The plastic bag wars continue to rage in 2015. As of March 31, there are over 50 plastic bag bills pending in 15 states. Click here to see a map of pending state-level shopping bag restrictions.
As we know by now, though, state-level activity barely scratches the surface when it comes to plastic bags. Nearly 200 localities have enacted shopping bag regulations of some type – whether a ban, tax, or some combination thereof. FMI’s weekly Local Monitoring Report tracks local plastic bag legislation; click here to see a chart of proposed local measures.
However, four states are trying a somewhat novel tactic to get a handle on this proliferation of local ordinances. Legislation in Arizona, Georgia, Missouri and Texas would preempt local regulation of plastic bags, but without an accompanying statewide ban or fee – as in California.
Missouri’s H.B. 722, “The Paper and Plastic Bags Choice Act,” requires that merchants doing business in the state have the option to “provide customers either a paper or a plastic bag for the packaging of any item or good purchased.” The bill then specifies that “no political subdivision shall impose any ban, fee, or tax upon the use of either paper or plastic bags.” Sponsored by the Missouri Grocers Association’s own Dan Shaul, H.B. 722 passed the Missouri House on March 19 (114-38) and now awaits action in the State Senate where it has received its first reading.
"I feel that when this becomes law in Missouri, it will ensure that consumers and retailers maintain their choice of ‘paper or plastic’ for years to come," said Representative Shaul.
Meanwhile, Arizona’s S.B. 1241 just passed the State House on March 31 (37-23). The bill prohibits a city, town or county from “regulating the sale, use or disposition of auxiliary containers by a business.” Although S.B. 1241 had sailed through the State Senate in February (25-4), the Arizona Food Marketing Alliance (AFMA) reports that it must now go back to the Senate for procedural reasons. Still, AFMA is optimistic that the bill will keep moving forward.
“This is a big step toward preemption of both benchmarking energy usage and regulation of containers like plastic bags,” said AFMA President Tim McCabe. “These need to be done at a state level to insure consistency and less confusion for consumers and tourists.”
Moving on to Texas, the companion bills S.B. 1550 and H.B. 1939 currently sit in the House Urban Affairs and Senate Business & Commerce Committees respectively. These bill declare that any “ordinance or regulation adopted by a municipality purporting to restrict or prohibit a business from, require a business to charge a customer for, or tax or impose penalties on a business for providing to a customer at the point of sale a bag or other container made from any material is invalid and has no effect.” Sources tell FMI that these bills are unlikely to pass during this session.
Finally, Georgia’s S.B. 139 provides that “any regulation regarding the use, disposition, or sale or any imposition of any prohibition, restriction, fee imposition, or taxation of auxiliary containers shall be done only by general law.” However, after passing the Georgia Senate in late February, S.B. 139 failed to pass the House 67-85. According to Georgia Food Industry Association President Kathy Kuzava, “This was a disappointing loss for our retailers. Unfortunately, we could not overcome the grassroots efforts of the conservation groups and the Republicans who opposed the bill due to their support of local control.”
As evidenced by the mixed prospects of this type of legislation in just the four states mentioned above, local preemption on plastic bags can be a tough legislative fight. The issue can force lawmakers to balance their pro-business instincts with their desire for local self-determination. And in this balancing act, what makes sense for business may not always come out on top.
FMI’s issue paper on Shopping Bag restrictions may be viewed here.
Microbeads are small bits of plastic made of polyethylene microspherescan and can be found in some toothpaste and are used as exfoliants in personal care and skin products. There is environmental and health concern at both the state and federal level on microbeads, which are not biodegradable, as they can make their way through water treatment systems, after they are washed down drains, and possibly appear in local waterways.
Many manufacturers are currently working to remove microbeads from their products. For example, Unilever, The Body Shop, and Johnson & Johnson have committed to phasing out microbeads by the end of 2015, and Proctor & Gamble and L'Oréal said they will discontinue them by 2017.
In 2014, Rep. Pallone (D-NJ) introduced federal legislation to ban microbeads but it failed to gain traction. Rep. Pallone, Senator Kirsten Gillibrand (D-NY) and others sent a letter to the FDA asking them to assess the safety of microbeads, opting for a regulatory fix instead. Read the letter here.
Last week, Rep. Pallone reintroduced the legislation, “The Microbead-Free Waters Act of 2015,” which would prohibit the sale or distribution of personal-care products that contain synthetic plastic microbeads.
On the state front, legislation passed last year in Illinois. The bill bans the manufacture of personal care products containing plastic synthetic microbeads by the end of 2017, the sale of such personal care products and the manufacture of over-the-counter drugs containing the beads by the end of 2018, and the sale of over-the-counter drugs with microbeads by the end of 2019. Read it here. The Illinois bill was voted into the Council of State Government’s 2014 Suggested State Legislation.
A number of other states, for example, Arizona, Arkansas, Colorado, Connecticut, Hawaii, Indiana, Maine, Michigan, Mississippi, New Jersey, Vermont, Virginia, Washington and Wyoming, are considering similar bans. New Jersey is likely the next state to enact legislation. Read the bill here. New York Attorney General Eric Schneiderman has called for state legislation in New York.
As legislation is introduced at the state and federal level, attention should be given to any required phase-out date, to ensure that a reasonable time of compliance is given for the sale and manufacture of personal-care products and over-the-counter products.
Wisconsin officially joined the ranks of the “right to work” states last Monday, March 9, when Governor Scott Walker signed S.B. 44 into law. The Act prohibits any requirement that employees join a union or pay union dues as a condition of employment. S.B. 44 passed the state Senate in a narrow 17-15 vote in late February, and won approval from the Wisconsin Assembly along a straight party line (62-35) vote on March 6. With Governor Walker’s signature, the law will be effective starting March 11.
“This legislation puts power back in the hands of Wisconsin workers, by allowing the freedom to choose whether they want to join a union and pay union dues,” Governor Walker said in a press release.
The National Labor Relations Act (“NLRA”) originally permitted collective bargaining agreements to provide for the termination of any employee who failed to join or at least pay dues to a union. But later amendments to the Act gave states the ability to enact laws eliminating these so-called “union security clauses.”
Such laws, like Wisconsin’s, give workers the “right to work” without becoming a union member or paying dues. Notably, Wisconsin’s new law only applies to the “renewal, modification, or extension” of a collective bargaining agreement occurring after the law’s effective date. Thus, it does not nullify union security clauses currently in effect or otherwise make them illegal.
Once largely confined to the South, “right to work” laws have now passed in 25 states across the country. New Mexico may be the next to follow suite, with Rep. Dennis Roch’s (R) “Employee Preference Act” (H.B. 75) gaining steam. The bill has already passed the New Mexico House, 37-30, and now awaits action in the Senate Public Affairs Committee.
New York’s Attorney General, Eric T. Schneiderman, announced this month that he will propose stringent new data security requirements for businesses in the state. The AG said he will seek to expand the scope of information companies are required to protect, as well as strengthen the technical and physical security measures companies are required to employ.
Under current NY law, passed in 2005, companies must notify any NY resident whose “private information” has been acquired without authorization following a security breach. Such private information includes a social security number; a driver license number or non-driver identification card number; or an account number or a credit or debit card number in combination with any required security code, access code, or password that would permit access to an individual’s financial account.
The latest proposals would broaden this definition of “private information” to encompass not only the combination of an email address and password, or an email address in combination with a security question and answer, but also medical information, including biometric information, and health insurance information.
On top of that, the AG is calling for companies to be additionally required to implement reasonable security measures to protect private information. According to the AG’s office, such measures should include administrative, technical, and physical safeguards, as well as third party certification. The proposals do include a safe harbor for companies that adopt a “heightened form of security.”
These new requirements are all just hypothetical at the moment, with legislative language yet to be introduced. The AG’s office tells the New York Times that they expect both Democratic and Republican sponsors for the bill, and they hope it becomes “a model for expanding the safeguarding of personal information in other states.”
As the point of redemption for SNAP beneficiaries, food retailers play a critical front-line role in ensuring the program functions efficiently. A major impediment to this efficiency is non-staggered state distribution of SNAP benefits.
Currently, eight states issue SNAP benefits on only one day, and others, on just three days. This limited distribution creates a bottleneck for SNAP recipients and customers, as grocery lines become frustratingly long on that one day. Retailers can have stocking issues and labor concerns as well. For these reasons, FMI supports expanded distribution of SNAP benefits throughout the month – not just on a handful of days.
FMI maintains a schedule of the SNAP distribution dates in all 50-states, as well as a “SNAP Distribution Expansion Toolkit,” which retailers can use to advocate for expanded SNAP distribution in their states. Use the following links to view our “State-by-State Monthly SNAP Benefit Issuance Schedule,” in addition to the entire toolkit.
As expected, New York is shaping up to be the major battleground state for GMO labeling legislation, thanks to its large population and the resulting implications for trigger provisions in the already-enacted Connecticut and Maine laws. Last year, a labeling bill cleared two committees in the state Assembly before dying in the Ways and Means Committee as the legislative session ended.
This year, the NY legislature has been formally in session for barely over a week and five bills related to GMO labeling have been introduced. According to the Food Industry Alliance of New York, the bills to watch are S. 485 in the Senate, and its companion, A. 617 in the Assembly. Both have been referred to the Consumer Protection Committees in their respective chambers. Click here to see a full chart of all the New York GMO bills, plus the other state GMO labeling bills currently pending from this year.
On January 9, Republican Governor Paul LePage released his $6.3 billion biennial budget for FY 2016/2017. The cornerstone of the Governor’s budget is his tax proposal, which, he says, modernizes Maine’s tax code, lowers top individual and corporate income tax rates and eliminates the estate tax, among other items. He will look to make up some of the cuts with a broader and higher sales tax.
For example, the governor included a food tax. His proposal adds the underlined language below to the definition of “prepared foods” and increases the sales tax on “prepared foods” from 5.5% to 6.5%.
Should this part of his budget proposal pass, it will put Maine out of compliance with the Streamlined Sales and Use Tax Agreement and could therefore inhibit the state from collecting Internet sales taxes. Maine enacted legislation, effective October 9, 2013, to join the Streamlined Sales Tax Project. Also of note, Maine formerly had a "snack tax", but it was repealed in 2000. To see what other states have introduced regarding a food tax, view an FMI chart here.
Read more in this week's State Issues Report.
Indiana Rep. Cindy Ziemke (R-55) has introduced legislation that requires the division of family resources to establish a pilot program that allows SNAP benefits to be used only for food and beverages that have “sufficient nutritional value,” as determined by the division of family resources. H.B. 1193 will be heard on January 21 before the House Family, Children and Human Affairs Committee, of which Rep. Ziemke is the co-chair. The Indiana Retail Council notes that this bill passed the House last year but that they were able to kill it in the Senate. The Indiana Retail Council told FMI that they oppose any legislation that attempts to define nutritional foods in the SNAP program and will vigorously defend the ability of food retailers to serve the needs of all of their customers. Here is a copy of FMI’s talking points on SNAP food choice.
With their Republican trifecta held in check in November, Wisconsin leadership has put together an agenda that holds many conservative reforms, including SNAP. In their agenda, Assembly Republicans have said they will pursue placing a photo ID on all EBT cards and they will work to ensure that if someone receives assistance to purchase food, “a significant portion of that food is nutritious.” In addition, they will work to put a “reasonable limit” on the number of replacement cards someone can receive; screen for substance abuse; send all public assistance recipients an annual statement of benefits; which, they say, is a tangible and streamlined way of knowing how much help they received and from which programs. Here is a copy of the agenda.
Earlier this week, the Boston Globe reported that USDA dispatched agents to Massachusetts in August to investigate concerns on the implementation of a new state law regarding photos on SNAP EBT cards. On December 2, USDA sent a follow up letter to Massachusetts state agency staff on the findings of these concerns.
Specifically, USDA has “significant concerns” dealing with program access, staff communications and training, and also retailer communications and training from the state. In the letter, USDA specifies corrective actions that must be taken.
Regarding retailers, FNS is concerned that state agency at all levels believe that retailers must check the card at the POS to ensure the purchaser is the person pictured on the card. This puts Massachusetts in violation of the Food and Nutrition Act. In the letter, USDA directs the state to communicate to retailers that anyone authorized to use the card may use the card without having to submit to additional verification of identity, as use of the unique PIN associated with each card is sufficient verification of identity. Therefore, all household members and authorized representatives not pictured on the card can continue to access benefits. View USDA’s letter here.
The Massachusetts Food Association has informed their members from the inception of this law that nothing has changed with regard to accepting EBT photo ID cards; stores cannot and should not be asking to see the card if the customer knows the PIN and enters it correctly.
In November, USDA sent a similar letter to Maine, which has also implemented a photo requirement on the SNAP card. Here is the Maine letter. In addition, the Maine Grocers and Food Producers Association reports that the Governor of Maine is expected to continue his efforts to reform Mainers’ generational dependency on “welfare” programs. A bill will likely include a sales prohibition on taxable foods items such as candy and soda under SNAP. There is keen interest amongst lawmakers as well to reduce a SNAP recipient’s ability to “spend” tax payer’s money on these types of foods.
Every week FMI's Local Monitoring Report tracks six issues of particular importance to the supermarket industry at the local level:
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