Bag Fee Would Sack Legal Challenges, City Says

Joe Eskenazi

About a dollar's worth of bags...

​City residents upset at the notion of paying for every paper bag they consume can complain all they want; they're free to do so while bags may soon cost 10 cents apiece. But whiners can't say charging for sacks is illegal, claim the legislation's author and the city attorney's office.

While the just-passed Proposition 26 figures to kill local governments by outlawing many sorts of fees, Supervisor Ross Mirkarimi wrote his bag fee proposal with Prop. 26 in mind -- and says it's as ironclad as anything involving paper bags can be.

Deputy City Attorney Buck Delventhal notes that a traditional fee of the sort in which consumers' money went into a city fund directed toward some manner of environmental abatement for whatever calculated evils are inflicted by paper bags would, indeed, be illegal now. But that's not what Mirkarimi's legislation purports to do. Instead, it would merely require stores to put a cost on bags instead of handing them out for free.

"This is not money the city is demanding the fee-payer pay to the city," says Delventhal. "It's a minimum price the vendor must charge for the object." For you, 10 cents is 10 cents. But in the eyes of the law -- vive la différence.

​While Mirkarimi couldn't think of any other object the city mandates private enterprises to sell at a minimum price, Delventhal noted that other municipalities do set minimum milk prices. And the city already regulates the maximum amount consumers can pay for things -- take rent control, for example.

SF Weekly has argued that the city's 2007 plastic bag ban merely shunted consumers to paper bags and did nothing for vast swaths of the city -- with dubious environmental consequences. By extending the ban to every store in San Francisco and imposing a fee to incentiveize the use of reusable bags, however, the city would finally have legislation in place that actually does what it purports to do.

"The end goal is obviously neither paper nor plastic," notes Mirkarimi.

Sounds like a good idea. And, we hear, it's all legal.

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