HomeMy WebLinkAboutOrd. 1597-2020 (20-231)City of South San Francisco
- P.O. Box 711 (City Hall,
400 Grand Avenue)
South San Francisco, CA
City Council
Ordinance: ORD 1597-2020
File Number: 20-231 Enactment Number: ORD 1597-2020
AN ORDINANCE ADDING CHAPTER 8.72 TO TITLE 8 OF THE
SOUTH SAN FRANCISCO MUNICIPAL CODE REGULATING
THE USE OF DISPOSABLE FOOD SERVICE WARE BY FOOD
FACILITIES.
WHEREAS, the City of South San Francisco ("City") is committed to sustainability, environmental
preservation, and reducing greenhouse gas emissions; and
WHEREAS, the City adopted a Green Food Packaging Ordinance in 2008, which prohibits food vendors
from dispensing prepared food to customers in disposable food service ware made from polystyrene; and
WHEREAS, in 2013, the City adopted a reusable bag ordinance prohibiting the use of single -use
carryout bags at retail stores and requiring retailers to charge customers for recycled paper bags and
reusable bags at the point of sale; and
WHEREAS, neither ordinance specifically prohibits the use of disposable food service ware by food
facilities;
WHEREAS, the production, management, and consumption associated with disposable food service
ware, typically used for only a few minutes before being discarded, have significant environmental
impacts, including environmental contamination; consumption of precious resources such as energy and
water; emissions of greenhouse gases; air and water pollution; litter on streets; and plastic pollution in
waterways and oceans; and
WHEREAS, disposable food service ware constitutes a substantial portion of the litter found within the
City and the rest of the Bay Area; these types of food service ware are commonly littered or blown out of
trash receptacles and migrate through the storm drain system where they eventually end up in the ocean,
beaches, creeks and other natural scenic locations; and
WHEREAS, polystyrene is a petroleum-based, lightweight plastic material commonly used as food
service ware by retail food vendors. Polystyrene, often referred to by the trademark, Styrofoam, has also
become a problematic environmental pollutant given its non-compostable and nearly non -reusable
nature; and
WHEREAS, the most effective ways to reduce the negative environmental impacts of disposable food
service ware include, in order of priority, using reusable food service ware; using natural -fiber based
compostable materials, many made from renewable resources such as bamboo, wheat stalk/stem, and
sugarcane that do not contain toxic chemicals; and recycling food service ware. When products are
reused and recycled, natural resources are spared, less energy is used for the production of new products,
and premium landfill space is preserved; when compostable products are turned into compost, they can
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File Number., 20-231
Enactment Number. ORD 1597-2020
reduce water use and lessen the need for fertilizer at the site where the compost is applied (e.g., gardens,
yards, farm land, etc.), which can also lead to cost savings since less/no fertilizers need to be purchased;
and
WHEREAS, compostable food service ware such as cups, plates, clamshell containers, and utensils are
now made from paper, sugarcane stalk, bamboo, wheat stalk/straw, and other blends of natural plant
fibers. As these products degrade, they pose less of a danger to the environment; and
WHEREAS, even with the emergence of compostable plastics, which are derived from renewable
biomass sources such as plants and microorganisms, there are limited certified types of compostable
plastic that biodegrade in a marine environment; and
WHEREAS, certain disposable food service ware, including compostable paperboard containers, may
contain fluorinated chemicals, also known as per- and polyfluorinated alkyl substances (PFAS), which
are synthetic chemicals commonly used in disposable food service ware to repel water and grease;
fluorinated chemicals pose a public health risk as they have been linked to serious health effects
including kidney and testicular cancer, thyroid disruption, delayed puberty, and obesity; and
WHEREAS, plastics in waterways and oceans break down into smaller pieces, called microplastics, that
do not biodegrade and are present in most of the world's oceans. Microplastics consumed by marine
organisms make their way into animals' tissues and are beginning to show up in the fish that humans
consume; plastic debris also attracts and concentrates ambient pollutants in seawater and freshwater,
which can transfer to fish and other seafood that is eventually sold for human consumption; and
WHEREAS, reduction of disposable food service ware in the environment will advance compliance with
federal, state, and local clean water mandates, including the City's Municipal Regional Stormwater
Permit requirement, by helping to reduce trash and litter in stormwater discharges; and
WHEREAS, the City Council considered this issue at a special meeting on April 9, 2019, and directed
staff to continue exploring the prohibition of plastic food service ware in restaurants and fast food
establishments within the City; and
WHEREAS, the City concurrently began discussions with the County of San Mateo ("County') Office
of Sustainability to explore the creation of a plastic food service ware ordinance; and
WHEREAS, the County has since prepared and adopted a Plastic Food Service Ware ordinance
prohibiting the use of such plastic food service ware which would eliminate the unnecessary distribution
and use of those wares while improving public health and safety for San Mateo residents; and
WHEREAS, to effectuate its intents and achieve the goals described herein, the City is proposing to
amend the South San Francisco Municipal Code by incorporating the County's plastic food service ware
ordinance and to provide for enforcement of such ordinance by the City and the County; and
WHEREAS, this Ordinance is exempt from the environmental review requirements of the California
Environmental Quality Act (CEQA) pursuant to Section 15061 (b)(3) of Title 14 of the California Code
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File Number., 20-231 Enactment Number: ORD 1597-2020
of Regulations because it can be seen with certainty that there is no possibility that the provisions
contained herein may have a significant effect on the environment. Further, the Ordinance is also exempt
from the requirements of CEQA pursuant to CEQA Guidelines Sections 15307 and 15308 of Title 14 of
the California Code of Regulations as actions taken by regulatory agencies to assure the maintenance,
restoration, enhancement of natural resources, or protection of the environment.
NOW, THEREFORE, based on the entirety of the record before it, as described below, the City Council
of the City of South San Francisco does hereby ordain as follows:
SECTION 1. Findings. The City Council of South San Francisco finds that all Recitals are true and
correct and are incorporated herein by this reference.
SECTION 2. Amendment. Title 8, "Health and Welfare" of the South San Francisco Municipal Code is
hereby amended by adding Chapter 8.72, "Use of Disposable Food Service Ware," to read as follows:
CHAPTER 8.72 USE OF DISPOSABLE FOOD SERVICE WARE
8.72.010 Definitions.
8.72.020 Distribution of Disposable Food Service Ware Accessories.
8.72.030 Standards and Required Use of Disposable Food Service Ware.
8.72.040 Recordkeeping and Inspection.
8.72.050 Automatic Exemptions.
8.72.060 Case -by -Case Consideration of Requests for Hardship Exemption
8.72.070 Enforcement.
8.72.10 Definitions.
For purposes of this Chapter, the following terms have the following meanings:
a) "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.
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 accordingly 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 100 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
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Enactment Number: ORD 1597-2020
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) "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.
f) "Food Service Ware Accessories" include Food Service Ware 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 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.
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" 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.
k) "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.
1) "Non-Compostable" 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
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Enactment Number: ORD 1597-2020
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, flying, 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.
4. 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.
8.72.20 Distribution of Disposable Food Service Ware Accessories.
a) No Food Facility shall provide any Disposable Food Service Ware Accessories except (1) upon
request by the consumer, (2) upon acceptance by the consumer after being offered by the Food Facility,
or (3) at a self -serve area and/or a dispenser.
b) Food Facilities shall only distribute Disposable Food Service Ware 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 Food Service Ware Accessories by
providing clear options for customers to affirmatively request these items separate from orders for food
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Enactment Number: ORD 1597-2020
and beverages. The default option on the digital ordering/point of sale platforms shall be that no
Disposable Food Service Ware Accessories are requested. Each individual Disposable Food Service
Ware 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.
8.72.30 Standards and Required Use of Disposable Food Service Ware.
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 Non- Compostable 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:
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.)
e) Compostable items for the Disposable Food Service Ware listed in Subsection (d) used by Food
Facilities must have been tested to breakdown 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.
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.
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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).
8.72.40 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 this Ordinance and ending 365 days from the Ordinance
effective date, the purchase of all Disposable Food Service Ware, including Non-Compostable and
Compostable items.
2. 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.
8.72.50 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 Food Service Ware that is entirely Aluminum Foil -based 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 the
abovementioned 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 exempted Disposable
Food Service Ware posted on its website with hard copies available in the city manager's office or
another designated location.
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e) Certain Disposable Food Service Ware Accessories for beverage orders, specifically, straws and cup
sleeves, shall be exempt from Section 8.72.020 (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 Food Service Ware Accessory, so
Section 8.72.020 (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.
8.72.60 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 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 shall be made available to the
public on the city's website and at the city manager's office or another designated location.
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8.72.70 Enforcement.
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, may enforce the
provisions of this chapter.
b) 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.
SECTION 3. Severability.
If any provision, section, subsection, sentence, clause, phrase, or word of this chapter, or any application
thereof to any person or circumstance, is held to be invalid or unconstitutional by a court of competent
jurisdiction, such decision shall not affect the validity of the remaining portions or applications of the
chapter. The city council hereby declares that it would have passed this chapter, and each provision,
section, subsection, sentence, clause, phrase, and word not declared invalid or unconstitutional without
regard to whether any other portion of this chapter or application thereof would be subsequently declared
invalid or unconstitutional.
SECTION 4. Effective Date.
This Ordinance shall be effective thirty (30) days after adoption. However, the mandatory provisions of
this Ordinance, except for Section 8.72.040 (a)(1), shall only become operative and subject to
enforcement one year (365 days) after the adoption of the Ordinance.
At a meeting of the City Council on 3/25/2020, a motion was made by Councilmember Nicolas, seconded by
Councilmember Nagales, that this Ordinance be adopted. The motion passed.
Yes: 5 Mayor Garbarino, Vice Mayor Addiego, Councilmember Nagales, Councilmember
Nicolas, and Councilmember Matsumoto
4Atdd,--,
Attest by
osa Govea Acosta, City Clerk
A.
Richard Garbarino, Mayor
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