Berry Plastics critical of state preemption laws

Large plastic packaging maker Berry Global Group Inc. is coming out against campaigns by its plastics industry peers for state laws that take away the power of local governments to ban or tax packaging.

Passing those laws has been an important political priority for plastic bag makers in particular, along with retail stores and restaurants. But it's come with blowback: Coke and Pepsi, for example, recently left the Plastics Industry Association after Greenpeace pressured them over the issue.

Now Berry, one of the founding members of the industry's $1 billion Alliance to End Plastic Waste and active in sustainability programs, is suggesting that the industry should stop supporting preemption laws.

In a nuanced Aug. 21 statement, the company said it opposed bans on plastic products but also said it did not want to support laws it sees as taking away a city's ability to make its own decisions.

"We believe bans are a broad-brush approach that does not address the root cause," Berry said. "That being said, we also believe in protecting the rights of communities to govern themselves. Neither bans nor preemption offer a thoughtful and productive solution."

Whatever side you're on, preemption around packaging is a hot political topic.

Three states — North Dakota, Oklahoma and Tennessee — passed preemption laws this year, bringing the number of states with laws stopping cities from banning or taxing plastic or other packaging to at least 14.

It's been controversial in the courts, too: An appellate court in Florida last week upheld that state's preemption law, overturning a ban on expanded polystyrene containers in Coral Gables.

Berry's statement is the first by a large plastics processing company questioning preemption and another sign of debate within industry over how to respond to plastics-related legislation in cities and states.

The trade association for the plastic bag industry, the American Progressive Bag Alliance, sharply defends preemption, which it calls uniformity. It says statewide decisions are better than hundreds of different city regulations.

"We believe statewide uniformity is important for the same reason as those who are working hard to ban products: A patchwork of ordinances is not good for anyone," Matt Seaholm, executive director of the APBA, said.

But the Washington-based Plastics Industry Association, the parent organization for APBA, declined to endorse preemption.

"Plastics [as the group calls itself] does not lobby to enact preemption laws and has no official position on preemption," said Patty Long, interim president and CEO. "Our primary focus is to work together with our members, NGOs and municipalities across the country to ensure that our waste management infrastructure can keep pace with today's plastics economy."

APBA is part of Long's group, but it is entirely self-funded by the plastic bag industry.

Supporters of preemption policies say they are only responding with the same tools that supporters of statewide legislation, like bag bans, are using from the other side.

APBA said that every statewide product ban this year has included its own preemption language limiting local bag regulations.

"Regulatory debates on individual products or materials should be at the state level and we are happy to discuss with anyone ways to promote the sustainable use, reuse and recycling of our products," Seaholm said.

One official close to the bag industry effort said that "bag ban proponents love preemption when they … lock in their statewide ban but are up in arms when it is put in place without a statewide ban."

Retailers also argue that preemption laws are important for their businesses.

The Florida Retail Federation said the court decision in the Coral Gables EPS ban would also override city-level regulations on plastic bags and other packaging.

"This decision helps ensure Florida remains a business-friendly state by avoiding a patchwork of regulations by the more than 400 local governments," said FRF President and CEO Scott Shalley.

Some cities, though, argue that uncollected plastic waste costs taxpayers money.

In Tennessee, where legislators passed a preemption law this year, Memphis City Councilor Berlin Boyd pushed back in local news reports, saying that cleaning up plastic bags costs the city $3 million a year and the state should send more money if it won't allow bans.

A Berry executive seemed to be addressing that point in LinkedIn posts in recent months. Vice President of Sustainability Robert Flores called plastic bag preemption policies "ethically questionable" in a post earlier this year.

"I work in the plastics industry. I believe strongly in the benefits of plastics," he wrote in early 2019, when he was Berry's director of sustainability. "I like straws. But if a community believes it is in their best interest to ban plastic whatever, I also believe that is their right."

"As a plastics industry, it is our responsibility to make sure people don't want to ban our products," he wrote. "And when people do, we should hear them out and work with them to address their issues."

A few other companies in the industry also question industry support of preemption laws.

Recycler EFS Plastics Inc. said that with current market conditions, legislative requirements are a very important driver for recycled content in plastic film and bags.

"In this current climate, attempts at preempting bans on plastic are like putting a finger in an overflowing dam," said Eadaoin Quinn, director of business development and procurement at the Listowel, Ontario-based company. EFS also has a plant in Pennsylvania.

"The public has expressed their concerns about mismanagement of plastic, and the plastic industry simply cannot continue with status quo," she said.

EFS is part of the Recycle More Bags coalition that advocates for government-mandated recycled content in plastic bags.

Another prominent member of the Plastics Industry Association, consumer products maker SC Johnson, has also questioned plastics industry policies around bans.

The company, which faced pressure from environment groups, said in a January letter that bans can raise public awareness and that "certain kinds of regulation will play a critical role in the ultimate solution to the plastic waste problem."

Other industry associations support preemption. A senior executive in the plastics division of the American Chemistry Council said in a June interview that his group supported the bag industry and retailers in pushing uniformity laws.

"We've supported the value chain on that position," said Keith Christman, managing director of plastic markets at Washington-based ACC. "Retailers and restaurants tend to want uniformity throughout a state, to make business processes more uniform."

"We've worked with them in support," he said. "We don't lead that legislation. APBA and the retailers tend to have more of a leadership [role]."

Whatever the differences around ban policies, the companies and associations in the industry policy debate said they want to find common ground on environmental initiatives. Berry, for example, said in its statement that it is working within the plastics association to support increased recovery of plastics in the Pacific Northwest.