Chapter 7.30
DISPOSABLE FOODWARE1

Sections:

7.30.010    Title.

7.30.020    Definitions.

7.30.030    Distribution of disposable foodware accessories.

7.30.040    Standards and required use of disposable foodware.

7.30.050    Recordkeeping and inspection.

7.30.060    Automatic exemptions.

7.30.070    Case-by-case consideration of requests for hardship exemption.

7.30.080    Enforcement.

7.30.010 Title.

This chapter shall be known as the “Disposable Foodware Ordinance.” (Ord. 2020-06 §2(Att. A)(part), 2020).

7.30.020 Definitions.

The following words and phrases shall have the meanings set forth below when used in this chapter. The singular shall include the plural, and the plural shall include the singular.

A.    “Aluminum foil-based” means any disposable foodware composed entirely of aluminum, including but not limited to aluminum tray liners, aluminum foil, and aluminum foil baskets.

B.    “Biodegradable Products Institute (BPI)” refers to a certification program that ensures that products and packaging displaying the BPI logo have been independently tested and verified according to scientifically based standards to successfully break down in professionally managed industrial composting facilities. BPI-certified products meet the standards of the American Society for Testing Materials (ASTM) D6400 or D6868 for compostability. Starting on January 1, 2020, all BPI-certified products will also be required to have (1) a limit of one hundred parts per million (ppm) total fluorinated chemicals as the upper threshold for acceptance and (2) no intentionally added fluorinated chemicals.

C.    “Compostable” means that an item or material (1) will break down or otherwise become part of usable compost in a safe and timely manner and (2) is natural fiber-based or made from other materials approved by the city manager or designee. 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 corn or other plant sources (e.g., compostable plastics), if certified by BPI or by another independent third party approved by the city manager or designee.

D.    “Disposable” means designed to be discarded after a single or limited number of uses and not designed or manufactured for long-term multiple reuse.

E.    “Foodware” 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 “foodware” includes foodware accessories.

F.    “Foodware accessories” includes foodware such as straws, stirrers, cup spill plugs, cup sleeves, condiment packets, utensils (including chopsticks), cocktail sticks/picks, toothpicks, napkins, and other similar accessory or accompanying foodware used as part of food or beverage service or packaging. Detachable lids for beverage cups and food containers are not considered a foodware accessory.

G.    “Fluorinated chemicals” means perfluoroalkyl and polyfluoroalkyl substances (PFAS chemicals) or fluorinated chemicals, which are a class of fluorinated organic chemicals containing at least one fully fluorinated carbon atom.

H.    “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.

I.    “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.

J.    “Healthcare facilities” means 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.

K.    “Natural fiber/natural fiber-based” means a plant or animal-based, nonsynthetic fiber, including but not limited to products made from paper, sugarcane, bamboo, wheat stems/stalk, hay, wood, etc.

L.    “Noncompostable” means not meeting the definition of compostable set forth in this chapter.

M.    “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.

N.    “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.

O.    “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.

P.    “Takeout food” means prepared food requiring no further preparation, which is purchased to be consumed off a prepared food facility’s premises. Takeout food includes prepared food delivered by a food facility or by a third-party takeout food delivery service.

Q.    “Takeout food delivery service” is a service that delivers takeout food from a food facility to a customer for consumption off the premises. This service can be provided directly by the food facility or by a third party. (Ord. 2020-06 §2(Att. A)(part), 2020).

7.30.030 Distribution of disposable foodware accessories.

Effective July 9, 2021:

A.    No food facility shall provide any disposable foodware accessories except upon request by the consumer.

B.    Food facilities shall only distribute disposable foodware accessories unbundled, as separate individual units.

C.    Takeout food delivery services that utilize digital ordering/point of sale platforms, including but not limited to the internet and smart-phone, shall only offer disposable foodware accessories by providing clear options for customers to affirmatively request these items separate from orders for food and beverages. The default option on the digital ordering/point of sale platforms shall be that no disposable foodware accessories are requested. Each individual disposable foodware accessory (e.g., each fork, knife, condiment packet, napkin, etc.) provided with prepared food must be specifically requested by the customer in order for a food facility to provide it. (Ord. 2020-06 §2(Att. A)(part), 2020).

7.30.040 Standards and required use of disposable foodware.

A.    No food facility shall use polystyrene-based disposable foodware 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 noncompostable straws to accommodate medical needs or disabilities. Healthcare facilities may distribute disposable noncompostable 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.    Wherever practicable, food facilities shall provide reusable foodware in place of disposable foodware.

E.    Food facilities shall use compostable items for the below disposable foodware:

1.    Plates;

2.    Bowls (of all sizes including, but not limited to, soup and salad bowls and accessory bowls for condiments);

3.    Cups (of all sizes including, but not limited to, beverage cups);

4.    Food trays;

5.    Clamshells, boxes, deli containers, and other containers used for the sale and/or distribution of prepared food (e.g., takeout food, leftover “doggie containers,” etc.).

F.    Compostable items for the disposable foodware listed in subsection E of this section used by food facilities must have been tested to break down into compost in an industrial composting facility in a timely manner and shall be free of all intentionally added fluorinated chemicals. To verify, these items shall be certified by Biodegradable Products Institute (BPI) or another independent third party approved by the city manager or designee, in collaboration with local waste processors and haulers.

G.    For all other disposable foodware not listed in subsections B and E of this section, food facilities shall use only disposable foodware 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.

H.    The city shall maintain a list of approved disposable foodware sources and/or references to organizations that maintain regularly updated lists of products that meet the requirements detailed in subsections A, B, E, and F of this section. This information shall be made available on the city’s website and in City Hall. If a product is not included on the approved lists, the food facility wishing to use a product as disposable foodware shall establish to the city manager’s or designee’s satisfaction that the product complies with the requirements detailed in subsections A, B, E and F of this section. (Ord. 2020-06 §2(Att. A)(part), 2020).

7.30.050 Recordkeeping and inspection.

A.    Food facilities shall keep complete and accurate record or documents of the below items.

1.    Commencing on the effective date of the ordinance codified in this chapter and ending three hundred sixty-five days from the effective date of the ordinance codified in this chapter, the purchase of all disposable foodware, including noncompostable and compostable items.

2.    The purchase of the acceptable disposable foodware 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. 2020-06 §2(Att. A)(part), 2020).

7.30.060 Automatic exemptions.

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 foodware that is entirely aluminum foil-based is exempt from the provisions of this chapter.

D.    If the city determines that a reasonably feasible disposable foodware that complies with Sections 7.30.040(A), (B), (E), and (F) does not exist, these items will be exempt from 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 this exempted disposable foodware posted on the city of Half Moon Bay website with hard copies available in the office.

E.    Certain disposable foodware accessories for beverage orders, specifically, straws and cup sleeves, shall be exempt from Section 7.30.030(A) and may be distributed for safety reasons without the need for a request by the consumer or an offer by the food facility, specifically at drive-through areas of food facilities. Detachable lids are not considered a disposable foodware accessory, so Section 7.30.030(A) does not apply to detachable lids.

F.    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. 2020-06 §2(Att. A)(part), 2020).

7.30.070 Case-by-case consideration of requests for hardship exemption.

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 Sections 7.30.040(A), (B), (E), and (F) 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 foodware is not available at a commercially reasonable price and the additional cost associated with providing the disposable foodware 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 available on the city of Half Moon Bay’s website and in the office. (Ord. 2020-06 §2(Att. A)(part), 2020).

7.30.080 Enforcement.

A.    The city manager or designee may enforce this chapter.

B.    The county manager or designee is hereby authorized to and may enforce this chapter within Half Moon Bay upon entry into a memorandum of understanding with the county of San Mateo. The county’s enforcement authority includes, without limitation, the authority to hold hearings, issue citations, or assess administrative fines on behalf of the city of Half Moon Bay.

C.    A violation of this chapter is an infraction and is subject to enforcement and administrative fines in accordance with Chapter 1.40 of the San Mateo County Ordinance Code and/or Chapter 4.16 of the Half Moon Bay Municipal Code.

D.    Violation of this chapter is a public nuisance subject to all applicable civil, administrative, and criminal remedies and penalties according to the provisions and procedures contained in this chapter and state law including, but not limited to, an action for abatement or injunctive relief.

E.    This section shall not be interpreted to limit any otherwise available civil or administrative remedies under law. (Ord. 2020-06 §2(Att. A)(part), 2020).


1

    Section 6 of Ord. 2020-06 provides: “This ordinance shall take effect 30 days after adoption. However, the mandatory provisions of this Ordinance, except for sections 7.30.040 (a) and 7.30.050 (a)(1), shall only become operative and subject to enforcement beginning July 9, 2021.”