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Jon Fleischman

Taxpayers Take On L.A. County’s Unconstitutional Grocery Bag Tax

With inflation eating away at Californians’ buying power, going to the grocery store has become an increasingly expensive activity for the average family. But in their quest to create an environmentally-friendly utopia, California liberals don’t seem to care that families are struggling to pay those hefty grocery bills. The most blatant example of this insensitivity is the imposition of a new grocery bag tax.

Several cities and counties across the state have passed or are considering plastic bag bans in order to placate the demands of the environmental elites. As part of the bans, local municipalities also impose a 5 or 10-cent tax per bag if customers fail to bring their own grocery bags to the store.  This tax increase was never brought before voters and as such is a violation of last year’s Proposition 26, which specifically precludes a new tax—or euphemistically referred to as a “fee” to skirt tax laws—without a two-thirds vote. Los Angeles County passed such an ordinance in its unincorporated areas and it went into effect July 1.

Now, taxpayers are fighting back against L.A. County to challenge its unconstitutional tax on grocery store customers. In a lawsuit filed early last month by plastics manufacturer/recycler Hilex Poly and several citizens stung by the tax increase, the plaintiffs contend that the 10-cent tax for paper bags imposed by L.A. County as part of its plastic bag ban directly violates Proposition 26.

And L.A. County can’t claim that it didn’t know its law could violate Proposition 26. Long before they imprudently passed the bag tax, we here at FlashReport pointed out the costly litigation that would likely follow such an obvious violation of Proposition of 26. Los Angeles County Supervisor Michael D. Antonovich even penned a piece for the FlashReport stating that the bag tax could violate the taxpayer protections codified by Proposition 26.

Proposition 26’s passage was a major victory for taxpayers. It put an end to the insidious and costly trick politicians played in using the words “charge” or “fee” to describe what could clearly be defined as a tax. Proposition 26 definitively defined what a tax is: “any levy, charge, or exaction of any kind imposed by a local government.” Now, hidden taxes referred to as “fees” or “charges” must be approved by two-thirds of voters.

But politicians are crafty and money-grubbing. They figured that if they required the grocery stores—and not a government agency—to collect and spend the paper bag tax, then it wouldn’t fall under Proposition 26’s tax prohibition. However, under L.A. County’s ordinance, the money collected may only be used to comply with the law and purchase paper bags. Furthermore, the stores are mandated to report their bag sales to the government.

How is this any different than fascism? Supposedly privately-held businesses suddenly become agents of the state. If government can make businesses its tax collectors and then direct the expenditure of those taxes, there is no dividing line between private industry and government. This is a blatant a subversion of Proposition 26 and the people’s very clear message that they want to determine when their taxes are increased.

Proposition 26 also clearly stated that any fees must cover only the cost of the service rendered. Well, grocery stores used to give their bags away for free, but now they’re charging their customers. In fact, grocery companies have gone along with this scheme to tax their own customers because many of them are reaping the profits. They could have stood up and defended their customers by opposing the bag tax—especially those who can ill-afford higher bills. Instead, they’ve allowed themselves to become the political pawns of environmentalists and tax collectors and indoctrinators for the state.

When the lawsuit was filed, Jon Coupal, President of the Howard Jarvis Taxpayers Association had this to say: “This is an important Proposition 26 lawsuit.  Just recently enacted by the People of California, Prop 26 was designed to prevent end runs around Prop 13 and this is most certainly a violation.”

On its face, the grocery bag tax is in direct violation of Proposition 26 and an unbiased court would certainly concur. That prospect has many local governments reconsidering their own plastic bag ban and bag tax. The day after the lawsuit was filed the Milpitas City Council tabled a proposed ordinance modeled after the L.A. County bag ban/tax.

Local government officials should also be aware that passing these bag bans is costly — and not just to their constituents in the form of higher taxes. An environmental impact report (EIR) is required before the ban can even be considered. Huntington Beach just approved moving forward with an EIR that is going to cost around $40,000. Now, with the first lawsuit challenging L.A. County’s ban, years of costly litigation will outweigh any perceived benefits of banning plastic bags and taxing paper bags.

This constitutional challenge will no doubt have a chilling effect on the statewide trend of bowing to environmentalists’ pressure and passing the bag bans. At least some families and poor grocery shoppers will have a brief reprieve while the courts consider the legal challenge in Los Angeles County. For the rest of those already living under a bag ban/tax, it’s up to the court to uphold your taxpayer rights under Proposition 26.