Florida court gives industry win, tosses out city bans on EPS packaging

A Florida appellate court struck down a ban on expanded polystyrene food packaging in Coral Gables, giving a victory to industry groups that argue that state governments, not cities, should make decisions on banning or regulating packaging.

The unanimous Aug. 14 decision from Florida's Third District Court of Appeals ruled that state laws prevent cities from passing their own local ordinances around EPS packaging like trays and cups.

The Florida Retail Federation suggested the ruling would actually go further, and prevent cities there from banning or regulating plastic bags and other packaging.

The decision is the latest skirmish in a battle that's playing out in state legislatures and courts around the country over what are called preemption laws.

Industry groups like the American Progressive Bag Alliance argue that packaging regulations should be left to state legislatures, while environmental and local government groups argue that cities should retain the power to make decisions and not be preempted.

Coral Gables, a beachfront community neighboring Miami that passed a ban in EPS foam containers in early 2016, said in a statement on Twitter that it was "very disappointed with the court's ruling" and was considering its next steps.

"The city remains steadfast in its commitment to protecting our environment, which includes eliminating the use of harmful items like polystyrene and plastic bags," it wrote. "The city also remains wholly committed to defending home rule & local control."

The court's decision did not turn on the pros or cons of EPS packaging, but rather on the legal question of how much power cities should have.

The appellate court said that three statutes passed by Florida's legislature limit municipal powers. Most immediately, it said a 2016 law specifically prevents cities from regulating EPS.

As well, it said a 2008 state law does not allow cities to regulate "auxiliary containers" — including wrapping and plastic bags — and it said a 1974 law more generally limits packaging regulations.

A circuit court judge in Miami-Dade County had earlier ruled in the city's favor, declaring the three state laws unconstitutional. But the appeals court overturned the lower court's decision.

The appeals court said that because the state laws "by their plain language preempt the city's ordinance regulating polystyrene containers, we reverse the trial court's final judgment in favor of the city."

The Florida Retail Federation called the ruling a "decisive victory" that "affirms [the] validity of state preemption."

"We commend the court as this decision reinforces the legislature's ability and authority to govern these issues on a statewide basis," said Scott Shalley, FRF president and CEO. "This decision helps ensure Florida remains a business-friendly state by avoiding a patchwork of regulations by the more than 400 local governments."

The retail federation said the ruling also means that other local laws around packaging, including bans on plastic bags that were passed after Jan. 1, 2016, are invalid.

The federation said retailers in the state will continue to look for ways to protect the environment and reduce their ecological footprint.

Coral Gables City Attorney Miriam Soler Ramos, however, said she hoped restaurants there that had switched away from EPS will keep using other materials.

"It's really the city's hope that the vendors who have complied, that have found more sustainable alternatives, will continue to keep those more sustainable items on the shelf and not revert back to polystyrene," she said in an interview to local media.

Whether or not Coral Gables challenges the appellate court's ruling, it's not likely to be the last word in Florida around preemption.

County commissioners in Alachua County, for example, voted in July to ban EPS containers and plastic bags.

But they then quickly reversed course and voted Aug. 7 to repeal their own ordinance, after receiving a letter from the retail federation threatening a lawsuit unless the county withdrew its new law.

As well, Florida Gov. Ron DeSantis earlier this year waded into the preemption debate, vetoing a bill that would have prevented cities from banning plastic straws.

DeSantis, a Republican, said in a statement in May that cities should be allowed to ban plastic straws. If residents disagree, they "can seek recourse by electing people who share their views," he said.