AGENDA ITEM #13
TOWN OF FAIRFAX
STAFF REPORT
March 1, 2023
TO: Mayor and Town Council
FROM: Sean Youra, Climate Action Coordinator
Janet Coleson, Town Attorney
SUBJECT: Introduce an Ordinance Prohibiting the Sale of Polystyrene Foam Coolers and Ice Chests and Introduce a Reusable Foodware Ordinance
__________________________________________________________________________________
RECOMMENDATION
1) Introduce, waive first reading and read by title only, Ordinance 2023-AA “Adding Section
8.16.030(C) Regarding the Prohibition on Polystyrene (EPS) Foam Coolers and Ice Chests to the Town Code” (Attachment 1).
2) Introduce, waive first reading and read by title only, Ordinance 2023-XX “Requiring all Food Facility Vendors to Use Reusable Foodware for Dine-In Operations and Compliant Compostable Foodware for Take-Out Services” (Attachment 2). 3) Authorize the Town Manager to execute the Agreement Between County of Marin and Town of Fairfax Regarding Enforcement of the Foodware Ordinance (Attachment 3)
BACKGROUND
On October 2, 2019, the Town Council adopted Ordinance 838 to require food vendors in the Town to provide compostable and/or reusable foodware for both dine-in and takeout. The Ordinance imposed similar requirements on Town purchases and Town-sponsored events.
The Ordinance supported the Town’s zero-waste and environmental goals by reducing the use of single-use plastic foodware in the Town that often ends up in landfills or in the ocean rather than being recycled. The Ordinance has been in effect since July 1, 2020.
On May 10, 2022, the County of Marin adopted its Reusable Foodware Ordinance, which was modeled off of existing jurisdiction ordinances including Fairfax’s foodware ordinance. The County conducted an extensive ordinance development process and has created a model ordinance for jurisdictional adoption, with the goal that all jurisdictions in Marin would adopt this same ordinance. Adoption of this model ordinance would level the playing field for food vendors across the County by adopting the same requirements, ensuring consistent enforcement, and minimizing confusion for consumers and food service providers.
DISCUSSION
The proposed reusable foodware ordinance (Attachment 2) will replace the existing Town Code Chapter 8.72 Single-Use Foodware Reduction in its entirety. The new County ordinance covers all entities selling prepared food to the public in the Town of Fairfax including 2 restaurants, grocery stores and delis, bakeries, carry-out, quick services, farmers markets, food trucks, and any other business that requires a health permit.
The proposed reusable foodware ordinance contains six key features and uses the hierarchy of: reusables are best, natural-fiber compostable foodware is compliant, and single-use plastics, including bioplastics, are prohibited. The ordinance only allows fiber-based compostable foodware as compliant alternatives because the compost facility at the Redwood Landfill will not accept bioplastics given its status as an organic compost production facility.
The ordinance key features include:
1. Takeout disposable foodware must be natural-fiber compostable (no bio or “compostable” plastics). Takeout foodware must be certified by the Biodegradable Products Institute (BPI). Aluminum is allowed. “Foodware” means all containers, bowls, plates, food trays, cups, lids, boxes, and other like items that are used for prepared foods, including without limitation, foodware for takeout foods and/or leftovers from partially consumed meals prepared by food vendors.
2. Takeout foodware accessories must be natural-fiber compostable and available only “upon request” or at a self-serve takeout station. Food vendors shall provide plastic straws only on request, to accommodate any person's access needs. “Foodware accessories” means types of items usually provided alongside prepared food including but not limited to forks, spoons, knives, chopsticks, napkins, cup sleeves, food wrappers, beverage trays, condiment containers, straws, stirrers, splash sticks, cocktail sticks, toothpicks, tray-liners, and plate-liners.
3. Reusable foodware and utensils must be used if a customer is dining in at a restaurant.
Natural-fiber compostable accessories can be provided upon request.
4. All food vendors shall charge customers twenty-five cents ($0.25) at the point of sale for every non-reusable cup provided. Income from the non-reusable cup charge shall be retained by the food vendor. Exemptions are available for Cal Fresh/SNAP and WIC customers.
5. All food vendors who provide solid waste containers for customer use, must provide separate receptacles for solid waste, recyclables, and organics. Receptacles must have graphic-rich signage. This is a requirement of state laws AB 827 and SB 1383 and would enable customers and employees to properly sort waste.
6. Temporary exemptions will be provided via a Countywide list if compliant products are not available for certain foodware or foodware accessories.
Staff has conducted a thorough comparison of the Town’s existing foodware ordinance and the County’s foodware ordinance (Attachment 4). In staff’s judgment, the differences between both ordinances are, for the most part, minor with most of the differences being in how terms are defined. One significant difference is that the County’s foodware ordinance exempts private schools while the Town’s foodware ordinance only exempts private schools from the disposable cup regulations. County staff exempted private schools to be in alignment with AB 1276, which went into effect on June 1, 2022 and also exempts private schools. There are no 3 private schools operating within the Town’s jurisdiction; therefore, there is no impact of this exemption in the proposed ordinance.
Staff recommends moving Section 8.72.080(A) of the current Town Code regarding the prohibition on the sale of polystyrene foam coolers and ice chests within the Town to Section
8.16.030(C) with other regulations for polystyrene (Attachment 1). Since the County will not enforce any provisions beyond those contained in their model ordinance, moving this section will allow the Town to continue to maintain and enforce this prohibition on polystyrene foam coolers and ice chests.
There is no conflict between the proposed foodware ordinance and Chapter 8.18 in the Town Municipal Code that regulates plastic bags. Additionally, there is no conflict between the proposed foodware ordinance and Chapter 8.16 in the Town Municipal Code that regulates polystyrene foam used in food packaging.
Enforcement of the proposed foodware ordinance would begin November 10, 2023, eighteen (18) months after adoption of the County ordinance on May 10, 2022 to give businesses time to switch sourcing of supplies and deplete existing stock. As outlined in the ordinance (Attachment 2) and the Agreement Between County of Marin and Town of Fairfax Regarding Enforcement of the Foodware Ordinance (Attachment 3), the Town of Fairfax would authorize the County of Marin to enforce the ordinance on behalf of the Town. Staff is seeking authorization for the Town Manager to execute this Agreement with the County for enforcement of the foodware ordinance.
IMPLEMENTATION: The proposed foodware ordinance would take a proactive approach via the County’s Environmental Health Division by educating all retail food facility owners regularly of the requirements of the proposed ordinance and taking enforcement action only as necessary. This has the potential to result in greater overall levels of compliance, to allow for fairer competition among food vendors, and to have the benefit of staying power because there would be regular education and outreach on an annual basis. The Environmental Health Services Division (EHS) is in a unique position to provide proactive outreach during already scheduled visits to businesses as a part of its food program.
Enforcement will include written notice of non-compliance and a reasonable opportunity to correct, prior to issuance of any penalty. Should foodware or foodware accessories made of compliant compostable natural fiber not be commercially available, as determined by the EHS Director or their designee, the County may approve a temporary exemption of specific nonreusable foodware or foodware accessories items until they are made commercially available on behalf of the Town. The County will maintain a list, updated annually, with foodware and/or foodware accessories deemed not available commercially.
By having the County’s EHS Division oversee outreach and enforcement of the proposed ordinance, this would free up Town staff to focus efforts on the Town’s many other programs and projects, and provide needed enforcement capacity. However, staff would still plan to conduct outreach to affected businesses through the development of a foodware webpage on 4 the Town website and distributing information about the ordinance and how to comply in the Town newsletters, flyers, and mailers. In preparation for this ordinance being considered by the Council, staff emailed and hand delivered a letter to all Fairfax food vendors informing them about the proposed ordinance discussion, and added an article to the Town newsletter as well.
PUBLIC INPUT: During the County’s ordinance process, the County conducted extensive outreach including development of a technical assistance and grant program, creation of a website with draft ordinance materials and resources, distribution of community and business surveys in English and Spanish, and hosting a variety of meetings and workshops (Attachment 5). These materials and meetings were available to all businesses and residents in the County (including the Town).
RECENT STATE REGULATIONS: Adoption of the proposed foodware ordinance would also assist the Town and businesses in complying with recent state waste related legislation including Assembly Bills 1276, 1200, and 1201. These bills were signed into law by Governor Newsom in October 2021 and address compostable foodware accessories distribution, composition and labeling. The proposed ordinance is in alignment with all three of these new laws which go into effect in 2022, 2023, and 2024. The proposed ordinance is also in compliance with AB 827 which requires food service businesses to provide customers with easily accessible recycling and organics collection bins.
EQUITY IMPACT: While there can be lifecycle cost savings from switching to reusable foodware materials and research has shown that fiber-based disposable foodware items are cost competitive with plastic options, there can still be an initial cost to research and transition to compliant materials. This could have an impact on smaller food vendors. In 2021, Marin County offered a free technical assistance and grant program open to all businesses in the County (both incorporated and unincorporated areas) to assist with the transition. The current County project has existing funding available to develop outreach materials and tools to assist food vendors with the transition. Limited County funding is also available to provide a grant program which could focus on small businesses that may need additional assistance with the transition.
FISCAL IMPACT
Financial impacts of implementation are expected to be minimal as a result of adopting the proposed foodware ordinance. If the Town adopts the County’s model ordinance without changes (other than adding the town name and specific information), and within twelve (12) months of County adoption (by May 10, 2023), the County’s Environmental Health Division will take on the role of enforcement through the food inspection program and the one-time enforcement fees would be waived. If the Town adopts the ordinance after the twelve (12) month period following County adoption (after May 10, 2023), the Town’s fee in the amount of $4,658 (based on 45 food facilities in the Town) would be assessed for adoption of the Ordinance and seeking enforcement from the County. The fee was calculated based on the time and resources needed to revise County’s EHS Division systems to include additional 5 businesses after the initial development period (estimated as 0.5 hours per food facility). The fee is scaled based on the number of food facility operators within the jurisdiction.
ATTACHMENTS
1. Proposed Ordinance to Prohibit the Sale of Polystyrene Foam Coolers and Ice Chests
2. Proposed Reusable Foodware Ordinance
3. Agreement Between County of Marin and Town of Fairfax Regarding Enforcement of the Foodware Ordinance
4. Comparison Table
5. Outreach Summary
ORDINANCE NO. 2023-AA
ORDINANCE OF THE TOWN OF FAIRFAX TOWN COUNCIL ADDING
SECTION 8.16.030(C) REGARDING THE PROHIBITION ON
POLYSTYRENE (EPS) FOAM COOLERS AND ICE CHESTS TO THE
TOWN CODE
WHEREAS, the Town desires to move the prohibition on polystyrene (EPS) foam coolers and ice chests from Section 8.72.080A prior to replacing Chapter 8.72 with the County of Marin’s ordinance on foodware and place this prohibition in Section 8.16.030(C) with other regulations regarding polystyrene (EPS).
NOW, THEREFORE, THE TOWN COUNCIL OF THE TOWN OF FAIRFAX DOES ORDAIN AS FOLLOWS:
Section 1. The above recital is true and correct and is hereby incorporated into this Ordinance.
Section 2. Subsection (C) of Section 8.16.030 regarding the prohibition on the sale of polystyrene (EPS) foam coolers and ice chests is hereby added to the Fairfax Town Code, which shall now read as follows:
Ҥ 8.16.030(C) For public health and safety purposes, the sale of polystyrene (EPS) foam coolers and ice chests is prohibited within the Town of Fairfax.
Coolers and ice chests that do not have exposed polystyrene foam and that are designed for reuse are exempt from the provisions of this chapter.” Section 3. CEQA. The Town Council hereby determines that the adoption of this Ordinance is exempt from the provisions of the California Environmental Quality Act (CEQA) pursuant to CEQA Guidelines Section 15061(b)(3), which provides that CEQA only applies to projects which have the potential for causing a significant effect on the environment. Where it can be determined that the proposed project will not have a significant adverse effect on the environment, the project is not subject to CEQA. This Ordinance moves an existing prohibition on foam coolers and ice chests to a different location in the Town Code, and therefore does not propose nor authorize any action or specific project that would have the potential to cause a significant adverse effect on the environment.
Section 4. Effective Date and Posting. This Ordinance shall be effective 30 days following its adoption by the Town Council. Copies of this Ordinance shall, within fifteen days after its passage and adoption, be posted in three public places in the Town of Fairfax, to wit: 1. Bulletin Board, Town Hall Offices; 2. Bulletin Board, Fairfax Post Office; and 3. Bulletin Board, Fairfax Women’s Club.
The foregoing Ordinance was introduced at a meeting of the Town Council on the 1st day of March 2023, and duly adopted at the next regular meeting of the Town Council on the ___ day of ________________, 2023, by the following vote, to wit:
ATTACHMENT 1
AYES:
NOES:
ABSENT:
ABSTAIN:
_______________________________
Chance Cutrano, Mayor
Attest: _________________________
Michele Gardner, Town Clerk
1 ORDINANCE NO. 2023-XX
ORDINANCE OF THE TOWN OF FAIRFAX TOWN COUNCIL
REQUIRING ALL FOOD FACILITY VENDORS TO USE REUSABLE FOODWARE
FOR DINE-IN OPERATIONS AND COMPLIANT COMPOSTABLE FOODWARE
FOR TAKE-OUT SERVICES
SECTION I. FINDINGS
WHEREAS, the Town of Fairfax has a desire and responsibility to protect the health, welfare, and safety of its citizens and economy. The proliferation of non-reusable (or disposable) foodware, packaging, and plastics has contributed to street litter, ocean pollution, marine, and other wildlife harm along with the greenhouse gas emissions from the production of the disposable materials.
WHEREAS, using reusable dishware significantly reduces the generation of unnecessary waste, and in most applications saves money, reduces disposal costs, and improves customer experience.
WHEREAS, reducing the generation of non-reusable foodware including plastic utensils, plastic cups, plastic clamshells, and plastic straws maximizes the operating life of landfills, reduces litter, and helps to lessen the economic and environmental costs of managing waste. This will also help protect the Town’s environment from contamination and degradation making it a cleaner, healthier region to all citizens and visitors.
WHEREAS, non-reusable foodware threatens public health because many types contain fluorinated chemical additives are known or suspected carcinogens or endocrine disruptors.
These additives are known to leach from foodware into food and beverage containers and into compost, soil, and water.
WHEREAS, numerous jurisdictions in the San Francisco Bay Area and the State of California have adopted legislation reducing the use of non-reusable food packaging with local and national businesses successfully replacing single-use food packaging with affordable durable and reusable foodware or, when needed, compliant compostable fiber foodware products.
WHEREAS, on May 10, 2022, the County of Marin adopted a local Reusable Foodware Ordinance which includes language offering enforcement services via the Environmental Health Services Food Program for cities/towns adopting the same ordinance for the food vendors in their jurisdictions.
WHEREAS, Town wishes to utilize the enforcement services offered by the County of Marin through the County’s Environmental Health Services Food Program.
NOW, THEREFORE, based on the foregoing, the Town Council of the Town of Fairfax ordains as follows:
Section II. Chapter 8.72 of the Town of Fairfax Town Code is hereby amended in its entirety as follows:
“Chapter 8.72 – Reusable Foodware Ordinance
8.72.010 - Definitions.
ATTACHMENT 2
2 (a) “BPI Certified” means those Compostable fiber Foodware products that have been certified by the Biodegradable Products Institute (BPI) to safely and readily biodegrade in an industrial composting facility in the typical processing time. As of January 1, 2020, BPI ensures all certified products are Fluorinated Chemical free. (b) “Compliant Non-Reusable Foodware” means that an item or product intended for disposal after one use and is: (1) accepted by the County through its composting collection program as Compostable as identified by the Deputy Director of Environmental Health Services or their designee; (2) is certified by either BPI Certified or other third party product certification recognized by the County through its Deputy Director of Environmental Health Services or their designee to ensure the item is free of harmful chemicals including but not limited to Fluorinated Chemicals, that may have been used in foodware manufacture, and is (3) made entirely of Natural Fiber, as defined that term is below, and including but not limited to paper, wood, or sugarcane fibers.
(c) “Compliant Foodware Accessory” means that an item or material is (1) accepted in Marin County composting collection program as Compostable; and is (2) made entirely of Natural Fiber.
(d) “Compost Facility” means compost facilities used by the Town’s current waste haulers for composting organic material.
(e) “Compostable” means 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 Deputy Director of Environmental Health Services or designee.
(f) “Compostable Plastics or Biodegradable Plastics” means the disposable products developed from polylactic acid (PLA), which require a specific set of conditions to compost and/or biodegrade that do not exist in the County or the region. These products are considered non-compliant.
(g) “Town” means the Town of Fairfax.
(h) “Town Facility” means any building or structure owned, leased, or operated by the Town of Fairfax.
(i) “Customer” means any person obtaining Prepared Food from a Food Vendor. (j) “Director” means the Deputy Director of Environmental Health Services or their designee. (k) “Disposable (or Non-Reusable) Cup” means a beverage cup designed for single-use to serve beverages such as water, hot and cold drinks, and alcoholic beverages. (l) “Effective Date” means thirty days from adoption of the Foodware Ordinance. (m) “EPS” means expanded polystyrene, also known as Polystyrene Foam. (n) “Fluorinated Chemical” means a class of fluorinated organic compounds containing at least one (1) fully fluorinated carbon atom, also known as perfluoroalkyl (PFOA) and 3 polyfluoroalkyl (PFOS) substances, or PFAS chemicals. California Prop 65 lists PFOA and PFOS as reproductive toxicants.
(o) “Foodware” means all containers, bowls, plates, food trays, cups, lids, boxes, and other like items that are used for Prepared Foods, including without limitation, Foodware for takeout foods and/or leftovers from partially consumed meals prepared by Food Vendors. (p) “Foodware Accessories” means types of items usually provided alongside Prepared Food including but not limited to forks, spoons, knives, chopsticks, napkins, cup sleeves, food wrappers, beverage trays, condiment containers, straws, stirrers, splash sticks, cocktail sticks, toothpicks, tray-liners, and plate-liners.
(q) “Food Vendor” means a food facility as that term is defined in Health & Safety Code section 113789, or its successor, including but not limited to a restaurant, bar, grocery store, delicatessen, bakery, food service establishment (carry out, quick service, full-service), food truck, itinerant restaurant, pushcart, farmers market, caterer, microenterprise home kitchen operation, or cottage food operation, that sells Prepared Food to be consumed on and/or off the premises located or operating within the Town, except that for purposes of this ordinance the term “food vendor” shall not include a public or private school cafeteria. (r) “Natural Fiber” means a plant-based, non-synthetic fiber, including but not limited to paper, wood, bamboo, palm leaf, wheat straw, or sugarcane. Natural Fiber does not include plastic of any kind.
(s) “On Request” means that only at the request of a customer shall the compliant product be provided.
(t) “Polystyrene Foam” means and includes blown polystyrene and expanded and extruded foams (sometimes incorrectly called Styrofoam, a Dow Chemical Co. trademarked form of polystyrene foam insulation) 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-blow molding (extruded foam polystyrene). Polystyrene Foam is generally used to make cups, bowls, plates, trays, clamshell containers, meat trays, coolers, packing peanuts, and egg cartons.
(u) “Prepared Food” means food or beverages, which are served, packaged, cooked, chopped, sliced, mixed, brewed, frozen, squeezed or otherwise prepared on the premises of the Food Vendor and includes Takeout Food. For the purposes of this chapter, Prepared Food does not include raw, butchered meats, fish and/or poultry, which are sold from a butcher case or similar appliance.
(v) “Reusable or Durable” Foodware and Foodware Accessories, including plates, bowls, cups, jars, trays, glasses, straws, stirrers, condiment cups, utensils, etc. that are manufactured of durable materials and specifically designed and manufactured to be washed and sanitized and to be used repeatedly over an extended period of time, and are safe for washing and sanitizing according to applicable regulations. (w) “Takeout Food” means food or beverages requiring no further preparation to be consumed and which generally are purchased to be consumed off the premises of the Food Vendor. 4 8.72.020 - Dine-in Foodware regulations.
Food Vendors within the incorporated areas of Town:
(a) Shall sell or provide food and beverages for consumption on the premises using Reusable Foodware and utensils (forks, spoons, knives, chopsticks) except as otherwise provided in section 8.72.030 (b);
(b) May provide all other Compliant Foodware Accessories, which are made of Natural Fibers, including napkins, food wrappers, straws, stirrers, cocktail sticks, toothpicks, tray-liners, and plate-liners.
(c) Shall offer condiments in reusable containers or dispensers rather than pre-packaged single-use condiment packets; and
(d) Food Vendors will have until November 10, 2023, before enforcement of this regulation begins.
8.72.030 - Takeout Foodware regulations.
Food Vendors within the incorporated areas selling Takeout Food for consumption off premises:
(a) Shall provide takeout food in Reusable Foodware, or compostable Natural Fiber Compliant Foodware, or items composed entirely of glass or aluminum; (b) Shall provide all other Compliant Foodware Accessories, which are made from Natural Fibers, including napkins, cup sleeves, beverage trays, condiment containers, straws, stirrers, splash sticks, cocktail sticks, and toothpicks only Upon Request or at self-serve stations; and
(c) Takeout food bags shall be Reusable, paper, or comply with Chapter 8.18 (regulations for single-use carry-out bags).
(d) Takeout Food delivery services shall provide the option for Compliant Foodware Accessories (forks, spoons, knives, chopsticks) and single-use condiments only On Request. A Food Vendor or a Takeout Food delivery service may include lids, spill plugs, and sleeves without request for Non-Reusable Cups for delivery. (e) Food Vendors shall provide plastic straws only On Request, to accommodate any person's access needs.
8.72.040 - Town purchasing, facilities, and Town sponsored events.
The following regulations apply to Town purchases, facilities, and Town-sponsored events:
(a) All Town facilities that involve food service shall use Reusable Foodware and Compliant Foodware Accessories.
(b) Town-managed concessions, Town-sponsored events, and Town-permitted events shall use Reusable Foodware or Compliant Foodware and Compliant Foodware Accessories. 5 (c) These entities are prohibited from using Non-Reusable plastic foodware, including EPS/Polystyrene Foam, and Compostable or Biodegradable Plastics. No Town department shall purchase or acquire Non-Reusable plastic foodware for use at any Town facility. Organizations or individuals using Town facilities shall use Reusable or Compliant Foodware and Compliant Foodware Accessories.
(d) The Town shall prohibit the use of EPS/Polystyrene Foam and Non-Reusable plastic foodware by vendors, franchisees, lessees, contractors, or other commercial food and beverage purveyors at all Town government center facilities, and Town parks. Prohibited products include, but are not limited to, EPS/Polystyrene Foam and Non-Reusable plastic food containers, straws, bowls, plates, trays, utensils, clamshells, and cups which are not intended for reuse, on or in which any foods or beverages are placed or packaged. (e) As of the Effective Date, all Town departments that hold contracts, lease agreements, permits or other agreements that involve food service shall incorporate this prohibition into all new and renewed contracts, leases, permits, agreements, etc. (f) The use or distribution of EPS/Polystyrene Foam, and Non-Reusable plastic foodware at special events at Town facilities that are sponsored or co-sponsored by the Town shall be prohibited. This prohibition shall apply to the event organizers, agents of the event organizers, event vendors, and any other party (including non-profit organizations) who have an agreement with one or more of the co-sponsors of the event to sell goods or beverages at the event or otherwise provide an event-related service. (g) Written agreements with any vendor, including non-profit organizations, to sell food or beverages at an event that is sponsored or co-sponsored by the Town, shall specifically prohibit the usage and distribution of EPS/Polystyrene Foam and Non-Reusable plastic foodware.
8.72.050 - Non-Reusable cup charge.
(a) All Food Vendors shall charge customers twenty-five cents ($0.25) at the point of sale for every Non-Reusable cup provided unless they are exempt under this chapter. (b) Income from the Non-Reusable cup charge shall be retained by the Food Vendor. (c) Charges for Non-Reusable cups shall be identified separately on any post-sale receipt provided and, pre-sale, 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 Non-Reusable cup charges. (d) All customers demonstrating, at the point of sale, a payment card or voucher issued by the California Special Supplemental Food Program for Women, Infants, and Children (WIC) pursuant to Article 2 (commencing with section 123275) of Chapter 1 of Part 2 of Division 106 of the California Health and Safety Code and as amended, or an electronic benefit transfer card (EBT) issued pursuant to section 10072 of the California Welfare and Institutions Code, and individuals with disabilities shall be exempt from the Non-Reusable cup charge.
6 8.72.060 - Separate waste receptacles required.
(a) All Food Vendors who provide solid waste containers for customer use, must provide separate receptacles for solid waste, recyclables, and organics. Receptacles shall be colored black or grey for garbage, blue for recycling, and green for compost/organics. (b) To the extent possible given space constraints, all receptacles for solid waste, recyclables, and organics should be placed adjacent to one another.
(c) Graphic-rich signage must be posted on or above each receptacle following the waste hauler’s guidelines.
8.72.070 - Exemptions.
(a) Entities packaging Prepared Foods outside Marin County are exempt from the provisions of this chapter; provided, however, such entities are urged to follow the provisions of this chapter.
(b) Non-Reusable Foodware and Foodware Accessories composed entirely of aluminum is exempt from the provisions of this chapter.
(c) Should Foodware or Foodware Accessories made of Compliant compostable Natural Fiber not be commercially available, as determined by Director or their designee, the County may approve temporary exemption of specific nonreusable Foodware or Foodware Accessories items until they are made commercially available. The County shall maintain a list, updated annually, with Foodware or Foodware Accessories deemed not available commercially.
(d) For the immediate preservation of the public peace, health, or safety due to an emergency or natural disaster, the City Council, or designee, may exempt Food Vendors, persons operating Town facilities and agents, contractors, and vendors doing business with the Town, from the provisions of this chapter.
8.72.080 - Enforcement.
(a) Compliance with this ordinance is required as of the Effective Date. (b) Enforcement of this chapter shall be pursuant to Town Code sections 8.72.020 through
8.72.070, inclusive.
(c) Enforcement shall include written notice of non-compliance and a reasonable opportunity to correct, prior to issuance of any penalty.
(d) It is found and determined to by the Town Council that the public interest, health, safety, and welfare of the residents of the city require that the Marin County Environmental Health Services Division be designated as the enforcement agency of and within Town and as such enforcement agency it is authorized with the enforcement of the provisions of this chapter and the Marin County Environmental Health Services division is vested, for the purposes of enforcing this chapter within Town, with all of the jurisdiction and powers vested in or available to said division by this Chapter and said health and safety code. 7 (e) Enforcement of this chapter will begin on November 10, 2023. Enforcement will be delegated to the County’s Environmental Health Services. Enforcement will progress on the regular inspection schedule of all covered Food Vendors in the County as described in this chapter.
8.72.090 - Violations
On behalf of the Town, the County may choose to undertake the following legal actions to correct and/or abate nuisances and violations of this ordinance. The Director of Environmental Health Services or their designee is authorized to promulgate regulations and take any and all other actions reasonable and necessary to enforce the provisions of this Article, including but not limited to, entering the premises of any food provider during regular business hours to verify compliance, and by the issuance of Administrative Citations. The remedies and penalties provided by this Article are cumulative and in addition to any other remedies available at law or in equity. (a) Administrative Citations.
Administrative citations may be issued for violations of this Chapter at the discretion of the Director. The issuance of an administrative citation under this chapter shall not supersede or limit the remedies provided elsewhere in this Code or California law, including other administrative citation remedies. Issuance of an administrative citation may be exercised in place of, but shall not be considered a waiver of, the use of any other available enforcement remedy.
(b) Process and Service of Citation.
1. Prior to issuance of citation penalty, the County shall issue a violation warning letter to the facility operator and provide the facility operator thirty (30) days to correct the violation(s).
2. The violation warning letter and/or citation shall be mailed to the food facility operator named in the facility’s permit.
3. The failure of any interested person to receive the violation warning letter and/or citation shall not affect the validity of the proceedings. (c) Administrative Citation Penalty Schedule.
Following the violation warning letter described in Section 8.72.090(b)(1) above and thirty (30) day cure period, if the violations remains, the County may issue the following administrative penalties:
1. A fine not exceeding $100.00 for the first violation;
2. A fine not exceeding $200.00 for a second violation of the same Code provision within one year; and
3. A fine not exceeding $500.00 for each additional violation in excess of two, of the same Code provision within one year.
(d) Response to Citation Penalty
Following receipt of citation penalty, food facility operator shall have thirty (30) days to pay the fine as indicated on the citation, or to request a waiver of payment of the penalty due to unique undue hardship. This waiver may be granted by the Director upon demonstration by a food facility operator to the satisfaction of the Director 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 of this chapter does not exist for a specific application. 8 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 Foodware or Foodware Accessories made of Compliant compostable Natural Fiber is not available at a commercially reasonable price and the additional cost associated with providing the Compliant Foodware or 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 Director 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.
(e) Nonpayment of Citation for More than One Year Deemed Nuisance.
Nonpayment of any assessed violation for longer than one year shall constitute a nuisance and be subject to the nuisance abatement procedures in Marin County Code Chapter 1.05, including payment of civil penalties of up to $2,500 per violation per day and enforcement and other abatement costs incurred by the County.”
SECTION III. This Ordinance was assessed in accordance with the authority and criteria contained in the California Environmental Quality Act (CEQA), the State CEQA Guidelines, and the environmental regulations of the Town. The Town Council hereby finds that under section 15061(b)(3) of the State CEQA Guidelines, this Ordinance is exempt from the requirements of CEQA because it can be seen with certainty that the provisions contained herein would not have the potential for causing a significant effect on the environment. It also finds the Ordinance is exempt from the requirements of CEQA pursuant to CEQA Guidelines sections 15307 and 15308 as an action by a regulatory agency taken to protect the environment and natural resources.
SECTION IV: SEVERABILITY
Every section, paragraph, clause, and phrase of this Ordinance is hereby declared to be severable. If for any reason, any section, paragraph, clause, or phrase is held to be invalid or unconstitutional, such invalidity or unconstitutionality shall not affect the validity or constitutionality of the remaining sections, paragraphs, clauses or phrases, and the remaining portions or this ordinance shall continue in full force and effect unless amended or modified by the Town.
SECTION V: EFFECTIVE DATE AND PUBLICATION
This Ordinance shall take effect thirty (30) days after its adoption. Copies of this Ordinance shall, within fifteen days after its passage and adoption, be posted in three public places in the Town of Fairfax, to wit: 1. Bulletin Board, Town Hall Offices; 2. Bulletin Board, Fairfax Post Office; and 3.
Bulletin Board, Fairfax Women’s Club Building, located at 46 Park Road.
The foregoing Ordinance was introduced at a regular meeting of the Town Council on the 1st day of March, 2023, and duly adopted at the next regular meeting of the Town Council on the ___ day of ________________, 2023, by the following vote, to wit:
9 AYES:
NOES:
ABSENT:
ABSTAIN:
Chance Cutrano, Mayor
ATTEST:
Michele Gardner, Town Clerk Date
AGREEMENT BETWEEN
COUNTY OF MARIN AND TOWN OF FAIRFAX
REGARDING ENFORCEMENT OF THE FOODWARE ORDINANCE
This AGREEMENT (AGREEMENT), made and entered into this _____ day of ______________, 2022, by and between the COUNTY OF MARIN, hereinafter referred to as “COUNTY”, and TOWN OF FAIRFAX, hereinafter referred to as “TOWN”, both in the State of California, collectively the “PARTIES”, for participation in the County Environmental Health Services (EHS) Reusable Foodware Ordinance Implementation and Enforcement Program (the “PROGRAM”).
SECTION 1: RECITALS
1.1 Parties have the mutual desire and responsibility to protect the health, welfare, and safety of its citizens and economy. The proliferation of non-reusable (or disposable) foodware, packaging, and plastics has contributed to street litter, ocean pollution, marine, and other wildlife harm along with the greenhouse gas emissions from the production of the disposable materials.
1.2 Using reusable dishware significantly reduces the generation of unnecessary waste, and in most applications saves money, reduces disposal costs, and improves customer experience.
1.3 Non-reusable foodware threatens public health because many types contain fluorinated chemical additives are known or suspected carcinogens or endocrine disruptors. These additives are known to leach from foodware into food and beverage containers and into compost, soil, and water.
1.4 On May 10, 2022, COUNTY adopted a local Reusable Foodware Ordinance, and which includes language offering enforcement services via COUNTY’S Environmental Health Services for cities and towns in the County of Marin adopting the same ordinance for the food vendors in their jurisdictions.
1.5 TOWN (has/is) adopting a local Reusable Foodware Ordinance and wishes to utilize the enforcement services offered by COUNTY through COUNTY’S Environmental Health Services.
1.6 TOWN and COUNTY have determined that the public interest would be best served by the performance of these functions as provided in the Reusable Foodware Ordinance and as provided in this AGREEMENT.
SECTION 2: PURPOSE OF THE AGREEMENT
This AGREEMENT is entered into by and between the PARTIES to define the responsibilities of the PARTIES for the implementation enforcement of Reusable Foodware Regulations within Town as defined in Town Code Chapter 8.72.
SECTION 3: PROGRAM DEFINITION AND SCOPE
COUNTY shall act as the enforcement agency for the Reusable Foodware Ordinance, as detailed in Town Code Chapter 8.72. Enforcement as detailed in Town Code Chapter 8.72, will begin on November 10, 2023.
ATTACHMENT 3
TOWN participation in the Program is encouraged but completely voluntary. However, development and implementation of such a program requires staff time and resources which would be exacerbated if jurisdictions joined the Program piecemeal over the course of several years. To address these potential cost impacts, there will be a one-time fee to join the Program.
However, to encourage and incentivize jurisdictions to join during the initial development phase, COUNTY will waive the on-boarding fee for any jurisdiction that opts into the program within twelve (12) months of the COUNTY’S adoption of the ordinance.
The one-time on-boarding fee was calculated based on the time and resources needed to revise COUNTY’S EHS Division systems to include additional businesses after the initial development period (estimated as 0.5 hours per food facility). The fee is scaled based on the number of food facility operators within the jurisdiction (see Table 1).
Table 1: Environmental Health Division One-Time Enforcement Program Fee for Reusable Foodware Ordinance
Jurisdiction Number of
Food Facilities
One-Time
On-Boarding Fee
Belvedere 3 $311
Corte Madera 58 $6,003
Fairfax 45 $4,658
Larkspur 49 $5,072
Mill Valley 70 $7,245
Novato 198 $20,493
Ross 6 $621
San Anselmo 56 $5,796
San Rafael 322 $33,327
Sausalito 70 $7,245
Tiburon 31 $3,209
If jurisdictions adopt the ordinance after the twelve (12) month period following COUNTY adoption, the EHS Division can still provide enforcement, but the fee would no longer be waived for those jurisdictions.
SECTION 4: RESPONSIBILITIES
4.1 TOWN SHALL:
a. TOWN has or shall adopt a Reusable Foodware Ordinance in compliance with and mirroring the Reusable Foodware Ordinance adopted by the COUNTY on May 10, 2022.
b. Pay the onboarding fee as detailed in Section 4 above within 30 (thirty) days of written request for payment by COUNTY, unless otherwise waived.
4.2 COUNTY SHALL:
a. Act is enforcement agency for the Reusable Foodware Ordinance for the TOWN as detailed in its Reusable Foodware Ordinance and in this AGREEMENT.
b. Provide updates to TOWN of any modifications to its Ordinance or modifications to the enforcement Program.
SECTION 5: TERM OF AGREEMENT AND TERMINATION.
5.1 This AGREEMENT shall remain in force unless terminated by either PARTY. Either PARTY may terminate this AGREEMENT by giving three (3) months written notice to the other PARTY.
5.2 In the event of termination of this AGREEMENT, any supplementary agreements may also be terminated in accordance with the termination provisions contained in such agreements.
5.3 If TOWN amends its Reusable Foodware Ordinance which, in the COUNTY’S sole determination and discretion, does not comport with the COUNTY’s Reusable Foodware Ordinance and Program, COUNTY may terminate this AGREEMENT at any time.
SECTION 6: COMPLIANCE WITH LAW.
In the performance of its obligations pursuant to this AGREEMENT, PARTIES shall comply with all applicable federal, state and local laws, ordinances and regulations in any manner affecting the performance of this AGREEMENT, and must at all times comply with such laws, ordinances, and regulations as they may be amended from time to time.
SECTION 7. INDEMNIFICATION AND GENERAL LIABILITY
TOWN shall indemnify, hold harmless, release and defend COUNTY, its officers, agents and employees from any and all liability, actions, claims, damages, costs or expenses, including attorneys' fees and the costs and expenses of suit which may be asserted by any complainant, arising in any respect, out of TOWN’s negligent or intentional acts or omissions arising under or related to this AGREEMENT.
SECTION 8. OBLIGATIONS.
Termination of this AGREEMENT will not invalidate the indemnification obligations of TOWN to COUNTY and/or obligations properly incurred by TOWN before the termination date to the extent those obligations cannot be canceled.
SECTION 9. INTEGRATION.
This AGREEMENT represents the entire AGREEMENT of the PARTIES with respect to the subject matter thereof. No representations, warranties, inducements or oral agreements have been made by any of the parties except as expressly set forth herein, or in other contemporaneous written agreements.
SECTION 10. AMENDMENT.
Except as otherwise provided herein, this AGREEMENT may not be changed, modified or rescinded except in writing and approved by all parties hereto.
SECTION 11. INDEPENDENT AGENCY.
Each party performs the terms and conditions of this AGREEMENT as an entity independent of the other party. Each party’s agents or employees shall not be agents or employees of the other party to this AGREEMENT.
SECTION 12. ASSIGNMENT.
This AGREEMENT may not be assigned, transferred, hypothecated, or pledged by any party without the express written consent of the other party.
SECTION 13. BINDING ON SUCCESSORS, ASSIGNEES OR TRANSFEREES.
This AGREEMENT shall be binding upon the successor(s), assignee(s) or transferee(s) of TOWN. This provision shall not be construed as an authorization to assign, transfer, hypothecate or pledge this AGREEMENT other than as provided above.
SECTION 14. SEVERABILITY.
Should any part of this AGREEMENT be declared unconstitutional, invalid, or beyond the authority of either party to enter into or carry out, such decisions shall not affect the validity of the remainder of this AGREEMENT, which shall continue in full force and effect provided that the remainder of this AGREEMENT can, absent the excised portion, be reasonably interpreted to give effect to the intentions of the parties.
SECTION 15. SUCCESSORS; NO THIRD-PARTY BENEFICIARIES.
Nothing in this AGREEMENT, whether express or implied, shall be construed to give any person or entity (other than the PARTIES hereto and their respective successors and assigns) any legal or equitable right, remedy or claim under or in respect of this AGREEMENT or any covenants, conditions or provisions contained herein.
SECTION 16. CONTACTS AND NOTICES.
All notices under this AGREEMENT shall be in writing (unless otherwise specified) delivered to the parties by hand, by commercial courier service, or by United States mail, postage prepaid, addressed to the parties at the addresses set forth below or such other addresses as the parties may designate by notice.
For COUNTY:
Greg Pirie, Deputy Director, Environmental Health Services County of Marin – Community Development Agency
3501 Civic Center Drive, Room 236
San Rafael, CA 94903
For TOWN:
Heather Abrams, Town Manager
142 Bolinas Rd.
Fairfax, CA 94930
COUNTY: TOWN:
By: _________________________ By: _________________________ ____________________________ ____________________________ Print Name Print Name
____________________________ ____________________________ Print Title Print Title
APPROVED AS TO FORM: APPROVED AS TO FORM:
By: By:
_____________________________ ___________________________ COUNTY Counsel TOWN Attorney
Comparison Table – County Foodware Ordinance vs. Fairfax Foodware Ordinance County Ordinance Fairfax Ordinance
Definition: BPI Certified No definition for BPI Certified Definition: Compliant Non-Reusable Foodware No definition for Compliant Non-Reusable Foodware
Definition: Compliant Foodware Accessory No definition for Compliant Foodware Accessory Definition: Compost Facility Referred to as “Municipal Compost Facility” Definition: Compostable Plastics or
Biodegradable Plastics
No definition for Compostable Plastics or
Biodegradable Plastics
Definition: County No definition for County
Definition: County Facility No definition for County Facility Definition: Customer No definition for Customer
Definition: Director No definition for Director
Definition: Effective Date No definition for Effective Date Definition: EPS Referred to as “Polystyrene & Polystyrene Foam” Definition: Foodware Referred to as “Disposable Food Ware” Definition: Foodware Accessories Referred to as “Disposable Food Ware Accessories”
Definition: Natural Fiber No definition for Natural Fiber Definition: On Request No definition for On Request
No definition for Full-Service Restaurant Definition: Full-Service Restaurant No definition for Private Schools Definition: Private Schools No definition for Takeout Food Delivery Service Definition: Takeout Food Delivery Service Compostable defined as “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 Deputy Director of
Environmental Health Services or designee.”
Compostable defined as “All best available
disposable products that are certified as
compostable by BPI (Biodegradable Products
Institute - a third party organization that reviews
and certifies compostable products that meet
ASTM D6400 and ASTM 6868 conditions for
compostability) or Fluorinated Free and accepted
by the town’s Municipal Compost Facility.”
Food Vendor defined as “a food facility as that
term is defined in Health & Safety Code section
113789, or its successor, including but not limited
to a restaurant, bar, grocery store, delicatessen,
bakery, food service establishment (carry out,
quick service, full-service), food truck, itinerant
restaurant, pushcart, farmers market, caterer,
microenterprise home kitchen operation, or
cottage food operation, that sells Prepared Food
to be consumed on and/or off the premises
located or operating within the Town, except that
for purposes of this ordinance the term ‘food
vendor’ shall not include a public or private
school cafeteria.”
Food Vendor defined as “any restaurant, private
school, bar, grocery store, delicatessen, bakery,
food service establishment (carry out, quick
service, full-service), food truck, itinerant
restaurants, pushcart, farmers market or other
similar establishments, selling prepared food to
be consumed on or off the premises located or
operating within the town.”
Dine-in foodware regulations require offering
condiments in reusable containers or dispensers
No requirement for offering condiments in
reusable containers or dispensers.
ATTACHMENT 4
rather than pre-packaged single-use condiment
packets.
Takeout foodware regulations allow takeout food
to be provided using glass materials as well as
aluminum.
Takeout foodware regulations do not specifically
call out glass materials as an option for takeout
food, but would be covered by reusable
foodware which is an option as well.
Takeout foodware regulations do not include an
allowance for alternative foodware items if a
compostable foodware item is not available, but
the ordinance does allow for exemptions for
foodware and foodware accessories if
commercially available compostable options do
not exist.
Takeout foodware regulations allow an
alternative foodware item made of other
materials, except polystyrene foam and
polystyrene foodware, to be substituted if a
compostable foodware item is not available.
Town purchases and town-sponsored event
regulations require organizations or individuals
using Town facilities to use reusable or
compostable foodware and foodware
accessories.
No requirement for organizations or individuals
using Town facilities to use reusable or
compostable foodware and foodware
accessories.
Town purchases and town-sponsored event
regulations require that all Town departments
that hold contracts, lease agreements, permits,
or other agreements that involve food service to
incorporate prohibitions on non-reusable plastic
foodware and polystyrene foam into all new and
renewed contracts, leases, permits, agreements,
etc.
No requirement to incorporate prohibitions on
non-reusable plastic foodware and polystyrene
foam into Town contracts, lease agreements,
permits, or other agreements. However, the
ordinance already prohibits the Town from
purchasing foodware and foodware accessories
that are not compostable and existing regulations
in Chapter 8.16.070 of the Municipal Code
prohibit the Town from purchasing any
polystyrene foam food packaging.
Disposable cup charge regulations apply to all
food vendors.
Disposable cup charge regulations apply to all
food vendors except for full-service restaurants.
Waste receptacle regulations apply to all food
vendors that provide solid waste containers for
customer use.
Waste receptacle regulations apply to all food
vendors except full-service restaurants.
Temporary exemptions allowed if specific
compliant foodware or foodware accessories are
not commercially available if approved by the
County Deputy Director of Environmental Health
Services or their designee. Although exemptions
aren’t allowed due to undue hardship, the
County Deputy Director of Environmental Health
Services may grant a waiver for undue hardship
to a food vendor that receives a citation penalty
for noncompliance.
Temporary exemptions allowed for “significant
difficulty” and “significant expense” for up to one
year if approved by the Town Manager or their
designee. Extensions of the exemption for up to
one year may also be approved if the food
vendor demonstrates that efforts were made to
comply, but an undue hardship still exists.
Private school cafeterias are exempt from the
regulations in the ordinance.
Private schools are only exempt from the
disposable cup charge regulation.
Reusable Foodware Ordinance Public Outreach Summary
As part of the County’s outreach efforts, virtual workshops for residents and businesses were hosted on July 14 and September 15, 2021, and a public comment period was held to solicit feedback. City staff supported local outreach via social media and targeted emailing. Outreach was provided in both Spanish and English and business types included restaurants, bars, and convenience markets. A summary of countywide outreach is outlined below.
Food Vendor Grant
Program and
Technical Assistance
75 businesses called and 62 site visits completed across all jurisdictions. During site visits, businesses were informed of the ordinance features, provided outreach materials, and offered the opportunity to apply for the grant program and receive free technical assistance. 6 out of the 40 businesses visited were provided inlanguage Spanish assistance. 11 businesses have been approved and are currently in the grant program. 3 out of the 6 Spanish speaking businesses are interested and have applied for the grant.
City of San Rafael
Business Outreach
Two City interns surveyed business in San Rafael locations including Downtown San Rafael, Montecito Shopping Center, Northgate 1, Canal. Interviews were also conducted with large grocery stores like Whole Foods and Andy’s Market.
Over 50 business owners or administrators reached via outreach effort.
Interns had one-on-one conversations with business owners of the potential impacts of the RFO on their business, encouraged the completion of the County business survey, and collected comments not listed on survey.
Food Vendor
Survey Results
(provided in English +
Spanish)
97 responses
Vendors are mostly concerned with cost, supply, and customer behavior change Vendors see the biggest benefits of this ordinance as less landfilled waste, reduced waste overall, and having more sustainable options for customers Over 50% of businesses support a $0.25 charge
68% do not think it would be difficult to switch to all reusables for dine in (of which 18% would want help from the County or cities)
Resident
Survey Results
(provided in English +
Spanish)
338 responses
95% are in favor of reducing plastic materials from going to landfill 91% support Marin County requiring all food vendors use foodware that is either reusable or compostable
79% support a County-wide cup charge
Business
Workshop Meeting
Held on 9/15/2021 with over 45 attendees. Spanish translation services were offered at the meeting. The meeting was recorded and is publicly available on the County’s website.
Resident
Community Meeting
Held on 7/14/2021 with over 28 attendees. The meeting was recorded and is publicly available on the County’s website.
20+ Meetings with
Stakeholders
Stakeholders from across the County, including restaurant owners, various chamber of commerce groups (including the Council of Chambers), Latinx business leaders, disability advocates, haulers and processors, food inspectors, advocacy groups, etc.
1 Letter Sent to all food vendors with information about the proposed ordinance, survey link, outreach flyer, and invitation to attend the business workshop meeting. 33 Public Comments County received 33 public comments on the publicly available draft ordinance.
Public comments on the ordinance have been accepted since February 2020.
ATTACHMENT 5