During the 2019 legislative session, the Maryland General Assembly enacted what will be the first statewide ban of expanded polystyrene foam.

In the Spring of 2019 law makers did not foresee a pandemic that would shift restaurant dining (not to mention school meals and much more) to carry out in transportable food containers, but today in the context of coronavirus disease 2019 with a huge increase in takeout and the CDC recommending that everything in a restaurant be disposable, single use plastic is surging. But maybe not in Maryland?

Senate Bill 285/House Bill 109, became Environment Article 9-2201 et seq, without the signature of Governor Larry Hogan, prohibits a person from selling or offering for sale in the state an “expanded polystyrene food service product” and a “food service business,” which includes specified businesses, institutional cafeterias, or schools from selling or providing food or beverages in an expanded polystyrene food service product.

Although foam coffee cups and plates are often referred to as “Styrofoam®,” that terminology is incorrect. Styrofoam is actually a registered trademark of Dow Chemical Company and is a brand generally used in industrial settings for building materials and pipe insulation. Styrofoam is not used in the food service industry for coffee cups, coolers, or packaging materials, which are generally made of expanded polystyrene.

“Expanded polystyrene food service product” under this law includes food containers, plates, hot and cold beverage cups, trays, and cartons for eggs or other food.

The ban actually went into effect beginning July 1, 2020, but as a result of Maryland’s COVID-19 state of emergency, the Maryland Department of the Environment announced it extended the deadline by which schools and food service businesses must discontinue the sale or provision of food or beverages in polystyrene food service products until October 1, 2020, but such was disingenuous at best because the extension did not apply to the ‘sale’ of polystyrene food service products which continued to take effect July 1, 2020. As a result, food service businesses and schools could continue to use existing inventories of polystyrene food service products until October 1, 2020, but were not be able to purchase additional polystyrene food service products after July 1, 2020.

However, many will not be impacted when the statewide ban goes into effect on Thursday because more than half of Marylanders live in Anne Arundel County, Baltimore City, Montgomery County or Prince George’s County, jurisdictions that already have local bans.

The law criminalizes the use of some polystyrene. But actually very little of it, when the chemistry industry estimates less than 1% of polystyrene is used in as a ‘food service product’ and that is all this law regulates. County governments are charged with enforcing the new state law’s prohibitions and may impose a penalty of up to $250 on a person or food service business that violates the prohibitions. However, the monetary penalty may only be imposed if the unit of county government first issues a written notice of violation and the violation is not corrected within three months of the written notice.

New York, Maine and Vermont have each enacted similar bans on polystyrene food service products, but none have yet taken effect and New York has expressly delayed any implementation in reaction to COVID-19. Other states are considering similar laws.

Maryland politicians should not be criticized because this new law will no doubt be popular in the very progressive Maryland. In a recent blog post, Maryland Enacts New Environmental  Laws in 2020 , I reviewed other key environmental bills passed in most recent legislative session, including interestingly HB 1442 altering the definition of “expanded polystyrene food service product” enacted the year before to exclude egg cartons (.. apparently the chickens have good lobbyists?). Maryland has been described as having more pages of environmental statutes and regulations on a per capita basis than any other state and Maryland voters appear fine with that.

But getting the facts and science right appears to have evaded this law. During the debate on this legislation supporters regularly used the phase, “in 2018 the United Nations Environmental Programme estimated Styrofoam takes thousands of years to disintegrate.” But, of course, that is not true. In 2019 scientists from Woods Hole Oceanographic Institute reported that sunlight breaks down polystyrene in ocean water over a period as short as decades. Which also ignores that expanded polystyrene, a type 6 plastic, is 100% recyclable.

Reduction of waste is a good aim, but banning legal products does not accomplish that end and is bad government, including that what comes as a replacement may be worse? Moreover, local governments in Maryland with a similar polystyrene ban have each seen an increase in solid waste, in some instances double digit increases.

Media accounts have described COVID-19 associated changes in how Americans live and work has resulted in more than a 20% increase in solid waste over last year. So, in lieu of bans and criminalizing conduct, government might encourage innovation and look to new solutions in truly efficacious efforts repair the planet.