Arguing that plastic bags are safer than paper 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 set 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 affects roughly 500 retailers, and places a 10-cent fee on paper bags that escalates to 25 cents after the law is in effect for a 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 Save the Plastic Bag. 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 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 state 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 Sacramento, Calif.-based Californians Against Waste. “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,” Murray said.
The coalition's lawsuit notes, in fact, that California Health and Safety Code 113705 — which is part of what is known as the California Retail Food Code — requires “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.”
The Santa Cruz Couny law indicates the county has determined that eliminating plastic bags in restaurants is a sanitary and safe food practice. But the California Retail Food Code pre-empts any such determination made by the county, the suit says. It adds that neither the county nor the board of supervisors conducted any study or made findings with regard to the health, sanitary, safety, liability, or legal impacts of banning restaurant plastic bags.
It points out that when Santa Monica, Calif., banned plastic carryout bags, the city made an exclusion for plastic bags handed out by restaurants “as a public health safeguard.” 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.
In its suit, the coalition cited a Sept. 12 letter it sent to the county's board of supervisors about the safety of using plastic bags to transport restaurant foods that are “usually hot and contain liquids including items fried in oil.”
“Restaurant owners have liability issues,” the letter said. “It is for the restaurant owner, not the county, to decide whether plastic or paper is the safest for its food.”
The lawsuit also argues that California AB2449, the mandated plastic bag recycling measure, precludes any plastic bag ban from taking effect before that lawsuit sunsets Jan. 1, 2013.
It also claims the county has 13 findings in its ordinance that are based on “misinformation, limited or no research or verification, and are plainly wrong.”
Altogether, 30 U.S. communities have plastic bag bans.