Are retailers allowed to charge for carry bags?

Ironically, the root of this practice lies in the Plastic Waste (Management and Handling) Rules, 2011, brought out by the union ministry of environment and Forests, to provide for a regulatory frame work for management of plastic waste generated in the country.

In the last six months , the humble carry bag has been at the centre of an intense legal battle between consumers and retailers over the fundamental question of whether retailers can charge for carry bags that are basically a medium of advertisement for the brand.

In the last six months , the humble carry bag has been at the centre of an intense legal battle between consumers and retailers over the fundamental question of whether retailers can charge for carry bags that are basically a medium of advertisement for the brand.(Bloomberg)

Ironically, the root of this practice lies in the Plastic Waste (Management and Handling) Rules, 2011, brought out by the union ministry of environment and Forests, to provide for a regulatory frame work for management of plastic waste generated in the country. While mandating shop keepers to provide only those plastic bags that were in conformity with the prescribed standards, the Rules said “No carry bags shall be made available free of cost by retailers to consumers” .

This was meant to induce retailers to shift to the new standards for plastic, discourage consumers from using plastic bags, encourage them to bring their own bags and also finance plastic waste management of civic bodies.

However, there were two pre-conditions for such sale of carry bags. One was that it should be a plastic bag , because the rules clearly defined ‘Carry bags’ as bags made of plastic. Yet, retailers began to exploit the rules and charge even for paper and cloth bags, not mandated under the Rules.

The other pre-condition was that the civic body concerned had to first determine the minimum price of the carry bags , taking into consideration the material cost and the cost of waste management and issue a notification to that effect. It’s not known how many local bodies complied, but when the union ministry of Environment, Forests and Climate Change replaced in 2016, the 2011 Rules , it observed that the municipal authorities had not fixed the cost of carry bags and the rules were silent on the mode of transfer of money collected by retailers ( from consumers) to the municipal authority.

So it made some changes to the rules to facilitate this -- it asked retailers using plastic bags to pay a certain amount as plastic waste management fee at the time of registration and also put up notices at prominent places in the retail outlets, indicating that (plastic) bags would be provided only on payment. And the local body, the rules said, shall utilise the amount paid by customers for the carry bag exclusively for the sustainability of the waste management system.

Obviously even this did not work because when the government notified certain amendments to the 2016 Rules in March 2018, it dropped the rule on consumers having to pay for the carry bag. So those retailers who shifted to non-plastic carry bags had no legal basis for asking consumers to pay for them. And even those who sold plastic bags could not do so, unless mandated by a notification from the civic authority. And after March 2018, they had absolutely no case for selling even the plastic bags. Yet, many large retailers even today charge consumers for their carry bags that boldly advertise their brand, thereby making purchasers pay for their brand promotion.

However, in the last six months, consumers have begun to question this practice and in four cases filed in Chandigarh alone, the District Consumer Forum ordered the retailers to stop such unfair trade practice and awarded compensation to the complainants. The retailers are challenging this and already in two cases (Lifestyle International Vs Pankaj Chandgothia and Westside Vs Sapna Vasudev) the Chandigarh (UT) State Commission has upheld the verdict of the lower consumer court.

The issue, I am sure, will get dragged up to the Apex Court, but consumer resistance to paying for the carry bag is already building up and may soon become a force to reckon with.