file.
AB 1834 (Brownley) of 2012 would have defined "reusable
bag" for purposes of the At-Store Recycling Program Law and
would have specified that on and after July 1, 2013, the
definition of what is a reusable bag under this bill will
become operative. Between January 1, 2013 until June 30,
2013, the current At-Store Recycling Program Law would have
remained operative. This bill would have become operative
only if SB 1219 (Wolk) became law. AB 1834 was placed on
the Senate inactive file and died on the Senate floor.
SB 915 (Calderon) of 2011 sets plastic bag reduction and
recycled content goals. A hearing in the Senate
Environmental Quality Committee was canceled at the request
of the author.
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 531 (DeSaulnier) of 2009 would have required
manufacturers of plastic carryout bags to consult with
various entities, including the California Integrated Waste
Management Board (CIWMB), when developing specified
educational materials to encourage the reduced use or
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recycling of those bags, and authorized 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 have required a 25-cent fee on the distribution of
single-use carryout bags. Both bills were held in the
Assembly Appropriations Committee.
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 CIWMB that
70% of the plastic bags it dispensed had been diverted from
the waste stream. AB 2058 was held in Senate
Appropriations Committee.
SOURCE : Author
SUPPORT : Azul
Bag It!
California Coastal Coalition
California Coastkeeper Alliance
Californians Against Waste
Central Contra Costa Solid Waste Authority
City of Palo Alto
City of Sacramento
City of San Francisco
Los Angeles County Integrated Waste Management
Committee/Integrated Waste Management
Task Force
Contra Costa Clean Water Program
County of San Francisco
Environment California
Green Chamber of Commerce
Green Sangha
Green Vets Los Angeles
Heal the Bay
La Mode Verte Productions
Marin County Hazardous & Solid Waste
Management
Joint Powers Authority
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Napa Valley CanDo
Natural Resources Defense Council
Northern California Recycling Association
Pacifica Environmental Family
Planning & Conservation League
plasticbaglaws.org
Santa Monica High School
Save Our Shores
Seventh Generation Advisors
Sierra Club
Surfrider Foundation
The 5 Gyres Institute
Turtle Island Restoration Network
United Food & Commercial Workers Western States
2 Individuals
OPPOSITION : 99[ Outlet
Achasi's Mini Market
Advance Polybag, Inc.
American Forest and Paper Association
Angela's Drive In Dairy
Arctic Hot Spot
Azusa Council Member Angel Carrillo
Bell Gardens Chamber of Commerce
Bell Gardens Mayor Sergio Infanzon
Brianna's Miss Store
Cities Restaurant
Clear Skies Enterprises
Congress of Racial Equality of California
Crown Poly, Inc. (and 206 employees of Crown
Poly)
Drive In Rancho Market
Eagle Portables
EDD
Elkay Plastics Co., Inc.
ETS
First Store 989
Fiscal Credit Union
GDS Institute
Hilex Poly Co.
Hollywood Work Source Center
La Alicia Meat Market
La Favorita Bakery
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La Princesita Market
Linnie's Pet Pampering
Maledzing Shoppe
Mendocino Solid Waste Management Authority
Noble Affair
Oldtimers Foundation
Orange County Adult Achievement Center
Pasteleria Tres Leches
Pico Rivera Mayor Gustavo Camacho
Pink
Planet Aid
REAA
So Cal Burgers
South Gate Chamber of Commerce
St. Louis Drug Co.
Superbag Operating, Ltd.
Telacu
Teresita's
Terminix
The Cantero Group
The Voice Media
Third Baptist Church of San Francisco, Inc.
U.S. Black Chamber, Inc.
Ugly Cherry Cream Nut Pie
Unique Dollar
West Angeles Church of God in Christ
10 Individuals