Kansas bill ending municipal regulation of plastic bags, containers raises constitutional issue

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Business lobbyists say merchants want to avoid patchwork of local rules

TOPEKA — University of Kansas scientist Nancy Muma said the average person inadvertently accumulated in the body a credit-card sized amount of plastic each week by breathing air and consuming water.

Muma, who earned a doctorate in pharmacology and toxicology, said this involuntary consumption of bisphenols, phthalates and perfluoroalkyls created a wave of endocrine disruptions that altered hormones and reproductive systems in humans. Children and developing fetuses were especially vulnerable to these toxins, but the damage could emerge at all stages of life in the form of heart disease, obesity and cancer, she said.

“The good news is that you can help solve this costly and life-threatening problem by voting against House Bill 2446 and supporting regulations to reduce the use of these toxic single-use plastics,” Muma said.

She made the plea to members of the Senate Federal and State Affairs considering legislation passed by the House in March 2023, but sidelined by the Senate until Tuesday. The bill would allow the state to block city or county governments from adopting or enforcing ordinances or resolutions that “restricts, taxes, prohibits or otherwise regulates the use, disposition or sale of auxiliary containers.”

In simple terms, the bill aggressively promoted by the Kansas Chamber would forbid municipal bans on plastic straws and the thin, cheap plastic shopping bags often given consumers by retail stores and carryout restaurants. The prohibition would broadly define auxiliary containers as cups, packages and bottles made of cloth, paper, plastic, foamed plastic, cardboard, aluminum, glass or a recycled material.

Sacking the bag bans

Eric Stafford, who represents the Kansas Chamber at the Capitol, said the pending bill was similar to legislation vetoed by Gov. Laura Kelly in 2022.

The issue was brought to the forefront in 2024 because businesses in the state needed “a clear and predictable regulatory framework by which to operate” and legislators rather than elected city and county government officials were in the best position to shape that regulatory landscape, Stafford said.

“We have seen a growing trend across the country by local governments to ban plastic products because of their perceived damage to the economy, but we don’t have to look any further than our own state, as Lawrence became the first city to ban plastic bags effective March 1,” Stafford said.

Attorney Scott Schneider, who lobbies for the Kansas Restaurant and Hospitality Association, said members of the organization were capable of balancing environmental principles of their customers with the desire of customers to be served food in clean, cost-effective packages. His plea: “Let these businesses compete on the terms customers dictate.”

Julie Landry, vice president at the American Forest & Paper Association, said enactment of the Kansas prohibition on July 1 would help the forest product industry make money in Kansas.

“Preempting local jurisdictions from enacting bans or fees on auxiliary containers in the retail setting … prevents the patchwork of local ordinances that penalize paper and paper-based packaging,” she said.

Home rule powers

Tad Kramar, a retired business and regulatory law attorney living in rural Douglas County, said the bill necessitated issuance of a reminder to all 165 Kansas legislators that each took an oath to uphold the Kansas Constitution.

He said House Bill 2446 would violate that oath by thwarting home rule authority possessed by cities and counties under Article 12 of the state Constitution. In 1961, Kansas voters granted self-governing, or home rule, authority to cities and counties. The bill would interfere with that local control, he said.

“It seeks to prohibit cities and counties from exercising their home rule under the Kansas Constitution to regulate, in any way, any kind of container or bag made of virtually any type of material used by virtually any type of business for practically any purpose,” Kramar said. “No purported rationale for this bill even comes close to justifying the denial of the constitutional rights of local governments to exercise their broad home rule authority.”

He said there wasn’t merit to the argument merchants would be unable to operate efficiently if cities or counties followed Lawrence’s lead in adopting remedies to pollution related to plastic containers.

“Chain stores already deal with many differences in local rules, such as different sales tax rates. This is no reason to take away cities’ constitutional home rule authority,” Kramar said.

Thomas Arnhold, a retired judge living in Olathe, also told lawmakers the state constitution clearly stated “cities are hereby empowered to determine their local affairs and government.”

“Communities should be allowed to voluntarily decide what’s right for themselves rather than the state dictating to local governments,” Arnhold said. “I often hear Kansas legislators and Kansas governors rail against the federal government sticking its nose in state affairs and usurping state powers. With HB 2446, the state of Kansas is sticking its nose in an issue best handled by local governments. To me, the passage of HB 2446 would not only violate the Kansas Constitution, but would be hypocrisy.”

Kansas Reflector is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Kansas Reflector maintains editorial independence. Contact Editor Sherman Smith for questions: info@kansasreflector.com. Follow Kansas Reflector on Facebook and Twitter.

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Kansas bill ending municipal regulation of plastic bags, containers raises constitutional issue

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A bill aggressively promoted by the Kansas Chamber would forbid municipal bans on plastic straws and the thin, cheap plastic shopping bags often given consumers by stores and restaurants.


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