CITY OF PACIFICA
COUNCIL AGENDA SUMMARY REPORT
2/28/2022
SUBJECT:
Consider introduction of an ordinance repealing and replacing Article 4, “Sustainable Food Service Ware and Prohibited Plastic Products” within Chapter 5 of Title 6 of the Municipal Code to adopt new regulations regarding the use of disposable food service ware; and approve and authorize the City Manager to sign approval of a Memorandum of Understanding with the County of San Mateo to provide educational outreach and enforcement of the food service ware ordinance.
RECOMMENDED ACTION:
1. Move to introduce by title only and waive further reading, of Ordinance Repealing and Replacing Article 4, “Sustainable Food Service Ware and Prohibited Plastic Products” within Chapter 5 of Title 6 to add a New Article 4, “Regulating the Use of Disposable Food Service Ware by Food Facilities” to Regulate the Use of Disposable Food Service Ware; and finding the ordinance exempt under the California Environmental Quality Act; and
2. Move to approve the Memorandum of Understanding (“MOU”) with the County of San Mateo to provide educational outreach and enforcement of the food service ware ordinance Memorandum of Understanding with the County of San Mateo to provide educational outreach and authorizing the City Manager to execute the MOU and finding the approval of the MOU exempt under the California Environmental Quality Act.
STAFF CONTACT:
Alyssa Barranti, Management Analyst
650-501-6027
[email protected]
Tina Wehrmeister, Assistant City Manager
650-738-7440
[email protected]
BACKGROUND/DISCUSSION:
In October 2018, the City Council adopted Ordinance No. 838, which established sustainable food service ware standards, including prohibiting the use of plastic cutlery, stirrers, straws and encouraging the use of paper cups. The City’s Municipal Code also prohibits the use of foam, or solid polystyrene containers for prepared food.
In 2018, California adopted Assembly Bill (AB) 1884 requiring that full-service restaurants only provide single-use plastic straws upon consumer request versus distributing them automatically without a specific request from the consumer. The State expanded on this law by passing AB 1276 on October 5, 2021. Under AB 1276, food facilities must go beyond just plastic straws and require consumers to request additional food service ware accessories such as utensils, stirrers, splash sticks, and condiment packets. The State also strengthened enforcement by directing local governments to authorize an enforcement agency to enforce these statutes by June 1, 2022. Furthermore, AB 1276 allows local governments to adopt more restrictive requirements at their discretion.
In February 2020, the San Mateo County Board of Supervisors repealed and replaced their existing 2011 ordinance with Ordinance No. 04823, also known as the “Disposable Food Service Ware Ordinance”. The San Mateo County 2020 model ordinance expands on their 2011 ordinance to further reduce plastic pollution and litter by limiting the use of single-use plastic and other food service ware waste, such as plastic straws, utensils, cups, and clamshells. It also restricts many single-use fiber-based food service ware from containing intentionally added PFAS.
The City’s existing Sustainable Food Service Ware Ordinance was well ahead of the of the County ordinance until the County’s ordinance amendment in 2020. While the City’s existing ordinance contains provisions that align with the County’s current model ordinance, some discrepancies do exist. The County’s current Disposable Food Service Ware Ordinance goes beyond that of the City to include prohibition of all disposable single use plastic service ware including cups, bowls, plates, takeout, and delivery containers. The County ordinance requires accessories to be distributed by request only, unbundled as separate individual units.
Additionally, the County prohibits open bins/containers for distribution of accessories, and requires customers to request accessories from an employee, or have them available at a dispenser that only dispenses one item at a time with the exception of refillable bulk condiment dispensers.
The San Mateo County Ordinance went into effect in March 2020 for the unincorporated areas, with the mandatory provisions scheduled to become operative and subject to enforcement in March 2021. However, recognizing the hardship caused by COVID-19 on restaurants and other food facilities, the County amended its ordinance on February 23, 2021, which extended the operational and enforcement start date of the ordinance one year to March 25, 2022. On October 5th, 2021 Governor Gavin Newsom signed into law AB 1276, and AB 1200 mandating restrictions on the distribution of single-use food service ware accessories, and the sale and distribution of food packaging containing regulated PFAS substances. The County ordinance was amended once again on February 8th, 2022 to align with both State bills, changing the enforcement date to October 1, 2022. In April 2021, the City Council approved the FY 2021- 2022 work plan which represents the City Council priorities for the fiscal year. Workplan item 15 states the following:
Evaluate the City’s plastic food service ware ordinance and consider potential updates to address plastic cups and lids
The City currently has an ordinance regulating single use plastics and utensils. The City Council is interested in reviewing the provisions of the current City ordinance, comparing provisions with the San Mateo County ordinance, and potentially considering expanding the ordinance to additional materials such as plastic cups and lids.
Per Council’s direction under the work plan, the proposed ordinance incorporates the County’s model ordinance, recently updated to reflect the more recent statutory requirements including cups and lids, referred to as “food service ware” within the ordinance.
The proposed ordinance would repeal the existing Article 4 (Ordinance No. 838), within Chapter 5 of Title 6 and replace it with a new Article 4 entitled “Regulating the Use of Disposable Food Service Ware by Food Facilities”, which will be based on the County’s model ordinance. The provisions of the proposed ordinance are summarized as follows:
1. The definitions in section 6-5.401 have been updated to add certain terms to conform to the County’s model ordinance.
2. The prohibition on the use of foam or solid polystyrene as containers for prepared food remains in section 6-5.402.
3. Accessories such as straws, stirrers, utensils, condiment cups and packets, napkins, stick/picks, toothpicks, cup spill plugs, cup sleeves etc. shall be provided only when requested by the consumer. Accessories will be available unbundled as separate individual units at refillable dispensers that dispense one item at a time. Take-out food delivery services that utilize digital ordering platforms shall provide clear options for customers to affirmatively request accessories.
4. Food facilities shall use non-plastic, compostable plates, bowls, cups (of all sizes), food trays, clamshells, boxes, deli containers, and other containers. These items may be lined with, but not made entirely of compostable plastic. Additionally, these items shall be certified by the Biodegradable Products Institute (BPI) or by another 3rd party approved by the San Mateo County Office of Sustainability (OOS) to ensure that the items breakdown in an industrial composting facility and are free of or have minimal traces of harmful fluorinated chemicals.
5. Some notable exemptions that will be allowed are summarized below. a. Disposable food service ware made from aluminum.
b. Disposable plastic straws may be provided only upon request to consumers with medical needs.
c. Healthcare facilities may distribute disposable plastic straws without a request from the patient.
d. Drive-through areas of food facilities, may ask a drive through customer if the customer wants a specific type of disposable food service ware accessory if the item is necessary for the customer to consume the prepared food, or to prevent spills, or to safely transport prepared food.
e. If no reasonably feasible disposable food service ware alternative exists
COMMUNITY OUTREACH AND FEEDBACK
In November 2021, leaders of several environmental organizations based in Pacifica, wrote to City officials expressing strong support for the adoption of the San Mateo County model Disposable Food Service Ware Ordinance with an additional requirement for reusable food ware when food is consumed on premises (dine-in) (see Attachment C). This request goes above and beyond provisions of the San Mateo County model ordinance. The suggested changes would exclude disposable paper food wrappers, sleeves, foil wrappers, paper napkins, and paper tray liners for dine-in customers. Should the City choose to include this provision, the City, and not the County, would be responsible to enforce a reusables requirement for dine-in food facilities as this is not a provision of the County model ordinance. Due to limited enforcement resources, the City Manager is not recommending adoption of the modified dine-in requirement as a mandatory regulation. Further, this would require operational changes to impacted restaurants; additional outreach and education is recommended prior to adoption of a mandatory reusable requirement for all dine-in establishments, if the Council were interested in this option. An alternative is also provided below under Alternative Action.
City staff sent notice to a Pacifica food facilities email list generated by business license records to provide information on the proposed ordinance amendment which included information on how to comment/and or join to participate in tonight’s meeting.
The recommended amendment satisfies Council’s desire to develop stronger regulations related to disposable food service ware in the City of Pacifica while participating in a regional, uniform approach to restricting the use and distribution of plastics countywide.
Benefits to adopting the County’s Ordinance
Adoption of an ordinance modeled after the San Mateo County ordinance regulating the use of disposable food service ware by food facilities creates a collaborative, regional streamlined approach to restricting the use of and distribution of plastics countywide. The benefits to adopting an ordinance modeled after the County’s Ordinance include:
• Outreach and Education: The County will be responsible for the education and outreach efforts to Pacifica food establishments when the ordinance is implemented at no cost to the City. This includes providing and maintaining its website with an available a list of approved disposable food service ware sources and/ or references to organizations that maintain regularly updated lists of products that meet the ordinance requirements. • Enforcement: The County will also provide enforcement for all cities that adopt the ordinance at no cost to the City. Enforcement is anticipated to be complaint based. • Regional Streamlining: Adoption of the San Mateo County model ordinance allows for a regional, uniform approach to the implementation policies of the ordinance.
MEMORANDUM OF UNDERSTANDING
To promote consistency within jurisdictions throughout San Mateo County and leverage economies of scale, the County has offered to lead the education and enforcement efforts. The proposed Ordinance has been drafted to designate the County of San Mateo as the “Enforcing Agent”. To permit San Mateo County to provide these services, the City will be required to enter a Memorandum of Understanding (see Attachment B).
Should the City desire to go above and beyond provisions of the County and require reusable food service ware for dine-in as requested in Attachment C, the City will be held responsible to enforce this provision.
The enforcement date of the proposed ordinance amendment, enforced by San Mateo County is October 1, 2022.
CEQA
Adoption of the proposed ordinance amendment is exempt from the provisions of the California Environmental Quality Act (CEQA) under Section 15061(b)(3) of the CEQA Guidelines because it can be seen with certainty that there is no possibility that said actions may have a significant effect on the environment.
ALTERNATIVE ACTION:
The proposed ordinance satisfies Council’s desire to develop stronger regulations related to disposable food service ware in the City of Pacifica while participating in a regional, uniform approach to restricting the use and distribution of plastics countywide. However, the following alternative actions have been identified for City Council consideration:
• Add a provision that food service facilities are highly encouraged to provide reusable food service ware in place of single-use disposable food service ware for dine-in customers. In this instance, San Mateo County will provide only education for this provision.
• The Council may decline to adopt proposed amendments or request modifications.
However, this option is not recommended as the proposed amendments have been identified to conform with California State Law AB 1200 and AB 1276 as well as increase City contribution to environmental preservation, and reduction of greenhouse gas emissions.
RELATION TO CITY COUNCIL GOALS AND WORK PLAN:
Priority No. 15 –Evaluate the City’s plastic food service ware ordinance and consider potential updates to address plastic cups and lids.
FISCAL IMPACT:
There is no direct fiscal impact to the City upon adoption of this ordinance as the County of San Mateo will be responsible for education, outreach and enforcement of this ordinance.
ORIGINATED BY:
City Manager's Office
ATTACHMENT LIST:
Attachment A- Draft Ordinance Amendment (PDF)
Attachment B- Disposable Food Service Ware MOU (PDF)
Attachment C- Environmental Organization Letter (PDF)