For purposes of this chapter, the following terms have the following
meanings:
“Aluminum foil based”
means any disposable food service ware composed entirely
of aluminum, including, but not limited to, aluminum tray liners,
aluminum foil, and aluminum foil baskets.
“Compostable”
means that an item or material:
(1)
Meets standards for compostability from a certified/approved
independent third party approved by the city manager or designee,
in collaboration with local waste processors, haulers, and/or other
entities, as needed; and/or
(2)
Is any variation of acceptable materials that will break down
or otherwise become part of usable compost in a safe and timely manner
as determined by the city manager or designee, in collaboration with
local waste processors, haulers, and/or other entities, as needed;
and
(3)
Is Natural Fiber Based. Compostable items may include those
that are made entirely of natural fiber or natural fiber-based items
that are coated or lined with biologically based polymer, such as,
but not limited to, corn or other plant sources (e.g., compostable
plastics), if certified/approved by independent third parties approved
by the city manager or designee. “Compostable” does not
include items made entirely/primarily of biologically based polymer
(e.g., PLA, PHA, or other compostable plastic), even if labeled or
certified as compostable.
“Disposable”
means designed to be discarded after a single or limited
number of uses and not designed or manufactured for longer term multiple
reuse.
“Food facility”
means an operation that stores, prepares, packages, serves,
vends, or otherwise provides food to the public for human consumption,
as defined by the California
Health and Safety Code Section 113789
or successor. It includes both permanent and temporary food facilities.
Public schools are exempt from the provisions of this chapter.
“Food scrap composting method”
means: (1) self hauling of food scraps to a permitted composting
facility or a transfer station that accepts food scraps that will
be transferred to a permitted composting facility for on-site compost
processing; (2) food scrap compost collection service provided by
a curbside hauler; or (3) on site food scrap composting.
“Food service ware”
means food contact products used for serving, distributing,
holding, packaging, and/or transporting prepared food, including,
but not limited to, plates, cups, bowls, trays, clamshell containers,
boxes, utensils, straws, lids, and food contact paper (e.g., wraps,
bags, tray liners, etc.). The term “food service ware”
includes food service ware accessories and standard condiment in disposable
packaging.
“Food service ware accessories”
include different types of food service ware such as straws,
stirrers, utensils, condiment cups and packets, cocktail sticks/picks,
toothpicks, napkins, cup spill plugs, cup sleeves, and other similar
accessory or accompanying food service ware used as part of food or
beverage service or packaging. Detachable lids for beverage cups and
food containers are not considered a food service ware accessory.
“Healthcare facilities”
mean places that provide healthcare to the public. Healthcare
facilities includes, but is not limited to, hospitals, clinics, outpatient
care centers, nursing homes, psychiatric care centers, medical offices,
hospice homes, mental health and addiction treatment centers, orthopedic
and other rehabilitation centers, urgent care, birth centers, etc.
“Natural fiber/natural fiber based”
means a plant or animal based, non synthetic fiber, including
but not limited to products made from paper, sugarcane, bamboo, wheat
stems/stalk, hay, wood, etc.
“Non-compostable”
means not meeting the definition of Compostable set forth
in this chapter.
“Polystyrene based”
means and includes expanded polystyrene, which is a thermoplastic
petrochemical material utilizing a styrene monomer and processed by
any number of techniques, including, but not limited to, fusion of
polymer spheres (expandable bead polystyrene), injection molding,
form molding, and extrusion blow molding (extruded foam polystyrene).
The term “polystyrene” also includes polystyrene that
has been expanded or blown using a gaseous blowing agent into a solid
foam (expanded polystyrene [EPS]) and clear or solid polystyrene known
as oriented polystyrene.
“Prepackaged food”
means any properly labeled processed food, prepackaged to
prevent any direct human contact with the food product upon distribution
from the manufacturer and prepared at an approved source.
“Prepared food”
means food or beverages that undergo a cooking or food preparation
technique on the food facility’s premises for consumption by
the public. Cooking or food preparation technique includes, but is
not limited to, the following:
(1)
Cooking methods, utilizing the application of heat, such as
steaming, microwaving, simmering, boiling, broiling, grilling, frying,
or roasting.
(2)
Beverage preparation, such as blending, brewing, steeping, juicing,
diluting, or pouring.
(3)
Food preparation techniques, such as defrosting, rinsing, washing,
diluting, cutting, portioning, mixing, blending, assembling, coating,
dipping, garnishing, decorating, or icing. Prepared food does not
include raw eggs or raw, butchered meats, fish, and/or poultry sold
from a butcher case, a refrigerator case, or similar retail appliance.
“Standard condiment”
means relishes, spices, sauces, confections, or seasonings
that require no additional preparation and that are usually used on
a food item after preparation, and includes different types such as
ketchup, mustard, mayonnaise, soy sauce, hot sauce, salsa, salt, pepper,
and sugar/sugar substitutes.
“Takeout food”
means prepared food that is purchased to be consumed off
a food facility’s premises. Takeout food includes prepared food
delivered by a food facility or by a third party takeout food delivery
service.
“Takeout food delivery service”
is a service for online food ordering and delivery of prepared
food from a food facility to a customer. This service can be provided
directly by the food facility or by a third party.
“Utensils”
include different types of instruments used to assist the
consumption of food, specifically, forks, knives, spoons, sporks,
chopsticks, and tongs.
(Ord. 1597 § 2, 2020; Ord. 1633 § 2, 2022)
(a) Except as provided in subsections
(b) and
(c), food facilities, for on premises dining and off premises dining (e.g., takeout food delivery service, catering off site, etc.), shall not provide any disposable food service ware accessories or standard condiment in disposable packaging to a consumer unless the specific type of disposable food service ware accessory (including different types of utensils) or specific type of standard condiment is requested by the consumer.
(b) Food
facilities may ask a drive-through consumer if the consumer wants
a specific type of disposable food service ware accessory (including
different types of utensils), if the item is necessary for the consumer
to consume prepared food or to prevent spills of or safely transport
prepared food.
(c) Food facilities that are located entirely within a public use airport, as defined in Section 77.3 of Title
14 of the Code of Federal Regulations, may ask a walk through consumer if the consumer wants a specific type of disposable food service ware accessory (including different types of utensils), if the item is necessary for the consumer to consume prepared food or to prevent spills of or safely transport prepared food.
(d) Disposable
food service ware accessories and standard condiment in disposable
packaging provided by food facilities for use by consumers shall not
be bundled or packaged in a manner that prohibits a consumer from
taking only the type of disposable food service ware accessory (including
different types of utensils) or type of standard condiment desired
without also having to take a different type of disposable food service
ware accessory or type of standard condiment. Food facilities cannot
distribute disposable utensils that are bundled or packaged together.
Each type of utensil (e.g., fork, spoon, knife, etc.) must be specifically
requested by the consumer in order for a food facility to provide
the item(s).
(e) Nothing
in this chapter shall prohibit a food facility from making unwrapped
disposable food service ware accessories available to a consumer using
refillable self service dispensers that dispense different types of
disposable food service ware accessories one item at a time to allow
for disposable food service ware accessories to be obtained.
(f) Nothing
in this chapter shall prohibit a food facility from making standard
condiment available to a consumer using refillable self service dispensers
to allow for standard condiment to be obtained. Food facilities that
offer standard condiment are encouraged to use bulk dispensers for
the condiments rather than condiments packaged for single use.
(g) Takeout
food delivery services shall provide consumers with the option to
proactively request the different types of available disposable food
service ware accessories (including different types of utensils) and
the different types of standard condiment from a food facility serving
prepared food. The default option on the digital ordering/point of
sale platforms of takeout food delivery services shall be that no
disposable food service ware accessories or standard condiment are
requested.
(h) Takeout
food delivery services shall provide food facilities the ability to
tailor the digital ordering/point of sale platforms so that food facilities
can customize and itemize the different types of available disposable
food service ware accessories (including different types of utensils)
and the different types of available standard condiments for consumers
to proactively select.
(i) If a food facility uses any takeout food delivery service, the food facility shall customize its menu with an itemized list and/or provide options of the different types of available disposable food service ware accessories (including different types of utensils) and the different types of available standard condiments for consumers to proactively select. Only those specific types of disposable food service ware accessories (including different types of utensils) or specific types of standard condiment proactively requested by the consumer shall be provided by the food facility. If a consumer does not request any disposable food service ware accessories or standard condiment, no disposable food service ware accessories or standard condiment shall be provided by the food facility for delivery of prepared food. Pursuant to subsection
(d), each type of utensil (e.g., fork, spoon, knife, etc.) offered by the food facility shall also be listed individually, unbundled on the menu and provided by the food facility for delivery along with the prepared food only if requested by the consumer.
(Ord. 1597 § 2, 2020; Ord. 1633 § 2, 2022)
(a) No
food facility shall use polystyrene-based disposable food service
ware when providing prepared food.
(b) Food
facilities shall only provide disposable straws, stirrers, utensils,
and cocktail/toothpicks (and the packaging that these individual items
are wrapped in, if any) that are compostable.
(c) Nothing
in this chapter shall conflict or be construed to conflict with the
Americans with Disabilities Act or any other applicable law concerning
the rights of individuals with disabilities. In particular, nothing
in this chapter shall restrict, or be construed to restrict, the provision
by food facilities of disposable noncompostable straws to individuals
who may request the use of disposable non-compostable straws to accommodate
medical needs or disabilities. Healthcare facilities may distribute
disposable non compostable straws with or without request by a patient
at the discretion of the healthcare facility staff based on the physical
or medical needs of the patient.
(d) Food
facilities shall use compostable items for the below disposable food
service ware when providing prepared food:
(2) Bowls (of all sizes, including, but not limited to, soup and salad
bowls);
(3) Cups (of all sizes, including, but not limited to, beverage and accessory
cups for standard condiments);
(4) Food trays and food boats;
(6) Hinged or lidded containers (e.g., clamshells), deli containers,
and other containers used for the sale and/or distribution of prepared
food; and
(e) Commencing on the effective date of this chapter up until December 31, 2022, for the compostable disposable food service ware listed in subsection
(d), food facilities shall use items that meet perfluoroalkyl and polyfluoroalkyl substances (PFAS) restrictions. To verify the PFAS restrictions, food facilities shall use items that are certified/approved by independent third parties approved by the city manager or designee, in collaboration with local waste processors and haulers, as needed.
(f) For all other disposable food service ware not listed in subsections
(b) and
(d), food facilities shall use only disposable food service ware that can be composted by the food scrap composting method utilized by the food facility and/or accepted for recycling by the food facility’s recycling collection service, unless a feasible alternative does not exist.
(g) The city shall maintain a list of approved disposable food service ware sources and/or references to organizations that maintain regularly updated lists of products that meet the requirements detailed in subsections
(a),
(b),
(d), and
(e) of this section. This information shall be made available on the city’s website with hard copies available at the city manager’s office or another designated location. If a product is not included on the approved lists, the food facility wishing to use a product as disposable food service ware shall establish to the city manager or designee’s satisfaction that the product complies with the requirements detailed in subsections
(a),
(b),
(d), and
(e).
(Ord. 1597 § 2, 2020; Ord. 1633 § 2, 2022)
(a) Food
facilities shall keep complete and accurate record or documents of
the purchase of the acceptable disposable food service ware evidencing
compliance with this chapter for a minimum period of three years from
the date of purchase.
(b) The
record shall be made available for inspection at no cost to the city
during regular business hours by city employee or city designated
staff authorized to enforce this chapter. Unless an alternative location
or method of review is mutually agreed upon, the records or documents
shall be made available at the food facility address.
(c) The
provision of false or incomplete information, records, or documents
to the city shall be a violation of this chapter.
(Ord. 1597 § 2, 2020; Ord. 1633 § 2, 2022)
(a) Prepackaged
food is exempt from the provisions of this chapter.
(b) Polystyrene
coolers and ice chests intended for reuse are exempt from the provisions
of this chapter.
(c) Disposable
food service ware that is entirely aluminum foil-based or recyclable
glass is exempt from the provisions of this chapter.
(d) If the city determines that a reasonably feasible disposable food service ware that complies with Section
8.72.030 (a), (b), (d), and (e) of this chapter does not exist, these items will be exempt from all or select requirements of the above-mentioned provisions of this chapter until the city determines that a reasonably feasible alternative is available on the market for purchase. The city will have a current list of these temporarily exempted disposable food service ware made public by the office of sustainability.
(e) Temporary
exemptions due to an emergency are automatic without the submission
of a request for an exemption. An emergency is defined as a sudden,
unexpected occurrence posing a clear and imminent danger that requires
immediate action to prevent or mitigate the loss or impairment of
life, health, property, or essential public services. Examples of
an emergency include, but are not limited to, natural disasters, emergencies
due to the release of hazardous materials, emergencies associated
with loss of power and/or water, or emergency medical response.
(Ord. 1597 § 2, 2020; Ord. 1633 § 2, 2022)
(a) Grounds
for an Exemption. An exemption from any of the provisions of this
chapter may be granted by the city manager or designee upon demonstration
by a food facility to the satisfaction of the city that strict application
of the requirements would cause undue hardship. An “undue hardship”
includes, but is not limited to, the following:
(1) A situation unique to the food facility where a suitable alternative that conforms with the requirements detailed in Section
8.72.030 (a), (b), (d), and (e) does not exist for a specific application.
(2) Imposing the provisions of this chapter would cause significant economic
hardship. “Significant economic hardship” may be based
on, but not limited to, demonstrating that suitable disposable food
service ware is not available at a commercially reasonable price and
the additional cost associated with providing the disposable food
service ware is particularly burdensome to the food facility based
on the type of operation(s) affected, the overall size of the business/operation,
the number, type and location of its facilities, the impact on the
overall financial resources of the food facility, and other factors.
Reasonable added cost for a suitable item as compared to a similar
item that the food facility can no longer use shall not by itself
constitute adequate grounds to support an exemption for such item.
In determining whether a significant economic hardship has been established,
the city Manager or designee shall consider the following information:
ability of the food facility to recover the additional expense by
increasing its prices; the availability of tax credits and deductions;
outside funding; and other options.
(b) Request
for an Exemption. A request for an exemption from the requirements
of this chapter shall include all information deemed necessary by
the city to render a decision, including, but not limited to, documentation
showing the factual support for the requested exemption. A request
for an exemption may be approved by the city manager or designee,
in whole or in part, with or without conditions. The duration of the
exemption, if granted, shall also be determined by the city manager
or designee. Information about the application process for requesting
an exemption will be made available to the public on the city’s
website and at the city manager’s office or another designated
location.
(Ord. 1597 § 2, 2020; Ord. 1633 § 2, 2022)
(a) The
city manager, or his or her designee may enforce the provisions of
this chapter. Additionally, the San Mateo County health system chief
or his or her designee, or the San Mateo County Manager or his or
her designee, may enforce the provisions of this chapter. Such authorization
includes, without limitation, the authority to hold hearings, issue
citations, or assess administrative fines on behalf of the city.
(b) Compliance
Plan.
(1) If requested by the city or county, a food facility that is in violation
of any of the provisions detailed in this chapter shall create and
submit to the city or county a compliance plan, which will include
information on corrective action(s) that the food facility shall undertake
to come into compliance. Other requested information may include,
and are not limited to, proposed timeline for corrective action(s),
and identification of individuals responsible for ensuring compliance.
(2) The food facility shall create and submit its completed compliance
plan within fourteen calendar days from the time of request by the
city or county.
(c) Notwithstanding
authorization of enforcement by San Mateo County personnel in this
chapter, the violation of, or noncompliance with, any of the requirements
of this chapter or applicable provisions of this code, shall be subject
to any administrative, civil, or criminal enforcement remedies available
under the law and/or the city’s municipal code. In addition,
the city may enforce the violation of this chapter by means of civil
enforcement through a restraining order, a preliminary or permanent
injunction or by any other means authorized by the law.
(Ord. 1597 § 2, 2020; Ord. 1633 § 2, 2022)