Article III — REGULATION OF NONREUSABLE FOOD SERVICE WARE

The Town Council finds and determines that:

(1)

Nonreusable food service ware, including plates, cutlery, cups, lids, straws, "clamshells" and other containers, is a major contributor to street litter, ocean pollution, marine and other wildlife harm, and greenhouse gas emissions.

(2)

It is in the interest of the health, safety, and welfare of all who live, work, and do business in the Town of Los Gatos that the amount of litter on public streets, parks and in other public places be reduced.

(3)

The production and disposal of nonreusable food service ware and foodservice ware accessories have significant environmental impacts, including the contamination of the environment, the depletion of natural

resources, use of nonrenewable polluting fossil fuels, greenhouse gas emissions and increased clean-up and end-of-life management costs.

(4)

Food service ware made from plastic polymers may last for hundreds and even thousands of years and have broad, long-lasting negative impacts, even though most food service ware is discarded after only a single use.

(5)

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.

(6)

Nonreusable plastic and polystyrene foam food service ware breaks apart easily into small pieces, can end up as litter and is often mistaken as food by birds, fish and wildlife. Plastics in waterways and oceans break down into smaller pieces that arenot biodegradable and are present in most of the world's oceans.

(7)

Polystyrene foam food service ware is a distinctive litter concern because it is lightweight, easily windblown into streets and waterways, and floats in water until it reaches the San Francisco Bay and ocean.

(8)

Eliminating the use of polystyrene foam and other noncompostable and nonrecyclable single-use food service ware items and requiring certification that food service ware is PFAS-free will maximize the operating life of landfills, lessen the economic and environmental costs of waste management for businesses and residents ofthe Town of Los Gatos and further protect the public health and safety of residents, the natural environment, waterways, and wildlife.

(9)

Compostable natural fiber-based food service ware can be diverted from landfill and processed into an organic soil amendment and breaks down in the environment if littered.

(10)

Reduction of nonreusable food service ware and accessories will advance compliance with the San Francisco Bay Region Municipal Regional Stormwater NPDES Permit by helping to reduce trash and litter in the waterways, thus improving water quality in Town waterways and reduces risk of harm to wildlife.

(11)

The Town Council does, accordingly, find and declare that it should restrict the use of nonreusable food service ware and food service ware accessories. The Town of Los Gatos has a substantial interest in

protecting its residents and the environmentfrom the negative impacts of nonreusable food service ware. This Chapter is consistent with the Town's Zero Waste Policy and Plan.

(Ord. No. 2328, § 1, 4-19-22)

Unless otherwise expressly stated, whenever used in this chapter, the following terms shall have the meanings set forth below:

Aluminum foil-based means any nonreusable food service ware composed entirely of aluminum, including, but not limited to, aluminum trays, aluminum foil wrappers and aluminum foil baskets.

Compostable means that an item or material will break down or otherwise become part of usable compost in a safe and timely manner consistent with the composting facility used by the city's franchisee and: (1) is natural fiber-based (includingitems that are natural fiber-based and coated or lined with biologically based polymer, such as corn or other plant sources, if certified by an independent third-party certifying organization approved by the public works director or designee); or (2) made from othermaterials approved by the public works director or designee. Compostable does not include items made primarily of biologically based polymer, PLA or other "compostable"plastic, even if labeled or certified as compostable.

Disposable means designed to be discarded after a single or limited number of uses and not designed or manufactured for longer-term multiple reuse.

Food provider means any establishment, vendor, business, organization, entity, group or individual located or operating in the Town of Los Gatos that offersprepared food or beverages, regardless of whether there is a charge for the food or beverage: (1) to the public for consumption on or off its premises; (2) as a catered event; and/or (3) at cafeterias of private schools and places of employment, whether or not suchestablishments are open to the general public. "Food provider" includes, but is not limited to, restaurants, retail food establishments, caterers, cafeterias, stores, shops, sales outlets, grocery stores, delicatessens, fraternal clubs serving the public, mobile food vendors, vehicles or carts, or roadside stands.

Food service ware means any products used for serving or packaging prepared food and includes, but is not limited to, cups, bowls, plates, trays, cartons, boxes, wrappers or liners, hinged or lidded containers (clamshells) and other items usedas part of food or beverage service, or in which prepared food is placed or packaged on afood provider's premises. Food service ware does not include a food service wareaccessory.

Food service ware accessory means any other item used as part of a preparedfood or beverage service that accompanies food service ware such as straws, stirrers, napkins, utensils, condiment packets, cup sleeves, tops, lids, splash sticks and other similar accessory or accompanying items.

Health-care facilities means places that provide health-care services. Health- care facilities include, but are not limited to, hospitals, clinics, outpatient care centers, nursing homes, psychiatric care centers, medical offices, hospice homes, mental health and addiction treatment centers, orthopedic and other rehabilitation centers, urgent care,birth centers, etc.

Nonreusable means food service ware or food service ware accessories that are designed to be discarded after a single or limited number of uses and not designed or manufactured for sanitation and reuse over an extended period of time.

Perfluoroalkyl and polyfluoroalkyl substances or PFAS means a class of fluorinated organic chemicals containing at least one fully fluorinated carbon atom.

Regulated perfluoroalkyl and polyfluoroalkyl substances or PFAS means either of the following:

(1)

PFAS that a manufacturer has intentionally added to a product and that have a functional or technical effect in the product, including the PFAS components of intentionally added chemicals and PFAS that are intentional breakdown products of an added chemical that also have a functional or technical effect in the product.

(2)

The presence of PFAS in a product or product component at or above onehundred (100) parts per million, as measured in total organic fluorine.

Polystyrene foam means a thermoplastic petrochemical material made from a styrene monomer and expanded or blown using a gaseous agent (expanded polystyrene or EPS), including, but not limited to, fusion of polymer spheres (expandablebead polystyrene), injection molding, form molding and extrusion- blow molding (extruded foam polystyrene). "Polystyrene foam" is commonly made into nonreusable food service ware products. "Polystyrene foam" does not include clear or solid polystyrene (oriented polystyrene).

Prepared food means food or beverages that are served, packaged, cooked, chopped, sliced, mixed, brewed, frozen, squeezed or otherwise prepared on the premisesof 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) nonpolystyrenefoam prepackaged items prepared on-site, which are not made to order and sold as "grocery items."

Vendor means any store, business, organization, or entity that sells or offersgoods or merchandise, located or operating within the Town of Los Gatos.

(Ord. No. 2328, § 1, 4-19-22)

(a)

Polystyrene foam:

(1)

No food provider within the Town of Los Gatos shall use, sell or otherwise provide prepared food using food service ware made from polystyrene foam.

(2)

Food service ware made from polystyrene foam and coolers, or ice chestsmade from polystyrene foam that are not wholly encapsulated or encased within a more durable material shall not be sold or provided by any vendor in the Town of Los Gatos .

(b)

Certified PFAS-free and compostable: Effective as of January 1, 2023, food providers within the Town of Los Gatos, when providing prepared food in nonreusable food service ware, must ensure it is: (1) certified as free of all regulated perfluoroalkyl and polyfluoroalkyl substances or PFAS by an independent third- party certifying organization approved by the Parks and Public Works Director or designee; and (2) compostable.

(Ord. No. 2328, § 1, 4-19-22)

Effective as of January 1, 2023, the following shall apply to nonreusable food serviceware accessories:

(1)

Food providers shall not use, provide, distribute, or sell the following nonreusable food service ware accessories if they are made from or packaged in plastic, including biologically based polymers or compostable plastic: beverage straws, drink stirrers, food picks or toothpicks.

(2)

Exception. Food providers that customarily offer straws may maintain a small supply of plastic or compostable plastic straws to accommodate individuals who may require and request the use of plastic straws due to disability or other medical or physical conditions or circumstances. Health-care facilities may distribute plastic straws with or without a request by a patient at the discretion of the health-care facility staff based on the physical or medical needs of the patient. Nothing in this Article shall conflict with or be construed to conflict with the Americans with Disabilities Act or any other applicablelaw concerning the rights of individuals with disabilities.

(Ord. No. 2328, § 1, 4-19-22)

The following are exempt from the provisions of this Article:

(1)

Nonreusable food service ware that is entirely aluminum foil-based.

(2)

The Parks and Public Works Director or designee may approve temporary exemption of specific nonreusable food service ware items. if the Parks and Public Works Director or designee determines that a reasonably feasible nonreusable food service ware item that complies with this Chapter is not available at the time of evaluation, this item will be exempt from the provisions of this Article until the Parks and Public Works Director, or designee determines that a reasonably feasible alternative is readily available on the market for purchase. The Town will publicly list any items approved as temporarily exempt from the ordinance.

(3)

In the event of an emergency, the provisions of this Article shall be suspended until the emergency has terminated. An emergency is defined as a sudden, unexpected occurrence posing a clear and imminent danger that requires immediate action to preventor mitigate the loss or impairment of life, health, property, or essential public services. Examples of an emergency include, but are not limited to, natural disasters, emergencies due to release of hazardous materials, emergencies associated with loss of power and/or water or emergency medical response.

(Ord. No. 2328, § 1, 4-19-22)

(a)

A food provider may apply, in writing, to the public works director or designeefor a waiver from compliance with Section 16.92, Nonreusable food service ware requirements, subsection (b), Certified PFAS-free and Compostable, if compliance with the Section will impose a unique hardship not generally applicable to other persons in similar circumstances, including, but not limited to, the following:

(1)

An undue economic hardship.

(2)

A suitable packaging alternative that conforms to the requirements of thisArticle does not exist for a specific usage.

(3)

The omission of noncompliant items from the city's waste streams, whichcould include, but is not limited to, a city-approved on-site waste processing system.

(b)

The Parks and Public Works Director or designee shall issue a written decision to grant ordeny a waiver and may exempt the food provider for no more than one (1) year from thedate of the decision. The Parks and Public Works Director's or designee's decision shall be final and is not subject to appeal.

(c)

The Parks and Public Works Director or designee may require independent verification of the basis for the requested waiver, which may include, but is not limited to, a request for supporting documentation.

(Ord. No. 2328, § 1, 4-19-22)

(a)

Code Compliance or designee shall have primary responsibility for the enforcement of this Article. The Parks and Public Works Director or designee is authorized to promulgate regulations and take any and all other actions reasonable and necessary to enforce this Article, including, but not limited to, entering the premises of any food provider during regular business hours to verify compliance.

(b)

A food provider, vendor or other entity violating or failing to comply with any requirement of this Article may be subject to enforcement and penalties pursuant to Chapter 1 Article III of the Los Gatos Town code.

(c)

Violation of this Article shall be deemed to constitute a public nuisance subject to all applicable civil, administrative, and criminal remedies and penalties according to the provisions and procedures contained in this Article and state law, including, but notlimited to, an action for abatement or injunctive relief.

(d)

The remedies and penalties provided by this Article are cumulative and in addition to any other remedies available at law or in equity.

(Ord. No. 2328, § 1, 4-19-22)