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Take-out bags targeted

 March 1, 2013

Assemblymember Marc Levine (D-San Rafael) has authored AB 158 which would ban statewide single use carry-out plastic bags in grocery stores larger than 10,000 sq. ft., as of January 2015, supplying instead either a 40 percent postconsumer recycled content paper bag, compostable bag or a reusable bag at no cost. It also requires the store to provide a collection bin at their store, as of January 2020, for plastic bags and reusable bags. The exclusion of plastic bags is extended to convenience food stores, foodmarts, and other specified stores in January 2016. A reporting requirement to the Department of Resources, Recycling and Recovery also goes into effect in 2016 as well as a certification.

On the local front, last week, a Los Angeles appeals court delivered the latest decision with regard to the ongoing legal challenge surrounding local bans on single-use plastic bags and the levying of fees on paper bags. In its decision, the LA Second District Court of Appeal upheld a previous court’s ruling that a 10 cent fee on paper bags does not equate to a tax and is therefore not subject to local voter approval. 

The lawsuit was originally filed in 2011 against a LA County ordinance that banned plastic bags in certain retail markets and levied a 10 cent fee on paper bags. Proponents of the precedent-setting lawsuit claim that fundamental provisions of Proposition 26 were violated when the County passed the ordinance. Approved by voters in 2010, Proposition 26 increased the legislative vote requirement to pass any new fees, certain taxes or levies from a majority vote to a two-thirds vote. It also requires voters at the local level to approve by a two-thirds or majority vote, any new local fees or levies.

Opponents of the lawsuit argue that since the fee is collected and used by retailers to cover costs associated with environmental awareness measures, Prop 26 provisions do not apply. Proponents of the lawsuit, however, claim that while the 10-cent fee is collected by retailers, local government dictates how the money can be used making the 10-cent fee a tax subject to voter approval. Furthermore, proponents argue that the County is essentially instructing the retailers to act on its behalf.

Lawyers and proponents of the lawsuit have stated their intent to file an appeal to the California Supreme Court.


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