Chapter 11.58 — PROHIBITION OF CHLOROFLUOROCARBON-PROCESSED FOOD

PACKAGING

Sections: 11.58.010 Finding and purpose. 11.58.020 Definitions. 11.58.030 Prohibited food packaging. 11.58.040 Regulations applicable to all food vendors. 11.58.050 Inspection of documents. 11.58.060 Exemptions. 11.58.070 Existing contracts exempted. 11.58.080 City of Berkeley: purchases prohibited. 11.58.090 City Manager’s powers. 11.58.100 Liability and enforcement. 11.58.110 Severability. 11.58.120 Chapter voided by superseding federal laws and regulations.

The council finds and declares as follows:

A. Available scientific evidence indicates a strong probability that the family of substances known as chlorofluorocarbons ("CFCs"), when discharged into the atmosphere, degrade the earth’s protective layer of ozone, allowing increased amounts of ultraviolet radiation to penetrate the atmosphere, posing an acute and immediate danger to human health, life, and the environment. Available scientific evidence indicates the strong possibility that the resulting increase in ultraviolet radiation may already have caused an increase in the incidence of skin cancers and other serious illnesses.

B. One source of the CFCs currently being released into the atmosphere is the use of these substances as blowing agents in the manufacture of some of the polystyrene foam packaging products used in the food services industry. There are substitutes for these products currently available which do not use CFCs in their manufacture.

C. The people and the City of Berkeley support international, federal, and state bans on all uses of CFC not deemed absolutely essential. Until such bans are in effect, responsible action to reduce CFC use and alert the public to the danger posed by these substances must be undertaken at the local level.

D. It is the intent of the council to reduce the amount of CFC-processed products purchased and used by the City and people of Berkeley and thereby to reduce the health hazards created by the manufacture of these products. (Ord. 5867-NS § 1, 1988)

A. "Chlorofluorocarbons", are the family of substances containing carbon, fluorine and chlorine, having no hydrogen atoms and no double bonds.

B. "CFC-processed food packaging" means any food packaging which uses CFCs as blowing agents in its manufacture.

C. "Customer" means anyone purchasing food or beverages from a restaurant or retail food vendor.

D. "Person", "anyone" means any natural person, firm, corporation, partnership, or other organization or group however organized.

E. "Supplier" means anyone selling, or otherwise supplying food packaging to a restaurant or retail food vendor.

F. "Food vendor" means any restaurant or retail food vendor.

G. "Prepared food" means foods or beverages which are prepared on the vendor’s premises by cooking, chopping, slicing, mixing, freezing or squeezing, and which require no further preparation to be consumed. "Prepared food" does not include any raw uncooked meat product or fruits or vegetables which are not chopped, squeezed, or mixed.

H. "Restaurant" means any establishment located within the City of Berkeley, selling prepared food to be eaten on or about its premises by customers. Restaurant includes a sidewalk food vendor.

I. "Takeout food" means prepared foods or beverages requiring no further preparation to be consumed and which are generally purchased in order to be consumed off the retail food vendor’s premises.

J. "Retail food vendor" means any store, shop, sales, outlet, or other establishment, including a grocery store or a delicatessen, other than a restaurant, located within the City of Berkeley, which sells takeout food.

K. "Food packaging" means all bags, sacks, wrapping, containers, bowls, plates, trays, cartons, cups, straws and lids which are not intended for reuse, on or in which any foods or beverages are placed or packaged on a restaurant’s or retail food vendor’s premises. (Ord. 5867-NS § 2, 1988)

A. Restaurants.

1. Except as provided in Sections 11.58.060 and 11.58.070, no restaurant shall provide prepared food to its
customers in any CFC-processed food packaging, nor shall any restaurant purchase, obtain or keep any CFC
food packaging for such purpose.

2. As to any food packaging obtained after the effective date of this chapter, each restaurant shall obtain
from each of its suppliers a written statement signed by the supplier, or by a responsible agent of the
supplier, stating that the supplier will supply no CFC-processed food packaging to that vendor, that the
supplier will note on each invoice for food packaging supplied to that vendor that the packaging covered by
the invoice is not CFC-processed and the identity of the packaging’s manufacturer.

3. All contracts between a restaurant and a supplier entered into after the effective date of this chapter
shall include provisions that the supplier will supply no CFC-processed food packaging; that the supplier will
state on each invoice for food packaging supplied that the packaging is not CFC-processed; and the identity of
the packaging’s manufacturer; and that failure to comply with such provisions shall constitute a material
breach of the contract.

4. Restaurants shall retain each supplier’s written statement for one year from the date of receipt of any
food packaging from that supplier.

B. Retail food vendors.

1. Except as provided in Sections 11.58.060 and 11.58.070, no retail food vendor shall sell takeout food in
any CFC-processed takeout food packaging, nor shall any retail food vendor purchase, obtain or keep any
CFC-processed packaging for this purpose.

2. All retail food vendors shall segregate, in their warehouses or other storage areas, food packaging used
in their takeout food operations from other food packaging. Takeout food packaging containers or boxes
shall be labelled as such and shall indicate that they contain food packaging which is not CFC-processed.

3. As to any takeout food packaging purchased after the effective date of this chapter, each retail food
vendor shall comply with the requirements of subsections A, 2 and A, 4 of this chapter.

4. All contracts for the purchase of takeout food packaging entered into after the effective date of this
chapter shall comply with the provisions of subsection A, 3. (Ord. 5867-NS § 3, 1988)

A. It shall be unlawful for any supplier to make any misstatement of material fact to any food vendor or to the City Manager or their agents regarding the use or non-use of CFCs in the manufacture of any food packaging supplied to any food vendor.

B. Food vendors shall state that they are in compliance with this chapter on their annual business license renewal forms. (Ord. 5867-NS § 4, 1988)

All statements and documents required by this chapter shall be made available for inspection by the City Manager or their designated representative. It shall be unlawful for anyone having custody of such documents to fail or refuse to produce such documents upon request by the City Manager or their designated representative. (Ord. 5867-NS § 5, 1988)

The City Manager or their authorized representative may exempt an item or type of packaging from the requirements of this chapter, upon a showing that the item or type has no acceptable non-CFC-processed equivalent and that imposing the requirements on that item or type would cause undue hardship. Said documentation shall include a list of suppliers contacted to determine if non-CFC-processed substitutes are available. (Ord. 5867-NS § 6, 1988)

Food packaging required to be purchased under a contract entered into prior to September 22, 1987 is exempt from the provisions of this chapter. (Ord. 5867-NS § 7, 1988)

The City of Berkeley shall not purchase any CFC-processed food packaging, nor shall any City-sponsored event utilize such packaging. (Ord. 5867-NS § 8, 1988)

The City Manager is authorized to promulgate regulations and to take any and all other actions reasonable and necessary to enforce this chapter, including, but not limited to, inspecting any vendor’s premises to verify compliance. (Ord. 5867-NS § 9, 1988)

A. Anyone violating or failing to comply with any of the requirements of this chapter shall be guilty of an infraction as set forth in Chapter 1.20 of the Berkeley Municipal Code.

B. The City Attorney may seek legal, injunctive, or other equitable relief to enforce this chapter.

C. The remedies and penalties provided in this section are cumulative and not exclusive. (Ord. 5867-NS § 10, 1988)

If any part or provision of this chapter or the application thereof to any person or circumstance is held invalid, the remainder of the chapter, including the application of such part or provision to other persons or circumstances, shall not be affected thereby and shall continue in full force and effect. To this end, provisions of this chapter are severable. (Ord. 5867-NS § 11, 1988)

This chapter shall be void upon the enactment or adoption of any law or regulation restricting the use of CFCs as blowing agents in the manufacture of plastic foams. (Ord. 5867-NS § 12, 1988)

The provisions of this chapter shall become effective on September 1, 1988. (Ord. 5867-NS § 13, 1988)