On September 20, 2012, San Francisco County Superior Court Judge Teri Jackson denied a petition filed by Save the Plastic Bag Coalition.  The petition challenged San Francisco’s “Checkout Bag Ordinance.” Existing law in the City bans single-use non-compostable plastic checkout bags at supermarkets and at chain pharmacies.  The new Checkout Bag Ordinance extends this ban to all retailers. In addition, the new ordinance requires retailers to charge ten cents for each single-use compostable or paper bag. Further, single-use paper bags must have 40 percent minimum recycled content. The ordinance also establishes performance standards for reusable bags and directs San Francisco’s Department of the Environment to conduct education and outreach to store owners and consumers.

 Petitioner Save the Plastic Bag Coalition asserted two grounds for challenging the Checkout Bag Ordinance. Petitioner first argued the City and County’s reliance on a Categorical Exemption under CEQA was unlawful. Petitioner also argued that California’s Retail Food Code preempts the Checkout Bag Ordinance to the extent the ordinance applies to retail food establishments.

 The trial court ruled San Francisco qualified as a “regulatory agency” eligible to invoke CEQA categorical exemptions. The court noted Petitioner failed to provide authority for its assertion that Class 7 and 8 categorical exemptions do not apply to “legislative” activity. The court concluded that, when an ordinance is enacted pursuant to the municipality’s police powers to promote the general welfare, the municipality is acting in its regulatory capacity, within the meaning of CEQA’s Class 7 and 8 categorical exemptions. The court also found the record did not contain a “fair argument” that the ordinance will cause significant environmental harm due to unusual circumstances.

 The trial court rejected Petitioner’s preemption argument, finding the California Retail Food Code is clear and precise in defining the regulatory field it reserves for the state—the field of health and sanitation standards. Therefore, the Retail Food Code preempts only local laws establishing health and sanitation standards for retail food establishments. While the Retail Food Code addresses single-use bags to ensure they are safe and clean for transporting food, it does not require retail food establishments to use or provide customers with any single-use bags. Nor does the Code require that single-use bags be made from any particular material. For these reasons, the court found the City and County’s Checkout Bag Ordinance constituted an environmental standard and not a health and safety standard which could be preempted by the Retail Food Code. (John Wheat)