Cupertino Municipal Code Ch. 9.15 Regulation of Food Service Ware and Polystyrene Foam Coolers Used By…

A. This chapter is determined and declared to be a health, sanitary, and safety measure for the promotion, protection and preservation of the health, safety and general welfare of the people and environment of the City of Cupertino.

B. Single-use disposable food service ware and beverage packaging – including plates, cutlery, cups, straws, “clamshells” and other containers – are major contributors to street litter, ocean pollution, marine and other wildlife harm, depletion of natural resources, and greenhouse gas emissions.

C. Plastic litter breaks down into smaller pieces that are not biodegradable, persist in the environment on land and sea, and are present in most of the world's oceans.

D. Among other hazards, plastic debris attracts and concentrates ambient pollutants, such as endocrine disrupters and persistent organic pollutants, in seawater and freshwater that can transfer to fish, other seafood, and salt that is eventually consumed. Nine of the top ten most common debris items found on beaches in the U.S. during International Coastal Cleanup Day are single-use food and beverage plastic packaging items.

E. Discharge of litter into waters of the United States is prohibited by the Federal Clean Water Act and the City's stormwater pollution prevention permit as issued by the San Francisco Bay Regional Water Quality Control Board.

F. Even if certain types of single-use plastic food service ware are accepted as recyclable by the City of Cupertino's approved recyclables processor, when those items have food and grease residue on them, they become a contaminant to the recycling stream.

G. Natural fiber-based food service ware items can be diverted from landfill and processed into compost even when they have food and grease residue on them.

H. Certain synthetic chemicals known as Per- and Polyfluoroalkyl Substances (PFAS), which are commonly used in disposable food service ware to repel water and grease, pose a public health risk as they have been linked to serious health effects.

I. Polystyrene foam food service ware and other items made from unencapsulated foamed materials are a distinctive litter concern because they are lightweight, break apart easily, are windblown into streets and waterways, and float in water until it reaches the San Francisco Bay and ocean.

J. The City of Cupertino intends to reduce solid waste at its source and maximize recycling and composting in accordance with Cupertino's Climate Action Plan, Zero Waste Policy, and stormwater pollution prevention permit.

K. Reducing disposable packaging by eliminating unnecessary items and transitioning to reusable products provides greater environmental benefits than managing the products that become waste, even when recycled or composted.

(Ord. 22-2239, § 1 (part), 2022)

For the purposes of this chapter, the following words and phrases shall have the meanings ascribed to them by this section, unless the context or the provision clearly requires otherwise:

1. “Beverage Provider” means any business, organization, entity, group, or person that offers liquid, slurry, frozen, semi-frozen, or other forms of beverages to the public for consumption. Beverage Provider also includes any organization, entity, group or person that regularly provides beverages to its members or the general public as a part of its activities or services.

2. “Biodegradable Products Institute (BPI)” refers to a certification program that ensures that products and packaging displaying the BPI logo have been independently tested and verified according to scientifically based standards to successfully break down in professionally managed industrial composting facilities. BPI-certified products meet the standards of the American Society for Testing Materials (ASTM) D6400 or D6868 for compostability. As of January 1, 2020, all BPI-certified products are required to have (1) a limit of 100 parts per million (ppm) total Fluorinated Chemicals as the upper threshold for acceptance and (2) no intentionally added Fluorinated Chemicals.

3. “City” means the City of Cupertino.

4. “City Facility” means any building, structure, or vehicle owned or operated by the City.

5. “City Facility Food Provider” means an entity that provides, but does not sell, Prepared Food in City Facilities.

6. “City Manager” means the City of Cupertino's City Manager or their designee.

7. “County” means the County of Santa Clara.

8. “Compostable” means that an item or material is (1) accepted in City's available composting collection program as fully compostable; (2) is listed, described, or referenced on the City's website as compostable; and (3) is certified compostable by the Biodegradable Product Institute or other third party recognized by the Director, or his or her designee.

9. “Contractors and Lessees” means any person or entity that has a contract with the City of Cupertino for public works or improvements to be performed, for a franchise, concession, or lease of property, for grant monies or goods and services or supplies to be purchased at the expense of the City of Cupertino.

10. “Director” means the City of Cupertino's Director of Public Works or their designee.

11. “Distribute” means the sale, offer for sale, or other transfer of possession of an item for compensation, either as a separate transaction or as part of the sale, offer for sale, or other transfer of possession of another item for compensation.

12. “Fluorinated Chemical” means a class of fluorinated organic compounds containing at least one fully fluorinated carbon atom, also known as per- and polyfluoroalkyl substances, or PFAS chemicals.

13. “Food Container” means a container, bowl, plate, tray, or other vessel used to hold Prepared Food.

14. “Food Provider” means any establishment, provider, non-profit vendor, or business, operating within the City that sells Prepared Food (1) to the public for consumption on or off its premises, at a catered event, and/or (2) at cafeterias and places of employment, whether or not such establishments are open to the general public. Food Provider includes but is not limited to, restaurants, retail food establishments, caterers, cafeterias, stores, shops, retail sales outlets, grocery stores, delicatessens serving the public, mobile or temporary food providers, vehicles or carts, or roadside stands.

15. “Food Service Ware” means any products used for serving or consuming prepared food and includes, but is not limited to, cups, bowls, plates, trays, cartons, boxes, wrapper or liners, hinged or lidded containers (clamshells), and other items used as part of food or beverage service or in which Prepared Food is placed or packaged on a Prepared Food Provider's premises.

16. “Food Service Ware Accessory” means any type of accessory or accompanying items usually provided alongside Prepared Food in plates, containers, bowls, or cups, including but not limited to utensils, chopsticks, napkins, cup sleeves, food or beverage trays, condiment packets and saucers, straws, stirrers, splash sticks, spill plugs, cocktail sticks, and toothpicks.

17. “Person” means an individual, trust, firm, joint stock company, corporation including a government corporation, partnership, or association.

18. “Per- and Polyfluoroalkyl Substances” means, for the purposes of food packaging, a class of fluorinated organic chemicals containing at least one fully fluorinated carbon atom.

19. “Polystyrene Foam” means a thermoplastic petrochemical material made from a styrene monomer and expanded or blown using a gaseous agent (expanded polystyrene) including, but not limited to, fusion of polymer spheres (expandable bead polystyrene), injection molding, form molding, and extrusion-blow molding (extruded foam polystyrene).

20. “Prepared Food” means food or beverages that are served, packaged, cooked, chopped, sliced, mixed, brewed, frozen, squeezed or otherwise prepared on the premises of a food provider for consumption, including, but not limited to, ready-to-eat, dine-in, take-out or complimentary food or beverage. “Prepared food” does not include: (1) raw eggs and raw, butchered meat, fish or poultry that is sold from a butcher case or a similar retail method; (2) prepackaged food that is delivered to the food provider wholly encased, contained or packaged in a container or wrapper, and sold or otherwise provided by the food provider in the same container or packaging; or (3) nonpolystyrene foam prepackaged items prepared on-site, which are not made to order and sold as “grocery items.”

21. “Raw Food” means any uncooked meat, fish, poultry, vegetable, fruit, or egg.

22. “Recyclable” means material that can be sorted, cleansed, and reconstituted and accepted by the City's available recycling collection programs for the purpose of using the altered form in the manufacture of a new product.

23. “Reusable Food Service Ware” means all food service ware, including plates, bowls, cups, trays, glasses, straws, stirrers, condiment cups and utensils, that is manufactured of durable materials and that is specifically designed and manufactured to be washed and sanitized and to be used repeatedly over an extended period of time, and is safe for washing and sanitizing according to applicable regulations.

24. “Single-use” means not meeting the definition of Reusable in these definitions.

25. “Standard Condiments and Spices” 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 or others as determined by the City.

26. “State” means the State of California.

27. “Takeout Food” means Prepared Food requiring no further preparation, which is purchased to be consumed off a Prepared Food Provider's premises. Takeout Food includes Prepared Food delivered by a Food Provider or by a third-party Takeout Food Delivery Service.

28. “Takeout Food Delivery Service” is a service that delivers Takeout Food from a Food Provider to a customer for consumption off the premises. This service can be provided directly by the Food Provider or by a third-party.

29. “Third Party Food Delivery Platform” means a business engaged in the service of online food ordering and/or delivery from a Prepared Food Provider to a consumer.

(Ord. 22-2239, § 1 (part), 2022; Ord. 14-2116, § 1 (part), 2014)

A. Accessories Only upon Customer Request. On or after October 6, 2022:

1. Food Providers shall provide Single-use Food Service Ware Accessories and Standard Condiments in single serve packets only upon request by customers during on-premises dining or when using a third-party food delivery platform. Single-use Food Service Ware Accessories and Standard Condiments packaged for single use provided by Prepared Food Providers for use by consumers shall not be bundled or packaged in a manner that requires a consumer to take a different type of Single-use Food Service Ware Accessory or Standard Condiment.

2. Food Providers and Beverage Providers, as well as City facilities, City-managed concessions, City-sponsored events, and City-permitted events, may provide plastic straws as an accommodation to people with disabilities who request them to enjoy equal access to food and beverage services within the City.

3. Prepared Food Providers offering Standard Condiments and Spices are encouraged to use dispensers or bulk containers rather than pre-packaged individual serving packets.

4. Takeout Food Delivery Services that utilize digital ordering/point of sale platforms, including but not limited to the internet and smart-phone, shall only offer Single-Use Food Service Ware Accessories by providing clear options for customers to affirmatively request these items separate from orders for food and beverages. The default option on the digital ordering/point of sale platforms shall be that no Single-Use Food Service Ware Accessories are requested. Each individual Single-Use Food Service Ware Accessory (e.g., each fork, knife, condiment packet, napkin, etc.) provided with Prepared Food must be specifically requested by the customer in order for a Food Provider to provide it.

5. A Prepared Food Provider may ask a drive-through consumer if the consumer wants a Single-use Food Service Ware Accessory if the Single-use Food Service Ware Accessory is necessary for the consumer to consume ready-to-eat food, or to prevent spills of or safely transport ready-to-eat food.

6. For delivery orders, Prepared Food Providers may choose to include specific accessories, such as cup lids, spill plugs, and trays, in order to prevent spills and deliver food and beverages safely.

B. Use of Non-Compliant Food Service Ware Prohibited. On or after September 6, 2023:

1. Prepared Food or Beverage Providers, including City Facility Prepared Food Providers, and City Contractors and Lessees may not sell, offer for sale, or otherwise distribute Prepared Food prepared or packaged in Cupertino using:

a. Single-use Food Service Ware or Food Ware Accessories made, in whole or in part, from Polystyrene Foam;

b. Single-use Food Service Ware made, or Food Ware Accessories made, in whole or in part, from plastic including polyethylene, polyethylene terephthalate, polypropylene, polystyrene, even if accepted as recyclable by the City's approved recyclables processing facility;

c. Single-use Food Service Ware or Food Ware Accessories that are Compostable and not certified free of Fluorinated Chemicals by an independent third-party certifying organization approved by the Director, or their designee;

d. Single-Use Food Service Ware or Food Ware Accessories made in whole or in part from bio- or plant-based or other “compostable” plastic even if labeled or certified as compostable.

2. The Director, or their designee, may adopt a list, or reference an approved list, of suitable alternative Compostable or Recyclable aluminum Single-use Food Service Ware products, which means Single-use Food Service Ware products that serve the same intended purpose as non-compliant products, meet the standards for what is Compostable and/or Recyclable aluminum under this Chapter, and are reasonably affordable. If a product is not included or referenced on an approved list, the person using the product as Single-use Food Service Ware will have the burden of establishing to the Director's satisfaction that the product complies with this Section.

3. It shall not be a violation of this Section to sell, provide, or purchase Prepared Food or Raw Food or Beverage packaged in Single-Use Food Service Ware otherwise prohibited by subsection (1) if the Prepared Food or Raw Food or Beverage is packaged outside the City and is sold or otherwise provided to the consumer in the same Single-use Food Service Ware in which it originally was packaged. Businesses packaging Prepared Food outside the City are encouraged to use Single-use Food Service Ware that is Compostable or Recyclable aluminum, is Compostable and free of Fluorinated Chemicals, and is not made, in whole or in part, from Polystyrene.

C. Reusable Food Service Ware for Dining on Premises. On or after September 6, 2023:

1. Prepared Food served for consumption on the Prepared Food Provider's premises shall be served only on Reusable Food Service Ware, except that disposable paper food wrappers, sleeves, and bags, foil wrappers, paper napkins, paper tray and plate liners, and straws shall be permitted, so long as they meet the requirements set forth elsewhere in this Chapter.

2. Condiments, such as sauces, ketchup, or mustard, provided for on-site consumption, shall not be served in disposable, individual-serving packets.

3. Consumption is considered on-premises if it takes place at tables and/or seating provided by the Prepared Food Provider either on its own or in conjunction with another Prepared Food Provider.

4. New building permits and new or renewed business licenses for Food Service Providers applied for, and/or deemed complete after 6/1/2023 shall only be granted to Prepared Food Providers that can demonstrate adequate capacity to comply with subsection C.1.

5. This requirement does not prohibit a Prepared Food Provider from providing, upon a customer's request, Single-use Food Service Ware compliant with subsection B.1 for the customer to take away leftover Prepared Food after dining on the premises.

6. Prepared Food Providers subject to the requirements of subsection C.1 that do not have onsite or off-site dishwashing capacity, or are unable to contract for services to wash, rinse, and sanitize Reusable Food Service Ware, in order to comply with applicable provisions of the California Health and Safety Code, may petition the Director for an exemption or extension under 9.15.120.

D. Sale or Distribution of Non-Compliant Food Service Ware and Expanded Polystyrene Foam Coolers Prohibited. On or after September 6, 2023:

1. No Person may sell, offer for sale, or otherwise Distribute within the City any Single-use Food Service Ware prohibited under Sections B.1.a. or B.1.d.

2. No person may sell, offer for sale, or otherwise distribute for compensation within the City coolers, ice chests, or similar containers made, in whole or in part, from Polystyrene Foam that is not wholly encapsulated or encased within a more durable material.

3. Pursuant to Section B.3, the Director may adopt, maintain, or reference a list of compliant products.

(Ord. 22-2239, § 1 (part), 2022; Ord. 14-2116, § 1 (part), 2014)

A. A Food Provider may seek an exemption from the requirements under Section 9.15.110 due to a "unique packaging hardship" under Subsection B of this section, "unused inventory" under Subsection C of this section, "significant economic hardship" w1der Subsection D, or request a temporary exemption to request extra time for compliance under Subsection E.

B. The Food Provider must demonstrate that no reasonably feasible alternative exists for a specific and necessary prohibited Single-Use food service ware item to qualify for a "unique packaging hardship" exemption.

C. The Food Provider must demonstrate that before October 6, 2022, it purchased the prohibited food service ware which ca1mot be retun1ed to the distributor and, despite the food vendor's best efforts, the prohibited food service ware remains in inventory, to qualify for an "unused inventory" exemption.

D. The Food Provider must demonstrate that the provisions of this Chapter would cause significant economic hardship. "Significant economic hardship" may be based on, but not limited to, demonstrating that suitable Single-use Food Service Ware is not available at a commercially reasonable price and the additional cost associated with providing the Single-Use Food Service Ware is particularly burdensome to the Food Provider 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 the overall financial resources of the Food Provider, and other factors. Reasonable added cost for an item required by this Chapter 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 shall consider the following information: ability of the Food Provider to recover the additional expense by increasing its prices, outside funding, and other options.

E. The Food Provider must demonstrate that for other reasons not already stated it needs additional time to comply with the provisions of this Chapter.

F. The Food Provider may submit a written application for an exemption to the Environmental Programs Division. The Director may require the applicant to submit additional information or documentation to make a determination regarding the exemption request. A request for exemption shall be reviewed on a case by case basis, and may be granted in whole or in part, with or without conditions, for a period of up to one year. The determination of the Director shall be final and is not subject to appeal.

G. Prepackaged Food delivered from outside the City is exempt from the provisions of this Chapter.

H. Disposable Food Service Ware that is entirely Aluminum Foil-based including, but not limited to, aluminum trays, aluminum foil wrappers and aluminum foil baskets, is exempt from the provisions of this Chapter.

I. Temporary exemptions due to an emergency are automatic without the submission of a request for an exemption. An emergency is defined as a sudden, unexpected occurrence posing a clear and imminent danger that requires immediate action to prevent or mitigate the loss or impairment of life, health, property, or essential public services. Examples of an emergency include, but are not limited to nahual disasters, emergencies due to the release of hazardous materials, emergencies associated with loss of power and/or water, or emergency medical response.

(Ord. 22-2239, § 1 (part), 2022; Ord. 14-2116, § 1 (part), 2014; Ord. 23-2252, Att. A (part), 2023)

A. Food Providers shall keep a complete and accurate record or documents of the purchase of Single-use Food Service Ware evidencing compliance with this Chapter.

B. The record shall be made available for inspection at no cost during regular business hours to City employees or City-designated agents authorized to enforce this Chapter. Unless an alternative location or method of review is mutually agreed upon, the records or documents shall be made available at the Food Provider address.

C. The provision of false or incomplete information, records or documents to the city shall be a violation of this Chapter.

(Ord. 22-2239, § 1 (part), 2022)

A. Grounds for an administrative citation. An administrative citation may be issued upon findings made by the City Manager, or his or her designee, for violation of any provision of this Chapter.

B. Administrative citation fine amounts. Upon findings made under subsection (A), the Person, Beverage Provider, or Food Provider shall be subject to an administrative citation pursuant to Chapter 1.10 of this Code. Fines for the administrative citation are as follows:

1. First citation: One hundred dollars ($100.00).

2. Second citation for the same violation within the same twelve month period: Two hundred dollars ($200.00)

3. Third or any subsequent citation for the same violation within the same twelve month period: Five hundred dollars ($500.00)

4. Each day that any person or food vendor violates the provisions of this Chapter is a new and separate violation.

C. Administrative citation appeals and disposition shall be processed in accordance with Chapter 1.10 of this Code.

(Ord. 22-2239, § 1 (part), 2022; Ord. 14-2116, § 1 (part), 2014)

If any section, subsection, subdivision, sentence, clause, or phrase of this Chapter is for any reason held to be unconstitutional or otherwise void or invalid, by any court of competent jurisdiction the validity of the remaining portion of this Chapter shall not be affected thereby.

(Ord. 14-2116, § 1 (part), 2014)