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Legislating Behavior: Battle of the BagsLegislating Behavior: Battle of the Bags

Michele Nestor

January 15, 2015

8 Min Read
Legislating Behavior: Battle of the Bags

Humans repeatedly make poor decisions. It’s who we are.  Our brains aren’t inherently hard-wired to recognize remote or future consequences of today’s actions. We’re more in tune with how those actions influence us in real time.

For instance, for some individuals the freedom and comfort of not wearing a helmet or buckling up often overrides their knowledge that with statistical certainty they’ll be mortally injured if involved in an accident. Our capacity for denial, and our need for immediate gratification is greater than our long-range practical sense. This is true for self-indulgent behaviors, as well as those that impact public safety and the environment, like recycling, illegal dumping and littering.

If you subscribe to the theory of evolution, then you may have faith that through natural attrition some of these undesirable behaviors will eventually fade away.  After all, bathing eventually became the social norm, didn’t it? Even if it did take us until some point in the nineteenth century to embrace it.

Those who are a bit more pragmatic believe that humans don’t have the will power or fortitude to make the right choices. In their view, we need rules and guidance to be protected from ourselves. In other words, if you can’t fix stupid, the next best option is to regulate it.

Evolution doesn’t seem to be keeping pace. Here we are in the 21st century, with local governments struggling to enact mandates for waste and recycling collection, for zoning ordinances that limit waste accumulation and for laws that eliminate open burning. All because of humans behaving badly.

Recent Efforts

The latest trend in behavior-related legislation is a ban and fee on single-use plastic bags. The kind that we carry home from grocery, discount and convenience stores. The premise of these pieces of legislation is to stop these flimsier bags from littering the local landscape. Because they are so light weight, they can easily become airborne and create litter even in unintentional circumstances.

Over the past 10 years, a number of bills have been introduced at the local and state level. A slew of these never made it past a committee, while others were enacted and later vetoed or eventually repealed.

Still, new bills continue to be introduced. Approximately 150 pieces of plastic bag legislation remain in effect today. The majority of those laws are in jurisdictions that are located in California, where the only statewide law in the nation that regulates single-use plastic bags exists. It, too, is under looming pressure for repeal.

Laws aren’t always the best line of defense. Nor are they effective on their own. However, when used in conjunction with other incentives and education, the results for many of these regulatory initiatives have been convincing. Results don’t come easy, though.

Short-Sighted Humans

We’re rock stars at reacting to present and current danger, like knowing not to stick our hands in a fire or an electrical socket. However, our success record is pretty dismal when it comes to evaluating hazards with delayed impacts. Even if those risks are widely communicated and are of monumental consequence, humans have an uncanny ability to ignore the facts.  To understand this phenomenon, one only has to look at our love-hate relationship with tobacco.

In spite of all of the evidence, smokers continue the ritual of lighting up, because cancer isn’t necessarily detected with the next long drag on a cigarette. Even in the face of criticism, the immediate physical, chemical and mental satisfaction smoking delivers cancels out the smoker’s long-range reasoning and fear.

Legislated Results

The success of multi-faceted legislation in the United States in curtailing the use of tobacco in the form of cigarettes is well-documented. A hard fought and still ongoing battle made these accomplishments very slow in the making.

In 1965, when the first federal regulations targeted at tobacco consumption were attempted, approximately 55 percent of men and 30 percent of women in the United States smoked. As a nation, we are now down to about 20 percent who smoke in both categories. During this same timeframe, smoking has increased in other parts of the world where no laws or regulatory controls of smoking and cigarettes advertising exist.

Business analysts, speculating on the value of tobacco-related stock, have predicted that in time – probably  around 2046 – smoking will become rare to nonexistent in the United States. Not counting the years of research and advocacy that preceded the first law, that’s nearly 81 years for legislated behavior to affect the desired change.

Those advocating for single-use plastic bag bans should pause and consider that timeline. If at a minimum, nationwide legislation on a state-by-state basis is their goal, theirs is going to be a long and intense battle.

A Role Model

The tobacco industry’s counterattack on attempted legislation and regulatory control is renowned. The affected companies formed a unified front in the form of trade associations, related organizations and an advertising arm, all with essentially the same source of funding. A few of the methods which made the industry’s campaign so effective include: the use of intimidating lawsuits against proposed or newly adopted legislation; the promotion of industry-sponsored programs to counter the proposed efforts; references to"credible third party” studies funded either directly by the industry or friendly supporters; a focus on individual responsibility and job losses rather than environmental concerns; and an advertising and education war chest that was bottomless.    

Tobacco’s strategy set the standard for every consumer product battle that has since followed. This one is no exception. Some of the telltale signs are already there.

Plastics Push Back

The Coalition to Support Plastic Bag Recycling, aka Save the Plastic Bag Coalition, has been launching lawsuits at local ordinances, one California town at a time. A majority of the group’s members include industry representatives, one of the more notable being Hilex Poly from the Carolinas.  Although laws at the municipal level have been contested, it is California’s statewide legislation and growing activity in major cities like Dallas, Portland, New York City, Chicago and Washington D.C., which have accelerated the industry’s efforts.

The American Chemistry Council (ACC) and the Society of the Plastics Industry (SPI) formed the Flexible Film Recycling Group (FFRC) and the American Progressive Bag Alliance (APBA). The FFRC oversees a grassroots initiative to promote recycling film bags as an alternative to banning or taxing them. APBA initiated steps to call for a voter referendum with hopes of repealing the new California state law. It is working on voters in Dallas for a similar purpose. Coincidentally, the Flexible Film and Bag Conference, sponsored by SPI and co-hosted by a number of other plastics organizations, just happens to be located in Fort Worth this year. They’re soliciting speakers on film recycling, if you’re interested.

As for “third party” studies and reports most often referenced by the plastics folks, included are those from the National Center for Policy Analysis and the Reason Foundation, two private think tanks that typically favor privatization over government controls in their policy assessments. Each boasts some well-known funders and trustees with names like Scaife, Koch and DuPont. Another report conducted by Moore Associates and funded by the American Chemistry Council supports the film recycling campaign.

There are some individual industry efforts, as well as other related organizations, that oppose bag bans. Novolex (aka Hilex) sponsors the Bag the Ban web site. The Institute of Scrap Recycling Industries adopted a policy that favors recycling over banning and taxing bags.

I have to give SPI and APBA credit. They don’t pull any punches about who they are and what they represent. In their own news releases they call themselves “the protector of the plastics industry.” I can respect that. Trade organizations are supposed to work for their members’ interests.  On the other hand, due to the manner and venues in which FFRC is presented, it may not be as easily recognized as ACC’s tool to deter new bag bans from materializing in other parts of the nation.

The Cost of the Fight

According to various press releases, the plastics industry represents more than 900,000 employees with $373 billion in annual shipments. Of those total employees, 30,000 are located in 40 states and dedicated strictly to plastic film/bag manufacturing.  

Californians Against Waste claims that more than $200 million dollars’ worth of plastic bags are sold in California alone each year. Consider what that potentially means on a national scale, and it is easy to understand what’s at stake here. The magnitude of those statistics will turn the head of any legislator.

 SPI and APBA are openly rallying the industry to get proactively involved in the fight against bag bans (translation: “We need campaign donations.”) According to Plastics News, the campaign to get signatures to force the referendum in California was about $3.1 million dollars. They project that it will cost the industry $30 million to $50 million dollars to launch a full-fledged campaign to repeal the California law. Put in the perspective of one year’s revenue in California alone, that is probably a manageable sum for the industry to raise.

The Outcome

We won’t know the results of the referendum until 2016. The events and actions leading up to that time will be interesting to watch. In addition to the West Coast showdown, there are reportedly 40 other bills related to plastic bag fees and bans pending throughout the U.S. If nothing else, it looks like 2015 will be a busy year for lobbyists.

If the vote supports the legislation I don’t think it’s a given that “where California goes, so goes the country.” Things move a little slower elsewhere. I am sure SPI and APBA are counting on that. However, if the vote successfully repeals the California law, it won’t bode well for pending legislation in other states, cities and towns.

I wouldn’t venture a guess on the final vote, but having worked with local and state governments for nearly 30 years, I do know this. People tend to mobilize against something more readily than those in support of an issue. This seems to ring true whether it requires individuals to show up at a council meeting or the polls. That could be an important factor here and maybe part of the strategy.





About the Author(s)

Michele  Nestor

President, Nestor Resources

Michele Nestor is the President of Nestor Resources Inc., based in the Greater Pittsburgh area, and chair of the board of directors, of the Pennsylvania Recycling Markets Center, Penn State, Harrisburg. She helps private and public sector organizations develop strategic plans to survive in a transitioning marketplace.

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