Chapter 11.60 — POLYSTYRENE FOAM, DEGRADABLE AND RECYCLABLE FOOD

PACKAGING

Sections: 11.60.010 Findings and purposes. 11.60.020 Definitions. 11.60.030 Prohibited food packaging (polystyrene foam). 11.60.040 Degradable and recyclable food packaging. 11.60.050 Regulations applicable to all food vendors. 11.60.060 Inspection of documents. 11.60.070 Exemptions. 11.60.080 Existing contracts exempted. 11.60.090 City of Berkeley: purchases prohibited. 11.60.100 Separate food packaging waste receptacles. 11.60.110 City Manager’s powers. 11.60.120 Liability and enforcement. 11.60.130 Severability. 11.60.140 Ordinance voided by superseding laws and regulations. 11.60.150 Effective date.

The council finds as follows:

A. Solid waste that is non-degradable or non-recyclable poses an acute problem for any environmentally and financially responsible program of solid waste management. Such waste covers the City’s streets, parks, public places, and open spaces. It enters the marine and natural environment and is ingested by aquatic wildlife, frequently causing death. There is resultant damage to the ecological balance.

B. Products which are degradable or recyclable offer environmentally sound alternatives or non-degradable and non-recyclable products currently used. By decaying into their constituent substances, degradable products, compared to their non-degradable equivalents, are less of a danger to the natural environment, and less of a permanent blight on the urban landscape. Recycling of products reduces costly waste of natural resources and energy used in production of new products as well as costly disposal of waste in landfills.

C. Polystyrene foam is a petroleum processing by-product. Oil is a non-renewable resource, which can only be obtained by increasingly hazardous methods such as off-shore drilling, which poses significant dangers to the environment. Alternative products which are degradable or recyclable pose far less overall hazards than continued and expanded reliance on oil-based products.

D. Evidence indicates that all blowing agents currently used or proposed in connection with the manufacture of polystyrene foam pose dangers to the environment. Beyond the generally acknowledged dangers of Chlorofluorocarbons (CFCs) to the ozone layer, which are addressed in another City of Berkeley ordinance, other blowing agents also create dangers. For example, the blowing agent pentane creates hazardous earth-level smog and has already been restricted in some regions for air quality reasons.

E. Takeout food packaging constitutes the single greatest source of litter in Berkeley and is a significant contributor to the total amount of waste entering the City’s waste stream.

F. It is in the interest of the health, safety, and welfare of all who live, work and do business in the City that the amount of litter on the public streets, parks, public places, and open spaces be reduced.

G. The City of Berkeley has the duty to responsibly dispose of its solid waste, yet existing landfill sites are rapidly approaching capacity, and additional sites are increasingly unavailable.

H. Reduction of the amount of non-degradable waste entering the waste stream and encouraging the use of recyclable containers further this goal.

I. This Chapter is consistent with the City of Berkeley’s 1986 Solid Waste Management Plan, the County of Alameda Solid Waste Management Plan, and the legislative intent and findings of the State of California Solid Waste Management and Resource Recovery Act of 1972 (Government Code Section 66700 et seq.) (Ord. 5888-NS § 1, 1988)

A. "Polystyrene foam" means any styrene or vinyl chloride polymer which is blown into a foam-like material.

B. "Polystyrene foam food packaging" means any food packaging which contains any polystyrene foam.

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.

L. "Degradable food packaging" means food packaging which substantially reduces to its constituent substances through degradation processes initiated by natural organisms whose end products are substantially, but not necessarily entirely, carbon dioxide and water; and plastic items designed to degrade when exposed to ultraviolet light. Degradable food packaging does not include cellulose-based items which have a synthetic or plastic coating comprising more than five percent of the total volume of the item.

M. "Recyclable food packaging" means any food packaging including glass, cans, cardboard, paper, mixed paper, or other items which can be recycled, salvaged, composted, processed, or marketed by any means other than landfilling or burning, whether as fuel or otherwise, so that they are returned to use by society. (Ord. 5888-NS § 2, 1988)

A. Restaurants:

1. Except as provided in Sections 11.60.070 and 11.60.080, no restaurant shall provide prepared food to its
customers in any polystyrene foam food packaging, nor shall any restaurant purchase, obtain or keep any
polystyrene foam 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 polystyrene foam 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 polystyrene foam 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 polystyrene foam food packaging; that the supplier
will state on each invoice for food packaging supplied that the packaging is not polystyrene foam 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 11.60.070 and 11.60.080, no retail food vendor shall sell takeout food in
any polystyrene foam takeout food packaging, nor shall any retail food vendor purchase, obtain or keep any
polystyrene foam 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 polystyrene foam.

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 Sections 11.60.030A, paragraphs 2 and 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 Section 11.60.030A, paragraph 3. (Ord. 5888-NS § 3, 1988)

A. Restaurants:

1. At least fifty percent by volume of each restaurant’s food packaging, in which prepared food is provided
to customers, or which is kept, purchased, or obtained for this purpose, shall be degradable or recyclable.

2. Each restaurant shall maintain written records evidencing its compliance with this section.

B. Retail food vendors:

1. At least fifty percent by volume of each retail food vendor’s packaging, in which takeout food is provided
to customers, or which is kept, purchased, or obtained for this purpose, shall be degradable or recyclable.

2. Each retail food vendor shall maintain written records evidencing its compliance with this section. (Ord.
5888-NS § 4, 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 degradable or recyclable nature of, or the use or non-use of polystyrene foam 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. 5888-NS § 5, 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. 5888-NS § 6, 1988)

The City Manager or their authorized representative may exempt an item or type of food packaging from the requirements of this chapter, upon a showing that the item or type has no acceptable non-polystyrene foam 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-polystyrene foam substitutes are available. (Ord. 5888-NS § 7, 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. 5888-NS § 8, 1988)

The City of Berkeley shall not purchase any polystyrene foam food packaging, nor shall any City-sponsored event utilize such packaging. At least fifty percent by volume of the food packaging which the City, or any City-sponsored event, utilizes shall be recyclable or degradable. (Ord. 5888-NS § 9, 1988)

Each restaurant and retail food vendor shall establish separate waste receptacles for each type of recyclable food packaging waste, generated on premises, including, but not limited to, glass, cans, cardboard, newspapers, and mixed paper. (Ord. 5888-NS § 10, 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. 5888-NS § 11, 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. 5888-NS § 12, 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. 5888-NS § 13, 1988)

The provisions of this chapter with respect to polystyrene foam, shall be void upon the enactment or adoption of any law or regulation restricting the use of plastic foams. (Ord. 5888-NS § 14, 1988)

The provisions of this chapter shall become effective on January 1, 1990. (Ord. 5888-NS § 15, 1988)