Preemption

One of the biggest obstructions Florida has in terms of limiting its use of single-use plastics and foam is its preemption against laws prohibiting the use of certain single-use plastics and foam. People often ask why cities have been banning plastic straws, but not plastic bags, bottles, foam containers, or cups? It’s because the state passed preemptions. Special interests and corporate big money are undermining local democracy and taking away our home rule. In other words, municipalities have bans on bans. Find out more here and also here.

However, some city commissions and city attorneys don’t realize we can still take local action! You can help educate them.

What is preemption?

As defined by Cornell Law School,

“The preemption doctrine refers to the idea that a higher authority of law will displace the law of a lower authority of law when the two authorities come into conflict.”

Cornell Law

This means that a “higher authority” (Federal government > state; state > city) has the ability to pass laws that supersede those at the lower levels. In our case, this means that the state has the authority to “ban” local laws that reduce plastic consumption.

That’s pretty hefty, and the power for “higher authorities” to do this is written in the constitution.

Thankfully, we can still take action. Let’s take a look at Florida’s Plastic Preemption Language

The bag language covers “auxiliary containers, wrappings, disposable bags.”

“403.7033 Departmental analysis of particular recyclable materials.—The Legislature finds that prudent regulation of recyclable materials is crucial to the ongoing welfare of Florida’s ecology and economy. As such, the Department of Environmental Protection shall undertake an analysis of the need for new or different regulation of auxiliary containers, wrappings, or disposable plastic bags used by consumers to carry products from retail establishments … The department shall submit a report with conclusions and recommendations to the Legislature no later than February 1, 2010.

Until such time that the Legislature adopts the recommendations of the department, no local government, local governmental agency, or state government agency may enact any rule, regulation, or ordinance regarding use, disposition, sale, prohibition, restriction, or tax of such auxiliary containers, wrappings, or disposable plastic bags.” So, unfortunately, we can’t ban the bag.

DEP in their own retail bags report defined them as:

  • Auxiliary container: A secondary container into which a product is placed for transport by a consumer. It includes reusable bags, paper bags, gift bags, gift boxes, hat boxes, and cloth bags–everything but plastic bags.
  • Wrappings: Includes plastic wrapping for items that are used to protect and transport the items within.

The Legislature then came back six years after this preemption and expressly preempted polystyrene, which only makes sense if it wasn’t already preempted.

Here’s the foam preemption language: 

“500.9 – Regulation of polystyrene products preempted to department. The regulation of the use or sale of polystyrene products by entities regulated under this chapter is preempted to the department. This preemption does not apply to local ordinances or provisions thereof enacted before January 1, 2016, and does not limit the authority of a local government to restrict the use of polystyrene by individuals on public property, temporary vendors on public property, or entities engaged in a contractual relationship with the local government for the provision of goods or services, unless such use is otherwise preempted by law.”

Long story shorta local authority can restrict the use of polystyrene on their own public property.

Also noticeably absent in the preemptions are plastic utensils, straws, plastic cups, bottles, and plates. Since “auxiliary containers” aren’t well defined, city attorneys are not sure whether or not their cities will be sued if they completely ban plastic cups or bottles. So, some cities are only banning them on city property to avoid the hassle of a lawsuit.

However, utensils (forks, knives, spoons) and straws are definitely not containers, so cities can completely ban those.

So what does this mean for reducing plastic usage in Florida?

Because of special interests and corporate big money, the Florida state legislature has increasingly restricted the ability of local municipalities to govern by passing preemption laws around policies it dislikes, including those that regulate single-use plastics.

But local governments have a right to make their own decisions about the regulation of single-use plastic on their own property (parks, city hall, sidewalks, etc).

We need the state legislature to repeal the preemption and put an end to this disturbing trend. That means not just eliminating all current preemption laws on plastics, but also prohibiting the preemption of local plastic policies so this doesn’t happen again.

But until then – we will continue to pass local ordinances, including ordinances that prohibit the use of single-use plastics and foam on city/county property.

Share this preemption language with your city attorney:

A large bag full of EPS foam food containers found in the mangroves at a waterway cleanup in Broward County.

Ask your state representative to repeal preemptions on plastic bags, containers, and polystyrene foam

You can ask your state representative and/or state senator, “Would you be willing to sponsor/cosponsor a repealer bill to remove the preemptions on plastic bags, containers, and polystyrene foam?” Let us know if he/she is willing to cosponsor a bill.

Cities in Florida that were forced to repeal their bag and/or foam ordinances include Coral Gables, St. Augustine Beach, Gainesville, Surfside, and Palm Beach. Alachua County also repealed their bag and foam ordinance after the Florida Retailers Federation threatened legal action if the county approved the plastic reduction ordinance.

In the 2020 Legislative Session, there was a repeal bill to remove preemptions and give back home rule on this issue (Senate bill 182, House bill 6043) but it was referred to the Community Affairs Committee and then died in Community Affairs. In the 2021 Legislative Session, the preemption repeal bills were HB 6027/SB 594. They did not pass or get heard in one single committee hearing. Read more here.

Help to remove preemptions! Please call your FL state elected officials and say, “I am a constituent and I would like you to repeal the preemptions on single-use plastics.”

Plastic straw laws in Florida:

Did you know that in 2019, the FL Legislature passed a law preempting plastic straw bans? Luckily, Governor DeSantis vetoed this bad bill. This bad bill not only would have banned cities from banning straws, but it would have prevented cities from enforcing their already existing straw laws. Read more here.

More on preemption:

Corporate lobbyists don’t look out for us. We look out for us.
Photo Credit: LSSC (Local Solutions Support Center)