March 6, Senator Alex Padilla State Capitol, Room 4038 Sacramento, CA VIA FACSIMILE (916) VIA

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1 March 6, 2014 Senator Alex Padilla State Capitol, Room 4038 Sacramento, CA VIA FACSIMILE (916) VIA Senator Kevin de León State Capitol, Room 5108 Sacramento, CA VIA FACSIMILE: (916) VIA Senator Ricardo Lara State Capitol Room 5050 Sacramento, CA VIA FACSIMILE: (916) VIA Re: Support for SB 270 Statewide Single-Use P Bag Ban Dear Senators Padilla, DeLeón and Lara: On behalf of the undersigned groups, non-profit 501(c)(3) organizations representing hundreds of thousands of constituents throughout California, the United States, and 1

2 internationally, we wish to thank you for your work on and commitment to source reduction of single-use p bags. We appreciate the diligence and perseverance of your staff as well. We are pleased that as our elected leaders, you understand that source reduction of the most ubiquitous consumer item on the planet is a worthwhile endeavor, and will be a gateway to sustainable behavior change. We are delighted to support SB 270 as a bill that incorporates the critical features for any statewide bill to ban single-use p bags. As the language of SB 270 evolves, it is our hope that our most closely held policy principles will remain inviolate in any upcoming iteration of the bill. We support that, in its current form, SB 270: Bans single-use p bags; Requires a minimum 10 cent charge for all other bags; Does not preempt regulation of bags in retail stores or restaurants, or regulation of other types of non-covered bags, and allows grandfathering of prior local ban laws; Has specified durability requirements for reusable bags (including a minimum 2.25 mils thickness and 125 uses); Avoids Prop 26 issues; and Has adequate paper bag post-consumer recycled content, and compostable bag requirements. Accordingly, we support SB 270 as a bill that will eliminate single-use bag pollution and economic waste, and will result in more sustainable consumer behavior to use reusable bags as part of daily shopping habits. Specifically, in SB 270 we support: 1. A Ban on Single-Use P Bags and a Mandatory Charge on All Bags, Including Reusable Bags. Obviously, a critical element of SB 270 is a ban of single-use p bags. It is well established that single-use bags have a deleterious environmental and economic impact. 1 1 Light and aerodynamic, p bags can become airborne even when properly disposed of: bags photo degrade and disintegrate into particles, littering our urban landscape, and posing a serious threat to the riparian and marine environment, and wildlife. Even when they are no longer obvious to the naked eye, p degrades into tiny particles that adsorb toxins and contaminate our food chain as well as water and soil quality. (Cole et al., Microps As Contaminants in the Marine Environment: A Review (2011) 62 Marine Pollution Bulletin 2588 available at Thompson et al., Lost at Sea: Where is All the P? (2004) 304 Science 838; Andrady, Ps in the Environment (2003) in Ps in the Environment (ed. Andrady) p. 762 available at Moreover, as an example of the ubiquitous nature of p bag pollution, the California Integrated Waste Management Board estimates that p bags comprise 0.4 percent of California s total waste stream by weight, but contribute significantly to litter, especially within catch basins (openings in street curbs into which stormwater flows). (Gordon, Eliminating Land-Based Discharges of Marine Debris in California: A Plan of Action from the P Debris Project (Cal. Coastal Com. 2006) p. Available at As another example, Los Angeles County found that 2

3 Accordingly, given that there are sustainable alternatives, a ban is an appropriate policy approach. 2 As a matter of policy, we do not support a statewide ban in the absence of a charge on other bags, including reusable bags. A ban by itself fails to adequately inform consumer behavior change towards sustainable alternatives, and has the potential to merely drive consumers to other types of single-use bags (such as paper bags, or other slightly thicker p bags). While we have previously supported a pollution fee that would apply to all bags, and we have seen this mechanism successfully implemented elsewhere, due to Prop. 26, it is not currently a political reality in the State of California. Accordingly, we support SB 270 s mandatory minimum charge of 10 cents or greater for paper bags and any reusable bag: The minimum 10 cent fee has been found to be associated with the reasonable cost of a reusable bag, and has been successfully used elsewhere. 3 The charge in SB 270 is stated as a minimum charge a floor, not a ceiling so that retailers are not forced to provide cheap reusable bags for 10 cents and may instead opt to provide higher quality reusable bags at a higher price point. 4 SB 270 has clarified that stores can only give away or distribute bags for free when necessary to avoid undue hardship to the consumer, i.e., to beneficiaries of the Women Infant Children/Supplemental Food Programs. 5 p bags constituted 25 percent of the weight and 19 percent of the volume of trash collected during the 2004 Great Los Angeles River Clean Up. (Staff Report, Los Angeles County Board of Supervisors, An Overview of Carryout Bags in Los Angeles County 25 (2007) at pp , available at The Ocean Conservancy s 2011 report, Tracking Trash: 25 Years of Action for the Ocean, indicates over 7 million bags collected during Coastal Cleanup Day since 1986, with p bags consistently being in the top items collected. (p. 5, available at 2 Cal. Ocean Protection Council, An Implementation Strategy for the California Ocean Protection Council Resolution to Reduce and Prevent Ocean Litter (Nov. 20, 2008) Available at opc_ocean_litter_final_strategy.pdf ; The United Nations Environmental Programme Executive Director has called upon all nations of the world to take action: [T]hin film single use p bags which choke marine life[] should be banned or phased-out rapidly everywhere there is simply zero justification for manufacturing them anymore, anywhere. (Report Brings to the Surface the Growing Global Problem of Marine Litter (June 8, 2009) U.N. Environment Prog. 3 Charges can range from five cents (Washington DC) to one dollar (Brownsville, TX), but most charges are set at a minimum of ten cents (as with most California ordinances that include a charge on paper bags, including San Francisco). Generally, the higher the charge, the greater the reduction in bags that is seen. Even NYC s proposed bill requires a minimum charge of ten cents on all carryout bags. New York City Council Bill No , as introduced Aug. 22, 2013 at (a) ( Covered stores shall charge a fee of not less than ten cents for each carryout bag provided to any person. ) 4 SB 270 (Amended Feb 6, 2014) Article 3, Section (b)(3), available at 5 SB 270 (Amended Feb 6, 2014) Article 3, Section (c) (1) et seq., available at 3

4 The policy rationale for the comprehensive application of a charge is that a charge has been demonstrated to be the primary mechanism that changes consumer behavior. In states allowing for a tax, and in cities where a charge has been instituted, bag bans have been effective in curbing pollution, economic waste, and in changing consumer behavior. 6 Lastly, as a minor suggestion for consistency of sell or distribute language, we ask that language in SB 270 Article 3, Section (e) be amended to read On and after July 1, 2015, a store may sell or distribute a compostable bag at the point of sale, if the compostable bag is provided to the consumer at the cost specified pursuant to paragraph (2). 2. No Preemption of Regulation of Bags In Restaurants or Retail Stores, and No Preemption of Regulation of Other Types of Bags; Grandfather Clause for Previous Bag Ban Laws. We are pleased to see that currently, SB 270 preemption extends only to certain covered stores, which does not include retail stores or restaurants. 7 Our support of SB 270 is predicated upon our belief that the authors do not intend to preempt future regulation of single-use bags in retail stores or restaurants. Moreover, we also appreciate that the authors have limited the types of bags that are regulated to reusable bags, single-use carryout bags and recycled paper bags. 8 6 For example: Ireland has a 94 percent decrease in bags (Available at S12TopicSummaryTeamFour/Lessons_from_Irish_P_bag_levvy.pdf ); China s ban reduced overall p bag use by 66 percent (estimates ranging from 40 billion to 67 billion bags) in the first year of implementation alone (e.g., Ben Block, China Reports 66 Percent-Drop in P Bag Use, Worldwatch Institute, (2013), available at Washington D.C. s 2009 bag tax, residents reported a 60 percent reduction in usage of disposable bags per week, and businesses reported, on average, a 50 percent reduction in disposable bags actually being used based on bag numbers, boxes, or costs. ( Understanding and Tracking Bag Consumption in the District of Columbia Alice Ferguson Foundation, Final report Nov. 4, 2013); San Jose experienced an 89 percent decrease in storm drains, and 59 percent decrease in neighborhoods (Kerrie Romanow, City of San Jose, mem. to Transportation & Environment Com. re: Bring Your Own Bag Ordinance Implementation Results and Actions to Reduce EPS Foam Food Ware, Nov. 20, 2012, p. 5 Available at /TE _d5.pdf ); and LA County's ban has reduced single bag usage by 95 percent, including a 30 percent paper bag reduction ( About the Bag, Los Angeles Dept of Public Works, (scroll down to the Announcements section)). 7 See SB 270 (Amended Feb 6, 2014) Article 5, Section (b), available at : against a store, as defined in this chapter, refers to SB 270 Article 1, Section (g) (1) through (5). 8 SB 270 Article 5, Section 42287(a), available at 4

5 We ask that SB 270 hold firm in this manner, and not preempt local or statewide regulation of retail stores or restaurants, nor other types of bags. We suggest the authors consider additional explicit language to make clear that retail, restaurants, and bags other than those defined in the bill may continue to be regulated by local governments. Given Federal and community pressure on local officials to address all sources of storm drain trash and marine pollution, it would be inappropriate and unfair to restrict their ability to regulate local sources of p pollution until and unless the legislature chooses to address all potential sources of the problem statewide. The rational for abstaining from preemption is the long-honored legislative principle that bills must use preemption only in matters related to what is being legislated. Currently, most bag ban laws in California (as well as previous attempts at statewide bag ban bills) concern markets, convenience stores and similar establishments. A statewide bill that does not involve retail or restaurants should not involve preemption for these sectors. Moreover, another important policy reason for avoiding preemption of bans for restaurants and retail stores is that the source of single-use p bag pollution is from many sectors, not just markets and convenience stores. Although markets are an ideal place to start changing consumer behavior, and thus an appropriate focus of proposed ban legislation, it is imperative that the ability to curb pollution and economic waste from other sectors is preserved. 9 Similarly, we strongly support that SB 270 protects the option for municipalities to implement and enforce on ban legislation. 10 Communities with previously enacted bans have made an investment in conducting California Environmental Quality Act ( CEQA ) review and other efforts of drafting, analysis and information gathering. Local municipalities with enacted laws may also be anticipating the use of these ordinances to meet federal Clean Water Act storm water permit reduction requirements that they are also actively pursuing. 3. Specified Durability Requirements (Including A Minimum Thickness of 2.25 mils and 125 uses) for Reusable Bags Bag ban legislation should be careful to prevent thicker p bags from flooding the market and being treated as single-use bags. We support that SB 270 specifically includes 9 As a practical matter, we note the environmental community has worked with the Grocers over time to make it possible to gain that regulated community s support for a statewide bag ban, and hopefully, in the future should statewide ban legislation for restaurants and retail be enacted, these sectors can likewise evolve to support. 10 Currently, SB 270 Article 5, Section states that an ordinance/regulation/resolution/rule adopted prior to Sept 1, 2014 (and in effect by Sept 1, 2014) may be implemented and enforced upon by local municipalities, and amended with regard to the amount that a store shall charge with regard to covered bags. See SB 270 (Amended Feb 6, 2014) Article 5, Section 42287, available at 5

6 a minimum thickness of 2.25 mils 11 and 125 uses, and other durability requirements as specified in the bill, such as handles, minimum fabric weight, volume capacity, and machine washable or a material that can be cleaned and disinfected. 12 The Los Angeles County bag ban ordinance, which requires a design for 125 uses with a minimum distance and carrying weight for those uses (22lbs to be carried over 175 yards) 13 may be more easily enforced (and thus more protective of the environment and the public) than the less precise volumetric standard of two full one-gallon milk jugs in SB 270 (Article 2, Section 42281(a)(1)), but we nonetheless support that SB 270 incorporates the 2.25 mils thickness requirements, and additional durability requirements as specified. 4. No Prop 26 Issues Prop 26 is a CA constitutional amendment requiring voter approval for any levy, charge or exaction imposed by a local government. 14 Any bag ban law must therefore be constructed to avoid the creation of tax that would invoke Prop. 26 claims. Accordingly in CA, any bag ban law must not impose fees for bags that inure to the benefit of the state 11 A Mil is a unit of measurement equal to one thousandth of an inch and is typically used in used in manufacturing and engineering in the United States. One millimeter is equal to 127/5000 mil. See Mils to Millimeters Converter, Alcula, (last visited Jan. 4, 2014). 12 See SB 270 (Amended Feb 6, 2014) Article 2, Section 42281(a)(1) through (3), available at 13 The LA County bag metric of originates from a reusable bag testing protocol developed by a private Canadian testing company: EcoLogo ATP-001. To Confirm Lifespan: Capacity Test - minimum of 15 liters Dynamic Test - minimum of 5 sets of 300 cycles (1,500 cycles total). Language for Los Angeles County Reusable Bag Ordinance can be found here: "Reusable bag" means a bag with handles that is specifically designed and manufactured for multiple reuse and meets all of the following requirements: (1) has a minimum lifetime of 125 uses, which for purposes of this subsection, means the capability of carrying a minimum of 22 pounds 125 times over a distance of at least 175 feet; (2) has a minimum volume of 15 liters; (3) is machine washable or is made from a material that can be cleaned or disinfected; (4) does not contain lead, cadmium, or any other heavy metal in toxic amounts, as defined by applicable state and federal standards and regulations for packaging or reusable bags; (5) has printed on the bag, or on a tag that is permanently affixed to the bag, the name of the manufacturer, the location (country) where the bag was manufactured, a statement that the bag does not contain lead, cadmium, or any other heavy metal in toxic amounts, and the percentage of postconsumer recycled material used, if any; and (6) if made of p, is a minimum of at least 2.25 mils thick. (Los Angeles County Single-Use P and Paper Carryout Bag Ordinance, available at (follow link for Ordinance, adopted ) (last visited Dec. 5, 2013). 14 Codified as Cal. Const., art. XIII, C, 1, subd. (e); 2, subd. (b). 6

7 or local governments without voter approval. 15 We therefore support that SB 270 is constructed to meet Prop Paper Bags Must Be Made From Post-Consumer Recycled Content and Compostable Bags Only Allowed Under Specified Circumstances We support that SB 270 requires paper bags to contain 100% recycled content and a minimum of 40% post-consumer recycled content. 16 Recycled content can include manufacturing scrap, whereas post-consumer recycled content is product that would normally be disposed of as solid waste, having completed its intended end-use and product life cycle. Further, we support that SB 270 allows for compostable p bags only: If they meet the ASTM 6400 standard for compostable claims; and In jurisdictions where residential curbside composting is well-established; and When they are not given away for free (the carryout bag minimum charge applies). Compostable bags are only an acceptable alternative to p from an environmental perspective when they are actually composted in an industrial composting facility (rather than going to a landfill); otherwise compostable bags pose essentially the same environmental and economic harms to wildlife and aquatic environments. 17 The prohibition on compostable bags (where a jurisdiction does not actually compost) protects consumers from being mislead into paying more for something that they believe is better for the environment, even though the product may not actually be better for the environment, an issue commonly referred to as greenwashing. 18 One of the only examples of an ordinance that allows for compostable p bags is San Francisco s expanded p bag ordinance. 19 San Francisco s ordinance meets all of the criteria mentioned above because bags must meet the ASTM standard and San Francisco is one 15 Schmeer v. L.A. Cnty., No. BC (L.A. Super. Ct. Oct. 3, 2011), was a case of first impression under Prop 26, claiming that LA County s bag ordinance specifically the 10 cent per paper bag fee provision fell under Prop 26 s requirement for voter approval. (Complaint, Schmeer v. L.A. Cnty., No. BC (L.A. Super. Ct. Oct. 3, 2011), available at pbaglaws.org/wordpress/wp-content/uploads/2010/05/lit_la-county_prop-26-complaint.pdf.) The California Court of Appeal affirmed the Superior Court s decision that the paper bag fee was not a revenue generation measure for the government within the meaning of Prop 26, because the 10 cents went to the retailer and thus required no voter approval, and that a fee that goes to a private entity can never be a tax under Proposition 26 - even if the fee is compelled by the government. (Schmeer v. L.A. Cnty., 213 Cal.App.4th 1310, 1326 (2013).) 16 Further research into the availability and cost of paper carryout bags with post-consumer recycled content over 40% is advisable. 17 See Guides for the Use of Environmental Marketing Claims, Federal Trade Commission, Policy Statement Part 260 (Oct. 1, 2012) at 260.7, available at (follow the link for revised Green Guides ). 18 Id. 19 S.F., Cal., Expanded P Bag Reduction Ordinance at 1702(b)&1703.5(2), available at pbaglaws.org/wordpress/wp-content/uploads/2010/05/leg_ca_sf-revised pdf 7

8 of the few cities with well-established residential curbside composting (so bags are much more likely to actually get composted) and the bag charge applies to compostable p bags as well as paper and reusable bags. *** In conclusion, we understand that achievement of the above principles are what is intended in SB 270. The environmental community looks forward to working with you to achieve that intent. A statewide bag ban bill has been a slow train coming, and the landscape of the state has changed since bag ban legislation was first discussed: today we have over 90 municipalities with locally enacted bans. A statewide ban would promote an even playing field for business, and would protect the environment and the economy, but given the proliferation of strong local ordinances, statewide legislation like SB 270 will only protect the environment and the economy if it incorporates all the principles in this letter. Further, given that California would lead as the first state to pass such a law, it is critical that our state set a strong and uncompromised precedent. We therefore urge you to keep SB 270 strong in its current form, and refined as suggested in this letter. We look forward to working with you to pass this legislation. Sincerely, Leslie Mintz Tamminen Ocean Program Director Seventh Generation Advisors Kirsten James Science and Policy Director, Water Quality Heal the Bay Angela T. Howe, Esq. Legal Director Surfrider Foundation /s/ Nathan Weaver Nathan Weaver, Esq. Oceans & Preservation Advocate Environment California Mark Murray Executive Director Californians Against Waste Stiv Wilson Associate Director The Five Gyres Institute 8

9 Jennie R. Romer, Esq. Founder & Director Pbaglaws.org Sean Bothwell Staff Attorney California Coastkeeper /s/ Benjamin Kay Benjamin Kay Marine Biologist & Science Instructor Team Marine Coach Santa Monica High School & Santa Monica College Lauren W. Weiner Director All One Ocean 9