Business Compliance With Plastic Bag Ban Upsets Lawmakers

DOVER, Del. (AP) — Democratic lawmakers in Delaware are complaining that grocery stores and other retailers are exploiting a “loophole” in a new law prohibiting the use of certain plastic bags when the businesses are actually doing exactly what the law requires.

Under a law that took effect Jan. 1, store owners are prohibited from providing thin “single-use” plastic bags at the checkout counter. Customers must now use paper bags or thicker, “reusable” plastic bags, or bring their own bags with them.

The law, similar to those passed in a handful of other states, defines a reusable bag as one that is made of fabric or plastic, is designed to be used at least 125 times, has a volume capacity of at least 4 gallons (15 liters), does not contain any toxic material, and is machine washable or made of material that can be cleaned and disinfected.

The law further mandates that reusable plastic bags be at least 2.25 mils thick and capable of carrying 22 pounds (10 kilograms) over a distance of more than 175 feet (53 meters) for at least 125 uses.

The intent of House Bill 130 was to reduce the number of plastic bags that, despite being recyclable, often wind up in landfills, snagged in trees, clogging storm drains or otherwise fouling the environment. They can also degrade into bits of “microplastic” that pollute the air and water, potentially causing harm to both humans and wildlife.

There was no guarantee, however, that people would use the thicker, reusable bags multiple times before recycling them, throwing them in the trash or tossing them away as litter, just as with the thinner bags they replaced.

That apparently came as a surprise to lawmakers, as did the fact that retailers didn’t do away with plastic bags completely.

“Several stores have started issuing ‘reusable’ bags that are simply thicker plastic bags,” Rep. Gerald Brady, chief sponsor of the legislation, complained in April. “It’s frustrating that some businesses have chosen to exploit a loophole that runs counter to the spirit of HB 130.”

Brady, a Wilmington Democrat, has not explained what the loophole in his bill is or why he believes businesses that are following the law are somehow circumventing it.

House Democrats nevertheless used “loophole” three times in a news release Thursday announcing the introduction of a new bill that requires plastic bags to be at least 10 mils — a thickness usually associated with plastic sheeting used in construction and agricultural applications — to be considered reusable. The bill also expands the restriction on plastic bags to all stores, regardless of size.

Brady referred in the release to “the law of unintended consequences” and asserted that stores providing the type of bags specified in his bill were “in clear violation” of its spirit and intent.

“Unfortunately, the thicker bags only compounded the threat on our environment,” he acknowledged.

Andrew Volturo, a spokesman for House Democrats, refused to arrange an interview with Brady on Friday after saying Thursday that the lawmaker “stands by his characterization.”

“The mention of a loophole is a political argument, a form of messaging, not a legal argument,” Volturo wrote in an email. “We stand by our messaging.”