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HomeMy WebLinkAbout041222-03.3 STUDY STUDY SESSION MEMORANDUM 3.3 TO: Mayor and Town Council April 12, 2022 SUBJECT: Discussion of AB 1276 and Potential Ordinance Regulating Polystyrene BACKGROUND AB 1276, effective on January 1, 2022, amends the Health and Safety Code to address “single-use foodware accessories” (Attachment A). Specifically, the law provides that all food facilities and third-party food delivery platforms “shall not provide any single-use foodware accessory or standard condiment packaged for single use to a consumer unless…requested by the consumer.” While the law is already in effect, all local jurisdictions have until June 1, 2022, to identify the local enforcement agency for the law. At the Town Council’s annual goal setting workshop in February of 2020, Town staff presented the question of regulating polystyrene (Styrofoam) in the Town. The issue was raised at the time based on a 2019 report from the County Civil Grand Jury and the report indicated which other jurisdictions in the county had already adopted ordinances on the subject. The Council indicated the desire for more information, but with the pandemic changing priorities the following month, this is the first time the issue has been revisited. DISCUSSION AB 1276 As mentioned above, the law has already gone into effect, meaning that restaurants and fast-food establishments should already be in compliance. However, the law also requires each local jurisdiction to take action designating an enforcement authority to enforce the law. The law stipulates that the penalty for violation is “twenty-five dollars ($25) for each day in violation, but not to exceed three hundred dollars ($300) annually.” On behalf of its member cities, Recycle Smart contacted the County Environmental Health Department to determine if they would be the enforcing agency. Due to staffing issues, the County is unwilling to take on that responsibility, although they have indicated their willingness to assist with educational outreach to restaurants. Given this fact, it is recommended that the Town assume responsibility for enforcement as part of our overall code enforcement program. This can be done by adoption of a resolution at a future Council meeting. AB 1276 2 April 12, 2022 Polystyrene As described in the 2020 memo to Council, a 2019 report from the Civil Grand Jury identified polystyrene food containers as a source of stormwater trash and recommended that the Town (and other cities) adopt an ordinance limiting the use of these containers. While the Town’s response to the Grand Jury was that such an ordinance was not necessary as we had already met our trash reduction goal, the item was presented at the 2020 Council goal-setting workshop. As shown in the 2020 memo, a majority of cities in Contra Costa and the County had adopted ordinances at that time-Orinda adopted a similar ordinance in 2021. The County’s ordinance is attached as an example (Attachment C). According to research done by staff at Recycle Smart, some cities in the Bay Area are using AB 1276 to revisit the issue of polystyrene, as both involve restaurant takeout food. RECOMMENDATION In order to comply with AB 1276, Town staff will present a resolution at a Council meeting in May to designate the Town’s Code Enforcement Officer as the position responsible for enforcement of that law. If the Town Council is interested in further exploring a polystyrene ordinance, Town staff would propose starting with an outreach program with local restaurants and the Chamber of Commerce, similar to the approach taken for the ordinance banning plastic bags. Prepared by: Diane J. Friedmann Deputy Town Manager Robert B. Ewing City Attorney Attachments: A: AB 1276 B: 2/7/20 Memo to Council C: Contra Costa County Polystyrene Ordinance ATTACHMENT A Assembly Bill No. 1276 CHAPTER 505 An act to amend Sections 42270 and 42271 of, to amend the heading of Chapter 5.2 (commencing with Section 42270) of Part 3 of Division 30 of, and to add Sections 42272 and 42273 to, the Public Resources Code, relating to solid waste. [Approved by Governor October 5, 2021. Filed with Secretary of State October 5, 2021.] legislative counsel’s digest AB 1276, Carrillo. Single-use foodware accessories and standard condiments. Existing law prohibits a full-service restaurant, as specified, from providing single-use plastic straws, as defi to consumers unless requested by the consumer, and places the duty to enforce this prohibition on specifi state and local health and environmental health officers and their agents. Existing law specifies that the first and 2nd violations of these provisions result in a notice of violation, and any subsequent violation is an infraction punishable by a fine of $25 for each day the full-service restaurant is in violation, but not to exceed an annual total of $300. This bill would instead prohibit a food facility from providing any single-use foodware accessory or standard condiment, as defined, to a consumer unless requested by the consumer, as provided. The bill would prohibit those items from being bundled or packaged in a way that prohibits the consumer from taking only the item desired. The bill would authorize a food facility to ask a drive-through consumer, or a food facility located within a public airport to ask a walk-through consumer, if the consumer wants a single-use foodware accessory in specified circumstances. The bill would require a food facility using a third-party food delivery platform to list on its menu the availability of single-use foodware accessories and standard condiments and only provide those items when requested, as provided. The bill would exclude from these requirements correctional institutions, health care facilities, residential care facilities, and public and private school cafeterias. This bill would require a city, county, or city and county, on or before June 1, 2022, to authorize an enforcement agency to enforce these requirements. The bill would specify that the first and 2nd violations of these provisions result in a notice of violation, and any subsequent violation is an infraction punishable by a fine of $25 for each day in violation, but not to exceed an annual total of $300. By creating a new crime and imposing additional duties on local governing bodies, this bill would impose a state-mandated local program. 89 STATE OF CALIFORNIA AUTHENTICATED ELECTRONIC LEGAL MATERIAL Ch. 505 — 2 — The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement. This bill would provide that with regard to certain mandates no reimbursement is required by this act for a specified reason. With regard to any other mandates, this bill would provide that, if the Commission on State Mandates determines that the bill contains costs so mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above. The people of the State of California do enact as follows: SECTION 1. The heading of Chapter 5.2 (commencing with Section 42270) of Part 3 of Division 30 of the Public Resources Code is amended to read: Chapter 5.2. Single-Use Foodware Accessories and Condiments SEC. 2. Section 42270 of the Public Resources Code is amended to read: 42270. For purposes of this chapter, the following definitions apply: (a) “Consumer” has the same meaning as in Section 113757 of the Health and Safety Code. (b) “Food facility” has the same meaning as in Section 113789 of the Health and Safety Code. (c) “Ready-to-eat food” has the same meaning as in Section 113881 of the Health and Safety Code. (d) “Single-use” means designed to be used once and then discarded, and not designed for repeated use and sanitizing. (e) “Single-use foodware accessory” means all of the following single-use items provided alongside ready-to-eat food: (1) Utensils, which is defined as forks, knives, spoons, and sporks. (2) Chopsticks. (3) Condiment cups and packets. (4) Straws. (5) Stirrers. (6) Splash sticks. (7) Cocktail sticks. (f) “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, including ketchup, mustard, mayonnaise, soy sauce, hot sauce, salsa, salt, pepper, sugar, and sugar substitutes. (g) “Third-party food delivery platform” has the same meaning as in Section 113930.5 of the Health and Safety Code. SEC. 3. Section 42271 of the Public Resources Code is amended to read: 42271. (a) Except as provided in subdivisions (c) and (d), a food facility, for on-premises dining or when using a third-party food delivery platform, 89 — 3 — Ch. 505 shall not provide any single-use foodware accessory or standard condiment packaged for single use to a consumer unless the single-use foodware accessory or standard condiment is requested by the consumer. (b) Single-use foodware accessories and standard condiments packaged for single use 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 single-use foodware accessory or standard condiment desired without also having to take a different type of single-use foodware accessory or standard condiment. (c) A food facility may ask a drive-through consumer if the consumer wants a single-use foodware accessory if the single-use foodware accessory is necessary for the consumer to consume ready-to-eat food, or to prevent spills of or safely transport ready-to-eat food. (d) A food facility that is 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 single-use foodware accessory if the single-use foodware accessory is necessary for the consumer to consume ready-to-eat food, or to prevent spills of or safely transport ready-to-eat food. (e) (1) A third-party food delivery platform shall provide consumers with the option to request single-use foodware accessories or standard condiments from a food facility serving ready-to-eat food. (2) If a food facility uses any third-party delivery platform for ready-to-eat food, the food facility shall customize its menu with a list of available single-use foodware accessories and standard condiments, and only those single-use foodware accessories or standard condiments selected by the consumer shall be provided by the food facility. If a consumer does not select any single-use foodware accessories or standard condiments, no single-use foodware accessory or standard condiment shall be provided by the food facility for delivery of ready-to-eat food. (f) Nothing in this section shall prohibit a food facility from making unwrapped single-use foodware accessories available to a consumer using refillable self-service dispensers that dispense one item at a time to allow for single-use foodware accessories to be obtained. (g) Nothing in this section shall prohibit a food facility from making standard condiments available to a consumer using refillable self-service dispensers to allow for standard condiments to be obtained. A food facility that offers standard condiments is encouraged to use bulk dispensers for the condiments rather than condiments packaged for single use. (h) Nothing in this section shall prevent a city, county, city and county, or other local public agency from adopting and implementing an ordinance or rule that would further restrict a food facility or a third-party food delivery platform from providing single-use foodware accessories or standard condiments to a consumer. (i) A food facility is encouraged, but not required, to take actions in addition to the requirements of this section that support a goal of reducing the use of and waste generated by all single-use food service products. 89 Ch. 505 — 4 — SEC. 4. Section 42272 is added to the Public Resources Code, to read: 42272. (a) On or before June 1, 2022, a city, county, or city and county shall authorize an enforcement agency to enforce this chapter. (b) The first and second violations of this chapter shall result in a notice of violation, and any subsequent violation shall constitute an infraction punishable by a fine of twenty-five dollars ($25) for each day in violation, but not to exceed three hundred dollars ($300) annually. SEC. 5. Section 42273 is added to the Public Resources Code, to read: 42273. This chapter does not apply to any of the following: (a) Correctional institutions, which has the same meaning as in Section 7502 of the Penal Code. (b) Health care facilities licensed pursuant to Article 1 (commencing with Section 1250) of Chapter 2 of Division 2 of the Health and Safety Code or facilities that are owned or operated by a health care service plan licensed pursuant to Chapter 2.2 (commencing with Section 1340) of Division 2 of the Health and Safety Code. (c) Residential care facilities licensed pursuant to Division 2 (commencing with Section 1200) of the Health and Safety Code. (d) Public and private school cafeterias, as referenced in paragraph (1) of subdivision (b) of Section 113789 of the Health and Safety Code. SEC. 6. No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution for certain costs that may be incurred by a local agency or school district because, in that regard, this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution. However, if the Commission on State Mandates determines that this act contains other costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code. 89 February 7, 2020 TO: Mayor and Town Council FROM: Diane Friedmann, Assistant to the Town Manager SUBJECT: Potential Polystyrene Ordinance In June of 2019, the Contra Costa Civil Grand Jury issued Civil Grand Jury Report #1907 – Stormwater Trash Reduction, Are We Doing All We Can? The Report recommended the Town Council should consider limiting the use of Styrofoam containers in the community by June 30, 2020. DISCUSSION Polystyrene is a versatile plastic used to make a wide variety of consumer products. As a hard, solid plastic, it is often used in products that require clarity, such as food packaging and laboratory ware. Polystyrene also is made into a foam material, called expanded polystyrene (EPS) or extruded polystyrene (XPS), which is valued for its insulating and cushioning properties. Styrofoam is the brand name for polystyrene. Polystyrene contains the toxic substances Styrene and Benzene, suspected carcinogens and neurotoxins that are hazardous to humans. Hot foods and liquids actually start a partial breakdown of the Styrofoam, causing some toxins to be absorbed into our bloodstream and tissue. Polystyrene breaks down so slowly that it is not a viable as a biodegradable product. Most polystyrene that ends up in landfill will still be there 500 years from now. Types of food-ware typically prohibited in polystyrene ordinances include polystyrene coolers, containers, bowls, plates, cups, lids and similar items made for one-time food use. Nine of 19 cities in Contra Costa County have adopted ordinances that ban the use of Polystyrene/Styrofoam. Contra Costa County Supervisors passed legislation to ban polystyrene which will become effective May 1, 2020. ATTACHMENT B Table 1 Contra Costa Agencies – Polystyrene Ordinances City Ordinance Comments Antioch No Brentwood No Clayton No Concord Yes Food and Beverage Service Ware Regulations 1/1/19 Danville No El Cerrito Yes Food Ware Ordinance Effective 1/1/14 Hercules Yes Expanded Polystyrene Ban 2008 Lafayette Yes Food Packaging Recycling Ordinance 7/1/15 Martinez Yes Effective 1995 Moraga No Oakley No Orinda No Pinole Yes Effective 2018 Pittsburg Yes Sustainable Food Packaging – Polystyrene Products Regulation Effective 1/15/14 Pleasant Hill No Richmond Yes Effective January 1, 2014 San Pablo Yes San Ramon No Walnut Creek Yes Effective December 18, 2014 Contra Costa County Yes Will become effective May 1, 2020 SUMMARY A number of public agencies are now considering and enacting local ordinances that ban the use of Polystyrene/Styrofoam products due environmental health concerns. The Town Council is requested to provide feedback and direction to staff with regard to whether such an ordinance should be considered for Danville. Should the Town move forward, this effort will involve working closely with the Chamber of Commerce to minimize the impact to local business community including, outreach, vendor information and ordinance timeline. Attachment – Contra Costa County Polystyrene Ordinance ORDINANCE NO. 2019-25 (Environmentally-Friendly Food Packaging) The Contra Costa County Board of Supervisors ordains as follows (omitting the parenthetical footnotes from the official text of the enacted or amended provisions of the County Ordinance Code). SECTION 1. Summary. This ordinance prohibits food vendors from using polystyrene food service ware, and it requires food vendors to use environmentally-friendly food service ware, unless the vendor obtains an exemption under this ordinance. This ordinance also prohibits the retail sale of polystyrene food service ware in unincorporated Contra Costa County. Pre- packaged food items and reusable polystyrene-based ice chests and coolers are exempt from the requirements of this ordinance. SECTION 2. Chapter 418-18 (Environmentally-Friendly Food Packaging) is hereby added to Division 418 (Refuse) of the Ordinance Code to read: Chapter 418-18 Environmentally-Friendly Food Packaging 418-18.002 Definitions. For the purposes of this chapter, the following terms have the following meanings: (a) “Environmentally-friendly food service ware” means food service ware that meets one of the following criteria: (1) Single-use, disposable containers and other products made from recyclable materials and used for selling, vending, or serving food or beverages, including but not limited to cups, bowls, plates, and hinged or lidded containers (clamshells). (2) Products that can be used more than once in their current form to serve or transport prepared, ready-to-consume food or beverages, including but not limited to cups, bowls, plates, and containers made from ceramic, glass, porcelain, metal, or other composite or product intended to be reused. (b) “Food vendor” means a person that does one or more of the following in unincorporated Contra Costa County: (1) Sells prepared food to the public at retail, whether take-out, dine-in, or delivery, including sales of prepared food from food trucks. (2) Provides prepared food to the public, including at organized or special events, whether or not for sale. ATTACHMENT C (3) Provides prepared food to clients or residents of facilities, such as board-and-care facilities, homeless shelters, food banks, food assistance programs, senior centers, nursing homes, schools, hotels, or clinics, whether or not for sale. (c) “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. (d) “Polystyrene food service ware” means polystyrene-based, single-use, disposable containers and other products used for selling, vending, or serving food or beverages. Polystyrene food service ware includes, but is not limited to, cups, bowls, plates, and hinged or lidded containers (clamshells) that are made from expanded or extruded polystyrene. For the purposes of this ordinance, polystyrene food service ware does not include any of the following products: straws, splash sticks, stir sticks, soup lids, drink lids, utensils, tablecloths, egg cartons, and liquid cartons. (e) “Prepackaged food” means any properly-labeled processed food that is prepackaged to prevent any direct human contact with the food product upon distribution from the manufacturer. (f) “Prepared food” means food or beverages that are serviced, packaged, cooked, chopped, sliced, mixed, brewed, frozen, squeezed, or otherwise prepared. Prepared food does not include raw eggs, fish, meat, or poultry, or any raw foods containing those raw materials. (g) “Raw meat trays” means trays used for packaging raw meat, poultry, seafood, or other similar protein intended to be cooked or prepared offsite. (h) “Recyclable materials” means any materials that are accepted in the recycling collection programs in unincorporated Contra Costa County. (Ord. 2019-25, § 2.) 418-18.004 Polystyrene food service ware prohibited. Beginning on May 1, 2020: (a) A food vendor shall not provide polystyrene food service ware to any person. A food vendor shall use only environmentally-friendly food service ware. (b) A person shall not sell, at wholesale or at retail, polystyrene-based food service ware. (Ord. 2019-25, § 2.) 418-18.006 Use of polystyrene at County facilities. (a) A lease or rental agreement between the County and a person for the occupancy or use of a County facility shall require the use of environmentally-friendly food service ware at the facility being leased or rented. (b) A contract with a person to provide services to or on behalf of the County shall require the use of environmentally-friendly food service ware in connection with the provision of those services. (Ord. 2019-25, § 2.) 418-18.008 Exempt products and food vendor hardship exemptions. (a) Exempt products. Notwithstanding anything to the contrary contained in this chapter, this chapter does not prohibit the sale or use of any of the following: (1) Prepackaged food products that do not use environmentally-friendly packaging, or that use polystyrene-based packaging materials. (2) Polystyrene-based ice chests and coolers intended to be reused. (3) Raw meat trays. (b) Food vendor hardship exemptions. (1) Application for hardship exemption. A food vendor may request a hardship exemption from the requirements of this chapter by submitting a written request to the Public Works Director. The food vendor must establish to the satisfaction of the Public Works Director that use of environmentally-friendly food service ware will cause an undue hardship to the vendor, or that no suitable alternative to polystyrene food service ware is available in the form of environmentally-friendly food service ware. The Public Works Director may require the food vendor to provide additional information in support of its request for a hardship exemption, including but not limited to a list of available alternative packaging materials and the reasons why those materials cannot be used without causing a hardship to the food vendor. A hardship does not exist solely on the basis that an environmentally-friendly food service ware product costs more than a similar polystyrene food service ware product. (2) Determination. A food vendor that submits a written request for a hardship exemption will be issued a written decision by the Public Works Director indicating whether the hardship exemption is granted. A written decision denying a hardship exemption will explain the reasons for the denial. (3) Term. A hardship exemption is valid for a period of one year from the date the Public Works Director approves the exemption. (4) Successive exemptions permitted. A hardship exemption does not automatically renew, and a new application for a hardship exemption is required to obtain a successive one-year hardship exemption. There is no limit on the number of successive one-year hardship exemptions a food vendor may apply for under this section. (Ord. 2019-25, § 2.) 418-18.010 Enforcement. The Public Works Director is responsible for enforcing the requirements of this chapter within unincorporated Contra Costa County. The County may seek compliance with this chapter by any remedy allowed under this code, including, but not limited to, administrative fines, infraction citations, and any other remedy allowed by law. (Ord. 2019-25, § 2.) SECTION 3. Effective Date and Publication. This ordinance becomes effective 30 days following its adoption by the Board of Supervisors. Within 15 days after passage, this ordinance shall be published in the East Bay Times, a newspaper published in this County, in a manner satisfying the requirements of Government Code section 25124, with the names of supervisors voting for and against it. PASSED on __October 8 2019_________________________ by the following vote: AYES: Gioia, Andersen, Burgis, Mitchoff, Glover NOES: None ABSENT: None ABSTAIN: None ATTEST: None DAVID J. TWA _____John Gioia_____________________ Clerk of the Board of Supervisors Board Chair and County Administrator By: ___June McHuen, Deputy Clerk________ [SEAL] Deputy H:\Client Matters\Public Works\Ordinances\Polystyrene\Ord 2019-25 (BOS Adopted 100819) .docx