November 10, 2016
Authored by: Bryan Cave and Merrit Jones
Californians narrowly validated the statewide plastic bag ban previously passed by the state Legislature, while rejecting a proposition that would have required retailers to remit money charged for single-use carry-out bags to an environmental fund.
Proposition 67 was approved by 52 percent of voters. It continues the statewide ban prohibiting grocery stores and other selected retailers from handing out single-use plastic bags, but allows them to sell recycled paper bags and reusable bags for a minimum of 10 cents.
The state Legislature approved the ban and the governor signed it into law in 2014, but a referendum forced the issue onto the ballot. The law applies to the following retailers:
- Full-line, self-service retail stores with gross annual sales of at least $2 million that sell dry groceries, canned goods, or nonfood items, and some perishable items.
- Pharmacies with at least 10,000 square feet of retail space.
- Convenience stores, foodmarts, or “other entities” with a liquor license and partial grocery line or that sell goods to be consumed off premises.
- Other retailers that voluntarily agree to comply with the plastic bag ban.
Retailers Can Retain Fees Charged for Carry-Out Bags
California voters rejected a separate initiative that would have required retailers to remit fees charged for carry-out bags to an environmental fund. The fees must be used for the costs of providing recycled paper or reusable bags, costs associated with the retailer’s education materials encouraging the use of reusable bags, or other costs associated with complying with the law. The 10-cent fee for recycled paper bags does not apply to customers participating in California’s Special Supplemental Food Program for Women, Infants, and Children.
Carry-Out Bags Must Meet Requirements
If retailers offer bags for purchase, the bags must meet the following minimum standards and cost no less than 10 cents each.
- Recycled paper bags must contain at least 40 percent postconsumer recycled materials (PCR), or 20 percent for smaller bags intended to carry no more than 8 pounds. Bags must be eligible for recycling in a majority of curbside recycling programs throughout the state, and have the name of the manufacturer, country where the bag was manufactured, and minimum PCR percentage printed on the bag.
- Reusable bags must have a handle designed for at least 125 uses, a capacity of at least 15 liters, and be machine washable or made from a material that can be cleaned and disinfected. They must be sewn, capable of carrying 22 pounds over a distance of 175 feet for a minimum of 125 uses, and have a minimum fabric weight of at least 80 grams per square meter. The name of the manufacturer, country where the bag was manufactured, and a statement that the bag is a reusable bag designed for at least 125 uses must be printed on the bag or a permanently attached tag. The bag must not contain lead, cadmium or any other toxic material. If the bag is eligible for recycling, it must be printed with the recycling symbol or the term “recyclable,” instructions to return the bag to the store for recycling or to another recycling location, and comply with federal recycling requirements.
- Reusable plastic bags must contain at least 20 percent PCR material (40 percent by January 1, 2020), be capable of carrying 22 pounds for a distance of 175 feet for a minimum of 125 uses, and be at least 2.25 mils thick. The same information as required for other reusable bags must be printed on the bag or a permanent tag. Bags must be recyclable and from a certified producer. Since CalRecycle only started receiving proof of certification from reusable bag producers the day after the election, in the interim retailers should use bags that have been certified in other municipalities with bag bans.
The state law grandfathered in municipal ordinances passed or amended before September 1, 2014. Due to the uncertainty of the law as a result of the referendum, many municipalities moved forward with their own plastic bag ban. Those measures that were passed after the state law have been repealed.