Crafting a Federal Ban on Single-Use Plastics

Experts say Congress could look to local policies to shape national legislation on throwaway plastics

Erica Cirino This article originally appeared in The Revelator.

Every minute an estimated 2 million single-use plastic bags are handed out at checkout counters across the world. They contribute to the 300 million tons of plastic waste generated each year, much of which ends up in the environment where it threatens wildlife, endangers public health and costs billions to clean up.

Legal analysts have advised Congress that the US could reduce its contribution to the global plastic pollution crisis by implementing sweeping federal policies to restrict plastic use. Photo by velkr0 / Flickr.

How do you solve a problem this big?

According to legal analysts who advised Congress at a briefing in January, the United States could reduce its contribution to the global plastic pollution crisis by implementing sweeping federal policies that restrict plastic use and hold manufacturers accountable for responsibly handling waste.

The expert group, composed of members from Frank G. Wells Environmental Law Clinic at UCLA and ocean conservation organization Surfrider Foundation, specifically recommended that Congress craft federal legislation banning single-use plastic products such as bags, straws, and expanded polystyrene foam food containers. They also called for establishing “extended producer responsibility” schemes, which hold plastic manufacturers responsible for the waste they create.

Their recommendations, along with a new report, drew on research into existing legislation targeting plastic pollution in the United States and across the world. The experts found that the key to reducing plastic pollution is curbing consumption. The report and its presentation resulted from a semester-long project by UCLA students Charoula Melliou and Divya Rao, in collaboration UCLA attorney Julia E. Stein, Surfrider’s legal expert Angela Howe, and plastic bag legal expert Jennie Romer.

“We have to stem the tide of plastic entering our waterways and landfills by reducing our consumption in the first instance,” says Stein.

What Works

There are currently no federal laws restricting single-use plastics, but that doesn’t mean there aren’t good examples that could serve as useful templates.

According to Stein, Congress could shape federal policy by following existing local and state laws that have already been crafted to tackle plastic problems with bans on all types of single-use plastic items, from bags to expanded polystyrene foam food containers to straws. California made headlines in February after lawmakers proposed a phaseout of all plastic products that aren’t completely recyclable.

Such laws are grounded in scientific evidence that plastics are problematic because they don’t break down in the natural environment and pose a danger to wildlife and probably people.

There’s a precedent for using state and local laws to help craft national legislation: microbeads. After several states and municipalities banned the sale and manufacture of health and beauty products containing these ecologically damaging exfoliating plastic beads, the United States passed a federal actdoing the same.

Most experts agree banning single-use plastic products is a more useful strategy for reducing plastic use and pollution than recycling, which is much less effective. A ban also tackles the issue at the source, helping to curb greenhouse gases coming from the rapidly expanding petrochemical industry that uses fossil fuels to produce plastic.

Commonly Used Plastics

With plastic so ubiquitous, where to start? Experts say that banning just the most commonly used and littered items could cut pollution significantly.

That puts single-use plastic bags front and center.

Plastic bags are among the top five most commonly found items on shorelines, according to global beach cleanup data. So it comes as little surprise that the most legally targeted plastic item worldwide has become the plastic bag. On the whole, research suggests focused legislation is highly effective at reducing plastic bag use and the presence of bags in the natural environment.

“Single-use plastic bags are particularly problematic as a source of marine debris because of both the quantity generated as well the mobility of bags,” says Anastasia Telesetsky, a professor of law at the University of Idaho who has argued for the need for a global treaty banning most single-use plastics. “Some products are definitely more problematic than others though regrettably most single-use plastic packaging products can be found as part of ‘mismanaged waste’ somewhere in the world.”

Suffolk County on Long Island, New York, adopted a five-cent plastic bag fee at the beginning of 2018. According to county legislator William “Doc” Spencer, in just a few weeks, several grocery stores reported drops in plastic-bag use of as much as 80 percent.

And Suffolk County isn’t an isolated case. Many success stories about plastic bag legislation are documented in the briefing report. Washington, DC saw an 85-percent reduction in plastic bag use after a five-cent tax was implemented in 2009. In San Francisco, plastic bag pollution dropped 70 percent following a complete ban on plastic bags with a 10-cent fee on compostable and paper bags that went into place in 2007.

While plastic bag legislation may help reduce use and pollution on a local level, the expert group’s briefing report highlights a lack of consistency in US plastic bag legislation. And some states have implemented or attempted to implement rules that prohibit legislation regulating plastic bags and other problematic plastic consumer products, which is why proponents of plastic bans are pushing federal action.

According to the experts, the ideal federal legislation on plastic bags would mirror what’s been found to be the most effective on both local and national levels elsewhere: A ban on all thin plastic bags, and a fee on all other kinds of bags such as those made from paper, thick plastic, and compostable materials. And it would be sweeping, so no part of the country could obstruct such a ban.

To further curb use and pollution of throwaway plastics, states and municipalities have also begun to ban plastic straws, plastic foodware like cups and utensils, expanded polystyrene foam food containers, and cigarette smoking on beaches. Several companies have stopped using plastic straws and other single-use plastic items to create less waste.

The briefing’s authors suggest that Congress should, at minimum, create a rule ending automatic distribution of plastic straws at all restaurants and bars and ban expanded polystyrene foam products outright.

“In the United States, where local efforts to enforce source control laws are under threat of preemption in several states, having comprehensive federal legislation that requires source control is a way to protect and augment the work of local governments that are trying to combat plastic pollution,” Stein says.

Broader Focus

Besides banning common problematic single-use plastic products, the expert group also recommends Congress pass legislation that would hold corporations accountable for handling plastic waste at the end of its life.

Extended producer responsibility regulations require manufacturers of plastic products to take their items back for reuse, recycling, or disposal to increase recycling rates and prevent plastic waste from entering landfills and the natural environment. Container-deposit legislation is one example of such a program that’s widespread — though not ubiquitous — around the United States.

Telesetsky says these schemes may be useful when designed to manage long-lasting plastic products, but they’re trickier to implement and incentivize when plastic packaging is involved. “The problem with applying extended producer responsibility principles to existing single-use plastic is that there is simply no market for all of the reprocessed cheap packaging plastics that are being generated,” says Telesetsky. “Cheap plastics have a finite usable life before they are inevitably landfilled or burned.”

Telesetsky praises the new briefing because it raises awareness of a critical problem. But unlike the briefing group, she proposes banning single-use plastic products outright, on a global scale, in addition to incentivizing innovation in creating new biodegradable products and packaging, which she argues would stop plastic pollution more closely to its source. And it would address the issue on what she sees as a more radical and international — and thus more impactful — scale.

Yet Stein emphasizes that while her briefing has a national focus specifically tailored to US Congress, the wider view is international.

“We support international efforts to address plastic pollution, but the United States also needs to take responsibility at home for its own contribution to the problem.”

Will Congress take up that challenge?

Stein says she and other members from the UCLA-Surfrider group who traveled to Washington, DC in January held several legislative briefings for Congressional members and staff, including those involved with last year’s 2018 Save Our Seas Act.

The act provides some funding for federal marine cleanup and waste-prevention efforts through NOAA’s Marine Debris Program. Already, two of the bill’s cosponsors, Senators Dan Sullivan (R-AK) and Sheldon Whitehouse (D-RI), have begun working on a revamped “2.0 version.”

“Overall, we felt the reception was positive — plastic pollution is a topic that is on the minds of the American public and the congresspersons who represent them,” Stein says. “We’re hopeful that Save Our Seas 2.0 legislation in the Senate may provide a chance to think about comprehensive federal strategies to reduce plastic pollution.”