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Wednesday, April 8, 2009

News & Analysis: Tesco's Fresh & Easy Gets Reprieve As Manhattan Beach, California Plastic Bag Ban Law Held Up By Plastic Bag Industry Group's Lawsuit

American consumers like choices at the supermarket. Fresh & Easy Buzz suggests smart and savvy retailers are those that offer the paper and plastic free carrier bag option in their stores. Offering paper bags also is a "greener" retailing approach compared to offering plastic bags only, for the reasons we describe in the story below, along with others. But overall, we argue promoting reusables is the ultimate way to go.

Green Retailing Special Report: Single-Use Plastic Carrier Bags

Tesco's Fresh & Easy Neighborhood Market, which offers customers only free single-use plastic carrier bags in all of its stores and not the free paper or plastic option like nearly all other U.S. food and grocery retailers do, is getting a reprieve at its store in Manhattan Beach, California from either having to add the free paper grocery sacks or offer customers only reusable bags for a per-bag charge.

In July 2008 the Manhattan Beach City Council passed a municipal ordinance which banned the use of the single-use plastic carrier bags by all retailers in the city. The bag ban was supposed to become law in December 2008-early 2009, at which time retailers of all types would no longer have been able to package customer purchases in the single-use plastic carrier bags. [Read our July 23, 2008 report here: Plastic or Plastic: Single-Use Plastic Carrier Bag Bans in California Cities Threatening Tesco Fresh & Easy's Free 'Plastic Bag-Only' Policy.]

But a trade group called the "Save the Plastic Bag Coalition," whose members include single-use plastic bag manufacturers and distributors, sued the city of Manhattan Beach over its plastic bag ban legislation. The plastic bag industry trade group asserted in its lawsuit that the city should have complied with the California Environmental Quality Act (CEQA) by conducting a full Environmental Impact Report (EIR) prior to adopting the plastic bag ban.

The lawsuit's filing delayed the city from implementing the plastic bag ban.

On February 20, 2009, a judge in the Los Angeles Superior Court ruled that the city of Manhattan Beach must conduct the full EIR before the bag ban may be implemented. The city is appealing the judge's decision.

As a result of the judge's decision, the city of Manhattan Beach is legally prevented from implementing the plastic bag ban. The courts will determine if the ban can go forward at all.

The same industry coalition sued the city of Oakland, California in 2007 over its plastic bag ban law using the same failure to conduct a full EIR argument, preventing the city from implementing the ban while the lawsuit was working its way through court.

Ultimately the courts ruled in favor of the plastic bag industry group. As a result, Oakland could not implement its plastic bag ban legislation, which was only targeted to food and drug stores located in the Northern California city in the east Bay Area.

Oakland has not introduced new single-use plastic carrier bag legislation since losing the lawsuit about one year ago. [Related story - April 24, 2008: Legislation: Oakland, California's Plastic Grocery Bag Ban Law Not in the 'Bag' Yet.]

The City of Manhattan Beach says it's handling the lawsuit through its City Attorney's office because it wants to conserve what would be added expenses in hiring outside legal counsel.

Retailers in Manhattan Beach can still use single-use plastic bags to package customers' purchases until a resolution of the industry group's lawsuit is reached by the courts. If that decision goes in favor of the industry group, plastic bag use will remain an option for the city's retailers. If the city wins its appeal, the ban can be implemented.

If the city loses it can conduct a full EIR and then pass new legislation. However, conducting a full EIR is an expensive and fairly time consuming process, which is one of the reasons the city chose not to conduct it before.

Fresh & Easy Buzz did a survey of food and grocery retailers in Manhattan Beach. The only grocer we could find that doesn't currently offer the free paper or plastic carrier bag option is Tesco's Fresh & Easy Neighborhood Market, which offers only the free single-use plastic bags, along with selling a variety of reusable shopping bags, ranging from its inexpensive (20 cents each) synthetic "Bag for Life," its 99-cent canvas tote bag, and one or two other higher priced reusable canvas bag options.

Kroger Co.-owned Ralphs, which has one of its "Fresh Fare" format supermarkets in Manhattan Beach, used to offer only free single-use plastic carrier bags in its Manhattan Beach store, according to a regular reader of Fresh & Easy Buzz who shops in the store, despite the fact that it offers both free paper and plastic bags at all of its Southern California flagship Ralphs' banner supermarkets. But last year, shortly after the Manhattan Beach City Council passed the plastic bag ban law, the Manhattan Beach Ralphs' "Fresh Fare" store added a couple sizes of free paper grocery bags in the store, and it still offers the paper bag option.

Ralphs' "Fresh Fare" format, of which it has a handful of stores in Southern California, differs from the chain's traditional Ralphs' banner supermarkets in that the "Fresh Fare" stores are more upscale and put a greater emphasis on fresh, prepared and specialty food and grocery products, along with offering a full-selection of basic food and grocery items, compared to the flagship Ralphs' banner supermarkets.

Ralphs' "Fresh Fare" stores also offer both full-service and sef-service checkout lanes in the stores. The flagship Ralphs' banner supermarkets offer full-service checkout only, as is the case in the vast majority of U.S. supermarkets.

Tesco's Fresh & Easy offers only self-service checkout lanes in its 116 combination grocery and fresh foods markets in California (Southern and Bakersfield), southern Nevada and Metropolitan Phoenix, Arizona. [Suggested reading - March 7, 2009: Analysis & Commentary: The Seven Retail Operations Changes Tesco's Fresh & Easy Neighborhood Market Needs to Make to Help it Get On the Success Track.]

Kroger's Ralphs and Safeway's Vons are the top two supermarket chains in the Southern California market. Both chains also operate Ralphs' and Vons' supermarkets in the southern Central Valley city of Bakersfield, California, where Tesco's Fresh & Easy currently has three stores open and operating.

Trader Joe's, which has a store just across the parking lot in the same Manhattan Beach shopping center where the Manhattan Beach Fresh & Easy market is located, offers shoppers both free paper and plastic carrier bags, as well as selling its own reusable shopping bags. Trader Joe's though uses paper bags as the default carrier bag in its stores, generally bagging customer purchases in the paper bags unless they have reusable bags or ask for a single-use carrier bag.

Since customers at Tesco's Fresh & Easy stores scan and bag their own groceries, and since if a shopper doesn't have their own or purchases the reusable bags for sale at Fresh & Easy when they check themselves out, his or her only free carrier bag option is the single-use plastic.

It will be interesting to see which way the courts ultimately rule on the lawsuit against the city of Manhattan Beach's plastic bag ban law.

The single-use plastic carrier bag industry group has two things going for it in terms of winning its lawsuit, in our analysis. The first is that the superior court judge agreed with the lawsuit's argument that the city should of conducted the full EIR. Second, the plastic bag industry coalition won against the city of Oakland using virtually the very same argument it is using against Manhattan Beach in its lawsuit against that city's plastic bag ban.

The industry coalition appears to be picking and choosing which municipal plastic bag bans it challenges in court. For example, it filed the lawsuit against Oakland's bag ban law but not against a similar law in San Francisco, which was the first major city in the U.S. to ban the bags in supermarkets and drug stores. The San Francisco law has been on the books for about two years now.

Palo Alto, another city in the San Francisco Bay Area, recently passed a ban on the use of the single-use plastic carrier bags by supermarkets in the city. The plastic bag industry coalition has not challenged that law, which will be enacted in a few months, as of yet in court. [March 19, 2009: Another Tesco Fresh & Easy Future Market City Bans the (Plastic) Bag: No Plastic Carrier Bags In Palo Alto, CA Supermarkets Starting September 18th.]

More cities are either proposing or debating laws to either ban retailers from using single-use plastic carrier bags or to charge customers for the bags if they request them in a supermarket.

And in the current recession a few cities are even looking to per-bag-fee legislation as a way to generate new revenue.

For example, New York City Mayor Michael Bloomberg said in late February that he plans to introduce legislation that would require all retailers in America's largest city to charge shoppers for each single-use plastic carrier bag they request in the Big Apple's retail stores.

Mayor Bloomberg, who comes from the corporate world as the founder and chairman-CEO-on-leave of media and financial services giant Bloomberg LLP, said the revenue generated from the per-bag-fee law would be used to fund various environmentally-oriented projects in New York City; projects which might not otherwise get funded from current city revenues because of the drop in taxpayer income due to the recession.

American shoppers overwhelmingly prefer the choice between paper and plastic at the food and grocery stores where they shop, which is the reason why nearly 100% of all U.S. supermarkets offer the option.

In the United Kingdom where Tesco is based, few if any supermarket chains offer the paper option. Instead they generally offer only free single-use plastic bags and sell a variety of reusable options, as American supermarket chains and independents do.

Tesco brought the British food retailing practice of offering only free single-use plastic carrier bags and not the free paper option with it across the pond to the United States with its Fresh & Easy chain.

The thing is: California, Nevada and Arizona, the three states where Tesco has its Fresh & Easy stores, are in the United States rather than in the United Kingdom.

We believe the ultimate goal for food and grocery retailers in the U.S. should be to encourage shoppers to use reusable bags as much as possible, including rewarding them economically for doing so. Many retailers do this by giving customers a five or ten cent credit for each reusable shopping bag they use in the grocer's stores, for example. Tesco's Fresh & Easy doesn't do so.

Tesco's Fresh & Easy does do a good job in the reusable bag arena by offering both its inexpensive 20-cent reusable, synthetic "Bags for Life," which the retailer will replace for free when the bag wears out, along with selling a good quality reusable canvas shopping bag for only 99-cents. [Suggested reading - December 7, 2008: Fresh & Easy Offers New Definition of 'Double Bagging;' Says Sales of Reusable Bags Has Doubled Since Introducing its 99-Cent Bag in October.]

But in our analysis and experience, not offering shoppers the free paper bag option, along with single-use plastic, is a big mistake for Tesco at Fresh & Easy. Paper bags have a long history of use in U.S. supermarkets.

Additionally, many U.S. shoppers hate the single-use plastic bags but unfortunately don't bring reusable bags with them to the supermarket, either never or not all the time. Not offering these consumers the free paper option is not only a major operational mistake for Fresh & Easy, but a marketing mistake as well, since many shoppers won't shop at a food store that doesn't offer the paper option.

And environmentally, while it is true that it takes a higher energy input on a per-bag basis to make a paper grocery bag than it does to make a single-use plastic carrier bag, in the U.S. there is a complete system in place to recycle the paper bags, which also are 100% compostable.

Nearly ever city and town in the U.S. today has a curbside recycling program as part of its home waste disposable pick up program. And every one of those cities and towns accepts paper grocery bags at curbside for recycling.

Those cities and towns that don't have curbside recycling programs generally allow residents to place all of their paper waste in their green waste garbage cans. The paper, along with the green waste like lawn clippings, is then made into compost by the scavenger company that handles the community's waste disposal program.

Conversely, it's difficult to find one city in the U.S. that excepts single-use plastic carrier bags in its curbside recycling program. There is no comprehensive single-use plastic carrier bag recycling infustructure currently in place in the U.S., or elsewhere in the world for that matter. That's one reason China, which is the master recycling nation of nearly every material, banned the single-use plastic bags completely in the nation.

In California, New York and a couple other states, grocers are required to place bins in the stores where shoppers can return the single-use plastic carrier bags for recycling. However it would be generous to say that 10% of all shoppers do this.

The fact is most Americans will recycle if it is convenient. But if not, most won't. Before instituting curbside recycling programs (the first ones began in the 1980's, some just a few years ago in other cities), city governments offered residents recycling drop off sites in the cities, which is a concept and system similar to placing bins in the stores for shoppers to drop off their plastic bags. Under this system, in which residents had to load up the items to be recycled and drive to the drop off sites, recycling rates were extremely low. But when curbside recycling was implemented, residential and commercial recycling rates soared.

The result of this lack of recycling of the single-use plastic carrier bags means most of the hundreds of millions -to- billions of the bags used in the U.S. each year end-up in public landfills. Far too many of the plastic bags also end up in America's waterways and beaches, floating out into the ocean. Many also end up as urban and rural litter, laying on the streets and roadways, not to mention in residential front yards and in shopping center parking lots.

Ask yourself, how often do you see a paper grocery bag littering the street? The answer is -- not often. And if you do see one, you can pick it up and toss it in a public recycling bin for paper or take it home and put it in your curbside recycling container for pick up. That isn't the case with single-use plastic bags, unfortunately, unless you happen to be near a supermarket in one of the handful of U.S. states where supermarkets have single-use plastic carrier bag recycling bins in the stores.

The single-use plastic carrier bag issue will only continue to get more attention, and we predict more U.S. cities (especially in California), counties and even states will either enact plastic bag ban legislation or pass bag-fee laws.

And since grocers are the biggest users of the bags, they will continue to get most of the attention.

In fact, we're surprised that one or more environmental groups, particularly in California, hasn't yet launched a campaign against Tesco's policy of offering only the free single-use plastic carrier bags, and not the paper or plastic option, in its Fresh & Easy stores.

The launching of such a campaign by one or more environmental groups is a lurking, potentially negative "green" retailing and public relations issue for Tesco, in our analysis, which would be too bad since the grocer is conducting a number of good "green" retailing initiatives at Fresh & Easy. [Related story: Plastic or Plastic: Single-Use Plastic Carrier Bag Bans in California Cities Threatening Tesco Fresh & Easy's Free 'Plastic Bag-Only' Policy.]

It would be simple to avoid such a campaign though. The solution: offer a few sizes of paper grocery bags in the Fresh & Easy stores, while continuing to push the reusable bag option and use by shoppers.

Below is a selection of linked, related past stories from Fresh & Easy Buzz on the single-use plastic carrier bag topic and issue:

>March 19, 2009: Another Tesco Fresh & Easy Future Market City Bans the (Plastic) Bag: No Plastic Carrier Bags In Palo Alto, CA Supermarkets Starting September 18th

>March 7, 2009: Analysis & Commentary: The Seven Retail Operations Changes Tesco's Fresh & Easy Neighborhood Market Needs to Make to Help it Get On the Success Track.]

>December 7, 2008: Fresh & Easy Offers New Definition of 'Double Bagging;' Says Sales of Reusable Bags Has Doubled Since Introducing its 99-Cent Bag in October

>September 25, 2008: Competitor News: Wal-Mart Joins Tesco, Others in Announcing A Plastic Bag Reduction Program of its Own

>August 13, 2008: Tesco to Offer Shoppers Free Plastic Bags in UK Stores Only if Requested; Still Offering Plastic Bags-Only in Fresh & Easy USA Stores; No Paper Option

>July 23, 2008: Plastic or Plastic: Single-Use Plastic Carrier Bag Bans in California Cities Threatening Tesco Fresh & Easy's Free 'Plastic Bag-Only' Policy

>August 1, 2008: Bag Bans and Fees: Seattle, Washington Imposes 20-Cent Fee On Single-Use Plastic Carrier Bags; Bans the Use of Foam Meat Trays in Supermarkets

>April 20, 2008: Earth Day 2008: California Bag-Fee Bill AB 2058 Passes California State Assembly Natural Resource Committee; Next Stop Appropriations Committee

>April 21, 2008: Earth Day 2008: City of Los Angeles, CGA and Southern California Grocery Chains Partner in Major Reuseable Shopping Bag Giveaway Promotion

>April 18, 2008: Earth Day 2008: New Issues Are Beginning to Emerge With Growing Consumer Use of Reusable Shopping Bags: Worker Injuries, Shoplifting, 'Double-Bagging'

>April 24, 2008: Legislation: Oakland, California's Plastic Grocery Bag Ban Law Not in the 'Bag' Yet

>April 13, 2008: California State Assembly Natural Resource Committee to Vote on Statewide 25-cent Single-Use Plastic Carrier Bag-Fee on Monday

>March 15, 2008: UK 'Banish The (Plastic) Bags' Campaign Update: Morrison's Latest to Make Announcement; Tesco Holds Firm

>March 5, 2008: Britain's 'Banish The (Plastic) Bag' Campaign and Tesco: London Street Artist 'Celebrates' the Tesco Plastic Bag; More UK Retailers to Charge Bag Fee

>March 8, 2008: More UK Retailers Jump On The 'Banish The (Plastic) Bag' Campaign.]

>March 4, 2008: "Message From Across the Pond: Tesco is Right Square in the Middle of the 'Banish the (Plastic) Bags' Campaign in the United Kingdom

>May 1, 2008: Green Retailing Report: UK Supermarket Chain Waitrose Creates A 'Reusable-Bag Only' 'Green' Checkout Lane in One of Its Stores

>April 21, 2008: Earth Day 2008: Massachusetts'-Based Stop & Shop Supermarket Chain and General Mills Launch Free Reusable Shopping Bag Cross-Promotion For Earth Day

[You can follow Fresh & Easy Buzz around on Twitter.com at www.twitter.com/freshneasybuzz.]

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