Proposition 65 and 67

Propositions 65 & 67 – The Plastic Bag Legislative Rubik’s Cube[1]

Oh what a tangled web we weave when we imbue voters with more legislative power than legislators. We know. It’s not as catchy as the original saying. But it’s accurate here. To understand the web of plastic bag legislative decisions that voters need to make this election cycle one needs to look at Senate Bill 270, the Referendum Law, Proposition 67, and Proposition 65. Whew.


Senate Bill 270 And The Referendum Law

In 2014 both legislative houses passed and our Governor signed SB 270, a bill banning most stores from offering single-use plastic bags and requiring at least a $0.10 charge for any recyclable bag provided by most stores.[2] Those same stores would be required to have on-site or readily available bag recycling available to customers.[3] SB 270 pre-empted all local regulations that currently affect the same legislative areas.[4] Presently, that includes 150 localities covering about 40% of California’s population.[5] Once the Governor signed the bill, you would expect that we could see how the law worked in real life – whether good or bad.

Except we never got that far thanks to California’s wacky election rules. See, we Californians are so enamored with our own individuality in this state, that Article II, Section 9 of our State Constitution allows anyone to put the kibosh on some or all of a legislated law by collecting signatures totaling 5% of the voters who showed-up for the last gubernatorial election.[6] So, if you have a low-turnout election, say a second term of a largely unchallenged governor; Guess what? You have 4 years of low signature count requirements to challenge any legislation. Of course, the referendum mechanism is intended to empower the people to fight against the tyranny of government. Except collecting signatures is expensive and time consuming so guess who really ends up presenting most referenda? You guessed it, special interest groups. That is exactly what happened here.[7]

Proposition 67 – The Referendum on SB 270.

The American Progressing Bag Alliance (“APBA”), an industry group representing plastic bag producers, successfully challenged SB 270 by collecting signatures to place it on the ballot as a referendum.[8] So, a “no” on Proposition 67 defeats SB 270 and a “yes” upholds it as set forth in Prop 67. In other words, APABA that put Prop. 67 on your ballot wants their proposition defeated. How’s that for confusing.

We’ve explained the key points of Prop 67 when we described SB 270 above. But one other point matters for our analysis here: SB 270 and Prop 67 would allow stores to keep the money generated by the sales of recycleable/reusable bags (the $.10 charge) but requires the stores to use those funds in certain ways.[9]

Proposition 65 – Varying 270, but probably inadvertently also pre-empting it.

Proposition 65 is not a referendum on SB 270, but it is intended to change part of it. Notwithstanding its apparent intend, the Legislative Analyst notes that it could be interpreted as pre-empting inconsistent parts of SB 270 and Proposition 67 if it receives more votes – we think that is a fair read. This is the type of craziness you get in the initiative process.

What Prop 65 is intended to do is to shift monies away from stores to a special environmental fund that then redistributes monies in the form of grants to various special interests. Specifically, funds could be allocated to: “support grants for programs and projects related to (1) drought mitigation; (2) recycling; (3) clean drinking water supplies; (4) state, regional, and local parks; (5) beach cleanup; (6) litter removal; and (7) wildlife habitat restoration.”[10]

Untangling The Rubik’s Cube – What “Yes” and “No” and “No” and “Yes” mean.

So where does this leave us in terms of the effect of our voting? Well, there are four possible outcomes between Proposition 65 and 67. Here is how they play out:[11]

  • Yes on 65 (most votes[12]) & Yes on 67 = State law ban on plastic bags (SB 270) with funds diverted to the state fund as described in Prop 65.
  • Yes on 65 & No on 67 = Probably means no state law ban on plastic bags (SB 270 Pre-empted), local bans remain, any future state ban not passed by initiative would have all revenue generated by reusable bags go to the state environmental fund described in Prop. 65.
  • No on 65 (incl. fewer votes[13]) & Yes on 67 = State law ban on plastic bags (SB 270) with funds generated retained by stores.
  • No on 65 & No on 67 = Retains current practices; local bans remain as legislated. No State-wide ban.

Quantifying the Plastic Bag Issue

There isn’t much dispute that plastic bags aren’t so great for the environment. The bigger issue in our mind is quantifying the problem – that, it turns out, is a bit tougher. We know that many states are turning toward bans and taxes to discourage single-use plastic bag use[14], but we had a hard time finding reliable sources quantifying how much damage single-use plastic bags pose in comparison to other environmental harms. There are strong agendas on all sides of this issue, but a number of studies that have tried to look at the question have yielded inconclusive results. Accepting that plastic is a toxin, that essentially does not degrade (at least not in a meaningful way) and offers a host of damaging effects, there are real questions about whether paper is ultimately more harmful than plastic, whether cloth bags (which we’d have thought were the ideal) might be equally harmful when all their component parts are considered, and to what extent removing a “single-use” plastic bag is effective, if that bag is replaced by a purchased, usually thicker plastic trash bag or zip-lock bag.[15]

Indeed, when the city of Austin investigated the effect of their ban on single-use bags, what they found was that it led to an increase in more environmentally damaging reusable bags in their landfills.[16] In other words, people who were not recyclling before the ban were still not recycling after the ban, they were just now doing so with more environmentally harmful products. We also found some evidence of other unanticipated problems when plastic was completely excluded:

“A paper published by Jonathan Klick, of the University of Pennsylvania, and Joshua D. Wright, of George Mason University, found that food-borne illnesses in San Francisco County increased 46 percent after the city’s plastic bag ban went into effect in 2007, while there was no similar spike in neighboring Bay Area counties.”[17]

Moreover, a U.K. Environmental Agency report studying the issue found that creating a cloth bag takes 173 times more energy than a plastic bag.[18] Of course, opponents are using that fact to make a broader point. We disagree with that strained logic. But we do think some of the conclusions we reach are determined more based on what “harm” we are focused upon rather than a real quantified evaluation of relative harms and alternatives. We think that is a real problem in this debate. As one Australian Study concluded: “The shift from one single-use bag to another single-use bag may improve one environmental outcome, but be offset by another environmental impact.”[19]

As one environmentalist noted: “Eat one less meat dish a week—that’s what will have a real impact on the environment,” . . . “It’s what we put in the bag at the grocery store that really matters.”[20] As avowed lovers of meat believe me when I tell you that Politomaven and Politoesq are both horrified by this concept. But our point is that politics prefers “black and white” issues, while often the reality involves more shades of grey. We think that overall, even with our own experiences of re-using all of our plastic bags, reducing the use of plastic is a “win” for mankind. But we look skeptically at claims that doing so is so requires urgent, immediate, and widespread government action to force change upon people. We think that the local movements that have gradually covered 40% of California’s population are promising and while we are supportive of a state-wide ban on single-use bags we are not so supportive of it that we are willing to accept less than perfect legislation.

So what do we mean? Well, we like sin taxes. We’d like to see tiered system. We’d like a higher tax on single-use bags, a lower tax on re-useable bags phased in over a few years. We’d like to see incentives for stores to come up with more creative options like heaby cloth bags, owned by the stores that can be lent out to customers for a few days with a nominal “deposit” that would be refunded upon return of the bag. We think that would remove much of the annoyance that customers feel now when they are deprived of the use of a bag absent a payment.

We’d also like the funds generated from the programs not to go to the stores (as Proposition 67 offers) and not to go to specialized pet projects (as Proposition 65 proposes) but rather going to a mix of expenses targeting the problem (perhaps that loaner-bag program we dreamt up, or public education and the like) with the remainder going to the State’s general fund.

We are not alone in disliking the use of funds proposed in Proposition 65. Indeed, Ballotopedia reports zero editorial board support and overwhelming opposition by newspaper editorial boards to that Proposition.[21] That is truly remarkable. Where we break with that overwhelming consensus among the editorial boards is that we also don’t particularly care for Proposition 67 (a scant 2 editorial boards oppose that Proposition with us).[22] We acknowledge that if we’d gotten our wish and the special interests had not suspended SB 270 through the referendum process it would now be the law. That wouldn’t have been the worst outcome in the world. But the constitution gives those special interests the right to force us to evaluate the actual law. When we do that we conclude that reducing plastic bag consumption would be positive but we are unsure about how aggressive we need to be in legislating that change on a broad scale rather than allowing public norms to continue changing over time. Unconvinced that people change with out a state-wide legislated “hammer?” Consider that even supporters of Proposition 67 concede that single-use plastic bags have already dropped in California by an astonishing 50% — yet another reason we are OK with a more gradual approach.[23] That said, we still might have supported Prop 67 if it had allocated the revenues it generated in a better way. Because it does not and because we don’t think using government power to legislate revenue for private business[24] is a good idea, we urge a “no” vote on 67 as well, leaving in place the existing local single-use plastic bag bans only until better state-wide legislation is passed.

Recommendation: Prop 65: strong NO; Prop 67: Barely NO

[1] We fear we are dating ourselves. Dear young readers, this is a Rubik’s Cube. Hehhhh.










[11] The Secretary of State provides a nice graphic for this if you prefer.

[12] Remember that in California competing measures can exist on a single ballot. In those instances, the measure with the greatest votes prevails. So in the first scenario of two “yes” outcomes we assume that Prop. 65 got the most votes. If that were not the case, the effect would be the same as a “no” on Prop 65 and a “yes” on Prop 67 (namely the third scenario).

[13] Remember that in California competing measures can exist on a single ballot. In those instances, the measure with the greatest votes prevails. So in the first scenario of two “yes” outcomes we assume that Prop. 65 got the most votes. If that were not the case, the effect would be the same as a “no” on Prop 65 and a “yes” on Prop 67 (namely the third scenario).











[24] To be clear, we are not saying that the private business is obtaining pure profit from this “tax.” But even though the legislation requires them to target the monies toward certain tasks, those are still profit-generating activities. That is the difference between private and public activity. We don’t think government tax power should be excercised in that way.

  1. A senate bill, a referendum and two propositions walk into a bar and now you have to vote on Propositions 65 and 67 | PolitoMuse
  2. It’s go time | PolitoMuse

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