September 28, 2021

Volume XI, Number 271

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September 27, 2021

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California Plastic Bag Ban Survives Ballot Referendum

In recent years, many cities and counties in California and across the country have adopted local laws that restrict or ban single-use carryout bags. These local laws have been implemented largely due to perceived concerns about how the use of such bags can impact the environment. In 2014, the California legislature passed and the governor signed a statewide carryout bag law known as Senate Bill 270. The bill prohibits certain stores from providing single-use plastic carryout bags and requires such stores to charge customers for any other carryout bag provided at checkout.

The implementation of Senate Bill 270 was suspended when a referendum that would eliminate the law qualified for the November 2016 ballot as Proposition 67. California voters were asked in the recent election to decide whether the statewide carryout bag law should be upheld or rejected. Ultimately, California voters rejected Proposition 67, thereby upholding Senate Bill 270.

Following the passage of this proposition, the 2014 bill banning single-use plastic bags is now in effect as originally written.

California Law Today

Most grocery stores, retail stores with a pharmacy, convenience stores, food marts, and liquor stores in California are prohibited from providing single-use plastic carryout bags. Retail clothing stores that sell only clothing and do not sell perishable items are not affected by the law, but they and others may nonetheless voluntarily agree to comply with the requirements of the statute.

California law additionally creates new standards for the material content and durability of reusable plastic carryout bags. Aside from regulating the volume capacity and warnings to be affixed to reusable bags, California will establish a rulemaking process to certify each type of reusable grocery bag sold in the state.

Stores in California are now required to charge at least 10 cents for any reusable carryout bag provided to consumers at checkout and to itemize that amount on the receipt. A referendum on the November ballot that would have mandated that retailers submit this money to the state for environmental programs was rejected, so retailers are entitled to keep those amounts, but the money must be used for the costs of bags, compliance, and education regarding reusable bags. Certain exceptions to the required charge exist for bags used for prescription medicine and those customers paying with a state-issued payment card or voucher.

Lastly, although the law preempts any new local bag laws—which is perhaps a silver lining for retailers that have dealt with the patchwork of local and county laws over the past several years—it does not disturb local ordinances in effect as of September 1, 2014. In addition, the law expressly allows such jurisdictions to increase the amount that covered stores are required to charge to an amount more than 10 cents per bag.  

Practical Implications

Retailers and stores affected by the bag ban should be aware of these various requirements to ensure compliance with Senate Bill 270. A city, county, or the state of California may impose civil liability on a person or entity that knowingly violates this law, with penalties ranging from $1,000 to $5,000 per day. Retailers are encouraged to confirm whether they are subject to the plastic bag ban, and if so, review and update operating practices within California.

Copyright © 2021 by Morgan, Lewis & Bockius LLP. All Rights Reserved.National Law Review, Volume VI, Number 326
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About this Author

Gregory Parks, privacy and cybersecurity lawyer, Morgan Lewis
Partner

Gregory T. Parks counsels and defends retail companies and other consumer facing clients in matters related to privacy and cybersecurity, class actions and Attorney General actions, consumer protection laws, loyalty and gift card programs, retail operations, payment mechanisms, product liability, waste management, shoplifting prevention, compliance, antitrust, and commercial disputes. If it is important to a retail company, Greg makes it his business to know it. He handles all phases of litigation, trial, and appeal work arising from these and other areas. Greg is the co...

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Anne Marie Estevez, labor and employment lawyer, Morgan Lewis
Partner

Anne Marie Estevez defends clients in complex, class, and collective action employment, Americans with Disabilities Act (ADA), public accessibility, and consumer class action cases in US federal and state court. Fluent in Spanish, she represents a broad range of US and international clients in employment and labor-based cases nationally, from wage and hour to discrimination to trade secrets litigation. Anne Marie also counsels employers nationally in these areas, negotiates high-level executive contracts and terminations, and handles due diligence for complex employment...

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Joseph Duffy, litigation attorney, Morgan Lewis
Partner

A nationally recognized litigator, Joseph Duffy defends class actions in US federal and state courts. As co-head of the litigation practice’s Retail Industry Initiative, he focuses on the unique challenges facing retail companies, representing retailers in consumer class actions, contract disputes, and compliance and privacy matters. He also litigates class actions for financial services companies involving lending practices, foreclosure activity, and debt collection. Joseph earned recognition as a Class Actions and Mass Torts “Powerhouse” in BTI’s Litigation Outlook...

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Ezra Church, Litigation Lawyer, Morgan Lewis
Partner

Ezra D. Church focuses his practice on class action lawsuits and complex commercial and product-related litigation, with particular emphasis on the unique issues facing retail, ecommerce, and other consumer-facing companies. Ezra also focuses on privacy and data security matters, and regularly advises and represents clients in connection with these issues.

215.963.5710
Kristin M. Hadgis, Morgan Lewis, Litigation attorney
Associate

Kristin M. Hadgis represents businesses in complex commercial, class action, retail, and product-related litigation in US state and federal courts, including appeals. She represents clients in a wide range of industries, including financial services, retail, pharmaceutical and medical device, with particular emphasis on the unique issues facing retailers and other consumer-facing companies. Kristin also focuses her practice on privacy and data security matters, and regularly advises and represents clients in connection with these issues.

215.963.5563
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