WASHINGTON (Oct. 19, 3:35 p.m. ET) — Arguing that plastic bags are safer than paper bags for transporting hot foods, the Save the Plastic Bag Coalition has filed a lawsuit to block Santa Cruz County, Calif., from implementing a plastic bag ban that is scheduled to go into effect March 20 in unincorporated areas.
Unlike most plastic bag bans in the U.S. which largely bar supermarkets and retailers from handing out single-use plastic carryout bags at checkout, the Santa Cruz County law also bans restaurants and food vendors from handing out plastic bags to customers taking home prepared foods.
The only other U.S. city that bans restaurants and food vendors from handing out plastic bags is Manhattan Beach, Calif. The Santa Cruz County ban, which affects roughly 500 retailers, also places a 10-cent fee on paper bags that escalates to 25 cents after the law is in effect for one year.
The lawsuit to overturn the ban was filed Oct. 18 in the Superior Court of California for Santa Cruz County by Stephen Joseph, legal counsel for the Save the Plastic Bag Coalition. It argues that the ban is invalid because it is in violation of several health and safety codes of the California Retail Food code that regulate food safety and also the mandated plastic bag recycling ordinance enacted in California five years ago.
The coalition also said the ban is in violation of the dormant commerce clause of the U.S. Constitution, and is in violation of the 14th amendment of the U.S. Constitution, saying the law's vague language doesn't give people subject to fines enough guidance and that the ordinance exceeds the police power of cities and counties to promote the general welfare.
That legal approach is a departure from previous lawsuits filed by the coalition, which has sued to block plastic bag bans in other cities and counties for failure to conduct an economic impact report as required by the California Environmental Quality Act.
“Mr. Joseph's latest legal challenge to a plastic bag ban reeks of desperation,” said Mark Murray, executive director of the Sacramento, Calif.-based group, Californians Against Waste. “He appears to have abandoned any argument that the ban circumvents California's environmental quality act. Instead he is rehashing the argument—rejected by the Marin County Superior Court—that a local ban is somehow pre-empted by state law. Additionally, he has invented a new argument suggesting that single- use plastic carryout bags somehow provide a public health and safety benefit.”
“I suspect that the California Courts will reject this new legal challenge just as they have rejected previous challenges by Mr. Joseph,” Murray said.
In its lawsuit, the coalition notes that California health and safety code 113705 requires that there “be uniform statewide health and sanitation standards for retail food facilities to assure the people of this state that the food will be pure, safe, and unadulterated.”
“Only the state legislature, not a city or county,” argued the coalition in its lawsuit, “may enact a law regarding whether restaurants can take actions that affect whether the way food is served is “sanitary” or “safe” or “healthy.”
“By banning restaurant plastic bags, the county was implicitly and effectively determining that eliminating restaurant plastic bags is a sanitary, safe, and healthy food practice,” said the coalition in its lawsuit. “This determination is preempted by the California Retail Food Code. It is not covered by any of the exemptions” in yet another section of the health and safety code, specifically, 113709.
Neither the county nor the board of supervisors conducted any study or made any findings with regard to the health, sanitary, safety, liability, or legal impacts of banning restaurant plastic bags, said the lawsuit.
It further contends that plastic bags are safer for transporting hot food and points out that when Santa Monica, Calif., banned plastic carryout bags, it made an exclusion for plastic bags handed out by restaurants “as a public health safeguard.
Likewise, San Jose also determined that “restaurants and food establishments would not be subject to the[plastic bag] ban for public health reasons. Reusable bags are considered impractical for these purposes,” said the city of San Jose.
The coalition also referred, in its lawsuit, to a letter it sent to the board of supervisors Sept. 12 about the safety of plastic vs. paper bags.
“Unlike supermarkets that sell packaged foods, restaurants sell freshly cooked foods that are usually hot and contain liquids including items fried in oil,” said the letter. “Plastic is obviously safer than paper for transporting hot and liquid foods. Plastic is a waterproof and greaseproof material. Paper is not. Also, plastic bag handles can be tightly tied. Paper bags cannot.”
“Take-out bags are often opened in cars, including moving cars, so proper packaging is essential,” said the letter. “Scalding injuries are serious. A restaurant owner has the legal right and duty to take all reasonable steps to prevent such injuries. Restaurant owners have liability issues. It is for the restaurant owner, not the county, to decide whether plastic or paper is the safest for its food. Denying restaurant owners the safest option could have disastrous consequences.”
The lawsuit also argued that California AB2449, the mandated plastic bag recycling measure, precludes any plastic bag ban from taking effect before that lawsuit sunsets Jan. 1, 2013
In addition, the lawsuit charged that the county has13 findings in its ordinance that are based on “misinformation, limited or no research or verification, and are plainly wrong.”
Currently, 10 cities and four counties in California have plastic bag bans: Calabasas, Fairfax, Long Beach, Malibu, Manhattan Beach, Oakland, Palo Alto, San Francisco, San Jose and Santa Monica. In addition, the counties of Santa Clara, Santa Cruz, Los Angeles and Marin have passed plastic bag bans that apply to the unincorporated areas of their counties. Hearings on the legality of the Marin ban are under way in Marin County Superior Court.
Altogether, 30 U.S. communities have plastic bag bans.
The most recent: Aspen, Colo., passed a ban on plastic bags and placed a 20-cent fee on paper bags Oct. 11 that will go into effect May 1. In addition, Basalt, Colo., 20 miles northwest of Aspen, became the third U.S. community to tax plastic bags, when it placed a 20-cent fee Oct. 11 on both paper and plastic bags that also goes into effect May 1.
The other communities in the U.S. with plastic bag bans are Fort Stockton, South Padre Island and Brownsville in Texas; East Hampton, N.Y., and Southhampton Village in New York; the towns of Bellingham and Edmonds in Washington; Portland, Ore.; the islands of Kauai and Maui in Hawaii; Telluride, Colo.; Westport, Conn.; and the Alaska towns of Bethel and Hooper Bay. In addition, the Outer Banks, N.C., counties of Hyde, Dare and Currituck also have a ban on plastic bags, enacted as a single measure for those three counties.
In addition to Basalt, Colo., Montgomery County, Md., and Washington, D.C., have a 5-cent tax on plastic and paper carryout bags.