Will Arkansas Ban Plastic Shopping Bags?

Late last week a bill proposing a ban of “single-use carryout” plastic shopping bags hit the wire and lit up the Arkansas sustainablawgasphere. The proposed law, HB 1043, would make it illegal for “supermarkets,” convenience stores, and retailers having “over ten thousand square feet . . . of contiguous retail space that generates sales or use tax payable to the State of Arkansas and has a licensed pharmacy on site” to provide a “single-use carryout bag” to a customer. If passed, the ban would be effective January 1, 2012.

A “single-use carryout bag” is defined as a bag that is made of plastic, provided to the customer at the point of sale, and designed to be used between 1 and 100 times.

The proposed ban illustrates the conundrum faced by Arkansas’ green-minded citizenry, by sustainability proponents, and by lawmakers. On the one hand, if it passes, HB 1043 can be seen as an important recognition of sustainable values (a section of the bill entitled “findings and legislative intent” states that the bill is necessary “for the environmental, public health, and societal burdens created by single-use carryout bags”), and that some sustainable goals and benchmarks can be achieved through legislative action.

On the other hand, HB 1043 illustrates the difficulty in legislating sustainability. It is a proverbial paper tiger. There is no enforcement mechanism. No penalty provision. No incentive for compliance. What good is a ban if retailers have no incentive to comply and if violations carry no consequence? This type of approach requires both a carrot and a stick, and HB 1043 has neither.

And HB 1043 raises interesting issues of fairness. How is a covered retailer to know whether or not a plastic bag is “designed” for more or less than 100 uses? Will retailers who rely on the representations of a manufacturer find safe harbor from the ban? Is it really appropriate to group convenience stores and food marts – businesses that traditionally operating on thin margins – with businesses having gross annual sales in excess of $2,000,000? And why are large retailers with a licensed pharmacy on site, such as WalMart, distinguished from large retailers without a licensed pharmacy on site, such as Dillards? These sorts of ambiguities and apparently arbitrary distinctions are fodder for legislative challenges and litigation.

Of course, all of this may be for naught, since HB 1043 could easily die on the vine. I’ll be tracking the journey. Stay tuned.

(Department of Documents: HB 1043 can be found here: http://www.arkleg.state.ar.us/assembly/2011/2011R/Bills/HB1043.pdf)