New state law likely voids Fayetteville’s foam container ban

A recently passed state measure likely means that Fayetteville’s new foam container ban can’t be enforced, according to the city attorney’s office.

House Bill 1704 (now Act 751) was sponsored by state Rep. David Ray, R-Maumelle, and is set to take effect 90 days after the end of the legislative session. It prohibits cities and counties from restricting the use of a variety of container types at restaurants, stores and other facilities.

Fayetteville City Council members in 2019 agreed to stop using city money to purchase expanded polystyrene foam products, and two weeks later voted unanimously to consider an expanded ban to further reduce the amount of single-use materials that end up in landfills. That second measure was passed unanimously in November.

The law gave food service providers until May 1, 2020 to clear out their current supply of expanded polystyrene foam plates, bowls, clamshells, cups, and similar products. After that, they were required to begin using products made of a different material.

The regulation applies to restaurants; hotels; grocery stores with delis or food bars; cafeterias; convenience stores; coffee, tea and donut shops; caterers; and any other prepared, ready-to-eat food or drink providers.

Retailers (like grocery stores) can still sell the products on their shelves.

Once the pandemic hit, Mayor Lioneld Jordan announced he would offer a grace period to business owners who needed more time to comply with the law. Dozens of businesses requested an extension, but all were in compliance by the end of the year.

City Attorney Kit Williams last week wrote a memo to council members saying that the state’s new law likely nullifies Fayetteville’s decision.

“It is ironic that on this Earth Day established by a Republican President about a half century ago to encourage increased efforts to end pollution and protect our environment and our citizens’ health that I must report to you that the Republicans in our Legislature have ensured that single-use expanded polystyrene foam products will soon again litter our city,” Williams wrote.

Williams said the state’s move will require a note to be added to city code stating that the local law is no longer enforceable.

The council can still consider possible incentives for businesses that use more environmentally-friendly containers, but it’s unlikely that any further restrictions – such as a ban on plastic bags – will gain much traction.

Fayetteville is so far the only city in the state to ban harmful containers.

Because of that, Williams said it’s clear the legislature’s decision was directly aimed at Fayetteville’s efforts. He said it reminds him of when the state worked quickly to defeat Fayetteville’s Uniform Civil Rights Protection ordinance that voters approved in 2015. That law was immediately challenged and upheld in circuit court, but Arkansas Attorney General Leslie Rutledge led a successful charge against the local rule.

“Unfortunately, the Big Government Republicans have again voted to deny our City Council’s right to reasonably regulate our local businesses to protect the health, safety and welfare of our citizens,” he said.