1 STAFF REPORT TO THE CITY COUNCIL
DATE: Regular Meeting of April 26, 2022
TO: Mayor Bailey and Members of the City Council
VIA: Dante Hall, City Manager
SUBMITTED BY: Patrick Tang, City Attorney
Michael Roberts, Public Works Director/City Engineer
SUBJECT: AB 1276 – Single-Use Plastics Reduction Enforcement Requirements
RECOMMENDED ACTION:
Accept staff report, and provide direction to staff regarding the scope of a proposed ordinance implementing AB 1276 enforcement requirements.
FISCAL IMPACT OF RECOMMENDATION:
Enforcement of the single-use plastic reduction requirements would require an as yet undetermined amount of code enforcement and administrative staff time.
EXECUTIVE SUMMARY:
The purpose of this item is to provide an update on recent state law affecting the regulation of single- use plastic items, provide information on components of ordinances addressing single -use plastic reduction including approaches utilized by other jurisdictions, and seek feedback from the Council on next steps regarding development of similar regulations for the City.
BACKGROUND:
Plastic pollution is a massive problem. Every year in the United States, an estimated 561 billion disposable items are used, resulting in 4.9 million tons of waste.1 Much of this plastic ends up in the ocean, with approximately 2.4 million tons of plastic waste each year from the United States alone.
Because plastic degrades and breaks down into pieces only very slowly, it poses a huge threat to wildlife and ecosystems and makes clean-up efforts more challenging. California communities are estimated to spend more than $428 million annually to clean up and control plastic pollution.2
In light of Governor Newsom’s signing of Assembly Bill 1276 (AB 1276), which amended existing law regulating single -use plastic straws, staff seeks input regarding the City’s approach to
1 E. Moss, R. Grousset, The Dirty Truth about Disposable Foodware, The Overbrook Foundation – February 2020. 2 Ocean Protection Council.
2 development of regulations intended to satisfy State requirements for compliance with AB 1276, and the potential for expanding upon existing law, if directed by Council.
DISCUSSION:
On October 5, 2021, AB 1276 was signed into law by Governor Newsom. AB 1276 amends existing law to support the goal of reducing the use of, and waste generated by, all single-use food service products. Specifically, this bill prohibits a food facility from providing any single -use foodware accessory or standard condiment, as defined, unless requested by the consumer. It further prohibits these items from being bundled or packaged in a way that prohibits the consumer from taking only the item desired. Additionally, AB 1276 requires that on or before June 1, 2022, local jurisdictions shall authorize an enforcement agency to enforce the regulations. Penalties include a notice of violation for the first two violations, with any subsequent infraction punishable by a fine of $25 for each day in violation, but not to exceed $300 annually.
While AB 1276 does not ban single-use plastic foodware - it makes it only available upon request - the law specifically states that nothing in it prevents a local jurisdiction from adopting and implementing an ordinance or rule that would further restrict a fo od facility or a third -party food delivery platform from providing single -use foodware accessories or standard condiments to a consumer. Therefore, the City may choose to expand upon the existing law.
Many cities in California have expanded upon state law and have banned some single-use plastics completely. For example, Daly City, Santa Monica, and Malibu have banned plastic utensils and stirrers in favor of marine-degradable and/or compostable disposable food service ware. The penalties for failure to comply with these bans vary in severity. Many jurisdictions issue notices of violation, and others issue fines that exceed the amounts s pecified in AB 1276. In Laguna Beach, fines are cumulative and go up to $500 for the third and each subsequent day of viola tion after an initial warning.
The summaries below highlight the range of actions taken by a few cities as examples:
• Berkeley – Disposable accessory items (straws, stirrers, utensils, condiment packets, etc.) to be provided only on customer request, and all disposable accessory items must be certified compostable.
• Palo Alto – Final passage of an ordinance adopting the minimum AB 1276 requirements is scheduled to be heard by the City Council on April 18, 2022.
• Daly City - On September 13, 2021, the Daly City Council adopted a Disposable Food Service Ware Ordinance eliminating the unnecessary distribution and use of single -use plastics. The City’s new regulation will require Daly City food facilities to transition t o non- plastic alternatives. Straws, stirrers, bundled utensils, and cocktail/toothpicks (and the packaging that these individual items are wrapped in if any) must be non-plastic and compostable materials , or reusable wherever practicable. Acceptable materials include natural fiber-based products such as paper, sugarcane, wheat stalk/stem, bamboo, wood, etc. Traditional plastics (petroleum -based) and compostable plastics (aka bioplastics or polylactic acid [PLA]) shall not be allowed.
3 Plates, bowls, cups, food trays, clamshells, boxes, deli containers, and other containers must be non -plastic and compostable, or reusable wherever practicable.
Additionally, these items shall be certified by the Biodegradable Products Institute (BPI) or an approved third party.
• Santa Barbara - The City of Santa Barbara has regulations in place that prohibit plastic straws and stirrers, and which makes plastic cutlery available upon request. These restrictions are compliant with AB 1276. Santa Barbara has adopt ed a separate ordinance that bans Polystyrene food containers.
• Carpinteria - The City of Carpinteria in 2019 banned single-use plastic foodware all together, and made non-plastic foodware only available upon request. Carpinteria is in compliance with AB 1276 and goes a step further by placing restrictions on all single-use food accessories.
• Goleta – To meet the state deadline of June 1, 2022 , for compliance with AB 1276 requirements, the City of Goleta is taking a two-step approach to proposed plastic reduction regulations. The first step is the proposed ordinance to bring the City into compliance with the state legislation (The first reading of the Ordinance is scheduled for April 19, 2022). The second step includes developing a second ordinance that would expand upon state law by prohibiting additional types of single-use plastics.
• West Hollywood - The City of West Hollywood is currently in the process of banning plastic products in food service. On October 4th, 2021, the City of West Hollywood City Council directed staff to draft an amendment to the City’s municipal code to prohibit food and beverage providers from distributing single -use non -marine-degradable disposable food service ware. This includes single-use plastic straws, utensils, containers, lids, lid plugs, cups, bowls, etc.
• Manhattan Beach - Manhattan Beach banned single use plastic foodware in 2018, and in 2019 banned meat trays, egg cartons, and has restrictions on balloons to reduce plastic pollution.
CONCLUSION:
As mentioned previously, AB 1276 requires that the City authorize an enforcement agency to enforce the new regulations by June 1, 2022. Staff will proceed with developing a draft ordinance to comply with AB 1276 requirements , based on Council direction reg arding the scope of the proposed ordinance. There are two decision points: 1) Should the City ordinance address the provision of single- use foodware accessories only on request, consistent with AB 1276, or should it be expanded to limit or entirely prohibit single-use plastic food service ware, as a number of cities have done? 2) Should the City ordinance retain the AB 1276 fine of $25 for each day in violation but not to exceed $300 annually, or set a higher violation rate such as the $100/$200/$500 admini strative citation rate provided in the existing Hercules Municipal Code?
By banning single-use plastics and/or setting a higher penalty rate, the City of Hercules would go beyond the requirements of AB 1276. If the decision is made to further restrict or ban single-use plastics, this may impose a hardship on local restaurant owners who may then have to incur the cost to re-stock with marine-degradable and/or compostable disposable food service ware. Some cities,
4 such as Daly City, conducted extensive outreach to local food businesses to obtain feedback and address concerns prior to adopting a ban on single-use plastics. Goleta is considering a future ban on single-use plastics to be considered for adoption after outreach to and feedback from the community, but in the short term will consider the passage of an ordinance that meets the minimum threshold requirements under AB 1276. If a ban on single-use plastics is to be considered, an effective date sometime in the future could be included, to allow restaurants time to acquire alternative food service ware.
Active enforcement of single-use plastic food service ware regulations may not be possible given current code enforcement staffing levels ; it is likely that violations would be investigated on a complaint-only basis. Issuing, administering, and collecting administrative penalties is a staff intensive effort and fines received typically do not cover the City’s cost in administering the penalty program.
Regardless of which approach is taken, an effort will need to be made to inform both residents and food businesses of their obligations under the newly adopted provisions. By implementing regulations resulting in source reductions for single-use plastic items, the City would be supporting one aspect of a more comprehensive approach to reducing plastic pollution.
Attachments:
1) Sample AB 1276 ordinance from City of Goleta (does not expand AB 1276 enforcement requirements)
2) AB 1276 Full Text