Hastings Constitutional Law Quarterly


In 2012, the San Francisco Board of Supervisors enacted the county's Checkout Bag Ordinance. Designed to decrease the use of disposable checkout bags and mitigate their harmful environmental effects, the ordinance requires all retailers to charge ten cents per paper or reusable checkout bag distributed to their customers. Fifteen months later, the California electorate passed Proposition 26 that added a definition of a "tax" to the California Constitution to recategorize certain regulatory fees. The reclassification will undoubtedly affect state and local governments' ability to impose certain regulatory fees without prior authorization by the electorate.

Using the Proposition 26 framework to analyze San Francisco's checkout bag fee raises several legal questions with regard to the charge's classification as a fee or a tax. To determine whether the checkout bag charge must be treated as a tax or fee, this Note analyzes the Ordinance under the relevant exceptions laid out in the California Constitution. This Note also addresses whether the Ordinance includes a levy, charge, or exaction of any kind.