Plastic bag ban in question after new legal challenge

A plastic bag ban set to begin today is now mired in uncertainty following a lawsuit by bodega and supermarket owners.

The crux of the confusion is whether or not reusable plastic bags are allowed under the terms of a state law.

Since its passage in April 2019, the Bag Waste Reduction Act has been fraught with legal challenges by plastic manufacturers and supermarket industry groups concerning a statute that bans the use of all plastic bags.

The state Department of Environmental Conservation, the agency in charge of enforcement, has added to the confusion by exempting certain types of reusable plastic bags — a carve-out that was not in the law. Food industry groups have argued that the law could not be enforced on its intended start date because it is not clear what type of bags are allowed.

“ ‘Reusable plastic bag’ is not a term defined or used in the Bag Waste Reduction law,” said Cristin Clark general counsel for the DEC. “Non-woven polypropylene bags that meet the definition of a reusable bag are not banned from distribution.”

In August a judge in Albany upheld the ban but ruled that the department has no right to exempt any reusable plastic bags.

The supermarket and bodega industry is mulling how to respond.

“We’re considering ignoring the law, but I’m not sure we’re going to yet,” said Nick D’Agostino III, owner of D’Agostino supermarkets. “Any reusable bags have some sort of plastic in them.”

A second lawsuit has been launched by industry groups tied to supermarkets, bodegas and a manufacturer of polypropylene plastic.

The DEC said it does not comment on pending litigation and said it would begin enforcement Monday.

“The supermarkets are resisting in terms of cost and convenience,” said Burt Flickinger, managing director at the Strategic Resource Group. “Food retailers in the city are losing record amounts of money from the dramatic amount of worker and resident departures.”

Transitioning from plastic to an entirely paper bag model was always going to be difficult for the industry. But the issue has been exacerbated during the pandemic by the widespread need for paper for use in packaging to ship consumer goods.

“It’s sourcing,” Flickinger said. “Statewide supermarket demand is also up 12 to 20 percent on the year. With higher sales, there’s higher use of bags — which leads to higher costs.”

Avi Kaner, owner of Morton Williams supermarkets, said the paper bags with handles the state is requiring are not available for purchase in the quantities required. National chains have bought most of them, leaving smaller chains in the cold, he said.

“It’s a nonstarter,” Kaner said. “We can’t even get paper bags if we wanted them.”

He added that most New Yorkers do not have a car and carry their groceries home — which requires practically every paper bag to be doubled.

“The environmental cost of a double-bagged paper bag is far greater than a single-use plastic bag,” he said.

Supermarkets and bodegas will have to make the transition to solely paper without any guarantee it can be sourced or any idea of how expensive it will be to acquire. If they don’t make the switch, they could face fines.

Supermarket owners said there isn’t a hard estimate of how much the transition will cost their industry. But it’s certain that customers will pay higher prices. And higher prices could push many customers away.

“We have no choice but to transfer the cost onto customers. They’re going to be paying for the bags,” D’Agostino said. “It’s going to affect our overall profitability.”

As for the state, its motivation to move forward with the law comes from a mandate set last year by Gov. Andrew Cuomo for New York to be a net-zero-carbon economy by 2050.

The state’s supermarkets have been slow to adapt thus far, Flickinger said, and the plastic bag ban is meant to push them along.

“To get to those levels, the supermarket, its warehouses and its stores need to go rooftop solar and find a sustainable solution for the bags,” he said.

In response to the state, the Bodega and Small Business Association has proposed a compromise that would tax each plastic bag sold at 5 cents and allow a two-year transition for the industry. The association said it believes the tax would generate $500 million in bag-charge revenue annually for the state, as the DEC estimates upward of 23 billion plastic bags are used each year across New York.

“They’re trying to rush this thing through in a pandemic,” D’Agostino said. “As usual, the government wants what it wants, and the rest of us have to live with it.”