An Open Letter: To the Mayor and City Council of Solana Beach

The City Council has preliminarily approved an ordinance that would: 

• Ban plastic bags at restaurants and force people to take a paper bag, a reusable bag, or no bag at all. Paper bags are not safe for certain hot foods and liquids, including soups. A lady was badly burned removing hot soup from a bag.

• Impose a 10-cent fee on paper bags at restaurants. That would give people an incentive to take no bag at all, thereby increasing the risk of spillage of burning hot food and liquids.

• Encourage restaurant customers to use reusable bags. Such bags are often dirty and may be contaminated with e-coli or other bacteria.

Final approval is scheduled for May 9.

The California Retail Food Code (the “Code”) preempts and prohibits any local ordinance banning, restricting, or imposing a fee on plastic or paper bags at restaurants and other food facilities. The Code states that it is the intent of the Legislature to “occupy the whole field” of standards relating to food handling, service, and transportation, including carryout bags. For example, the Code states that carryout bags shall be durable, nonabsorbent, clean, safe, and retain their characteristic qualities under normal use conditions.

In 2011, the California Supreme Court in California Grocers Assn. v. City of Los Angeles confirmed that under the Code “the state alone” may regulate “food transportation, storage, and preparation,” “how food should be handled or transported,” and “food display and service.” These are fields that are subject to “exclusive state regulation.”

We have sued San Francisco and Carpinteria for passing similar ordinances. All other cities and counties in the state that have banned plastic bags have exempted restaurants.

The City of Santa Monica, which is possibly the most fanatic anti-plastic bag city in the state, exempted restaurants and stated: “This exemption is included as a public health safeguard based on input from restaurant owners who expressed concern that some hot and liquid foods could leak from take-out containers and potentially cause paper bags to weaken and fail.” The City of San Jose, which is also absurdly anti-plastic, issued a similar statement when it too exempted restaurants.

The City Council apparently acknowledges that the Code prohibits its ordinance, so it is attempting to employ a devious strategy. The preliminarily approved ordinance states: “Nothing in this chapter shall prohibit the provision of bags, including single-use, plastic carry-out bags, as may be necessary to comply with the California Retail Food Code or any other state or federal law.”

Under present law, if a paper bag complies with the Code, a restaurant owner may still use plastic bags. The ordinance would change the law, so that if a paper bag complies with the Code, a restaurant owner may not use plastic bags. That change in the law is prohibited by the Code.

The city may not legislate in this field at all. State law occupies the whole field. Restaurants and other food facilities must be exempted. Otherwise, we will sue the City to invalidate the ordinance.

Stephen L. Joseph, Counsel




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