The Case For A National Single-Use Plastic Ban In The United States

Penn State Journal of Law & International Affairs Penn State Journal of Law & International Affairs

Volume 9 Issue 2

May 2021

Plastic Prohibition: The Case For A National Single-Use Plastic Plastic Prohibition: The Case For A National Single-Use Plastic

Ban In The United States Ban In The United States

Margaret Kolcon

Follow this and additional works at: https://elibrary.law.psu.edu/jlia

Part of the International and Area Studies Commons, International Law Commons, International Trade

Law Commons, and the Law and Politics Commons

ISSN: 2168-7951

Recommended Citation Recommended Citation

Margaret Kolcon,

Plastic Prohibition: The Case For A National Single-Use Plastic Ban In The United States

9 PENN. ST. J.L. & INT'L AFF. 194 (2021).

Available at: https://elibrary.law.psu.edu/jlia/vol9/iss2/9

The Penn State Journal of Law & International Affairs

is a joint publication of Penn State’s School of Law and

School of International Affairs.

Penn State

Journal of Law & International Affairs

2021 VOLUME 9 NO. 2

PLASTIC PROHIBITION: THE CASE FOR

A NATIONAL SINGLE-USE PLASTIC BAN

IN THE UNITED STATES

By Margaret Kolcon

I. INTRODUCTION ................................................................................... 194

II. BACKGROUND .................................................................................... 199

A. Viral Animal Posts Bring Attention To The Plastic

Problem ................................................................................. 199

B. American Plastic Shipped to Other Countries ................ 201

C. Plastic Bans in the United States ....................................... 205

1. Nationwide Legislation ................................................. 205

2. Individual State Bans ..................................................... 207

D. Plastic Bans in Other Countries ........................................ 211

III. ARGUMENT ....................................................................................... 215

A. America’s Options ............................................................... 215

B. Negative Effects and Issues ............................................... 219

IV. CONCLUSION .................................................................................... 223

I. INTRODUCTION

In 2021, it is widely understood that single-use plastics are

bad for the environment. Over 2,110,000 square kilometers of

“plastic soup” exist in the world’s oceans, and the number increases

Margaret Kolcon is an Associate Editor of The Journal of Law and

International Affairs and a 2021 Juris Doctor Candidate at The Pennsylvania State

University Dickinson School of Law.

2021 Plastic Prohibition 9:2

195

by the second.

High-density Polyethylene, the type of plastic that is

used to make plastic grocery bags, was invented in 1953, though the

bags themselves were not introduced to America until 1979.

In just a

few decades, plastic grocery bags and other single-use plastics have

gone from non-existent to ubiquitous. The term “single-use plastics”

refers to plastic packaging and items that are used only once before

they are thrown away or recycled.

“Disposable plastics” is another

term for this group of items, including but not limited to: plastic

shopping bags, coffee stirrers, water bottles, plastic straws, plastic

caps, food packaging and disposable cups.

Every day, Americans

turn to these items because they are convenient and affordable, but

they are also dangerous.

Single-use plastic has had a massive impact on oceans and

marine animals, as it is a major ocean polluter.

Sea birds, sea turtles,

seals, whales and other animals ingest or become entangled in plastic,

with deadly consequences.

According to the United Nations, over

800 species are affected by marine debris each year and about three-

quarters of the debris is made up of plastic.

About half of all species

of marine animals are affected by entanglement or ingestion of

Great Pacific Garbage Patch, THE WORLD COUNTS, https://

www.theworldcounts.com/challenges/planet-earth/waste/great-pacific-garbage-

patch-size/story (last accessed Mar. 18, 2021).

Sarah Laskow, How the Plastic Bag Became So Popular, THE ATLANTIC (Oct.

10, 2014), https://www.theatlantic.com/technology/archive/2014/10/how-the-

plastic-bag-became-so-popular/381065/.

What is Single Use Plastic and Why is it a Problem?, PLASTIC FREE

CHALLENGE, http://www.plasticfreechallenge.org/what-is-single-use-plastic (last

visited Jan. 8, 2020).

Id.

How Are Plastic Bags Made? Step-By-Step Plastic Bag Production Process,

GREENTUMBLE.COM (May 1, 2018) https://greentumble.com/how-are-plastic-bags

-made/.

Ocean Plastics Pollution, CENTER FOR BIOLOGICAL DIVERSITY,

https://www.biologicaldiversity.org/campaigns/ocean_plastics/ (last visited Jan. 9,

2020).

Id.

New UN report finds marine debris harming more than 800 species, costing countries

millions, U.N.

NEWS (Dec. 5, 2016), https://news.un.org/en/story/2016/12/

547032-new-un-report-finds-marine-debris-harming-more-800-species-costing-

countries.

2021 Penn State Journal of Law & International Affairs 9:2

196

marine debris, and fifteen percent of the affected species are on the

International Union for the Conservation of Nature’s Red List of

Threatened Species.

Marine animals who consume plastic have

consequences other than entanglement, choking, or starvation,

though. Studies have found that fish exposed to microplastics (pieces

of plastic that are about five millimeters in length) reproduce less, and

so do their offspring who weren’t directly exposed to microplastics,

suggesting that plastic consumption can have lingering effects.

Animals are not the only victims; the plastic can end up in the

seafood eaten by humans too.

Plastic particles have been found not

only in the seafood people eat, but also in bottled beverages, tap

water, and even in the air.

While the effects of human consumption

of plastic have not been studied in great detail due to ethical issues,

studies performed on hamsters have found that plastic particle

consumption could lead to blood clots.

The potential for inhaling

airborne plastic particles is also problematic, as they can lodge in the

lungs and are known to cause cancer.

Plastic use is most visible

when it affects ocean animals, but it may have severe, albeit less-

visible, effects on people.

Each year, an estimated 8 million metric tons of plastic is

deposited in the ocean, in addition to the estimated 150 million

Secretariat of the Convention on Biological Diversity, Impacts of Marine

Debris on Biodiversity, 67 CBD Technical Series 1, 9, https://www.cbd.int/doc/

publications/cbd-ts-67-en.pdf.

Andrea Thompson, From Fish to Humans, A Microplastic Invasion May Be

Taking a Toll,

THE SCIENTIFIC AMERICAN (September 4, 2018), https://

www.scientificamerican.com/article/from-fish-to-humans-a-microplastic-invasion-

may-be-taking-a-toll/; see also What are Microplastics?, N

ATIONAL OCEAN SERVICE,

https://oceanservice.noaa.gov/facts/microplastics.html, (last accessed Jan. 10,

2020).

Simon Reddy, Plastic Pollution Affects Sea Life Throughout the Ocean, PEW

CHARITABLE TRUSTS (Sep. 24, 2018), https://www.pewtrusts.org/en/research-

and-analysis/articles/2018/09/24/plastic-pollution-affects-sea-life-throughout-the-

ocean.

Thompson, supra note 10.

Id.

2021 Plastic Prohibition 9:2

197

metric tons of plastic waste that already circulates the ocean.

Plastic

does not biodegrade quickly, which means that once it is in the

ocean, unless someone or something physically removes it, it will stay

there for generations.

A plastic bottle takes an estimated 450 years

to biodegrade.

While some estimates say that plastic shopping bags

take only around twenty years to biodegrade, the lightweight bags are

often mistaken for jellyfish or other food sources by a variety of

marine animals, causing choking or other irreparable harm.

conservative estimates say that plastic bags can take up to 1000 years

to degrade.

The longevity of the pollution and the common

occurrence of marine animals consuming the plastic combines to

create serious concerns for the health of marine ecosystems.

Marine

debris also has a huge economic cost. An estimated $13 billion

dollars has been lost on cleanup efforts, repairing damaged vessels,

and decreased tourism due to polluted beaches.

Intensifying recycling efforts is theoretically a good solution.

However, the most recent U.S. Environmental Protection Agency

reports show that only 9.1% of plastic gets recycled in the United

States.

Only one percent of single-use plastic bags get recycled.

The Problem with Plastics, OCEANCONSERVANCY.ORG, https://

oceanconservancy.org/trash-free-seas/plastics-in-the-ocean/ (last accessed Jan. 9,

2019).

A Guide to Plastic in the Ocean, NAT’L OCEAN SERV. https://oceanservice.

noaa.gov/hazards/marinedebris/plastics-in-the-ocean.html, (last accessed Mar. 18,

2021).

Mike Wright, et al., The stark truth about how long your plastic footprint will last

on the planet, T

HE TELEGRAPH (Jan. 10, 2018, 8:25 PM), https://www.

telegraph.co.uk/news/2018/01/10/stark-truth-long-plastic-footprint-will-last-

planet/.

Id.

Brad Plumer, Plastic Bags, or Paper? Here’s What to Consider When You Hit

the Grocery Store, N.Y.

TIMES (Mar. 29, 2019), https://www.nytimes.com

/2019/03/29/climate/plastic-paper-shopping-bags.html.

Reddy, supra note 11.

Kimberly Amadeo, How Air, Water, and Plastic Pollution Affect the Economy,

HE BALANCE, (Dec. 29, 2020), https://www.thebalance.com/pollution-facts-

economic-effect-4161042#:~:text=such%20as%20bioremediation.-

,Plastic%20Pollution,flexible%2C%20lightweight%2C%20and%20sustainable.

Advancing Sustainable Materials Management: 2015 Fact Sheet, U.S.

ENVIRONMENTAL PROTECTION AGENCY (July 2018) https://www.epa.gov/sites/

2021 Penn State Journal of Law & International Affairs 9:2

198

Further, not all plastics are recyclable, and any recyclable plastic that

gets contaminated by non-recyclable plastic gets sent to a landfill.

Even when citizens go to the trouble of separating out their

recyclables correctly, those items are sometimes burned in massive

quantities instead of properly recycled.

Recycling centers are not

equipped to handle lightweight plastic bags because they clog up

machines, so even recyclable plastic bags frequently end up in

landfills.

Recycling efforts are not solving the plastic problem.

Legislative efforts must be made.

This comment will explore regulations that have banned,

taxed or reduced single-use plastics in countries that have passed

legislation on this topic. It will also analyze several state laws passed

in the United States which have banned or placed regulations on

plastic bags or styrofoam in order to predict if a country-wide ban in

the United States is feasible. Currently, eight states have banned

single-use plastics: California, Connecticut, Delaware, Hawaii, Maine,

New York, Oregon, and Vermont.

One hundred and twenty seven

countries world-wide have adopted legislation to regulate use of

plastic shopping bags.

A 2018 report by the United Nations

Environment Programme and World Resources Institute details

production/files/2018-07/documents/2015_smm_msw_factsheet_07242018_fnl_

508_002.pdf.

Bags by the Numbers, WASTE MANAGEMENT, http://www.

wmnorthwest.com/guidelines/plasticvspaper.htm (last accessed Jan. 9, 2019).

John Hite, We Can’t Recycle Our Way Out of the Plastic Pollution Problem,

ONSERVATION LAW FOUNDATION (Apr. 24, 2019), https://www.clf.org/blog/

cant-recycle-out-of-plastic-pollution-problem-guide/.

Oliver Milman, ‘Moment of reckoning’: US cities burn recyclables after China

bans imports, T

HE GUARDIAN (Feb. 21, 2019, 1:00 PM), https://

www.theguardian.com/cities/2019/feb/21/philadelphia-covanta-incinerator-

recyclables-china-ban-imports.

Plumer, supra note 19.

State Plastic and Paper Legislation, NAT’L CONF. OF STATE LEGISLATURES

(Nov. 1, 2019), http://www.ncsl.org/research/environment-and-natural-resources

/plastic-bag-legislation.aspx.

Carole Excell, 127 Countries Now Regulate Plastic Bags. Why Aren’t We Seeing

Less Pollution? W

ORLD RESOURCES INSTITUTE (Mar. 11, 2019), https://

www.wri.org/blog/2019/03/127-countries-now-regulate-plastic-bags-why-arent-

we-seeing-less-pollution.

2021 Plastic Prohibition 9:2

199

different regulations used in legislation.

“Plastic bags regulations

include restrictions on the manufacture, distribution, use, and trade

of plastic bags, taxation and levies, and post-use disposal.”

The

United States may need to implement a combination of these laws in

order to have a real impact in changing the nation’s addiction to

plastic products.

II. BACKGROUND

A. Viral Animal Posts Bring Attention To The Plastic Problem

Sadly, the plastic pollution problem is most prominent when

viral videos or photographs are posted of a deceased or suffering

animal. A viral video of a drinking straw getting pried out of a

wincing sea turtle’s nostril has been viewed over 41 million times

since it was posted in 2015 and is widely credited with drawing

awareness to the danger of plastic drinking straws.

An anti-straw

movement gained traction after the video, and even large companies

were affected by the movement; for instance, Starbucks made the

decisions to eliminate plastic straws in 2018.

While the viral video’s

success in leading to plastic straw bans seems like a solution to the

plastic pollution problem, plastic straws are a relatively small part of

the equation. Straws make up only four percent of the plastic trash by

Legal Limits on Single-Use Plastics and Microplastics: A Global Review of

National Laws and Regulations, U.N.

ENVIRONMENT PROGRAMME, https://wedocs.

unep.org/bitstream/handle/20.500.11822/27113/plastics_limits.pdf?sequence

=1&isAllowed=y (last accessed Jan. 12, 2020).

Id. .

Sea Turtle Biologist, Sea Turtle With Straw Up Its Nostril — “No” To Plastic

Straws, Y

OUTUBE (Aug. 10, 2015)), https://www.youtube.com/watch?time_

continue=1&v=4wH878t78bw; see also Michael A. Lindenberger, How A Texas

A&M Scientist’s Video of a Sea Turtle Soured Americans On Drinking Straws, T

DALLAS MORNING NEWS (July 19, 2018)), https://www.dallasnews.com/opinion

/commentary/2018/07/19/how-a-texas-am-scientist-s-video-of-a-sea-turtle-

soured-americans-on-drinking-straws/; see also Sophia Rosenbaum, She Recorded

That Heartbreaking Turtle Video. Here’s What She Wants Companies Like Starbucks To

Know About Plastic Straws, T

IME (July 17, 2018)), https://time.com/5339037/turtle-

video-plastic-straw-ban/.

Starbucks to ban plastics straws in all stores by 2020, BBC NEWS (July 9, 2018),

https://www.bbc.com/news/world-us-canada-44774762.

2021 Penn State Journal of Law & International Affairs 9:2

200

piece and only 2000 of the 9 million tons of plastic that end up in the

ocean each year.

Other viral photos of suffering animals that have had major

impacts include a stork with its mouth sealed shut by an elastic ring

and a tiny seahorse clinging to a Q-tip.

The images are jarring and

spark conversation. News reports of whales who have apparently

died from swallowing too much plastic have started becoming more

common, which has also drawn attention to plastic pollution.

March 2019, a young fifteen-foot whale washed up dead on a

Philippine island with more than eighty-eight pounds of plastic in its

stomach, some of which had calcified.

In April 2019, another whale

was found dead off the coast of Italy after eating more than forty-

eight pounds of plastic.

When whales ingest plastic, they are unable

to digest or expel it, so they feel full, despite not gaining any

nutrients.

This leads to starvation. Seabirds that eat plastic

sometimes die of starvation after consuming plastic because it takes

up room in their stomachs and they cannot consume enough organic

Seth Borenstein, Science Says: Amount of straws, plastic pollution is huge,

HYS.ORG (Apr. 21, 2018), https://phys.org/news/2018-04-science-amount-

straws-plastic-pollution.html.

Annie Gowen, A photo of a bird in India with its beak shut by an elastic ring

went viral. Now it has been rescued, W

ASH. POST (June 13, 2018), https://

www.washingtonpost.com/world/asia_pacific/a-photo-of-an-indian-bird-with-its-

beak-shut-by-a-plastic-ring-went-viral-now-hes-been-

rescued/2018/06/13/fe64ecf3-77c3-4cd1-b447-fb3e757b8a82_story.html; see also

Alessandra Potenza, How a photographer snapped this tragic photo of a seahorse lugging a Q-

tip, T

HE VERGE (Sept. 15, 2017), https://www.theverge.com/2017/9/15/

16314928/justin-hofman-seahorse-plastic-pollution-photography.

Umair Irfan, The Alarming Trend of Beached Whales Filled With Plastic,

Explained, V

OX (Dec. 3, 2019, 10:10 AM), https://www.vox.com/2019/5/24/

18635543/plastic-bags-whale-stomach-beached.

Deanna Paul, Whales Keep Eating Plastic and Dying. This One’s Stomach Had

88 Pounds of Calcifying Trash. W

ASH. POST (Mar. 18, 2019), https://www.

washingtonpost.com/science/2019/03/18/whales-keep-eating-plastic-dying-this-

ones-stomach-had-pounds-calcifying-trash/.

Iliana Magra, Whale Is Found Dead in Italy With 48 Pounds of Plastic in Its

Stomach, N.Y.

TIMES (Apr. 2, 2019), https://www.nytimes.com/2019/04/02/

world/europe/plastic-whale-dead-italy.html.

Daniel Victor, Dead Whale Found With 88 Pounds of Plastic Inside Body in the

Philippines, N.Y.

TIMES (Mar. 18, 2019), https://www.nytimes.com/2019/03/18

/world/asia/whale-plastics-philippines.html.

2021 Plastic Prohibition 9:2

201

material to survive.

Fish also consume plastic, mostly in the form of

microplastics, which come from either larger plastic debris that has

been broken down into smaller pieces, or from manufactured plastic

microbeads.

In a new test of some of the most commercially

exported fish from Mexico, twenty percent were found to contain

plastic.

It is tragic that animals have to suffer in such a public manner

for the plastic problem to be recognized by the general public, but

the outpour of support for anti-plastic movements that resulted from

the spread of these shocking images has been a catalyst for change

world-wide. These images have proven that there is a plastic

problem, and that it needs to be fixed.

B. American Plastic Shipped to Other Countries

One of the biggest arguments against a plastic bag ban is that

the problem of plastic bags filling our oceans and landfills can be

solved by intensifying recycling efforts.

There are many difficulties

that arise from plastic bag recycling efforts. Plastic bags are expensive

to collect, and although quality and cleanliness of the bags are

essential for recycling, the minimum standards are hard to maintain.

Further, plastics can only be recycled seven to nine times, unlike an

aluminum can which can be recycled indefinitely, as it loses no quality

during recycling.

Each type of plastic is made from a different

Reddy, supra note 11.

What are Microplastics?, supra note 10.

Alejandro Olivera, Tests Find Plastic in 20 Percent of Mexican Fish, CENTER

FOR

BIOLOGICAL DIVERSITY (Oct. 10, 2019), https://biologicaldiversity.org/w/

news/press-releases/tests-find-plastic-20-percent-mexican-fish-2019-10-10/.

Learn the Facts, BAG THE BAN, https://www.bagtheban.com/learn-the-

facts/ (last accessed Mar. 18, 2021).

Don’t be Fooled- Plastic Bag Recycling Laws are Not the Answer,

LASTICBAGLAWS.ORG, https://www.plasticbaglaws.org/get-involved/plastic-bag

-recycling (last accessed Mar. 18, 2021).

Laura Parker, China’s Ban on Trash Imports Shifts Waste Crisis to Southeast

Asia, N

AT’L GEOGRAPHIC (Nov. 16, 2018), https://www.nationalgeographic.com/

environment/2018/11/china-ban-plastic-trash-imports-shifts-waste-crisis-

southeast-asia-malaysia/.; see also How Many Times Can it be Recycled?,

AKETHEMOSTOFWASTE.CO.NZ, https://www.makethemostofwaste.co.nz/

recycling/how-many-times-can-it-be-recycled/ (last accessed Jan. 10, 2020).

2021 Penn State Journal of Law & International Affairs 9:2

202

formula—there are thousands—and each requires a different

recycling process.

Plastic recycling in general is a huge headache,

and it is not a viable alternative for reducing plastic bag consumption.

The system of recycling is fundamentally flawed, because the

rules of what can be recycled are confusing, and, as a result, many

well-intentioned people attempt to recycle products that are not

recyclable.

Because of this issue, the first step of recycling is to sort

out the products that can actually be recycled from those that

cannot.

This process is done by hand, and it is crucial because if

plastic bags or cling wrap are not removed from the pile of

recyclables, they can break the recycling equipment by jamming the

conveyor belt.

In fact, plastic bags require special sorting and

processing machines, which cannot be found at every recycling

center.

Since many people still attempt to recycle plastic bags or

items that are contaminated by food waste, someone needs to

physically sort the items.

This is an unglamorous, labor-intensive

job, and it does not make sense for many recyclers in the United

States, or any other developed nation, to do it. Therefore, about

eighty percent of America’s mixed plastics are getting sent abroad for

someone else to sort and deal with.

That someone else was China until recently. Starting in 1992,

China bought forty-five percent of the world’s plastics designated for

recycling.

But, in January 2018, China’s National Sword policy

Parker, supra note 44.

Dominique Mosbergen, Why Southeast Asia Is Flooded With Trash From

America and Other Wealthy Nations, H

UFF POST (MAR. 8, 2019, 5:45 AM), https://

www.huffpost.com/entry/malaysia-plastic-recycling_n_5c7f64a9e4b020b54d7ff

dee.

Id.

Kate Bratskeir, How to Recycle Plastic Bags the Right Way, HUFF POST (Jan.

26, 2019, 8:00 AM), https://www.huffpost.com/entry/how-to-recycle-plastic-

bags_n_5c4b80f8e4b0e1872d43b9a4.

Id.

Mosbergen, supra note 46.

Id.

Sara Kiley Watson, China Has Refused to Recycle The West’s Plastics. What

Now?, N.P.R. (June 28, 2018, 4;02 PM), https://www.npr.org/sections/

2021 Plastic Prohibition 9:2

203

banned plastic waste from being imported for the protection of the

environment and people’s health.

Much of the imported recyclable

waste was too contaminated to be recycled anyway, so a large

percentage of it was ending up in China’s landfills or waterways.

Since China’s ban, hundreds of thousands of tons of plastics

that are placed in recycling bins in the United States each year are

now shipped to developing countries to be recycled.

The countries

that receive the United States’ plastic waste are mismanaging more

than seventy percent of their own plastic waste.

Countries such as

Bangladesh, Laos, Ethiopia, and Senegal are now receiving

recyclables from the United States because they have cheap labor and

a low level of environmental regulation.

While processing

contaminated plastic requires more sorting for legal recyclers,

unlicensed recyclers can do it cheaply by illegally accessing

groundwater for the recycling process.

They then do not have to

worry about treating the contaminated water, because of a lack of

environmental regulations.

Leftover recyclables are illegally dumped

and sometimes burned.

This is a widespread practice in Malaysia,

where Chinese recyclers have relocated since the National Sword

policy took effect.

These relocated Chinese recyclers melt

contaminated plastic scrap into pellets to sell to China, betting on

cleaning up the plastics in the pellet-making process to get them past

Chinese customs inspectors.

If that plan works, it would mean that

contaminated, unregulated plastic could be used to manufacture

goatsandsoda/2018/06/28/623972937/china-has-refused-to-recycle-the-wests-

plastics-what-now.

Id.

Mosbergen, supra note 46.

Erin McCormick et. al., Where Does Your Plastic Go? Global Investigation

Reveals America’s Dirty Secret, T

HE GUARDIAN (June 17, 2019, 1:00 PM),

https://www.theguardian.com/us-news/2019/jun/17/recycled-plastic-america-

global-crisis.

Id.

Mosbergen, supra note 46.

Id.

Parker, supra note 44.

2021 Penn State Journal of Law & International Affairs 9:2

204

Chinese goods.

The United States has been criticized by Malaysia’s

Energy, Science, Technology, Environment and Climate Change

Minister for being a developed country that is dumping its waste on a

developing nation.

Plastic waste in the United States is becoming

other countries’ problem, which should be a major consideration in

developing nationwide policy.

In May 2019, almost all of the world’s countries agreed on a

deal that restricts shipments of hard-to-recycle plastic waste to

economically developing countries.

The deal means that exporting

countries will have to obtain consent from countries receiving

contaminated, mixed or unrecyclable plastic waste.

Previously, the

United States and other countries could send recyclables to private

entities in developing countries without getting approval from their

governments.

Activists observed plastic waste piling up in

developing countries, to the point that the Global Alliance for

Incinerator Alternatives (one of the backers of the deal), said that

villages in Indonesia, Thailand, and Malaysia had “turned into

dumpsites over the course of a year.”

This pact to stop shipments

of low-quality recyclables to developing countries without consent

was signed by 187 countries as an amendment to the Basel

Convention.

While the United States is not a party to the Basel

Convention, the treaty has implications for U.S. importers and

exporters.

The Basel Convention contains provisions that allows

exports of waste only if the exporting country does not have

Id.

Emily Holden, Nearly All Countries Agree To Stem Flow of Plastic Waste into

Poor Nations, T

HE GUARDIAN (May 10, 2019 7:02 PM), https://

www.theguardian.com/environment/2019/may/10/nearly-all-the-worlds-

countries-sign-plastic-waste-deal-except-us.

Id.

Implications of the Basel Convention for U.S. Importers & Exporters, U.S.

ENVIRONMENTAL PROTECTION AGENCY, https://www.epa.gov/hwgenerators/

international-agreements-transboundary-shipments-hazardous-waste (last accessed

on Jan. 10, 2020).

2021 Plastic Prohibition 9:2

205

sufficient disposal or recycling capacity or cannot manage waste in an

environmentally sound manner.

The United States has been looking

for other Asian countries to accept export of its waste since China

closed its doors to foreign recyclables.

This is not a sustainable plan.

The Basel Convention amendment should be a wakeup call to the

United States that it needs to stop the consumption of products that

it cannot recycle or dispose of on its own.

C. Plastic Bans in the United States

1. Nationwide Legislation

In 2009, the Plastic Bag Reduction Act was introduced in the

House of Representatives and referred to the Subcommittee on

National Parks, Forests, and Public Lands.

It proposed an excise tax

on single-use carryout bags, established a tax refund for retailers with

bag recycling programs and planned to use the tax revenue it earned

to pay for land and water conservation.

That bill died, and the

United States currently has no nationwide restrictions or taxes on

plastic bag use.

However, the United States does have a precedent for

enacting a single-use plastics ban: the Microbead-Free Waters Act.

Microbeads used to serve as exfoliants in products like facial

cleansers and body washes—for example, a popular facewash called

Clean and Clear Morning Burst contained the tiny plastic balls.

The

beads are less than five millimeters in diameter, so they are easily

Id.

Parker, supra note 44.

H.R. Res. 2091, 111th Cong. (2009-2010).

H.R. 2091.

Rethinking the Convenience of Single-Use Plastics, OUTRIDER FOUNDATION,

https://outrider.org/climate-change/articles/rethinking-convenience-single-use-

plastics/ (last accessed Jan. 10, 2020).

21 U.S.C.A. § 331.

Dudez Perez, Ban the Microbead: More Than a Dozen Countries Have Banned

These Hidden Plastics From Beauty Products. Has Yours??, E

CO WARRIOR PRINCESS?

(Oct. 29, 2019), https://ecowarriorprincess.net/2019/10/ban-microbead-countries

-banned-hidden-plastics-beauty/.

2021 Penn State Journal of Law & International Affairs 9:2

206

washed down drains where they then enter waterways.

Their small

size also makes them extremely difficult to filter and remove from

wastewater treatment plants.

Microbeads contribute to the Earth’s

plastic problem, but now they are banned in the United States.

In 2015, Congress passed the Microbead-Free Waters Act,

which “prohibits the manufacturing, packaging, and distribution of

rinse-off cosmetics containing plastic microbeads.”

According to

the Food and Drug Administration, this bill was passed because of

concerns that microbeads would not be filtered properly and would

end up in lakes and oceans, where the beads would be mistaken for

food by marine animals.

The reasoning behind this bill is similar to

the argument for banning plastic bags—plastic bags are mistaken for

food by marine animals and eaten. Coral populations are some of the

species most impacted by microbeads: they eat the tiny plastic

particles which then destroy their digestive systems.

One of the

strongest arguments during the congressional debate was the

following: “I have serious concerns about fish and other aquatic life

potentially ingesting these particles and the effect this could have on

humans who consume fish that have ingested the plastic.”

This is a

valid concern, as a recent study confirmed that a regular serving of

Davis Truslow, Microbeads and the Toxics Use Reduction Act: Preventing

Pollution at Its Source, 44 B.C. Envtl. Aff. L. Rev. 149, 152 (2017).

July Marks the Beginning of a U.S. Ban on Microbeads. What are Microbeads and

Do They Affect the Planet?, A

RIZONA STATE UNIVERSITY (July 5, 2017),

https://www.newswise.com/articles/july-marks-the-beginning-of-a-u-s-ban-on-

microbeads-what-are-microbeads-and-do-they-affect-the-planet.

Jareen Imam, Microbead Ban Signed By President Obama, CNN (Dec. 31,

2015), https://www.cnn.com/2015/12/30/health/obama-bans-microbeads/index.

html.

The Microbead-Free Waters Act: FAQs, U.S. FOOD AND DRUG ADMIN.,

https://www.fda.gov/cosmetics/cosmetics-laws-regulations/microbead-free-

waters-act-faqs (last visited Jan. 12, 2020).

Id.

Alexander C. Kaufman, Obama’s Ban on Plastic Microbeads Failed in One

Huge Way, H

UFFPOST (May 23, 2016 4:14 PM)), https://www.huffpost.com

/entry/obama-microbead-ban-fail_n_57432a7fe4b0613b512ad76b

161 CONG. REC. 9021, 9022. (2015) (statement of Rep. Pallone).

2021 Plastic Prohibition 9:2

207

oysters could have approximately 0.7 mg of plastic while a serving of

sardines could contain up to 30 mg of plastic.

As previously discussed, single-use plastic items are

consumed by fish, and may have effects on human consumers.

Microbeads are tiny, so it may seem as though they are more likely to

be swallowed by marine animals than a plastic bag or plastic straw

would be. However, single-use plastics can break down into pieces

that are just as small as manufactured microbeads.

While the

Microbead-Free Waters Act was a step in the right direction for the

United States, regular single-use plastics that have broken down can

have the exact same effect as microbeads on our oceans, so the

problem has not yet been solved. The Microbead-Free Waters Act

proves that it is not unprecedented in the United States to ban a

known, harmful pollutant. However, the problem persists, and more

legislation is still needed to prevent plastic ingestion by wildlife and

humans alike.

2. Individual State Bans

The eight states that have enacted single-use plastic bans have

similar policies. In 2014, California became the first state to pass a bill

for a state-wide ban on plastic bags.

Hawaii has a de facto statewide

ban on non-biodegradable plastic bags at checkout, because its major

counties have all approved the ban.

New York passed Senate Bill

1508 in 2019, becoming the third state to ban plastic bags, and the

ban is already in effect.

Vermont, Maine, Oregon, Delaware, and

Seafood study finds plastic in all samples, SCIENCE DAILY (Aug. 12, 2020).

https://www.sciencedaily.com/releases/2020/08/200812144104.htm#:~:text=%2

2Considering%20an%20average%20serving%2C%20a,a%20QUEX%20Institute%

20PhD%20student.

NOAA,What are Microplastics?, supra note 10.

State Plastic and Paper Bag Legislation, NATIONAL CONFERENCE OF STATE

LEGISLATURES (November 1, 2019)), http://www.ncsl.org/research/environment-

and-natural-resources/plastic-bag-legislation.aspx.

Id.

2021 Penn State Journal of Law & International Affairs 9:2

208

Connecticut followed suit and passed bans of their own.

It is

common for these bans to disallow retail establishments from

providing customers with single-use plastic bags, but to leave

exceptions for produce bags, dry-cleaning bags, prescription

medication bags, and bags that transport chemicals.

Additionally, Delaware, Maine, Rhode Island, and New York

have mandatory recycling or reuse programs.

Maine was the first

state to pass a law banning polystyrene food containers earlier this

year.

Polystyrene food containers, also known as Styrofoam food

containers, cannot usually be recycled, and are one of the top ten

most commonly littered items in the United States.

Further,

polystyrene does not biodegrade.

In July 2019, Vermont’s governor

signed a plastic ban bill into law and it took effect in July 2020.

Vermont’s bill is currently the most comprehensive out of all the

states because it will ban retailers from providing plastic stirrers,

coffee cups, and takeout containers made of polystyrene foam.

California has been leading the charge against single-use

plastic. Most recently, on October 9, 2019, California banned hotels

More States Ban Single-Use Plastic Bags, THE NAT’L LAW REVIEW (July 19,

2019)), https://www.natlawreview.com/article/more-states-ban-single-use-plastic-

bags.

Id.

Julia Jacabo, Despite War on Plastic, Study Shows Only Few States Have Banned

Plastic Bags, ABC

NEWS (June 6, 2019), https://abcnews.go.com/Health/war-

plastic-study-shows-states-banned-plastic-bags/story?id=63529555.

Gianluca Mezzofiore, Maine Becomes the First State to Ban Styrofoam, CNN

(May 1, 2019 10:46 AM), https://www.cnn.com/2019/05/01/us/maine-ban-

styrofoam-trnd/index.html.

Gaby Del Valle, Maine Just Banned Styrofoam Food Containers, VOX (May 3,

2019 11:30 AM), https://www.vox.com/the-goods/2019/5/3/18528219/

styrofoam-container-ban-maine-single-use-plastics.

Id.

Laura Parker, Vermont adopts the most comprehensive plastics ban in U.S., NAT.

GEO. (June 18, 2019), https://www.nationalgeographic.com/environment/article

/vermont-adopts-most-comprehensive-single-use-plastics-ban.

Elizabeth Gribkoff, Vermont Now Has Nation’s Broadest Single-Use Plastics

Ban, VTD

IGGER.ORG (June 17, 2019), https://vtdigger.org/2019/06/17/vermont-

now-nations-broadest-single-use-plastics-ban/

2021 Plastic Prohibition 9:2

209

from using mini plastic bottles for soap, conditioner, or shampoo.

This bill includes a civil penalty for violations in the amount of $500

for a first violation and $2,000 for a second violation.

100

California

has conducted its own research on single-use plastics, which helped it

pass the country’s first state to ban plastic bags.

101

“[A]ccording to

the California Integrated Waste Management Board, the recycling

rate for these bags is less than 5 percent. Public agencies in California

also spend more than three hundred seventy-five million dollars ($

375,000,000) annually in litter cleanup, and plastic carryout bags

contribute disproportionately to the litter stream.”

102

Individual cities have also imposed their own taxes or bans.

San Francisco and Seattle have banned single-use plastic, while

Washington DC and Boston tax plastic bags.

103

Washington DC’s

2009 ban has led to a fifty percent reduction in single-use plastic

bags.

104

Although many cities and states across the country have

embraced single-use plastic bans, fifteen states have passed

“preemption laws” which ban all local ordinances that ban or impose

fees on single-use plastic products.

105

Arizona, Colorado, Florida,

Idaho, Indiana, Iowa, Michigan, Minnesota, Mississippi, Missouri,

North Dakota, Oklahoma, Tennessee, Texas, and Wisconsin have

preempted regulation on plastic products.

106

This creates a definite

S. Res. 1162, 2019-2020 Reg. Sess. (Ca. 2019).

100

Id.

101

State Plastic and Paper Bag Legislation, supra note 88; see also Single-Use

Carryout Bag Ban (SB 270), C

ALRECYCLE, https://www.calrecycle.ca.gov/plastics/

carryoutbags (last accessed Mar. 21, 2020).

102

S. Res. 87, 2009-2010 Reg. Sess. (Ca 2009).

103

Where is Single-Use Plastic Banned in the World, BUSINESS TODAY (Oct. 3,

2019)), https://www.businesstoday.in/current/economy-politics/not-just-india-

countries-already-banned-singleuse-plastic/story/382661.html.

104

Jason Daley, Why Michigan Banned Banning Plastic Bags, SMITHSONIAN

MAGAZINE (Jan. 2, 2017)), https://www.smithsonianmag.com/smart-news/why-

michigan-banned-banning-plastic-bags-180961630/.

105

Preemption Laws, PLASTICBAGLAWS.ORG,

https://www.plasticbaglaws.org/preemption (last accessed Jan. 12, 2020).

106

Mike Pomranz, South Dakota Is the Latest State Looking to Outlaw Plastic

Bag Bans, F

OOD AND WINE (Jan. 31, 2020), https://www.foodandwine.com/news/

south-dakota-not-banning-plastic-straws-bags.

2021 Penn State Journal of Law & International Affairs 9:2

210

divide between states that have banned single-use plastic products

and states that have banned the bans. More states have banned the

bans than have banned plastic bags. Business owners drive

preemption laws; for example, in Michigan, the Michigan Restaurant

Association was the primary force behind passing the ban.

107

The

Michigan Restaurant Association’s position was that a system of

different bag fees and bans “would make it difficult for chain

restaurants and retailers to comply.”

108

In Tennessee, the state has

also prohibited local governments from regulating the use of auxiliary

containers (such as plastic bags), using the argument that the state is

the “exclusive regulator of food and drink sellers. . . .”

109

This ban on

municipal plastic bans was not without opposition, as the Tennessee

Chapter of the Sierra Club publicly opposed the bill.

110

Preemption laws in these fifteen states prevent

environmentally conscious cities from regulating plastic in their own

backyards. For instance, in 2016, the Minneapolis City Council voted

ten to three in favor of implementing a plastic bag ban, but a day

before the ban was scheduled to begin, the Minnesota state legislature

imposed a “preemption law.”

111

The preemption ban in Minnesota

quashed Minneapolis’s ability to do what it deemed necessary and

took away the city’s ability to make decisions for itself.

112

Grassroots

efforts can propel major national change, but preemption bans make

it impossible for cities in these states to be a part of any movement

towards a national single-use plastic ban.

113

Both Florida and

Minnesota introduced bills that would end the preemption laws, but

107

Daley, supra note 104.

108

Id.

109

Plastic Bag Preemption Conflicts Between State and Local Governments,

ALLOTPEDIA, https://ballotpedia.org/Plastic_bag_preemption_conflicts_between

_state_and_local_governments (last accessed Jan. 12, 2020).

110

Id.

111

Adair Andre, Bans on Bans Block Local Progress to Reduce Plastic Pollution,

EDIUM (Mar. 15, 2019), https://medium.com/u-s-pirg/bans-on-bans-block-

local-progress-to-reduce-plastic-pollution-3d1de68fcde3.

112

Id.

113

Id.

2021 Plastic Prohibition 9:2

211

they have since been dismissed or halted.

114

These preemption laws

are more successful at a state-wide level for several reasons. Instead

of fighting individual municipalities with plastic bans, the company or

organization advocating the preemption can knock out each city’s

plastic ban with one fell swoop.

115

Additionally, legislators at the state

level are less likely to be confronted by grassroots activists.

116

In Pennsylvania, House Bill 1071, which would have

preempted plastic bag bans, passed both the House and the Senate in

2017 and was only stopped when Governor Tom Wolf vetoed the

bill himself.

117

“[T]he commonwealth should only on rare occasions

preempt the rights of local governments to implement laws and

policies that it believes are in its best interest,” the governor said.

118

Supporters of a preemption law in Pennsylvania are concerned that

Pennsylvania factories that produce plastic bags may either move

their operations to a different state or stop opening new facilities if

the commonwealth is perceived as anti-plastic bag.

119

D. Plastic Bans in Other Countries

In 1993, Denmark imposed a tax on plastic bags, becoming

the first country in the world to do so.

120

Danes use an average of

four single-use plastic bags a year.

121

Americans use an average of 365

114

Andre, supra note 111; SB 88, 2019 Leg. (Fla. 2019); HF 511 Status in the

House for the 91

Legislature, MINN. LEG., https://www.revisor.mn.gov/bills/

bill.php?b=House&f=HF0511&ssn=0&y=2019 (last accessed Jan. 12, 2020).

115

Sarah Gibbens, See the Complicated Landscape of Plastic Bans in the U.S.,

AT’L GEO. (Aug. 15, 2019), https://www.nationalgeographic.com/environment/

2019/08/map-shows-the-complicated-landscape-of-plastic-bans/.

116

Gibbens, supra note 115.

117

Emma Cueto, Pa. Gov. Rejects Bill Prohibiting Plastic Bag Bans, LAW 360

(July 3, 2017), https://www.law360.com/articles/940491/pa-gov-rejects-bill-

prohibiting-plastic-bag-bans.

118

Id.

119

Id.

120

Vaishnavi Chandrashekhar, In India’s Largest City, A Ban on Plastics Faces

Big Obstacles, Y

ALE ENV’T 360 (Aug. 28, 2018), https://e360.yale.edu/features/as-

indias-largest-city-shows-banning-plastics-is-easier-said-than-done.

121

Karen Gunn, Danes Use Far Fewer Plastic Bags Than Americans — Here’s

How, N

AT’L GEO. (May 21, 2018), https://www.nationalgeographic.com/news/

2018/05/denmark-uses-less-plastic-bags-usa-culture/.

2021 Penn State Journal of Law & International Affairs 9:2

212

bags each year—one every single day.

122

There are no free bags at

grocery stores in Denmark; shoppers must bring their own or

purchase a large, durable bag.

123

Bangladesh became the first country in the world to ban thin

plastic shopping bags in 2002.

124

The ban was enacted due to clogged

drainage and sewer systems which caused harmful bacteria and

microbes to spread.

125

Abandoned bags also became breeding

grounds for mosquitos, which threatened to spread disease.

126

Mosquitos are a known source of diseases that threaten human

health. This ban has not been extremely successful in Bangladesh, as

it was not properly enforced, and cheap alternatives to plastic bags

were not available for consumer use.

127

Kenya currently has the world’s toughest ban on plastic bags,

which was enacted on August 28, 2017.

128

There are fines of up to

$40,000 and a potential prison sentence of up to four years for

anyone found manufacturing, importing, or selling a plastic shopping

bag.

129

Merely using a plastic bag can carry a $500 fine or a jail

sentence of up to a year.

130

As of August 2019, around 300 people in

Kenya have been fined between $500 and $1,500, and some have

been sent to jail.

131

122

Id.

123

Id.

124

Jane Onyanga-Omara, Plastic Bag Backlash Gains Momentum, BBC NEWS

(Sept. 14, 2013), https://www.bbc.com/news/uk-24090603.

125

Bangladesh: Ban on Plastic Bags Changes Shopping Habits, INTER PRESS SERV.

(Jan. 29, 2002), http://www.ipsnews.net/2002/01/bangladesh-ban-on-plastic-bags-

changes-shopping-habits/.

126

Id.

127

Chandrashekhar, supra note 120.

128

Jonathan Watts, Eight Months On, Is The World’s Most Drastic Plastic Bag

Ban Working?, T

HE GUARDIAN (Apr. 25, 2018, 12:00 AM), https://

www.theguardian.com/world/2018/apr/25/nairobi-clean-up-highs-lows-kenyas-

plastic-bag-ban.

129

Has Kenya’s Plastic Bag Ban Worked?, BBC NEWS (Aug. 28, 2019),

https://www.bbc.com/news/world-africa-49421885.

130

Id.

131

Id.

2021 Plastic Prohibition 9:2

213

Ireland began charging fifteen cents per plastic grocery bag in

2002 instead of giving them away for free.

132

It worked. Annual bag

usage dropped from 350 to 14 per person by 2012.

133

Now, Ireland is

looking towards targeting disposable coffee cups and lids, and the

government is considering a 15 cent fee on all disposable coffee cups,

which would be the first of its kind.

134

In 2016, France passed a law banning plastic cups, plates, and

utensils in addition to its previous plastic bag ban.

135

The law is a part

of France’s Energy Transition for Green Growth Act and went into

effect in 2020, but there are exceptions in place for compostable

items.

136

In March 2019, the European Parliament passed the Single-

Use Plastics Directive, which will ban single-use plastics by 2021.

137

This legislature will affect plastic straws, drink bottle caps, and cotton

bud sticks.

138

Canada will ban single-use plastics by 2021, after its

government analyzes which products to ban.

139

Canada’s Prime

Minister, Justin Trudeau, has announced that Canada expects to

follow the European Union’s example and ban the 10 single-use

plastic products that are found in the ocean most often.

140

Until

Canada’s ban is officially enacted, some retailers have created plastic

132

Plastic Bag Bans Work, SMITHSONIAN, https://ocean.si.edu/conservation

/pollution/plastic-bag-bans-work (last accessed Jan. 12, 2020).

133

Joe Curtin, Ireland Can Lead Charge in War Against Plastic, THE IRISH

TIMES (Jan. 31, 2018, 1:00 AM), https://www.irishtimes.com/opinion/ireland-can-

lead-charge-in-war-against-plastic-1.3374066.

134

Id.

135

BUS. TODAY, supra note 103.

136

James McAuley, France Becomes the First Country to Ban Plastic Plates and

Cutlery, T

HE WASH. POST (Sept. 19, 2016), https://www.washingtonpost.com/

news/worldviews/wp/2016/09/19/france-bans-plastic-plates-and-cutlery/.

137

Hillary Leung, E.U. Sets Standard with Ban on Single-Use Plastics by 2021,

IME (Mar. 28, 2019), https://time.com/5560105/european-union-plastic-ban/.

138

Id.

139

Dan Bilefsky, Canada Plans to Ban Single-Use Plastics, Joining Growing Global

Movement, N.Y.

TIMES (June 10, 2019), https://www.nytimes.com/2019/06/10/

world/canada/single-use-plastic-ban.html.

140

Id.

2021 Penn State Journal of Law & International Affairs 9:2

214

bags with logos designed to embarrass the shopper, with sayings like

“The Colon Care Co-Op” written on the bag.

141

China, too, has a plastic ban in place. In 2008, China’s cabinet

outlawed the use of plastic bags less than .025mm thick and banned

marketplaces from giving customers free bags.

142

However, in 2018,

Zero Waste Alliance surveyed 1,101 retailers in nine different Chinese

cities and found that most retailers violated the regulations and

provided the bags for free.

143

Only 89 of the 1,101 shops fulfilled all

the requirements and charged for the plastic bags.

144

The ban does

not seem to have been carried out effectively, especially since many

of the retailers still provide the ultra-thin .025mm bags that were

expressly banned.

145

The decision to ban only a certain thickness of

bag could be a reason why the ban was not effective, as it is difficult

to tell how thick a plastic bag may be at first glance. There are ways

to fix the issues that have caused China’s ban to be unsuccessful.

Increasing fines for violations and changing the fee structure so that

producers of the bags, not retailers, are charged are two of the

simplest options.

146

In January 2020, China announced plans to

further its efforts and ban single-use plastics across the country.

147

This ban will include disposable plastic tableware and cotton swabs

by the end of 2020.

148

141

Id.

142

Ma Chi, Govt Moves to Tackle White Pollution, CHINA DAILY (July 4, 2108),

http://www.chinadaily.com.cn/a/201807/04/WS5b3bf8eba3103349141e0804.htm

143

Wang Danlin, 10 Years on from the Ban on Free Plastic Bags, CHINA DEV.

BRIEF (June 14, 2018), http://www.chinadevelopmentbrief.cn/articles/10-years-

on-from-the-ban-on-free-plastic-bags/.

144

Id.

145

John Upton, China’s Plastic-Bag Ban Turns Five Years Old, GRIST.ORG

(June 4, 2013), https://grist.org/article/chinas-plastic-bag-ban-turns-five-years-

old/.

146

Danlin, supra note 143.

147

Trevor Nace, China to Ban All Single-Use Plastics, FORBES (Jan. 20, 2020),

https://www.forbes.com/sites/trevornace/2020/01/20/china-to-ban-all-single-

use-plastics/#5c86e3972939.

148

Id.

2021 Plastic Prohibition 9:2

215

Italy proposed a new tax on single-use plastic on November

6, 2019.

149

Producers would owe one euro per kilo of non-re-usable,

non-compostable plastic according to the Italian Senate’s proposed

budget.

150

The tax plan is intended to raise almost one billion

euros.

151

However, there has been backlash from Confindustria, the

confederation of Italian industry, which argues that the tax penalizes

products, not behavior.

152

The president of Confindustria called the

impact it will have on businesses “disastrous.”

153

The Italian finance

minister’s response was idyllic: “[w]e cannot applaud the children

who campaign for a better environment and then not take action.”

154

Italy’s decision to tax plastic producers by the kilo is representative of

the polarizing nature of plastic bag bans: lawmakers are trying to

solve the problem of plastic in the oceans retroactively, but

businesses and workers are suddenly impacted in ways that they are

financially unprepared to handle.

155

III. ARGUMENT

A. America’s Options

The question comes down to what system would work better:

taxes or an outright ban. At least eight states (Maine, Vermont,

Oregon, California, New York, Delaware, Connecticut, and Hawaii)

would presumably say that banning single-use plastics is the superior

option. However, countries like Ireland and Denmark have had

149

Janna Brancolini, Italy Introduces Single-Use Plastic Tax Despite Industry

Objections, B

LOOMBERG LAW NEWS (Nov. 6, 2019, 3:36 PM),

https://www.bloomberglaw.com/document/X8BDH7H8000000? bna_news_filte

r=daily-tax-report-international&jcsearch=BNA%25200000016e41aad934af6

ed1ef77650000#jcite/.

150

Id.

151

Italy to Tax Plastic and Sugar, Angering Producers, REUTERS (Oct. 28, 2019,

1:47 PM), https://www.reuters.com/article/us-italy-budget-plastic/italy-to-tax-

plastic-and-sugar-angering-producers-idUSKBN1X71XF.

152

Angela Giuffrida, Italy’s Plastic Tax Plan Under Threat After Industry Outcry,

HE GUARDIAN (Nov. 4, 2019, 8:59 AM), https://www.theguardian.com/world/

2019/nov/04/italy-plastic-tax-plan-under-threat-after-industry-outcry.

153

Id.

154

Id.

155

Id..

2021 Penn State Journal of Law & International Affairs 9:2

216

enormous success by imposing taxes. Ireland’s per-bag price is 22

euro cents, which is about 33 U.S. cents.

156

Irish citizens now keep

cloth bags in their cars and offices; the tax changed the habits of an

entire country within a matter of weeks.

157

Further, the money from

the tax any time someone does pay for a plastic bag goes toward

clean-up projects.

158

There are two main ways a tax could be imposed. The United

States could choose between implementing a tax at the production or

consumption levels.

159

Like Ireland, the United States could impose a

tax that the consumer must pay at the time of a purchase.

160

It could

also follow Italy’s footsteps and impose a tax at the producer level,

using the “polluter pays” rationale.

161

The polluter pays principle is

the concept that those who cause environmental harm should be

responsible for dealing with the problem they create.

162

In deciding

between production or consumption level taxes, lawmakers should

take into account the goal of the tax. If they are trying to influence

plastic-makers to stop creating single-use products, then taxing at a

production level makes sense. However, if they would like consumers

to choose alternatives to single-use plastic products, with the goal of

reducing plastic consumption, then taxing at a consumer level would

be a better option. If the goals of the United States are to reduce

plastic use nationwide and to incentivize reuse and recycling, the

purpose of the tax should be to change the behavior of consumers.

163

156

Elisabeth Rosenthal, By ‘Bagging It,’ Ireland Rids Itself Of A Plastic Nuisance,

N.Y.

TIMES (Jan. 31, 2008), https://www.nytimes.com/2008/01/31/world/europe

/31iht-bags.4.9650382.html.

157

Id.

158

Id.

159

The Price is Right . . . Or Is It? The Case for Taxing Plastic, RETHINK

PLASTIC, http://zerowasteeurope.eu/wp-content/uploads/2018/09/PlasticsTax_

FINAL.pdf (last accessed Jan. 12, 2020).

160

Plastic Bag Levy, IRISH ENV’T (Oct. 1, 2015), http://

www.irishenvironment.com/iepedia/plastic-bag-levy/.

161

RETHINK PLASTIC, supra note 159.

162

Id.

163

Id.

2021 Plastic Prohibition 9:2

217

A study by Zero Waste Europe points out that once imposed,

plastic bag charges are shown to be popular in Europe.

164

In fact, in

Ireland, the plastic bag tax has become so popular that it would be

politically damaging to remove it.

165

There are several theories about

why taxes are effective. Some view the bag charge as an economic

instrument that discourages the purchase of the item by altering the

cost-benefit analysis.

166

Another view is that the fees disrupt the

automatic use of the plastic bag, therefore changing people’s typical

bag-use routine.

167

A ban is also an option; however, it is important to be

specific in order to make any real progress. For instance, China’s ban

on plastic bags specified that only nonbiodegradable bags thinner

than .025 millimeters are prevented from being produced, sold, or

used.

168

However, there is a critique from environmental experts that

China’s ban has not curbed consumers’ wasteful habits because most

shoppers do not bring their own reusable bags when they go to the

store.

169

Instead, they just purchase a plastic bag for a small fee that

equates to about $.04 American.

170

It is important to recognize that

consumers found a way around the ban in China, proving that it may

not be effective at changing the behavior of enough people to truly

164

RETHINK PLASTIC, supra note 159.

165

Frank Convery et al., The Most Popular Tax in Europe? Lessons from The

Irish Plastic Bags Levy, 38 E

NVTL. & RESOURCE ECON. 1, 2 (2007), https://

www.researchgate.net/publication/5146973_The_Most_Popular_Tax_in_Europe_

Lessons_from_the_Irish_Plastic_Bags_Levy/link/0912f510bfb91981f4000000/do

wnload.

166

Johane Dikgang et al., Analysis of the Plastic-Bag Levy in South Africa, 66

ESOURCES, CONSERVATION & RECYCLING 59, 63 (2012),; see also Gregory Owen

Thomas et al., The English Plastic Bag Charge Changed Behavior and Increased Support for

Other Charges to Reduce Plastic Waste, 10 F

RONTIERS IN PSYCHOLOGY (2019),

https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6399129/.

167

Wouter Poortinga et al., The Introduction of a Single-Use Carrier Bag Charge

in Wales: Attitude Change and Behavioural Spillover Effects, 36 J.

ENVIRON. PSYCHOL.

240 (2013), https://doi.org/10.1016/j.jenvp.2013.09.001; see also Thomas et al.,

supra note 166.

168

Li You, Experts Question China’s Ban on ‘Free’ Plastic Bags, SIXTH TONE

(June 13, 2017), https://www.sixthtone.com/news/1000322/experts-question-

chinas-ban-on-free-plastic-bags.

169

Id.

170

Id.

2021 Penn State Journal of Law & International Affairs 9:2

218

make an impact on the environment.

171

If the United States chose to

ban single-use plastic bags, it would be prudent to recognize the

intent of the ban is not to use bags that are more durable than those

that are .025 millimeters, instead the goal is to stop consumers from

using plastic bags one time and then throwing them in the trash.

Therefore, a potential ban should likely not specify the thickness of

the bags that are banned because it is easy to come up with other

plastic alternatives once a thickness is mentioned in the law.

172

Additionally, nonbiodegradable products have been falsely marketed

as biodegradable and used in Chinese marketplaces, showing that

qualifying bags based on environmental friendliness may make legal

and illegal products hard to distinguish.

173

If plastic bags are to be

banned, it seems as though the only alternatives that grocery stores or

other retail outlets should allow are paper or reusable options.

Qualifying shopping bags based on thickness or environmental

friendliness make enforcing the ban difficult.

174

In light of the United States’ overwhelming plastic bag

consumption, it seems like a ban may be the best option for the

environment. If the 100 billion single-use plastic bags that Americans

use every year can be reduced even slightly,

175

they will not clog

recycling machines, end up in oceans, or be burned after being sent

to other countries without the infrastructure to handle the recycling

process. In Great Britain, use of plastic bags has fallen 80% since

taxes were implemented in Wales, Northern Ireland, and Scotland.

176

If the United States could have a similar drop in plastic bag use, it

would significantly impact the entire world. Realistically, the United

States could start off by implementing a tax on single-use plastic bags

that would be high enough to deter consumers from using too many.

171

Id.

172

Kate Bratskeir, How to Recycle Plastic Bags the Right Way, HUFFPOST (Jan.

1, 2019, 8:00 AM), https://www.huffpost.com/entry/how-to-recycle-plastic-bags

_n_5c4b80f8e4b0e1872d43b9a4.

173

You, supra note 168.

174

Id.

175

The problem with plastic bags, CENTER FOR BIOLOGICAL DIVERSITY

https://www.biologicaldiversity.org/programs/population_and_sustainability/sust

ainability/plastic_bag_facts.html#:~:text=Americans%20use%20100%20billion%2

0plastic,plastic%20shopping%20bags%20a%20year, (last accessed April 30, 2021).

176

Thomas et al., supra note 166.

2021 Plastic Prohibition 9:2

219

Then, after several years, once consumer behavior patterns have

changed, the country could move to an outright ban on plastic bags.

While single-use plastic bags are not the only plastic product that is

problematic, they would be the easiest product to tax and outlaw, as

there are viable alternatives like paper or reusable bags. Other

countries have implemented bans or taxes on the product, so the

United States can study their successes and missteps in order to draft

a law that would be effective. Once single-use plastic bag

consumption has been reduced, the country can look towards other

single-use plastic products, but the United States needs to start

somewhere, and plastic bags are the most viable choice at this time.

B. Negative Effects and Issues

One major argument against enacting a plastic ban is that

many small business owners, especially restaurant owners, would be

negatively affected. Polystyrene containers are very low cost, and they

maintain desired food temperatures.

177

Eradicating a cheap to-go

food option could also negatively affect street vendors. For instance,

New York City began banning polystyrene containers in January 2019

but gave businesses a six-month grace period until July before it

began enforcing the ban.

178

Despite the grace period, many street

vendors claimed they had no knowledge of the ban, leaving them

vulnerable to a $250 first offense fine.

179

The increased prices of new

types of to-go container options are also hurting the bottom lines of

these food vendors.

180

“Experts say measures should be tailored to

each country’s socioeconomic situation — sudden bans can be

devastating in low-income communities where small businesses

operate on tiny margins.”

181

Another issue is whether a ban is the best policy, due to the

amount of people who reuse plastic bags to pick up after pets, or as

177

Del Valle, supra note 95.

178

Allie Griffin et al., Styrofoam-slinging Food Cart Vendors Don’t Know It’s

Banned, N.Y.

POST (July 1, 2019), https://nypost.com/2019/07/01/styrofoam-

slinging-food-cart-vendors-dont-know-its-banned/.

179

Id.

180

Id.

181

Chandrashekhar, supra note 120.

2021 Penn State Journal of Law & International Affairs 9:2

220

trash can liners.

182

Trash bags sold in stores are not part of the

regulations on single-use plastics. Therefore, when plastic bags are

banned, sales of trash bags go up and somewhat offset the reduction

of plastic use that the ban created.

183

This is problematic because

trash bags are thicker than typical shopping bags, which means they

use more plastic.

184

The American Progressive Bag Alliance, a major opponent of

single-use plastic bans, cites that paper bags need to be used between

three and forty-three times to have a lower environmental impact

than a conventional plastic bag.

185

Paper bags also require more

energy and greenhouse gas emissions to produce.

186

This is because it

takes a lot of energy to create the pulp to manufacture a paper bag

than it does to make a plastic bag from oil.

187

While that may be true,

paper biodegrades more quickly than plastic, with paper taking only

about two to six weeks to decompose.

188

Further, marine animals are

negatively affected by plastic, not paper.

189

Paper bags do not look

like jellyfish, unlike plastic bags, which sea turtles often confuse for

food.

190

Waterlogged paper is not sharp enough to pierce the

intestinal lining of a marine animal, causing death.

191

If the reason for

banning plastic is to protect marine animals (and the humans who eat

them), then the argument that plastic bags have a lower

182

Rebecca L. C. Taylor, Bag Leakage: The Effect of Disposable Carryout Bag

Regulations on Unregulated Bags, 93 J.

OF ENVTL. ECON. AND MGMT., 254, 255 (2019),

https://doi.org/10.1016/j.jeem.2019.01.001.

183

Id.

184

Greg Rosalsky, Are Plastic Bag Bans Garbage?, NPR (Apr. 9, 2019, 8:04

AM), https://www.npr.org/sections/money/2019/04/09/711181385/are-plastic-

bag-bans-garbage.

185

The Frontline Defense Against Plastic Bag Bans and Taxes Nationwide, AM.

RECYCLABLE PLASTIC BAG ALLIANCE, https://bagalliance.org (last accessed Jan.

12, 2020).

186

Plumer, supra note 19.

187

Id.

188

How Long Does It Take Garbage to Decompose?,

NVIRONMENT.ABOUT.COM, http://storage.neic.org/event/docs/1129/how_long

_does_it_take_garbage_to_decompose.pdf (last accessed Jan. 12, 2020).

189

Marine Plastics, SMITHSONIAN, https://ocean.si.edu/conservation/

pollution/marine-plastics (last accessed Jan. 12, 2020).

190

Id.

191

Id.

2021 Plastic Prohibition 9:2

221

environmental impact should weigh less heavily. While paper bags do

have a large carbon footprint, they are easy to recycle or compost,

making it less likely that they will end up in the ocean.

192

It is

unfortunate that the choice must be between clean water or lower

carbon emissions, but preserving our ocean animals and concern for

human health should take precedent at present. There are more

options than paper bags, and eventually, consumers should be trained

to bring reusable bags each time they shop.

Another argument against having a nationwide plastic bag

ban is that plastic bags may negatively impact the economy.

According to the State Chamber of Oklahoma, in areas with plastic

bans in place, the rates of theft for shopping carts and shopping

baskets are higher than places without plastic bans.

193

Consumers also

use more plastic produce bags, which undercuts the effect of the

plastic bag ban.

194

However, with several large grocery stores, such as

Trader Joe’s, turning to biodegradable and compostable produce

bags, consumption of plastic produce bags for loose fruits and

vegetables seems relatively minor compared to single-use carryout

bags.

195

Jobs may also be at stake. Plastic bags help sustain 30,900

American jobs, according to the Plastics Industry Association.

196

survey from Los Angeles County found that stores that banned

plastic bags reduced their employment by over 10%, as opposed to

stores in areas without bag bans.

197

There may be other reasons for

192

Claire Thompson, Paper, Plastic or Reusable?, STANFORD MAG., (Sept.

2017), https://stanfordmag.org/contents/paper-plastic-or-reusable.

193

How Plastic Bag Bans Impact The Economy & Environment, ST. CHAMBER OF

OKLA.,

https://uniformityofcommerce.org/documents/Plastic%20Bag%20Fact%20Sheet[

1].pdf (last accessed Jan. 12, 2020).

194

Id,

195

Mia Mercado, Some of Your Favorite Trader Joe’s Products Are About to Get

A Packaging Makeover, B

USTLE (Mar. 6, 2019), https://www.bustle.com/p/trader-

joes-plastic-packaging-is-changing-to-take-steps-toward-sustainability-16816167.

196

How Plastic Bag Bans Impact the Economy, PLASTICS INDUSTRY ASS’N,

https://www.thisisplastics.com/economic-impact/how-plastic-bag-bans-impact-

the-economy/ (last accessed Jan. 12, 2020).

197

ST. CHAMBER OF OKLA., supra note 193.

2021 Penn State Journal of Law & International Affairs 9:2

222

the employment decline though. Retail jobs have declined by more

than 140,000 since January 2017, but the reduction is attributed to

self-checkout.

198

While plastic bag bans may have a minor impact on

retail employment, compared to the entire decline of the industry,

plastic bags are not the biggest issue.

An unexpected negative impact of plastic bag bans is that

bacteria can live in reusable grocery bags and can cause health risks.

199

Plastic grocery bags which are disposed of after carrying food do not

have these health risks that stem from coliform bacteria (including E.

coli).

200

Proper cleaning and organizational systems can prevent

people from being affected by any bacteria, however. Laundering

canvas or cloth bags, wiping out reusable shopping bags, and

designating specific bags for meat, dairy, and produce are all ways to

reduce any bacterial risk.

201

For centuries, people used baskets to

carry goods. More recently, consumers turned to paper wrapped

items, brown paper bags, and glass containers.

202

Consumers

throughout history have been able to survive using these products –

lack of public health and knowledge of safe practices is not a

justification for failing to implement responsible environmental

practices.

Additionally, a study from the National Center for Policy

Analysis claims that banning plastic bags at grocery stores and retail

198

Anne Stych, Self-Checkouts Contribute to Retail Jobs Decline, BIZWOMEN

(Apr. 8, 2019), https://www.bizjournals.com/bizwomen/news/latest-news/2019/

04/self-checkouts-contribute-to-retail-jobs-decline.html?page=all.

199

Matthew Lau, Plastic Bag Bans Are Actually Terrible for the Environment and

Make Us Sicker, F

INANCIAL POST (Jan. 9, 2018, 7:00 AM), https://business.

financialpost.com/opinion/banning-plastic-bags-is-actually-terrible-for-the-

environment-and-makes-us-sicker.

200

Id.

201

Mary Marlowe Leverette, How to Keep Reusable Grocery Bags Clean and Safe

to Use, T

HE SPRUCE (Feb. 2, 2019), https://www.thespruce.com/keep-reusable-

bags-clean-and-usable-2147015.

202

Mark Blackburn, Life Before Plastic, ONE BROWN PLANET (July 12, 2016),

https://www.onebrownplanet.com/life_before_plastic/.

2021 Plastic Prohibition 9:2

223

outlets can negatively impact the sales in the ban area.

203

In the study,

eighty large stores and supermarkets were surveyed, and stores within

the ban area had an average sales decline of nearly 6%, while

counterparts outside the banned area had a sales growth of 9%.

204

anything, this study should be seen as a reason to ban plastic bags

nationwide, because then consumers would not have the option of

going to a store with plastic bags, and stores with plastic bag bans

would not have to risk sales declines to be environmentally-friendly.

Right now, it is a convenient habit for shoppers to use plastic bags,

but that habit can be broken.

205

A national ban would not

disproportionally impact stores within ban zones, so it would protect

retailers.

IV. CONCLUSION

The United States is one of the wealthiest nations in the

world.

206

It is the world’s most dominant economic and military

power.

207

It is a leader in so many arenas, but it is clearly lacking in its

ability to be environmentally-friendly. The United States has yet to

even ratify the United Nations Convention for the Law of the Sea

(UNCLOS), a Convention that has been ratified by 67 countries,

including Canada, China, and the European Union.

208

Among other

features of the Convention, “UNCLOS assigns the fundamental

obligation and responsibility of protecting and preserving the marine

environment to all States, and requires them to take every necessary

203

Heather Caliendo, The Economic Effect of Plastic Bag Bans, NAT’L CTR FOR

POL’Y ANALYSIS (Feb. 6, 2013), http://www.ncpathinktank.org/media/the-

economic-effect-of-plastic-bag-bans.

204

Id.

205

Linda Tufano, Cleaning Up Consumer Behavior with Plastic Bag Fees, WASTE

DIVE (Aug. 17, 2015), https://www.wastedive.com/news/cleaning-up-consumer-

behavior-with-plastic-bag-fees/404042/.

206

Grant Suneson, These Are The 25 Richest Countries in The World, U.S.A.

TODAY (July 7, 2019, 10:00 AM), https://www.usatoday.com/story/money/

2019/07/07/richest-countries-in-the-world/39630693/.

207

United States, U.S. NEWS & WORLD REP., https://www.usnews.com/

news/best-countries/united-states (last accessed Jan. 12, 2020).

208

United Nations Convention on the Law of the Sea, U.N.,

https://www.un.org/Depts/los/convention_agreements/convention_declarations.

htm (last accessed Jan. 12, 2020).

2021 Penn State Journal of Law & International Affairs 9:2

224

measure to prevent, reduce and control pollution of the oceans.”

209

While the United States may not be ready to publicly commit to

protecting and preserving the marine environment, the safety and

health of Americans are also at stake. UNCLOS may be too big and

idealistic of a commitment for the United States to make at present,

but microplastics are being consumed when citizens eat fish from the

ocean. Microplastics were a big enough concern that the United

States banned microbeads, so why would plastic bags that are

consistently broken down into microplastics be any different? The

United States has an opportunity to join other similarly-situated

world powers in an effort to reduce ocean pollution and plastic

pollution in general. The reasons not to impose a national ban on

plastic bags are not significant enough concerns to outweigh the

necessity of reducing plastics in the ocean.

Plastic bags are hard to recycle properly, and since they

require different facilities to process them, the recycling process is

costly. It is not economically feasible to continue providing free

plastic bags, because recycling efforts are either too complicated if

processed in the United States, or if bags are sent to other countries

to be recycled, they are not processed properly. The United States

should handle its own waste, and the easiest way to handle it is to

stop producing as much of it.

Among the many reasons that the United States should take

action on single-use plastics are the many classic public policy reasons

that all environmental issues share. The saying “we don’t inherit the

earth from our ancestors, we borrow it from our children” sums up

the reasoning.

210

If we don’t protect the earth from further damage,

the resources available to future generations will be scarce and

damaged. While this should not be a partisan issue, environmental

issues tend to be considered liberal. But American health is at risk.

Microplastic particles have been found in human stomachs, blood,

209

Oceans: The Lifeline of Our Planet, U.N.,

https://www.un.org/depts/los/convention_agreements/convention_20years/ocea

nsthelifeline.htm (last accessed Jan. 12, 2020).

210

Kevin E. Trenberth, Graduation Address to Bridge School, Boulder, Are We

Good Stewards of the Planet Earth? (May 30, 2008), http://www.cgd.ucar.edu/cas/

Trenberth/website-archive/gradSp2-moved.pdf.

2021 Plastic Prohibition 9:2

225

and lungs.

211

The impacts of human consumption of plastic are not

well-researched, but it is reasonable to assume that there will be

negative effects. Since American health is at risk, perhaps it will be

easier to pass a nationwide plastic bag ban than other

environmentally-friendly policies.

The amount of animals that have been killed because of

plastic pollution in the oceans is already a tragedy. Without a good

way to eradicate the plastic soup (although there are many valiant

cleanup efforts that help reduce the floating plastic problem), animals

will continue to die.

212

Several cleanup efforts, such as The Ocean

Cleanup, have not been as successful as promised.

213

While cleaning

up the oceans is an important long-term goal, a much easier goal to

accomplish is cutting off the flow of plastic into the ocean, or at least

reducing the United States’ contribution to the plastic soup.

The United States has many mentors to turn to in creating a

policy that will work. Many other countries have taxed, restricted, or

banned plastic bags and other single-use plastic items. The United

States can and should examine the laws that Canada, China, Ireland,

and many other countries have made when drafting a bill. There are

countries that have similar politics, size, and corporate considerations

that have adopted single-use plastic legislature that the United States

can compare itself to, so it has a high likelihood of creating effective

policy. Ireland’s taxation plan that led to a nationwide ban would

likely work well for the United States. That would provide ample time

for citizens to get used to the idea of either using paper bags or

bringing reusable bags to the store, and the tax from the bags could

go towards a government program to help reduce plastic pollution or

subsidize recycling efforts. Within two years of the tax being

imposed, the United States should phase out plastic bags entirely.

211

Erik Solheim, The Planet Is on Edge of A Global Plastic Calamity, THE

GUARDIAN (June 5, 2018), https://www.theguardian.com/environment/2018/

jun/05/the-planet-is-on-edge-of-a-global-plastic-calamity.

212

FAQ, THE OCEAN CLEAN UP, https://theoceancleanup.com/faq/ (last

accessed Jan. 12, 2020).

213

Marcus Fairs, The Ocean Cleanup Labelled “A Dream That Seduced Many

People,” D

EZEEN.COM (May 23, 2019), https://www.dezeen.com/2019/05/23/the-

ocean-cleanup-failure-great-pacific-garbage-patch-plastic/.

2021 Penn State Journal of Law & International Affairs 9:2

226

The United States is already behind on passing a nationwide ban on

single-use plastics, but imposing a tax on plastic grocery bags is a

good place to start. Eventually, polystyrene, plastic straws, plastic

utensils, and other single-use plastic items should be banned. If

single-use plastics continue to be used and discarded at a rapid rate,

the oceans have no chance of improving. Currently, sea creatures are

the ones that are most directly harmed, but if Americans are allowed

to continue discarding plastic, humans will pay the price.