Legal Commentary

The DC 5-Cent Bag Tax

By Orin Kerr

A new law recently went into effect in the District of Columbia, the ?Anacostia River Clean Up and Protection Act of 2009?. The law does two things. First, it prohibits the sale or distribution of non-recyclable plastic bags in the District of Columbia at either the retail or wholesale level. Second, and more recognizably to consumers, it requires grocery stores and restaurants to charge customers 5 cents for each carryout bag the store provides. If you?re at a DC sandwich shop, for example, the shop will no longer automatically bag your sandwich. Instead, they?ll ask you if you want a bag: If you want a bag, you are charged 5 cents for it.

Here?s the language from Section 5(a) of the new law:

A fee of $.05 per recyclable paper and plastic carryout bag is hereby established for consumers making purchases from Retail Establishments.
(1) Fees must be paid by the consumer at the time of purchase.
(2) Retail Establishments may not pay the fee on behalf of consumers.
(3) All Retail Establishments shall indicate on the consumer transaction receipt the number of disposable carryout bags provided and the total amount of fee charged.

The idea behind the bag tax is that requiring an itemized 5 cent-per-bag charge will have an outsized impact on consumer behavior. Customers will use fewer bags and get in the habit of carrying a reusable bag with them, even though the actual fee is quite small. Notably, the law effectively prohibits stores from leaving out bags for customer: Each bag distributed needs to be noted and charged for individually, so the stores need to keep them behind the counter.

As you might guess, there?s also a revenue angle to the law. The stores keep 1 cent for each bag tax free and the remaining 4 cents goes into a government fund to clean up the Anacostia river. The government also can obtain fines from stores that violate the Act.

There are a lot different angles we could consider here, but I want to focus on the question of whether the law will work as planned. We have a lot of readers in and around DC. I?m curious, what?s your experience with the new law? Has it changed your bag use habits? Or if it hasn?t yet, do you think it will?

Full post as published by The Volokh Conspiracy on January 10, 2010 (boomark / email).