Where Is It Going, And What Is The Law Doing To Control It?

Post written by Alfonso Lopez de la Osa Escribano, Director of the Center for U.S. and Mexican Law, University of Houston Law Center

“Avoid using plastic, and if that is not possible, try to reuse it as much as you can.” This is what experts familiar with the latest scientific research on plastic advise nowadays. Plastic, in fact, seems to have gotten a bad reputation lately. But is plastic the problem, or is it is an issue of recycling, waste management and society’s lack of knowledge about what happens to plastics after we use them? Is there a sort of irresponsible attitude, “Après moi le déluge!” – “After me, the flood,”, as King Louis XV of France famously said?

Besides, where is plastic headed?

We know where it currently is: in our clothes, in the containers holding our food, in the chairs where we sit and in our cars. Plastic is everywhere. Is it too much?

Over the past few decades, many issues have been raised scientifically around plastic: from the challenges of reducing its use related to its extended presence in our lives, to its possible connection to diseases in young marine life and the consequences for the food chain that may turn plastic soon into a public health issue; about its toxicity related to its life cycle; the resiliency of the ecosystem, and what actions we can take to re-use plastics more efficiently. The focus on compostable and biodegradable plastic – meaning that 90% will biodegrade after six months – still leaves the question of whether plastic is a net benefit for society, considering its impacts on the ocean, the environment and biodiversity.

In fact, many studies still need to be done to analyze these issues from a multidisciplinary dimension, where the scientific, engineering, societal, legal, political, energy and business sectors establish a dialog. That way, we might find solutions that would not later create unintended new environmental problems.

The law, too, must be brought onto the scene. Actually, what is the law doing in the U.S., Mexico or France to address the problem of plastic? What is the current situation? Let’s see from a comparative law perspective how legislators of these countries are limiting its use and taking steps with different degrees of intensity, to deal with plastic.

First steps: recycling plastic

From a legal point of view, this has mostly been approached as a matter of regulating waste management, first in terms of recycling. In the United States, plastics recycling first drew attention in the early 1990s; in 1991 Maine became the first state to legally require to retail stores to participate in recycling.

In Mexico, the General Bill for the Prevention and Integral Management of Wastes, was approved at federal level in October 2003, based on the right of every citizen to a healthy environment, promoting the integral management of waste and avoiding contamination.

In France, the earliest efforts go back to 1870, when garbage in public roads was forbidden after biologist Louis Pasteur discovered the role bacteria plays in human health. In 1883, a local official, The Prefect of Seine Eugene Poubelle, invented the container that was named after him – La Poubelle – a divided container to hold degradable materials in one section, with paper, crystal or china held separately. Other materials that were recycled were metals, clothes and, surprisingly, buttons.

Plastic became relevant to the recycling and waste management discussion in France more than 100 years later, in 1992, with a bill obliging French cities to recycle waste. More recently, regulations have prohibited the proliferation of plastic and forbidding its use outright in some instances.

Second steps: limiting plastic

Laws to deal with plastic have been passed in the United States, as well, although some states have been more active than others. Eight – California, Connecticut, Delaware, Hawaii, Maine, New York, Oregon and Vermont – have banned single-use plastic bags. For example, in Aug. 2014, California became the first state to enact legislation imposing a statewide ban on single use plastic bags at large retail stores. Only reusable grocery or recycled paper bags purchased for 10 cents or more were allowed.

But the Golden State had adopted regulations dealing with plastic waste before the ban. In 2006, Senate Bill 2449 called for retail stores to adopt at-store recycling programs, asking customers to return used plastic bags to the retailers. A few years later, Senate Bill 228, required manufacturers of compostable plastic bags to ensure the bag could be easily distinguished from other bags. And In 2011 with Senate Bill 567, California prohibited the sale of plastic products labeled as compostable, home compostable or marine degradable unless the products met standard specifications, providing a civil penalty for violation.

California isn’t alone. Hawaii, for example, has since 2015 prohibited the use of non-biodegradable plastic bags at checkout; paper bags must contain a minimum of 40% post-consumer recycled content and display the words “reusable” and “recyclable” in a “highly visible” way.

Mexico, too, is building upon the federal 2003 General Bill for the Prevention and Integral Management of Wastes. New plastics legislation is in the process of adoption at state level, for instance, in Mexico City, following a report issued in May 2019 by the Mexico City Congress. By January 2020, single-use plastic bags will be forbidden in Mexico City; by January 2021, plastic plates, cutlery, cups, lids, balloons, covers for cups, platters and any other products totally or partially made of plastic will be banned.

This report will reform Article 3 of the 2003 Bill on Solid Waste of the City of Mexico, Ley de Residuos Sólidos del Distrito Federal. Joining the efforts already made by Mexico City in the 2010 reform of this bill, by which every plastic bag had to be biodegradable and compostable in order to be commercialized, distributed and given to consumers in retail stores, as article 25 XI BIS of the bills stands. The detail of the Mexican bill – clearly defining the terms – provides the necessary legal certainty for the different actors in the plastic sector.

In France, the 2015 Energy Transition for Green Growth Bill, is intended to encourage diversification of the country’s energy mix and help meet climate goals and sets targets for prohibiting the use of certain plastic packaging. The French legislation gradually expands plastic sorting, giving priority to recycling. Since January 2016, no retail use of plastic bags is allowed, either free of charge or as an additional purchase. Since January 2017, single-use plastic bags have been outlawed, unless they are bio-based and compostable at home. From January 2020, plastic cups, fiberglass and plastic plates used in kitchens will be forbidden unless bio-based and compostable at home.

In the United States and internationally, the different legal systems are attempting to deal with the issues arising from society’s reliance on plastics, but there is still so much we don’t know about the material. There are many actors with different interests involved.

For now, plastics are necessary in our lives, even as lawmakers in the United States and globally try to manage the resulting environmental damage, enforcing recycling and limiting the use of plastics.

The demand for plastic remains very high. We should think about sustainable alternatives to plastic, and in the meantime, society must be educated so we can start to cultivate the necessary change of behavior, kindly refusing to buy or use non-biodegradable plastics.

Quite challenging, don’t you think?

Alfonso Lopez de la Osa Escribano is director of the Center for U.S. and Mexican Law at the University of Houston Law Center, “The first research center in any U.S. law school devoted to the independent, and critical study of Mexican law and legal aspects of U.S. – Mexico relations”. The U.S.-Mex Law Center does Comparative and International Law studies on the legal relations between Mexico and the United States. As a co-founding member of Texas One Gulf Consortium, Center of Excellent, established after the Deepwater Horizon disaster to advance research into ongoing impacts from the oil spill and other long-term issues that threaten the health and sustainability of the Gulf of Mexico, the Center analyzes those matters, and plastic is also one of their concerns.

UH Energy is the University of Houston’s hub for energy education, research and technology incubation, working to shape the energy future and forge new business approaches in the energy industry.