Albany Municipal Code § 5-26 Sustainable Foodware

[Added 9-16-2024 by Ord. No. 2024-05]

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. BIOPLASTIC (sometimes called COMPOSTABLE PLASTIC) — Means a disposable product developed from polylactic acid (PLA), which requires a specific set of conditions to compost and/or biodegrade that are not available at the City of Albany compost facility. These products are considered non-compliant.

c. COMPLIANT DISPOSABLE FOODWARE — Means a disposable Foodware item or accessory made entirely of aluminum, glass, or compostable fiber that is accepted in the City of Albany composting collection program as compostable and BPI certified or certified by another independent third party certifying organization or agency recognized by the City and free of High Priority Toxic Food Packaging Chemicals as determined by a third-party certification program for Disposable Food Service Ware that requires fill disclosure of intentionally added chemicals as a condition of certification.

d. COMPLIANCE OFFICIAL — Means the Community Development Director or any designee authorized and responsible for implementing this section.

e. COMPOST FACILITY — Means compost facilities used by the City's current waste haulers for composting organic material.

f. COMPOSTABLE FIBER — Means an item or material (1) will break down, or otherwise become part of usable compost in a safe and timely manner; (2) is made from natural fiber; or (3) is absent of any plastic, micro-plastic, or Bioplastic linings or coatings, including polylactic acid (PLA).

g. CITY — Means the City of Albany, California.

h. CUSTOMER — Means any person obtaining Prepared Food from a Food Vendor.

i. DISPOSABLE — Means a Foodware item or accessory designed to be used only one time and then disposed of.

j. DINE-IN SERVICE — Means food consumption on-premises. Food consumption is considered on-premises if it takes place at tables and/or dining areas, including non-seated picnic areas provided by the Prepared Food Vendor either on its own or in conjunction with one or more other Prepared Food Vendor(s) or pursuant to an agreement between the Prepared Food Vendor and a third party.

k. DISPOSABLE CUP — Means a beverage cup designed for single-use to serve beverages such as water, hot and cold drinks, and alcoholic beverages.

l. EPS — Means expanded polystyrene, also known as Polystyrene Foam.

m. FLUORINATED CHEMICAL — Means a class of fluorinated organic compounds containing at least one (1) fully fluorinated carbon atom, also known as perfluoroalkyl (PFOA) and polyfluoroalkyl (PFOS) substances, or PFAS chemicals. California Prop 65 lists PFOA and PFOS as reproductive toxicants.

n. 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 Foodware for leftovers from partially consumed meals prepared by Food Vendors.

o. FOODWARE ACCESSORY — 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.

p. FOOD VENDOR — Means a food facility, 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 good to be consumed on and/or off the premises located or operating within the City, except that for purposes of this section the term "food vendor" shall not include a public or private school cafeteria or an event within the City that is subject to a City permit and expected to have more than 500 attendees or participants.

q. HIGH PRIORITY TOXIC FOOD PACKAGING CHEMICALS — Means any Perfluoroalkyl or Polyfluoroalkyl Substances (PFAS) or any of the chemicals listed in California's Proposition 65 (Health & Safety Code § 25249.8; list set forth at 22 CCR § 69502.2(a)(1)(A)), the European Union's Substances of Very High Concern Candidate List (set forth at 22 CCR § 69502.2(a)(1)(C), (G)), and the International Agency for Research on Cancer lists Group 1 and Group 2a (set forth at 22 CCR § 69502.2(a)(1)(J)).G.

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. 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.

t. 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 definition, Prepared Food does not include raw, butchered meats; fish; and/or poultry, which are sold from a butcher case or similar appliance.

u. REUSABLE — Means Foodware and Foodware accessories 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.

v. STANDARD CONDIMENT — Means relishes, spices, sauces, confections, or seasonings that require no additional preparation and that are usually used on a food item after preparation, including ketchup, mustard, mayonnaise, soy sauce, hot sauce, salsa, salt, pepper, sugar and sugar substitutes.

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.

[Added 9-16-2024 by Ord. No. 2024-05]

Food Vendors within the City:

a. Shall provide only reusable Foodware and utensils (forks, spoons, knives, and chopsticks) for Dine-In Service.

b. Shall ensure that all Foodware Accessories provided, other than forks, spoons, knives, and chopsticks, shall be either Reusable or Compliant Disposable.

c. Shall offer Standard Condiments in reusable containers or dispensers rather than prepackaged, single-use condiment packets. A supply of single-use Standard Condiment packets may be maintained and provided to customers upon request, based on medical necessity.

1. Should a reusable container or dispenser not be commercially available or logistically feasible for certain condiments, the City may approve temporary exemptions from this requirement.

[Added 9-16-2024 by Ord. No. 2024-05]

a. For use with Takeout Food, Food Vendors shall provide only Reusable Foodware or Compliant Disposable Foodware containers and Compliant Foodware Accessories.

b. Food Vendors may provide recycled-content paper bags and Reusable bags, but, where applicable, affected Food Vendors must charge a minimum per-bag fee, consistent with State law.

c. Should specific disposable Foodware or Foodware Accessories made of compliant materials not be commercially available, as determined by the Compliance Official, the City may approve temporary exemption of specific items until they are made sufficiently commercially available. The City shall maintain a list, updated periodically, of exempted Foodware and/or Foodware Accessories.

d. Food Vendors shall provide compliant Foodware Accessories for Takeout Food service only upon request or at self-serve stations, where Customers can select desired accessories individually.

e. Takeout Food delivery services shall provide the option for compliant Disposable Foodware accessories (forks, spoons, knives, chopsticks) and single-use condiments only upon request. A Food Vendor or a Takeout Food delivery service may include lids, spill plugs, and sleeves without Customer request when disposable cups are delivered.

[Added 9-16-2024 by Ord. No. 2024-05]

a. Customers shall be allowed to provide their own empty Reusable beverage cups and Reusable food containers for consumption of Take-Out Food prepared by Food Vendors in accordance with the California Retail Food Code (Health and Safety Code, Section 113700, et seq.).

b. Prepared Food Vendors subject to this section may refuse, at their sole discretion, any Customer-provided Reusable beverage cup or Reusable food Container that is cracked, chipped, or corroded, or which is, in their reasonable judgment, inappropriate in size, material, or condition for the intended beverage or food, or that appears to be soiled or unsanitary.

c. Notwithstanding any other provision of this Code, the City and all Prepared Food Vendors operating on City property shall comply with this section. All leases, contracts, funding agreements, and sponsorships entered into by the City shall require compliance with this section for all activities in the City.

[Added 9-16-2024 by Ord. No. 2024-05]

a. All Food Vendors shall charge customers twenty-five cents ($0.25), or another amount as amended by Resolution of the City Council, at the point of sale for every disposable cup provided, unless the Customer is exempt under this section.

b. Income from the disposable cup charge identified in paragraph a above shall be retained by the Food Vendor.

c. Charges for disposable cups shall be identified separately via an itemized charge 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 disposable 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 Disposable Cup Charge.

[Added 9-16-2024 by Ord. No. 2024-05]

a. The City Manager shall establish administrative procedures for City purchasing, City facilities, and City-permitted events. It is the intent that City purchasing, City facilities, and City-permitted events be brought in line with the provisions of this Chapter over time as deemed feasible by City staff.

[Added 9-16-2024 by Ord. No. 2024-05]

a. Food items packaged outside the City of Albany are exempt from the provisions of this section; provided, however, such entities are urged to follow the provisions of this section.

b. Hardship/Income Exemption.

1. If a Food Vendor believes that circumstances exist that make compliance with the requirements of this section an undue hardship on the Food Vendor, or that it is physically infeasible to meet the requirements of this section, they may apply for an exemption or reduction in this section's requirements. In applying for an exemption, the burden is on the applicant to show financial hardship or physical infeasibility.

2. An "undue hardship" includes, but is not limited to, the following:

(a) A situation unique to the food facility where a suitable alternative that conforms with the requirements of this section does not exist for a specific application.

(b) Imposing the provisions of this section would cause significant economic hardship. "Significant economic hardship" may be based on, but is not limited to, a demonstration that suitable Foodware or Foodware Accessories made of compliant, compostable Natural Fiber are not available at a commercially reasonable price and the additional cost associated with providing the compliant Foodware or Foodware Accessories is particularly burdensome to the Food Vendor 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 its overall financial resources, and other similar factors. Reasonable added cost for a suitable item, as compared to a similar item that the Food Vendor 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 his or her designee shall consider the following information: the ability of the Food Vendor to recover the additional expense by increasing its prices; the availability of tax credits and deductions; outside funding; and other options.

3. Granting of Exemption. The determination of whether to grant a request for an exemption shall be made by the City's Compliance Official. If an exemption is granted, the applicant shall be required to comply with this section in all other respects.

4. Denial of Exemption. If the City's Compliance Official determines that the requested exemption has been denied, they shall so notify the applicant in writing.

c. For the preservation of the public peace, health, or safety due to an emergency or natural disaster, the Compliance Official and/or City Manager may exempt Food Vendors, persons operating City facilities and agents, contractors, and vendors doing business with the City, from the provisions of this section.

[Added 9-16-2024 by Ord. No. 2024-05]

a. Enforcement of the requirements of this section shall begin no sooner than 12 months after the effective date of the Ordinance[1] in order to provide time for businesses to comply.

[1]

Editor's Note: Ordinance No. 2024-05 was adopted September 16, 2024.

b. Documentation of non-compliance shall be made by a person suitably trained in the provisions of this section.

c. Enforcement may include written notice of non-compliance and a reasonable opportunity to correct such non-compliance, if feasible, prior to issuance of any penalty.

d. If, after issuing a written notice of noncompliance, the City finds that the Food Vendor continues to violate the provisions of this section, the City may impose a fine as established in the City of Albany Master Fee Schedule approved by the City Council.

[Added 9-16-2024 by Ord. No. 2024-05]

a. Any aggrieved applicant may appeal the determination of the Compliance Official regarding: (i) the grant or denial of an exemption; (ii) compliance with this section; or (iii) fines levied for non-compliance with this section.

b. Any appeal must be filed in writing with the Community Development Department within fourteen (14) days of the determination by the Compliance Official. The appeal shall state the alleged error or reason for the appeal. In reviewing the appeal, the City Manager may request additional written or oral information from the applicant or Compliance Official. The City Manager shall make a written determination regarding the appeal within sixty (60) days of the date when the appeal was filed.