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To combat the spread of the novel coronavirus (COVID-19), the State of California and several local jurisdictions have issued orders requiring residents to stay home and many businesses to close. However, certain retailers, including grocery stores, pharmacies, and “big box” mixed-retail stores, are deemed “essential businesses” under the orders and may remain open. Yet, it is not business as usual for these retailers, as applicable orders may mandate specific operating procedures that conflict with ongoing retailer obligations.
Long before the COVID-19 pandemic, many states and local governments had adopted policies and laws designed to reduce waste and encourage recycling. In California, stores may not provide a single-use bag unless it is made of recycled material and must charge a minimum of 10 cents for a reusable bag or bag made of recycled material. (Pub. Res. Code § 42283.) California’s “bottle bill,” its bottle redemption law, generally requires a retailer that sells a beverage in a recyclable container to accept and pay redemption value at the cash register. (Pub. Res. Code § 14571.6.) Under ordinary circumstances, these policies help achieve waste reduction goals. However, retailers now find themselves in unusual times, and these requirements create additional and unnecessary retailer-consumer interactions that conflict with the intent of the Social Distancing Protocols (“SDPs”) set forth in the shelter-in-place orders [1] issued in the San Francisco Bay Area, potentially putting both employees and customers at risk.
As reported by the National Institutes of Health, the virus responsible for COVID-19 may be stable anywhere from several hours to several days based on the surface of the material on which it is deposited. It can last up to three days on plastic and one day on cardboard surfaces. Consequently, it is not surprising that the Bay Area Orders’ SDP template recommends that customers not be allowed to bring their own bags or other reusable items from home. [2] Although customers are typically understanding when informed they may not use their own bags, they may not be expecting to incur an additional 10 cents/bag charge when the state law allows them to avoid this charge by bringing their own bags. As a result, retailers have chosen to provide free bags to satisfy the SDPs’ aim of limiting virus exposure. However, since the single-use bag laws have not been suspended, potential for an enforcement action exists.
While the SDPs under the Bay Area Orders do not specifically address cash register bottle returns, such bottle returns pose a similar risk to reusable bag transactions. Absent reverse vending machines to handle redemption, the cash register redemption violates the objective of the SDPs by increasing the potential for contamination or contact. It also diverts personnel from a retailer’s essential mission of delivering food and pharmacy supplies.
Retailers now find themselves in a bind: comply with SDPs designed to protect employees and the public at large, or face potential enforcement, including fines and penalties, for failure to comply with governing laws. Recognizing this predicament, industry members have asked California Governor Gavin Newsom to temporarily suspend in-store beverage container take-back requirements under California’s redemption laws and to similarly suspend the ban on single-use bags. [3] Maine, New Hampshire, and New York, which followed California’s lead in prohibiting the use of single-use plastic bags, are either suspending or delaying similar requirements. Connecticut, Iowa, Massachusetts, Oregon, Maine, and Vermont have already suspended bottle return or deposit programs due to the COVID-19 outbreak.
California’s Department of Resources Recycling and Recovery (“CalRecycle”), the agency tasked with overseeing implementation and enforcement of the redemption laws and ban on single-use bags, has the authority and discretion to suspend enforcement. Indeed, other California agencies such as the Department of Alcoholic Beverage Control have enumerated various provisions that will not be enforced as a result of the outbreak. Even absent a temporary suspension of the redemption laws and single-use bag ban, CalRecycle could issue an enforcement discretion policy in force through the duration of the COVID-19 pandemic.
The United States Environmental Protection Agency, Washington Department of Ecology, and Oregon Department of Environmental Quality have all issued COVID-19 enforcement discretion policies. In general, these policies state that laws and regulations are not suspended but that the agency with oversight will take into consideration the unusual circumstances of the pandemic — specifically, public health and economic disruptions that may temporarily impact a party’s ability to comply with all regulations. And in the event of non-compliance due to a COVID-19 complication, the agency will exercise reasonable discretion when deciding to pursue pandemic-linked violations.
CalRecycle has not posted an official COVID-19 guidance statement. Its sister agency, the California State Water Board, while stating that all regulations remain in effect during the pandemic, has created an informal “petition” process for members of the regulated community to address the impact of COVID-19 shelter-in-place orders on regulated activity. CalRecyle should follow suit.
Absent guidance from CalRecyle, retailers must either comply with local orders or follow mandates regarding single-use bags and/or bottle redemption, potentially risking the health of their employees and customers. Retailers should therefore document their course of action and the basis for the same. This could be material evidence, and the basis for vindication, in any enforcement proceeding.
Rogers Joseph O’Donnell specializes in working with its corporate clients on compliance with regulatory and environmental laws that impact their business and has formed a taskforce dedicated to steering businesses during this unprecedented time. For compliance advice or defense of claims, attorneys Renee D. Wasserman, Alexis J. Morris, Suhani Kamdar, and Jon-Erik Magnus are available to assist.
The materials provided at this site are offered for informational and educational purposes only, and are not offered as and do not constitute legal advise or legal opinions. The transmission or receipt of information through this website, or communications with Rogers Joseph O’Donnell via email through this website, does not constitute or create and attorney-client relationship between us and any recipient.
[1] On March 16, 2020, six San Francisco Bay Area counties jointly issued separate but identical mandatory shelter-in-place orders, generally considered some of the most restrictive in the country in response to COVID-19, and the first of their kind in California. These orders were followed by revised, more restrictive shelter-in-place orders, effective through May 3, 2020 (the “Bay Area Orders”). Sacramento County adopted a substantially similar shelter-in-place order.
[2] See, e.g., Appendix A: Social Distancing Protocols, Alameda County Shelter-In-Place Order dated March 31, 2020. (http://www.acphd.org/media/563688/health-officer-order-20-04-shelter-in-place-20200331.pdf)
[3] A letter by the California Retailers Association and the California Grocers Association to Governor Newsom is available here.
