Guidance on Single-Use Plastic Carry-Out Bag Ban

This document describes 38 MRSA §1611, a statewide law intended to prompt a transition from single-use carry-out bags to reusable carry-out bags. This law bans single-use plastic carry-out bags and places a small fee on recycled paper bags and reusable bags made of plastic. The Department of Environmental Protection will update this guidance document as additional questions are received.

What does the law do, and when did it take effect?

Answer: 38 MRSA §1611 establishes a statewide ban on single-use plastic carry-out bags. The law is being enforced as of July 1, 2021. If a single-use carry-out bag is provided, it must be a recycled paper bag. In addition, retail establishments must charge a fee of at least 5¢ per carry-out bag for recycled paper bags and any reusable carry-out bags that are made of plastic.

Who needs to comply with this law?

Answer: All retail establishments must comply with this law. "Retail establishment" means a store, a restaurant or a temporary business, such as a farmers' market or fair where merchandise including food, goods, products or clothing is sold.

Who does not need to comply with this law?

Answer: Hunger relief organizations such as food pantries or soup kitchens that distribute food directly to the consumer at no charge are exempted from the single-use plastic bag ban and the requirement to charge a fee per bag.

What carry-out bags can be used at point-of-sale now that single-use plastic bags are banned?
Answer: Retail establishments may provide only reusable or recycled paper carry-out bags, which are defined specifically in this law:
  1. A reusable bag is a bag with handles that:
    • Is designed and manufactured to withstand a minimum of 75 repeated uses;
    • Is machine washable or made from a material that can be cleaned and disinfected regularly;
    • If made from plastic [film] is at least 4 mils thick; and
    • Has the capability of carrying a minimum of 18 pounds.
  2. A "Recycled paper bag," which means a paper bag that:
    • Is 100% recyclable; and
    • Contains at least 20% post-consumer recycled material if it has a capacity to hold at least 8 pounds.

This means all paper bags that are large or sturdy enough to carry 8 pounds or more must contain at least 20% post-consumer recycled content and be 100% recyclable. To be 100% recyclable, paper bags cannot have handles made from a different material, such as plastic string or ribbon. Paper bags that are not designed to hold 8 pounds or more but are intended to carry small or lightweight items need to be 100% recyclable, but do not need to contain post-consumer recycled content.

Are compostable, biobased, or biodegradable single-use plastic carry-out bags acceptable substitutes?

Answer: No. All single-use plastic carry-out bags are prohibited under this law, regardless of whether those bags are made from petroleum or from biobased, biodegradable, or compostable plastic or plant-based materials.

Are single-use plastic bags that were donated to a retailer by customers, friends, or store staff for reuse acceptable substitutes?

Answer: No. This law prohibits retailers from providing or otherwise making available any single-use plastic carry-out bags, including bags that the retailer did not purchase.
However, customers may bring in any carry-out bag, box, or other container they have on hand to bring their purchases home, including single-use plastic carry-out bags that they have saved for reuse.

Who needs to charge a carry-out bag fee, and for which types of carry-out bag should a fee be charged?

Answer: Retail establishments must charge a fee of at least 5 ¢ per bag for recycled paper carry-out bags and reusable carry-out bags made of plastic. Reusable carry-out bags that are not made of plastic may be given away at the retailer’s discretion or the retailer may opt to charge a fee of 5 ¢ or more per bag.

Who will not need to charge a fee for carry-out bags?
Answer: Stores with less than 2% of retail sales attributed to the sale of food and less than 10,000 square feet of retail area are exempt from the requirement to charge a fee for recycled paper bags or reusable bags made of plastic but may choose to do so.
  • Retail area is defined as the space within the business where customers shop and does not include offices, warehouses, storage areas, restrooms and breakrooms.
  • Restaurants are also exempt from the fee, but if a restaurant also provides prepackaged food items or other goods in the manner of a grocery store, convenience store or gift shop, they are not exempt.
  • Maine’s statutory definition of food includes chewing gum and food or drink for humans and other animals, therefore beverage and pet food sales are considered food when determining whether a retail establishment has less than 2% of retail sales from food.
Are bag fees a refundable deposit, and if fees are not refundable, how will funds collected from bag fees be used?

Answer: Bag fees are not a deposit. The funds are kept by the retailer and may be used at the retail establishment’s discretion.

If customers bring their own bags to a retail establishment, should a fee be collected on those bags?

Answer: No. The bag fee is only imposed on bags provided by a retail establishment. No fee should be charged on any bags that customers bring in for their own use.

Must a bag fee be charged to customers using Supplemental Nutrition Assistance Program (SNAP) or Special Supplemental Nutrition Program for Women, Infants and Children (WIC) benefits to make purchases?

Answer: Yes, the bag fee must be charged for all customers. There is no exemption provided for customers who make purchases with SNAP or WIC benefits. SNAP/WIC benefits do not include the bag fee.

Are bags provided by restaurants for take-out meals or to contain leftover meals being taken with customers considered single-use plastic carry-out bags?

Answer: Yes. Restaurants must comply with the requirement to provide only reusable or recycled paper bags. Restaurants are not required to collect the 5¢ bag fee, although they may opt to do so.

Will retail establishments still be allowed to sell packaged plastic bags, like garbage bags or storage bags?

Answer: Yes, bags sold for home or non-retail businesses such as food storage bags, garbage bags, or pet waste bags are exempt.

Will retail establishments be able to provide customers with free single-use bags for loose produce, deli items, baked goods, greeting cards, or other small, unpackaged items like nails, screws, etc.?

Answer: Yes, retail establishments may provide or make available single-use plastic bags such as produce bags for containing loose items prior to purchase. These exempted single-use plastic bags may be made available to customers without a fee.

However, a retailer that provides exempted single-use plastic bags must serve as a recycling drop-off, as noted in the Q&A below.

Do retail establishments still need to collect and recycle plastic bags?
Answer: All retail establishments that provide or make available exempted single-use plastic bags within the store for customers to contain loose items such as produce are required by law to serve as a public plastic bag recycling drop-off for all plastic bags, not just those provided by the retailer. Specifically, the retailer must:
  1. Locate inside the retail establishment or within 20 feet of the main entrance to the retail establishment, a receptacle for collecting any used single-use carry-out bags made of plastic; and
  2. Ensure that single-use carry-out bags made of plastic that are collected by the retail establishment are recycled or delivered to a person engaged in recycling plastics.

Retail establishments that do not provide exempted single-use plastic bags within the store for customers to contain loose items are not required to collect and recycle single-use plastic bags.

Do municipal bag ordinances remain in place now that the statewide law has been passed?

Answer: Effective April 22, 2020, existing municipal ordinances or regulations that violate the statewide law regulating single-use carry-out bags are void and no longer have force or effect.

Should Maine sales tax be applied to the bag fee?

Answer: No. The bag fees are not taxable. See 36 M.R.S. § 1752(14)(B)(11).
How does this law apply to bagging live or cooked lobsters and other seafoods, meats, or other live or raw foods?

Answer: There are exemptions in this law for situations where a paper or reusable bag may not be practical, including: (2) Bags without handles used to protect items from being damaged or from damaging or contaminating other purchased items placed in a recycled paper bag or a reusable bag; (3) Bags used to contain or wrap frozen foods, meats or fish.

How does this law apply to farm stands or orchards that require bags for containing produce and other goods?

Answer: There are exemptions in this law for collecting of small, loose, unpackaged goods, including: 2) Bags without handles used to protect items from being damaged or from damaging or contaminating other purchased items placed in a recycled paper bag or a reusable bag; (3) Bags used by customers inside a retail establishment to package loose items, such as fruits, vegetables, nuts, coffee, grains, bakery goods, candy, greeting cards or small hardware items; to contain or wrap frozen foods, meats or fish; or to contain or wrap flowers or potted plants;

This exemption allows for use of bags for any produce including apples at a pick-your-own orchard. Provided a bag is used only to collect and contain loose produce, it is not a carry-out bag, even if that produce bag is not placed within another bag to carry away from the retailer.

What other exempted bags are allowed under this law?

Answer: In addition to the exemptions previously noted in this document, other exempted single-use bags include the following: Bags provided by a pharmacy to a customer for transporting a prescription medication away from the store; Laundry, dry cleaning or garment bags, including bags provided by a hotel to guests to contain wet or dirty clothing or bags provided to protect large garments like suits, jackets or dresses; Newspaper bags; Bags used to contain live animals, such as fish or insects sold in pet stores; Bags used for vehicle tires; Bags used to transport chemical pesticides, drain cleaning chemicals or other caustic chemicals sold at a retail establishment.