PLASTIC BAG WARNING LABEL REQUIREMENTS

A. Overview

Several states, including California, Massachusetts, New York, Rhode Island, andVirginia, have laws that require suffocation warning labels for plastic bags. In addition, twomajor cities, Chicago, IL and New York, NY have adopted ordinances requiring similar warninglabels for plastic bags. At least a dozen other smaller cities or towns have similar laws requiringsuffocation warning labels for plastic bags.1 Canada has also implemented comparable warningrequirements. The United States federal government does not presently have such a requirement.

In general, the Massachusetts law is the most comprehensive and restrictive, and requiresthat any language, other than the warnings specifically provided by the statute, have governmentapproval. In addition, Massachusetts requires that the warning must appear on both sides of thebag and be repeated at 20-inch intervals for bags whose length and width are more than 40inches. When deciding which warning to use, it is recommended that manufacturers follow theMassachusetts law, as it includes all the language required by New York State, Virginia, andGering, NE, and is essentially the same as that required by California, Rhode Island, Chicago,Flagstaff, New York City, and Canada, none of which requires government approval of alternatewarning language that is substantially the same. It is recommended, however, that these warningbe repeated at 18-inch intervals to meet local ordinance requirements, as well.

For plastic bags with a thickness of less than one mil (1/1000 inch) having an openingsize of five inches or more, the following warning statement will meet the requirements of allstate and local laws: “Warning: To avoid danger of suffocation, keep this plastic bag awayfrom babies and children. Do not use this bag in cribs, beds, carriages, or playpens. Thisbag is not a toy.”

California, Massachusetts, New York, Rhode Island, Chicago, and New York City alsoprovide a minimum type size for the warning. The following table sets forth the type sizes thatwill satisfy all state and local requirements (except Gering, NE, which has a minimum ¼ inchtype size requirement):

Total Length and Widthof Bag Combined

Minimum Type Size

Less than 25 inches 10 point25 to 39 inches 14 point40 to 59 inches 18 point60 inches or more 24 point** The Virginia law only applies to dry cleaning bags, and requires at least 36 point type.

All the state requirements specify that the type should be clear, distinct, and conspicuousin color, layout, contrast, etc. The printing technique must result in a label that will not smear.The warning must be on the bag or on a label securely attached to the bag. These requirements,as well as required warning label language and type size requirements, are discussed in furtherdetail below.

1These include Avondale, AZ (Code § 15-12); Big Stone Gap, VA (Code § 13-15); East Baton Rouge Parish, LA (Code § 6:640

et seq.); Flagstaff, AZ (Municipal Code, § 6-01-001-0014); Gering, NE (Code § 94.37); Hazel Crest, IL (Code § 20-7); Norton,VA (Code § 14-14); Prince William County, VA (Code § 16-50); Saint Louis County, MO (Code § 709.010 et seq.); South Bend,IN (Code § 13-67); South Hill, VA (Code § 50-382); Stamford, CT (Code § 143-12); and Weatherford, TX (Code § 6-12-1 etseq.). A comprehensive assessment of all possible local ordinances is beyond the scope of this review.

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B. State and Local Requirements

State/City Thickness Bag Size Scope Exclusions Other Requirements ViolationsCalifornia

Cal. Bus. & Prof.Code §§ 22200,et seq.

< 1 mil Large enough tofit over child’shead, i.e., any bagwith an opening >25 sq. inch. or acapacity > 125 cu.inch.

Any plastic bag sold or delivered to anybusiness in CA or used to package articlesdelivered to purchasers

Bags usedexclusivelyforindustrialpurposes

Prohibits polyethylene plastic bags < 1mil thick that are large enough to fitover a child’s head and used by retailstores, other than those used for foodweighing no more than 5 lbs., frombearing a cartoon or other artwork thatwould encourage the use of the bag as atoy by children under 12 years

Violation is amisdemeanor

Massachusetts

105 CMR630.000

< 1 mil Length and widthwhen added totals25 inch. or moreand opening hasdiameter of atleast 7 inch.

Plastic bag or partial plastic bag intendedfor domestic or household use ordesigned or decorated to encourage use asa toy

N/A Warning must appear on both sides ofthe bag and be repeated at 20-inchintervals for bags with a length andwidth more than 40 inch.

Fine up to$100 for firstoffense, and$500 forsubsequentoffenses

New York

10 NYCRR §12.12

< 1 mil Length and widthwhen added totals25 inch. or moreand opening sideis at least 7 inch.

Plastic bag or partial plastic bag intendedfor domestic or household use or forpackaging articles intended for domesticor household use, or which is so designedor decorated as to encourage use as a toy

N/A N/A Nonespecified

Rhode Island

R.I. Gen. Law §11-9-16

< 1 mil Opening > 5 inch.in diameter

Polyethylene bags that are used in oraround the household, or packagingarticles for use in or around the household

Bagsintendedfor foodproducts <5 lbs.

Warning must be printed on, attachedto, or accompany each bag, but it ispermissible to print warning on outsidewrapper of packages of bags that areintended for home use (e.g., freezer andgarbage disposal bags)

Fine of notmore than$100, uponconviction

Virginia

Va. Code Ann. §18.2-320

< 1 mil At least 25 inch.in length

Plastic bag or partial plastic bag thatencloses freshly cleaned clothing

N/A N/A Guilty of aClass 3misdemeanor

Chicago, IL

Municipal Code,c. 7-28-050

< 1 mil Opening > 7 inch.in diameter

Polyethylene bags for household use Bagsintendedfor foodproducts <5 lbs.

N/A Fine of $200for eachoffense

New York, NY

24 RCNY §173.17

< 1 mil Length and widthwhen added totals25 inch. or moreand opening sideis at least 7 inch.

Plastic bag or partial plastic bag intendedfor domestic or household use or forpackaging articles intended for domesticor household use, or which is so designedor decorated as to encourage use as a toy

N/A N/A Nonespecified

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The regulations in Canada apply only to a flexible film bag that packages a toy. Theseregulations specify that in order to use a flexible film bag to package a toy, the bag must meetone of the following requirements: (a) it must have an opening of less than 14 inches incircumference; or (b) it must be made from a film that is at least 0.75 mil thick, and must carrythe required warning in both English and French. See SOR/2011-17.

C. Warning Content

These warnings were developed in the wake of suffocation incidents of infants in the1950s’. Around this time it was found that plastic bags originally from the dry cleaning industrywere being used in infant beds beneath the sheets for waterproofing purposes. At present, thereis pretty broad public awareness of suffocation hazards for infants and small children associatedwith the use of plastic bags, and most plastic bags used today contain a suffocation warning.

The table below displays the warning statements required under the various state andmajor local laws. In the case of California, Rhode Island, Chicago, New York City, and Canada,alternative language may be used so long as it is substantially equivalent. In Massachusetts,New York State, and Virginia, alternate wording must be approved by the appropriate stateagency.

For simplicity and convenience, it is recommend that manufacturers use theMassachusetts warning on all bags, as it includes all the language required by New York andVirginia, and is essentially the same as that required by California, Rhode Island, Chicago, NewYork City, and Canada, none of which requires government approval of alternate warninglanguage that is substantially the same.

In addition, Massachusetts requires that the warning appear on both sides of the bag andbe repeated at 20-inch intervals for bags whose length and width are more than 40 inches. Asimilar requirement in Saint Louis County, Missouri specifies that the warning must be repeatedat 18-inch intervals. Thus, of all the states, the Massachusetts warning is the mostcomprehensive, although it is recommended that these warning be repeated at 18-inch intervalsto meet local requirements as well. (There is no express requirement that the warnings be in allupper case letters, but the warnings in the California, Flagstaff, AZ, and Canadian regulations arepresented in all upper case letters.) In Canada, if a warning statement is required, it must appearin both French and English, as shown.

State/City Warning Requirements

California

Must bear the following or similar warning that the bag is dangerous to small children:“CAUTION -- KEEP AWAY FROM SMALL CHILDREN. THE THIN FILM MAY CLINGTO NOSE AND MOUTH AND PREVENT BREATHING.”

Massachusetts

Must bear the following warning statement, or such warning statement which the Director ofFood and Drugs has approved as the equivalent thereof:“WARNING: To avoid danger of suffocation, keep this plastic bag away from babies andchildren. Do not use this bag in cribs, beds, carriages or play pens. This bag is not a toy.”

New York

Must bear the following warning statement, or a warning statement which the Commissionerof Health has approved as the equivalent thereof:“WARNING: To avoid danger of suffocation, keep this plastic bag away from babies andchildren. Do not use this bag in cribs, beds, carriages or play pens.”

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State/City Warning Requirements

Rhode Island

Must bear the following warning against the hazard of suffocation by children or substantiallyequivalent wording:“Keep from children – may cause suffocation.”“WARNING: Keep this bag away from babies and children. Do not use in cribs, beds,carriages, or playpens. The thin film may cling to nose and mouth and prevent breathing.”

Virginia

Must bear the following warning statement, or a warning statement which the Commissionerof Health has approved as the equivalent thereof:“To avoid danger of suffocation, keep this plastic bag away from babies and children. Do notuse this bag in cribs, beds, carriages or playpens.”

Chicago, IL

Must bear the following or substantially equivalent wording:“WARNING: Keep this bag away from babies and children. Do not use in cribs, beds,carriages, or playpens. The thin film may cling to nose and mouth and prevent breathing.”

New York, NY

Must bear the following or substantially equivalent wording:“WARNING: To avoid danger of suffocation, keep this plastic bag away from babies andchildren. Do not use this bag in cribs, beds, carriages or play pens.”

Canada

Must bear the following warning or equivalent printed legibly in both official languages:“PLASTIC BAGS CAN BE DANGEROUS. TO AVOID DANGER OF SUFFOCATIONKEEP THIS BAG AWAY FROM BABIES AND CHILDREN.

LES SACS DE PLASTIQUE PEUVENT ÊTRE DANGEREUX. POUR ÉVITER LE DANGERDE SUFFOCATION, NE LAISSEZ PAS CE SAC À LA PORTÉE DES BÉBÉS NI DESENFANTS.”

D. Warning Type Size

The laws in California, Massachusetts, New York, Rhode Island, Chicago, and New YorkCity set forth the minimum type size of the warning, depending on the total length and width ofthe bag combined. Flagstaff, AZ and Canada do not specify the type size of the warning. Thetable below displays the warning type size requirements under these jurisdictions.

State/City Total Length and Width of Bag Combined Minimum Type Size

California

Less than 30 inches 10 point30 inches or more, but less than 40 inches 14 point40 inches or more, but less than 60 inches 18 point60 inches or more 24 point

Massachusetts25 inches to, but not including 40 inches 14 point40 inches to, but not including 60 inches 18 point60 inches or more 24 point

New York

25 inches to, but not including 30 inches 10 point30 inches to, but not including 40 inches 14 point40 inches to, but not including 60 inches 18 point60 inches or more 24 point

Rhode Island

Less than 30 inches 10 point30 inches, but less than 40 inches 14 point40 inches, but less than 60 inches 18 point60 inches or more 24 point

Chicago, IL

Less than 30 inches 10 point30 inches, but less than 40 inches 14 point40 inches, but less than 60 inches 18 point60 inches or more 24 point

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State/City Total Length and Width of Bag Combined Minimum Type Size

New York, NY

25 to 29 inches 10 point30 to 39 inches 14 point40 to 59 inches 18 point60 inches or more 24 point

Two laws do not follow this approach. The Virginia law only applies to dry cleaningbags (without specifying length and width), and requires at least 36 point type.2 In Gering, NE,the warning must be at least one-quarter inch high (approximately 24 point font) if the plasticbag is either: (1) a sufficient size to fit over a child’s head, or (2) has an opening larger than 25inches or a capacity of more than 125 cubic inches.

The following table sets forth type requirements that will satisfy all state and localrequirements, except Gering, NE.

Total Length and Width of Bag Combined(except dry cleaning bags)

Minimum Type Size

Less than 25 inches 10 point25 to 39 inches 14 point40 to 59 inches 18 point60 inches or more 24 pointDry cleaning bags 36 point

All state and local requirements specify that the type should be clear, distinct, andconspicuous in color, layout, contrast, etc. The printing technique must result in a label that willnot smear. The warning must be on the bag or on a label securely attached to the bag, and shouldbe repeated at 18 inch intervals to adhere to the most conservative standard described in thismemorandum.

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Although there are some anomalies in certain local jurisdictions, such as the one-quarterinch type size requirement in Gering, NE, and the requirement to repeat warnings at 18-inchintervals in Saint Louis County, MO, there has not been any enforcement in this area. As manybig box retailers set warning requirements similar to the state requirements discussed above,most plastic bags today already contain these suffocation warnings.

2 The laws in Big Stone Gap, VA; Norton, VA; East Baton Rouge Parish, LA; Prince William County, VA; andSouth Hill, VA apply only to dry cleaning bags and follow this same approach.