A lawsuit was filed in court last week that would strike down the ban on plastic and paper shopping bags in Austin, TX that went into effect last Friday. The Texas Retailers Association, which filed the suit in Travis County court, argues that the ban is in direct violation of the Texas Health and Safety code, which explicitly prevents local governments from restricting or prohibiting the “sale or use of any container or package in a manner not authorized by state law.” The Retailers also argue that there is no Texas law permitting the ban of plastic or paper retail bags in any manner.

As it would happen, the Austin bag ban will immediately work against the ostensible purpose of the ban, which is to reduce litter. Any retailer that provides carryout bags to customers will have to discard current inventories and purchase an entirely new stock of government-approved, reusable bags. Businesses that have sizable inventories will be forced to dispose of perfectly good bags.

In addition to the costs employers will incur from purchasing and stocking the more expensive government-approved bags, another significant downside of this heavy-handed law is the provision forcing Austin businesses to furnish signs alerting customers to the new prohibition. Many Austin retailers are concerned about losing valuable floor space as a result of this signage mandate. Bag taxes and prohibitions in other localities have been shown to depress commerce and hurt sales, as customers purchase fewer goods in response to a new charge associated with transporting their purchases.

Austin’s bag prohibition follows in the footsteps of San Francisco, CA, which was the first locality to ban plastic shopping bags in 2007. It would’ve behooved Austin officials to study the results of San Francisco’s bag ban prior to voting on their own last Spring, as San Francisco’s experience proves that bag bans don’t even reduce litter and, in fact, pose great risk to public health.

Litter audits of San Francisco conducted before and after the ban show that share of litter comprised by bags actually went up following the ban. Perhaps most disconcerting, though, is the potential risk that bag bans pose to public health. Bag bans may very well have actual life or death consequences according to a recent study conducted by the University of Pennsylvania. Researchers in that study looked at San Francisco and found that there was a statistically significant increase in ER visits for E. coli infections in San Francisco following the imposition of the city-wide plastic bag ban. This spike in ER visits did not occur in neighboring counties that still permitted plastic bags.

Other studies also show that reusable bags, which bag bans like those in Austin and San Francisco seek to force the usage of, often become petri dishes for bacteria that cause illness. According to a 2010 report published by the Loma Linda University School of Public Health, 12% of randomly sampled reusable bags were contaminated with E. coli. In urban areas like Washington, D.C., which imposes a bag tax, that number was closer to 50%. Yes, half of reusable bags tested in Washington had E. coli in them. The presence of bacteria and viruses present in reusable bags, the researchers conclude, poses a “serious threat to public health.” By all means keep Austin weird, but I doubt many Austinites want their shopping bags getting that weird with bacteria. It seems as though Austin’s bag ban might be better remembered as the “Hug Your Toilet Bowl Austin Act of 2012.

President Calvin Coolidge, who has been in the spotlight lately thanks to Amity Shlaes terrific new biography, once remarked that “It is much more important to kill bad bills than to pass good ones.” Well, the Austin bag ban was a horrible bill that needs to be retroactively killed and this new court case may very well lead to that.

Texas retailers have made a convincing case that Austin’s bag ban is preempted by state law and should be overturned. Here’s to hoping the court ultimately sides with them; for if it does it will be a huge win for Austin consumers, small businesses, and the local economy overall.

Posted by Patrick Gleason on Friday, March 8, 2013 4:25 PM EST

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