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HB 212 – Closing the Plastic Bag Loophole

In 2019, the General Assembly passed legislation prohibiting single-use carryout plastic bags at large and chain stores. Under the law, which took effect Jan. 1, 2021, stores with more than 7,000 square feet of retail sales space, or chains with three or more locations with each having at least 3,000 square feet of retail sales space are not permitted to provide “any single-use plastic carryout bag” to a customer at the point of sale.

Since that covered Wawa, Super G, and Walgreens, three stores I go to on a daily or weekly basis, I broke down and bought 20 black canvas bags and I love them. They are so much sturdier, and bigger, so now I don’t cut off all circulation in my hands when I attempt to carry all the bags into the house at once. But I noticed something. When I would go into the Fairfax Acme, or into the Brandywine TownCenter Target, both chains were still using plastic bags, but they were much thicker plastic.

These chains exploited a loophole in the 2019 law by simply switching to slightly thicker plastic bags for customers that are no more “reusable” than the bags targeted by the law. This goes against the spirit of the bill and undermines the goal of reducing plastic bag litter and pollution in Delaware.

House Bill 212, sponsored by Reps. Gerald Brady, Valerie Longhurst and Eric Morrison, would increase the minimum thickness for a plastic bag to qualify as a reusable bag from 2.25 mils to 10 mils beginning January 1, 2022. The increased thickness would eliminate the thicker plastic bags being marketed as “reusable” and ensure that any bags offered to customers are truly meant to be kept and reused multiple times.

While this change initially would only apply to the large and chain stores defined in the 2019 law, HB 212 also would make the restrictions applicable to all stores, regardless of size, beginning July 1, 2022.

The effort to reduce single-use plastic bags follows a decade-long project to encourage residents to recycle the bags via on-site recycling receptacles at large retail stores. However, plastic carryout bags are recycled at alarmingly low rates – less than 10% – leaving more than 3.5 million tons of plastic bags to be discarded nationally each year.

In Delaware, nearly 2,400 tons of plastic bags end up in landfills annually. HB 212 would drastically reduce that amount.

HB 212 would further define “reusable bag” by specifying that it must be made of polypropylene fabric, PET non-woven fabric, nylon, cloth, cotton, jute, hemp product, or other washable fabric. The bag also must be made of cloth or other durable fabric that has stitched handles, is designed to be used at least 125 times, and has a capacity of at least four gallons.

The bill would retain certain exceptions to the plastic bag prohibition, including: plastic bags used to wrap meat, fish, flowers or potted plants or that contain loose items; bags that contain live animals; bags used to transport chemical pesticides, bakery goods or prepared foods; and bags placed over articles of clothing on a hanger.

House Bill 212 SponsorsYes VotesNo Votes
Brady, Longhurst, Morrison, Lambert, Wilson-Anton, Baumbach, Bentz, Bolden, Griffith, Heffernan, K.Johnson, Kowalko
Gay, Hansen, Paradee, Pinkney
Current Status — House Natural Resources Committee 6/3/21

“Shortly after the implementation of the state’s prohibition on single-use plastic bags, we realized the law of unintended consequences was occurring. We immediately received complaints from constituents, that new, thicker plastic bags were being provided by several stores. This practice was in clear violation of the spirit of the bill and our intent,” said Rep. Brady. “Unfortunately, the thicker bags only compounded the threat on our environment. It became apparent that further steps would be required to reduce the use of plastic bags, thus protecting our ecosystem, cleaning up our communities and purifying our watersheds.

“Fortunately, we have witnessed many stores across the state embrace the new law, which is encouraging. Such compliance clearly indicates we are proceeding in the proper direction, while protecting our environment and further demonstrates the willingness of businesses to join in this partnership. Now is the time for us to take action as we advance our efforts to ensure total compliance.”

“Like many of my constituents and other Delawareans, I’m very happy that we are taking this final step to ban plastic bags in Delaware. Plastic bags are unnecessary and contribute greatly to waste and to litter problems,” said Rep. Morrison. “The thicker plastic bags we are seeing now in some stores are very bad for the environment. I look forward to passing this landmark legislation, which builds upon the original law and moves us even closer to our goal of a plastic-free Delaware.”

“Plastic bags from retail stores simply don’t get recycled at a meaningful rate in Delaware or anywhere else, so the best case scenario is they end up in the landfill where they won’t break down for thousands of years,” said Rep. Longhurst. “But all too commonly, single-use plastic bags end up littered along our roads and blown or washed into our natural areas and waterways. The law we passed in 2019 was crafted to help fix that, but we obviously still have work to do.”

“Moving our state away from single-use plastic bags will help preserve our waterways and green spaces, reduce litter in our communities, and protect the long-term health of our neighbors,” said Sen. Kyle Evans Gay, the Senate prime sponsor of HB 212. ““Our children and grandchildren deserve to inherit a Delaware free of trash and pollution and we need to protect our community from microplastics that end up in the food supply. The time has come for us to take the next step in doing what’s right for our environment and our health.”

HB 212 has been assigned to the House Natural Resources Committee.

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