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Retailers Sue Austin|for ‘Bag Ban’ Law

AUSTIN (CN) - The Texas Retailers Association claims Austin's ban on single-use bags is illegal under state law, no matter how good for the environment it might be.

The trade group sued the city in Travis County Court, claiming its "bag ban" ordinance is preempted by state law.

The retailers claim they support several of the city's private-public partnerships to keep the city green, but the bag ban is not one of them.

It claims that consumers have come to expect retailers to provide bags for their purchases.

The ban is set to begin on Friday, March 1.

"Although unknown to the city and retailers when the ordinance was enacted, the Texas Health and Safety Code expressly prohibits the city from banning the sale or use of packages or containers for solid waste management purposes," the complaint states.

"Texas law is clear: a city may not ban bags, unless authorized by the state to do so, which it has not. But this is exactly what Austin did."

The retailers claim the ban infringes on their legally protected interests and threatens "imminent harm" to them.

"The bag ban deprives the retailers of the value of the stock of single-use carryout bags and requires the retailers to incur additional expenses related to the waste or transfer costs of noncompliant bags, and related to the purchase, placement, and storage of bags complying with the ordinance," the complaint states.

"The retailers will also incur costs to train their employees regarding the ordinance."

The trade group claims retailers will also have to pay to comply with the ordinance's sign requirement, which requires them to display signs advising customers of the benefit of reducing, reusing and recycling and of the need to use reusable carryout bags.

"The retailers will be harmed due to the loss of customers to stores outside of Austin (seeking stores providing bags) and the loss of customers because of increased prices (due to passing on the cost of new bags)," the complaint states. "Of course, the citizens of Austin will also be harmed by increased prices and health risks associated with reusable bags."

In March 2012, the Save the Plastic Bag Coalition sued the city of San Francisco, challenging a similar ban. It asked the Superior Court to enjoin enforcement of the law because it violated the California Environmental Quality Act and the California Retail Food Code.

The ordinance banned plastic carryout bags at retail stores, restaurants and other food establishments, and required that consumers pay a 10-cent fee for each paper or compostable carryout bag.

Retail stores were forced to switch from plastic to paper or reusable bags by October. Restaurants must follow suit by July 2013.

The San Francisco coalition claimed the ordinance will have "significant negative effect on the environment," because paper bags take more energy to produce than plastic ones. It said its objections were ignored by the Planning Department, the Board of Supervisors and the city attorney.

It also cited a report from Los Angeles County concluded that a reusable bag must be used at least 104 times before it offsets its greater negative environmental impacts than a plastic bag.

The Texas plaintiff, founded in 1926 as the United Merchants of Texas, is based in Houston and draws its members from the 107,000 retailers in the state, according to its website.

It seeks a declaration that the ordinance is pre-empted and unenforceable under state law. It is represented by Bill Cobb with Jackson Walker in Austin.

Follow @davejourno
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