End Plastics
Bagged and Gagged: The Battle Over Plastic Ban Preemption
July 30, 2025
Did you know that there is a link between plastic bag pollution and malaria?
As plastic pollution poses an ever-increasing threat to environmental and human health, there are few culprits that stand out as sorely as plastic bags. With impacts as diverse as killing marine life to providing breeding grounds for malaria-carrying mosquitos, plastic bags are literally killing us.
Because of the endless dilemmas caused by plastic bag usage, 91 countries and territories have implemented either a full or partial ban on plastic bags. In the United States, where 100 billion plastic bags — or ten times the global population — are utilized every single year, there is no national ban in place.
The battleground for plastic legislation therefore falls primarily to state and municipal level legislators, where the complicated legal issue of the so-called “pre-emptive bag bans,” come into play.
As Plastic Free July comes to a close, it’s a good moment to highlight the complex landscape of plastic bag bans in the United States as well as celebrate the success stories in combatting our plastic bag pollution crisis.
What is Preemption Exactly and How Does it Complicate Plastic Bag Bans?
Preemption is a legal principle that says when two authorities are in conflict with each other, the law of the higher authority will supersede the law of the lower authority. For example, let’s say a city passes a law banning plastic bags in grocery stores to reduce pollution. But later on the state government passes a law that says: “No city in this state is allowed to ban plastic bags.” Because the state has higher legal authority than the city, the state law “preempts” the city’s law, meaning the city’s plastic bag ban is now invalid under state law. In this case, state preemption blocks the city from enforcing its own environmental rule, even if the local community supports it.
In the United States, preemption occurs at the federal level and at the state level, and unfortunately many U.S states have passed laws preventing local authorities from creating their own regulations on issues including plastic bag regulation.
In fact, 19 states have done this, specifically as it relates to signing a preemption law that bars local governments from creating or enacting their own legislation to ban plastic bags.
Despite these challenges, many municipalities have fought back to push forward their bold plastic reduction policies and some preemption laws have even been successfully overturned.
Success Stories: Colorado Overturns Preemption Law
In 2021, Colorado became the first state in the U.S to overturn its preemption law that had banned local governments from passing their own regulations on plastic bags and other types of packaging.
For years, Colorado’s preemption policy meant that cities and counties—even those eager to reduce pollution—were legally prohibited from banning plastic bags or implementing stronger waste reduction policies than those set by the state. This restriction frustrated local leaders and environmentalists trying to address the growing plastic waste crisis in their own communities.
The passage of House Bill 21-1162, was historic. This landmark piece of legislation created a statewide phaseout of single-use plastic bags and polystyrene foam containers, and, perhaps more importantly, repealed the ban on local action. When the preemption repeal officially took effect in July 2023, it restored the ability of locally elected governments to pass stricter rules than the state’s own minimum standards. Colorado’s decision marked a turning point in the national plastic policy debate by recognizing and empowering local solutions to environmental challenges.
In addition to overturning preemption, the new Colorado law imposes bans on plastic carryout bags in stores and retail food establishments, with the ban going into full effect as of July 1st, 2024.
A co-benefit of this new legislation is the tax revenue which is created by placing a small fee on the paper bags retailers now provide instead of offering single-use plastic bags. Stores can now charge customers a 10-cent fee per paper bag. 60% of the revenue generated from this fee goes to the municipality to fund enforcement and waste reduction efforts, while 40% can be used by the retailer as revenue. This legislation shows that plastic bag bans are a smart choice for both the environment and the economy.
The City of Brotherly Love Comes Together to Curb Plastic Use
Although the Philadelphia city government passed a law banning plastic bags in December 2019, the city’s ability to enforce their new legislation was delayed when state lawmakers extended an existing preemption policy for plastic bag regulation through 2021.
This decision was aided by lobbying from the Plastics Industry Association, a major U.S. trade association that represents the entire plastics supply chain, who claimed in a letter to the US Department of Health and Human Services, DHHS, that reusable bags pose a greater risk than single use plastic bags of carrying bacteria, viruses and potentially even COVID-19.
Reusable bags in this context refers to bags designed to be used multiple times instead of single-use plastic, which is intended to be used once and thrown away. These reusable bags are typically durable, washable, and made from materials such as cotton, canvas, jute (natural plant fiber), woven or non-woven polypropylene (a type of plastic fabric), recycled PET (from recycled plastic bottles), polyester (another form of plastic), or hemp.
The notion that these reusable bags are somehow unsafe is essentially crafted PR disguised as concern for public health, using fear and questionable science to defend single-use plastics and protect industry interests. This tactic has been widely documented as the plastics industry’s response to single use bag bans. This claim that reusable bags are less safe has since been disproven.
In 2021, Philadelphia along with three other Pennsylvania townships and cities sued the State of Pennsylvania, debating the constitutionality of the state’s preemption law. They successfully argued that it was passed unconstitutionally—as it had been tucked into a larger budget bill in violation of procedural rules—and that it infringed on their constitutional right to protect the environment.
A few months later, when the state legislature passed its budget in summer 2021, it did not renew the preemption on plastic bans. Which meant that municipalities, including Philadelphia and Pittsburgh, that had passed regulations on single use plastic bags could finally implement their own bans. Helping them to keep Pennsylavania’s streets and waterways clean and less clogged with plastic bags!.
The success of Philadelphia and its neighbors in overturning antiquated preemptive plastic laws shows that when municipalities come together, they have substantial collective power and represent key players in the fight against plastic waste.
In Florida, the Fight Continues
Since 2008, Florida’s state preemption law has prevented local bans on some single-use plastic materials such as bags, even though in a study conducted by the University of Florida in 2021, an astounding 93% of Floridians reported that they believe plastic bag regulation is necessary.
Despite the challenge of preemption laws, some municipalities have found ways to regulate plastic bags and other products anyway without breaking preemption laws, including Miami-Dade County.
Here’s how: the County created a voluntary program known as Plastic Free 305, where local businesses can become certified members of a plastic-free business coalition if they commit to replacing or eliminating various single-use plastic items.
As of summer 2024, 88 local businesses were enrolled in the program. Moreover, cities like Miami Beach have banned the distribution of single-use plastic bags on city-owned property including beaches and sidewalks, and initiated city-wide bans on products like plastic utensils and straws, which are not covered under Florida preemption laws.
The hard work of Florida municipalities was put into jeopardy by Florida Bill 1822, which was debated during the 2025 state legislative session, and which would have barred local governments and state parks from regulating single-use plastics on city property.
This would have effectively axed regulations like those implemented by the city of Miami Beach. While the bill was postponed this legislative session, this does not mean that similar attempts to fight plastic pollution will not be considered in the future. State preemption continues to jeopardize the strides made by local Florida lawmakers in fighting single use plastic bag usage. They are clearly listening to their constituent’s wishes over the demands of the plastic industry.
As local governments continue to spearhead the movement to end plastic bag pollution, you can do your part by signing the Global Plastics Treaty petition which calls for governments and the United Nations to commit to a rapid phase-out of plastic products. Plus if you live in the U.S and want to make your voice heard at a local level – let your elected officials standing up to plastic know you support them.
Together, we can make plastic action a local, national and global priority so that we end plastic pollution once and for all.
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