Chapter 8.24
DISPOSABLE FOOD SERVICE WARE AND WASTE REDUCTION (Effective 1/1/23)

Sections:

8.24.005    Definitions.

8.24.010    Standards for disposable food service ware.

8.24.015    Exemptions.

8.24.020    Reserved.

8.24.025    Disposable food service ware requiring customer’s affirmation.

8.24.030    Requiring reusable food service ware for on-premises dining.

8.24.035    Restricting certain types of single-use personal products in lodging establishments.

8.24.040    Rules and regulations.

8.24.050    Penalties.

8.24.060    Education and outreach.

8.24.005 Definitions.

A. “ASTM standard specification” means an explicit set of requirements to be satisfied by a material, product, system, or service established by meeting the standards of the American Society for Testing and Materials (“ASTM”).

B. “Biodegradable Products Institute,” or “BPI,” refers to a certification program that ensures that compostable products and packaging displaying the BPI logo have been independently tested and verified to meet certain standards.

C. “Compost Manufacturing Alliance,” or “CMA,” refers to a certification program that ensures that compostable products displaying the CMA logo have been independently tested and verified to meet certain standards.

D. “Disposable” means designed to be discarded after a single or limited number of uses, not manufactured for long-term multiple reuse, and/or is not reusable as defined herein.

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

F. “Food service ware” means a product intended to be used for serving, distributing, holding, packaging, and/or transporting prepared food including, but not limited to, plates, bowls, cups, trays, deli rounds, clamshells and other hinged or lidded containers, food contact paper (e.g., wraps, bags, tray liners), and portion cups. The term “food service ware” also includes food service accessories including, but not limited to, lids, straws, stirrers, cup spill plugs, cup sleeves, condiment packets, utensils, cocktail sticks/picks, toothpicks, napkins, and the packaging that any of these individual items are wrapped in.

G. “Home compostable” means comprised of natural fiber as defined below, and/or able to break down or otherwise become part of usable compost in a safe and a timely manner in a nonindustrial composting environment. Any food service ware item that is “OK Compost HOME” certified by TÜV Austria will be presumed to satisfy this definition. In the event that an ASTM standard for home compostable products that meets or exceeds the OK Compost HOME certification is established, any food service ware item certified as satisfying that standard will satisfy this definition.

H. “Industrial composting facility” means a large-scale professional composting facility which processes significant amounts of organic waste, including food service ware certified as industrial compostable, through a controlled biotechnological process, regulating factors such as particle size, moisture content, aeration, temperature, pH, and carbon/nitrogen ratio.

I. “Lodging establishment” means an establishment that contains one or more sleeping room accommodation(s) that are rented or otherwise provided to the public, including, but not limited to, a hotel, motel, resort, bed and breakfast inn, or vacation rental (including lodging provided through hosting services such as Airbnb and VRBO).

J. “Natural fiber” means a plant-based, nonsynthetic fiber, including, but not limited to, products made from paper, wood and wood pulp, sugar cane, bamboo, wheat stems/stalk, and hay.

K. “Expanded polystyrene” means blown polystyrene and expanded and extruded foams which are thermoplastic petrochemical materials 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, foam molding, and extrusion-blown molding (extruded foam polystyrene).

L. “Prepackaged food” means food service ware that has been filled with food and sealed by a separate food service business or food manufacturer prior to receipt by the point-of-sale retail establishment. “Prepackaged food” includes a utensil, straw, or other item physically attached for purposes of retail sale to food service ware prior to receipt by the point-of-sale retail establishment.

M. “Prepared food” means food or beverages that undergo a cooking or food preparation technique on or off the retail food establishment’s premises for consumption by the public. Cooking and food preparation techniques include, but are 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.

N. “Retail establishment” means any person, corporation, partnership, business, facility, vendor, organization, or individual that sells or provides merchandise, goods, or materials directly to a customer, including to a “retail food establishment.” “Retail establishment” includes, but is not limited to, retail food establishments, grocery stores, department stores, hardware stores, home or business delivery services, pharmacies, liquor stores, restaurants, catering trucks, convenience stores, or other retail stores or vendors, including temporary stores or vendors at farmers markets, street fairs, and festivals.

O. “Retail food establishment” means all sales outlets, stores, shops, or other places of business located within the city, which sell or convey foods directly to the ultimate consumer. “Retail food establishment” shall include, but not be limited to, any place where food is prepared, mixed, cooked, baked, smoked, preserved, bottled, packaged, handled, stored, manufactured, and sold or offered for sale, including, but not limited to, any fixed or mobile restaurant; drive-in; coffee shop; cafeteria; short-order cafe; delicatessen; luncheonette; grill; sandwich shop; soda fountain; tavern; bar; cocktail lounge; nightclub; roadside stand; takeout prepared food establishment; industrial feeding establishment; catering kitchen; commissary; grocery store; public food market; food stand; or similar place in which food or drink is prepared for sale or for service on the premises or elsewhere; and any other establishment or operation, including homes, where food is processed, prepared, stored, served, or provided for the public for charge.

P. “Reusable” means an item subject to this chapter designed and manufactured to maintain its shape and structure, and to be materially durable for repeated (at least 1,000 times each) sanitizing in water at 171 degrees Fahrenheit for at least 30 continuous seconds, washing via commercial dishwashing machine, and reuse.

Q. “Single-use” means a product that is designed to be used once and discarded, and/or is not reusable as defined herein.

R. “TÜV Austria” means the corporation that certifies categories of compostable products including the certification of “OK Compost HOME” which classifies products as being able to be composted at ambient temperatures and with a natural microbial community (e.g., in a home compost environment).

S. “Utensil” means a product designed to be used by a consumer to facilitate the consumption of food or beverages, including knives, forks, spoons, cocktail picks, chopsticks, splash sticks, and stirrers. “Utensil” does not include plates, bowls, cups, bottles, and other products used to contain food or beverages. (Ord. 2021-34 § 3, 2021; Ord. 2021-18 § 2, 2021)

8.24.010 Standards for disposable food service ware.

A. No retail food establishment licensed to do business or required to be licensed within the city shall use expanded polystyrene-based food service ware at any time when providing prepared food.

B. Retail food establishments licensed to do business or required to be licensed within the city shall only use home compostable disposable food service ware when providing prepared food, except as otherwise provided in BIMC 8.24.015.

C. All home compostable disposable food service ware items shall be certified to be free of all intentionally added fluorinated chemicals.

D. Except as otherwise provided in BIMC 8.24.015, all disposable food service ware items, including those that qualify for an exemption pursuant to BIMC 8.24.015, shall be:

1. Certified to be compostable in an industrial composting facility in a timely manner; and/or

2. Eligible to be accepted for recycling by the retail food establishment’s recycling collection service.

E. To verify compliance with subsections C and D.1 of this section, items shall be certified by the Biodegradable Products Institute (“BPI”), the Compost Manufacturer’s Alliance (“CMA”), or another independent third party approved by the city manager or designee, in collaboration with the city’s climate adaptation officer.

F. In order to encourage the use of reusable cups, retail food establishments shall charge $0.25 for every disposable cup provided.

1. Income from the disposable cup charge shall be retained by the retail food establishment.

2. Charges for disposable cups shall be identified separately on any post-sale receipt provided and, presale, shall be clearly identified for the customer on media such as menus, ordering platforms, and/or menu boards. Customers placing orders by telephone shall be informed verbally of the single-use cup charge at the time of the placement of the order.

3. This provision shall not prohibit a retail food establishment from providing free drinking water upon request to customers in a small, unlined paper cup.

4. This provision shall not apply to nonprofit entities or entities providing services on behalf of a nonprofit that operate as a retail food establishment for less than 10 days per calendar year.

5. Customers may provide their own reusable cups for beverage service in accordance with the Retail Food Code, WAC 246-215-03348. These reusable cups must be clean, sturdy, and appropriately insulated if ordering hot beverages such that they can be held in the customer’s bare hand if intended to be used for hot liquids. Retail food establishments may refuse to use, at their sole discretion, any customer-provided cup that is cracked, chipped, or corroded, appears inappropriate in size, material, or condition for the intended beverage, or that appears to be soiled or unsanitary, and instead require use of a reusable cup provided by the establishment for any beverage consumed on the premises, or an establishment-provided disposable cup that conforms to the standards of this chapter. (Ord. 2021-34 § 4, 2021; Ord. 2021-18 § 3, 2021)

8.24.015 Exemptions.

A. Prepackaged food is exempt from the provisions of this chapter.

B. If the city manager, with the input of the climate adaptation officer, determines that a reasonably feasible disposable food service ware item that complies with BIMC 8.24.010.B does not exist, that item will be exempt from that provision for a period not to exceed one year. A current list of exempted items will be posted on the city’s website.

Exemptions will only be granted where there are not at least two vendors that make suitable and readily commercially available home compostable alternatives to the disposable food service item for which the exemption is being sought.

C. Exempted items shall comply with BIMC 8.24.010.D, unless the city manager or their designee specifically determines that there is no reasonably feasible alternative that meets that standard.

D. If the city manager extends any exemption granted herein, public notice of extension shall be posted on the city’s website. Extensions under this section may be granted for periods of time not to exceed one year per authorization.

E. Nothing in this chapter shall 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 retail food establishments or health care facilities of disposable noncompostable straws to individuals who may request the use of disposable noncompostable straws to accommodate medical needs or disabilities. In the case of health care facilities, straws may be distributed without patient request on a case-by-case basis at the discretion of the healthcare facility staff based on the physical or medical needs of the patient. (Ord. 2021-34 § 5, 2021; Ord. 2021-18 § 4, 2021)

8.24.020 Reserved.

(Ord. 2021-18 § 5, 2021; Ord. 89-03 § 2, 1989)

8.24.025 Disposable food service ware requiring customer’s affirmation.

A. A retail food establishment may provide the following single-use food service ware only upon customer’s affirmation for the below item or items:

1. Utensils;

2. Straws;

3. Condiment in packaging;

4. Beverage cups; and/or

5. Beverage cup lids.

B. A retail food establishment may provide beverage cup lids without customer’s affirmation for:

1. Hot beverages; or

2. Beverages provided through delivery service, drive-through, or curbside pickup.

C. The products listed in subsection A of this section may not be available to customers in cylinders, bins, dispensers, containers, or other means on a self-service basis for any reason.

D. This section shall take effect as of January 1, 2022. (Ord. 2021-34 § 6, 2021; Ord. 2021-18 § 6, 2021)

8.24.030 Requiring reusable food service ware for on-premises dining.

A. Reusable food service ware, including utensils, are required at all on-premises dining establishments for any meal to be eaten on the premises. Home compostable straws shall be allowed upon request for dining on the premises. Condiments, such as sauces, ketchup, or mustard, provided for on-site consumption, shall not be served in disposable, individual-serving packaging.

B. Consumption is considered on-premises if it takes place at tables and/or seating provided by the food service business, either on its own or in relation to another food service business. This requirement does not prohibit a food service business from providing, upon a customer’s request, disposable food service ware compliant with BIMC 8.24.010 for the customer to take away leftover food after dining on the premises.

C. Customers must be asked whether they will consume the food or beverage they have ordered at the premises, or whether the order will be taken away as a takeout order. In the case of self-service facilities (e.g., food or salad bar), this requirement shall be satisfied by the provision of reusable and disposable options for customer self-selection, with reusable options clearly marked to encourage use for on-premises dining.

D. Waivers. On-premises dining establishments that do not have on-site or off-site dish washing capacity may petition the city manager or their designee for a full or partial one-year waiver. To obtain a waiver, the food service business shall demonstrate inability to comply due to insurmountable space constraints, undue financial hardship, and/or other extraordinary circumstances. Food service ware used for on-premises dining pursuant to a waiver obtained under this section shall comply with all requirements set forth elsewhere in this chapter. Granting of a waiver is at the sole discretion of the city manager or their designee, and is not subject to appeal. Waivers may be renewed by submitting a new petition to the city manager or their designee. (Ord. 2021-34 § 7, 2021)

8.24.035 Restricting certain types of single-use personal products in lodging establishments.

No single-use personal care products shall be distributed in lodging establishments unless they are packaged in home compostable packaging. Lodging establishments are encouraged to use refillable personal care product dispensers. (Ord. 2021-34 § 8, 2021)

8.24.040 Rules and regulations.

The city manager charged with the enforcement of this chapter shall be authorized from time to time to adopt reasonable rules and regulations for its implementation, which shall be consistent with these provisions. (Ord. 2009-21 § 30, 2009: Ord. 89-03 § 4, 1989)

8.24.050 Penalties.

A. Prior to imposing penalties or taking other enforcement action as set forth in subsection B of this section, the city shall attempt to provide written notice to any establishment in violation of this chapter. The notice shall include a description of the item sold or provided by the retail establishment in violation of the requirements of this chapter, the text of the specific code provision(s) that apply, and information on how to comply with the provision(s). The notice shall be provided to the retail establishment by personal service or certified mail, return receipt requested. Such notice is not a formal enforcement action, is not subject to appeal, and is a public record.

B. Any person violating any of the provisions of this chapter shall be deemed to have committed a civil infraction and, upon such a finding, shall be punishable by a fine not to exceed $250.00 per day for the first 20 days that the violation exists and $500.00 per day for each day thereafter. Each such violation committed or permitted to continue by the violator shall constitute a separate offense and shall be punishable as such under this section. Each day that an establishment violates any of the provisions of this chapter shall constitute a single, separate violation. (Ord. 2021-18 § 9, 2021; Ord. 89-03 § 6, 1989)

8.24.060 Education and outreach.

As necessary, the city manager, or their designee, and pursuant to BIMC 8.24.040, shall provide, or contract for the provision of, education and outreach activities to inform retail establishments, consumers, and other interested individuals about the requirements of this chapter. Education and outreach will be designed to effectively convey the policies underlying this chapter, describe the actions necessary to gain compliance with its provisions, and minimize the need for formal enforcement action. The city will emphasize education and outreach rather than enforcement to achieve compliance with the requirements of this chapter. (Ord. 2021-34 § 9, 2021; Ord. 2021-18 § 10, 2021)