STORAGE NAME: h0565.NRD
DATE: 3/7/2025
1
FLORIDA HOUSE OF REPRESENTATIVES
BILL ANALYSIS
This bill analysis was prepared by nonpartisan committee staff and does not constitute an official statement of legislative intent.
BILL #: HB 565
TITLE: Regulation of Auxiliary Containers
SPONSOR(S): Blanco
COMPANION BILL: SB 1822 (Martin)
LINKED BILLS: None
RELATED BILLS: None
Committee References
Natural Resources & Disasters
Intergovernmental Affairs
State Affairs
SUMMARY
Effect of the Bill:
The bill expressly preempts the regulation of auxiliary containers to the state.
Additionally, the bill removes a provision requiring the Department of Environmental Protection (DEP) to review
and update its 2010 retail bags report that analyzed the need for new or different regulation of auxiliary containers,
wrappings, or disposable plastic bags. The bill also removes a provision that prohibits a local government, local
government agency, or state government agency from enacting any rule, regulation, or ordinance regarding the use,
disposition, sale, prohibition, restriction, or tax of auxiliary containers until the Legislature adopts DEP’s
recommendations in the updated retail bags report.
Fiscal or Economic Impact:
None.
JUMP TO SUMMARY ANALYSIS RELEVANT INFORMATION BILL HISTORY
ANALYSIS
EFFECT OF THE BILL:
The bill expressly preempts the regulation of auxiliary containers to the state. (Section 2)
The bill defines the term “auxiliary container” to mean a reusable or single-use bag, cup, bottle, can, or other
packaging that is:
Made of cloth; paper; plastic, including, but not limited to, foamed plastic, expanded plastic, or polystyrene;
cardboard; corrugated material; molded fiber; aluminum; glass; postconsumer recycled material; or similar
material or substrates, including coated, laminated, or multilayer substrates; and
Designed for transporting, consuming, or protecting merchandise, food, or beverages from or at a public
food service establishment,
1 a food establishment,
2 or retailer.
3 (Section 1)
Additionally, the bill removes a provision requiring the Department of Environmental Protection (DEP) to review
and update its 2010 retail bags report that analyzed the need for new or different regulation of auxiliary
containers, wrappings, or disposable plastic bags. The bill also removes a provision that prohibits a local
government, local government agency, or state government agency from enacting any rule, regulation, or
1
A “public food service establishment” means any building, vehicle, place, or structure, or any room or division in a building,
vehicle, place, or structure where food is prepared, served, or sold for immediate consumption on or in the vicinity of the
premises; called for or taken out by customers; or prepared prior to being delivered to another location for consumption.
Section 509.13(5), F.S.
2
A “food establishment” means a factory, food outlet, or other facility manufacturing, processing, packing, holding, storing, or
preparing food or selling food at wholesale or retail. Section 500.03(1)(q), F.S.
3
A “retailer” means and includes every person engaged in the business of making sales at retail or for distribution, use,
consumption, or storage to be used or consumed in the state. Section 212.02(13), F.S. JUMP TO SUMMARY ANALYSIS RELEVANT INFORMATION BILL HISTORY
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ordinance regarding the use, disposition, sale, prohibition, restriction, or tax of auxiliary containers until the
Legislature adopts DEP’s recommendations in the updated retail bags report. (Section 1)
The bill makes conforming changes. (Section 3)
The effective date of the bill is July 1, 2025. (Section 4)
RELEVANT INFORMATION
SUBJECT OVERVIEW:
Auxiliary Containers
The United Nations has estimated that the world consumes between 1 trillion and 5 trillion plastic bags (a form of
auxiliary container) per year.
4 Additionally, in the United States, fewer than 10 percent of plastics packaging,
including plastic bags, are recycled per year.
5 In Florida, DEP estimated that about five to six million tons of
collected municipal solid waste per year are single use carryout packaging (SUCP).
6 Improperly managed SUCP can
result in litter in the environment, along roads, and in stormwater collection systems and freshwater resources.
7
Plastic has been documented as the most abundant human-influenced material in marine ecosystems, where it
causes harm to wildlife.
8 Due to these concerns, some local governments in the state have attempted to enact
regulations regarding the use of SUCP.
9
2010 Retail Bags Report
In response to growing concerns regarding the impact of retail plastic bags on the environment, the Legislature
passed HB 7135 in 2008,
10 which, in part, required DEP to analyze the need for new or different regulation of
auxiliary containers, wrappings, or disposable plastic bags used by consumers to carry products from retail
establishments.
11 The initial report was submitted in 2010,
12 and in 2021, the Legislature directed DEP to review
and update its 2010 report and submit it to the Legislature by December 31, 2021.
13 DEP submitted the updated
report with its conclusions and recommendations to the Legislature on December 27, 2021.
14 Current law prohibits
local governments, local governmental agencies, and state government agencies from enacting any rule, regulation,
or ordinance regarding the use, disposition, sale, prohibition, restriction, or tax of auxiliary containers, wrappings,
or disposable plastic bags until the Legislature adopts DEP’s recommendations.
15 To date, the Legislature has not
adopted any recommendations contained in the report, and the prohibition remains in effect.
16
4
United Nations Environment Programme, Single-Use Plastics: A Roadmap for Sustainability, March 26, 2018, viii, available at
https://www.unep.org/resources/report/single-use-plastics-roadmap-sustainability (last visited Feb. 21, 2025).
5
Environmental Protection Agency, Advancing Sustainable Materials Management: 2016 and 2017 Tables and Figures,
November, 2019, 47, available at https://www.epa.gov/sites/default/files/2019-
11/documents/2016_and_2017_facts_and_figures_data_tables_0.pdf (last visited Feb. 21, 2025).
6
Florida Department of Environmental Protection, Update of the 2010 Retail Bags Report, December 2021, 3, available at
https://floridadep.gov/sites/default/files/FDEP%20Plastic%20Bag%20Report%20Final%20v4.pdf (last visited Feb. 21,
2025). “SUCP” refers to auxiliary containers, wrappings, and disposable plastic bags. Id. at 2.
7
Id. at 4.
8
Id. at 5.
9
See Florida Retail Federation, Inc. v. City of Coral Gables, 282 So. 3d 889 (Fla. 3d DCA 2019), where originally the ordinance
prohibited the use of expanded polystyrene by restaurants and businesses as well as city vendors/contractors and special
events permittees and their subcontractors. After the Florida Retail Federation challenged the ordinance, the 3rd District
Court of Appeal ruled the ordinance was preempted by the state.
10
Chapter 2008-227, s. 96, Laws of Fla.
11
Section 403.7033, F.S.
12
Chapter 2008-227, s. 96, L.O.F.
13
Chapter 2008-227, s. 96, Laws of Fla.
14
DEP, Retail Bags Report Cover Letter (December 27, 2021), available at
https://floridadep.gov/sites/default/files/Plastic%20Bag%20Report%20Cover.pdf (last visited Mar. 7, 2025); DEP, Update of
the 2010 Retail Bags Report (December 2021), available at https://floridadep.gov/sites/default/files/FDEP%2
Plastic%20Bag%20Report%20Final%20v4.pdf (last visited Mar. 7, 2025).
15
Section 403.7033, F.S.
16
DEP, Update of the 2010 Retail Bags Report, 10 (December 2021), available at
https://floridadep.gov/sites/default/files/FDEP%2 Plastic%20Bag%20Report%20Final%20v4.pdf (last visited Mar. 7, 2025). JUMP TO SUMMARY ANALYSIS RELEVANT INFORMATION BILL HISTORY
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State Preemption
There are two ways that a local regulation can be inconsistent with state law and therefore unlawful. First, a local
government may not legislate in a field if the subject area has been preempted to the state. Second, in a field where
both the state and local government can legislate concurrently, a local government may not enact an ordinance
that directly conflicts with the state statute.
17
State law recognizes two types of state preemption: express and implied. Express preemption requires a specific
legislative statement of intent to preempt a specific area of law; it cannot be implied or inferred.
18 In contrast,
implied preemption exists if the legislative scheme is so pervasive as to evidence an intent to preempt the
particular area, and where strong public policy reasons exist for finding such an area to be preempted by the
Legislature.
19 Courts determining the validity of local government ordinances enacted in the face of state
preemption, whether express or implied, have found such ordinances to be null and void.
20
Home Rule Authority
The Florida Constitution grants local governments broad home rule authority. Specifically, non-charter county
governments may exercise those powers of self-government that are provided by general or special law.
21
Counties operating under a county charter have all powers of self-government not inconsistent with general law or
special law approved by vote of the electors.
22 Likewise, municipalities have governmental, corporate, and
proprietary powers that enable them to conduct municipal government, perform municipal functions and provide
services, and exercise any power for municipal purposes except as otherwise provided by law.
23
County governments have the authority to provide fire protection, ambulance services, parks and recreation,
libraries, museums and other cultural facilities, waste and sewage collection and disposal, and water and
alternative water supplies.
24 Municipalities are afforded broad home rule powers with the exception of annexation,
merger, exercise of extraterritorial power, or subjects prohibited or preempted by the federal or state constitution,
county charter, or statute.
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RECENT LEGISLATION:
YEAR BILL # HOUSE SPONSOR(S) SENATE SPONSOR OTHER INFORMATION
2021 CS/CS/SB 694 McClure Rodrigues The bill became law on July 1,
2021.
OTHER RESOURCES:
Department of Environmental Protection - 2021 Retail Bags Report
17
Orange County v. Singh, 268 So. 3d 668, 673 (Fla. 2019) (citing Phantom of Brevard, Inc. v. Brevard County, 3 So. 3d 309, 314
(Fla. 2008)); see also James Wolf & Sarah Bolinder, The Effectiveness of Home Rule: A Preemptions and Conflict Analysis, 83 FLA.
BAR J. 92 (2009), available at https://www.floridabar.org/the-florida-bar-journal/the-effectiveness-of-home-rule-a-
preemption-and-conflict-analysis/ (last visited Feb. 21, 2025).
18
City of Hollywood v. Mulligan, 934 So. 2d 1238, 1243 (Fla. 2006); Phantom of Brevard, Inc. d/b/a/ Phantom Fireworks v.
Pinellas County, 3 So. 3d 1013, 1018. (Fla. 2d DCA 2005).
19
Sarasota Alliance for Fair Elections, Inc. v. Browning, 28 So. 3d 880, 886 (Fla. 2010).
20
See, e.g., National Rifle Association of America, Inc. v. City of South Miami, 812 So. 2d 504 (Fla. 3d DCA 2002) (concluding that
a City of South Miami local government ordinance, which purported to provide safety standards for firearms, was null and void
because the Legislature expressly preempted the entire field of firearm and ammunition regulation when it enacted Section
790.33, F.S.).
21
Article VIII, Section 1(f), Fla. Const.
22
Article VIII, Section 1(g), Fla. Const.
23
Article VIIII, Section 2(b), Fla. Const.; see also Section 166.021(1), F.S.
24
Section 125.01(1), F.S.
25
Section 166.021(3), F.S. JUMP TO SUMMARY ANALYSIS RELEVANT INFORMATION BILL HISTORY
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BILL HISTORY
COMMITTEE REFERENCE ACTION DATE
STAFF
DIRECTOR/
POLICY CHIEF
ANALYSIS
PREPARED BY
Natural Resources & Disasters
Subcommittee
Moore Weiss
Intergovernmental Affairs
Subcommittee
State Affairs Committee