Exemptions for Undue Hardships
“Any person may seek a waiver from the requirements of Section 1604 of this Chapter by filing a request on a form specified by the City Administrator. The City Administrator, consistent with this Chapter, may waive any specific requirement of this Chapter for a period of up to one year if the person seeking the waiver has demonstrated that strict application of the specific requirement would create an undue hardship or practical difficulty not generally applicable to other persons in similar circumstances. The City’s Administrator’s decision to grant or deny a waiver shall be in writing and shall be final.”
“b. The City Council, or its appointee, may exempt a retail food vendor, food packager or non-profit food provider from the requirements of this chapter for a one year period, upon a showing by the applicant that the conditions of this chapter would cause undue hardship. The phrase “undue hardship” shall be construed to include, but not be limited to:
1. Situations where there are no acceptable alternatives to polystyrene food packaging for reasons which are unique to the retail food vendor, food packager, or non-profit food provider;
2. Situations where compliance with the requirements of this chapter would deprive a person of a legally protected right.”
“5.44.030 Exemptions
(a) The Director of the Environmental and Public Works Management Department (EPWM), or his/her designee, may exempt a food provider from the requirements of this ordinance for a one year period, upon showing by the food provider that the conditions of this ordinance would cause undue hardship. An “undue hardship” shall be found in:
1. Situations unique to the food provider where there are no reasonable alternatives to expanded polystyrene or non-recyclable plastic disposable food service containers and compliance with this Chapter would cause significant economic hardship to that food provider;
2. Situations where no reasonably feasible available alternatives exist to a specific and necessary expanded polystyrene or non-recyclable plastic food container. A food provider granted an exemption by the City must reapply prior to the end of the one year exemption period and demonstrate continued undue hardship, if it wishes to have the exemption extended. Extensions may only be granted for intervals not to exceed one year.
(b) An exemption application shall include all information necessary for the City to make its decision, including but not limited to documentation showing the factual support for the claimed exemption. The Director may require the applicant to provide additional information to permit the Director to determine facts regarding the exemption application.
(c) The Director may approve the exemption application, in whole or in part, with or without conditions.
(d) Exemption decisions are effective immediately and final and are not appealable.”
“A food provider may dispense prepared food to a customer using polystyrene foam containers if that food provider demonstrates, in writing, to the satisfaction of the director of environmental services that compliance with the provisions of this Chapter will impose a unique problem, not generally applicable to other persons in similar circumstances, that will result in an undue economic hardship. The director of environmental services shall put the decision to grant or deny an exemption in writing and may exempt the food vendor pursuant to this subdivision until April 22, 2015, or not more than one year from the date of the demonstration, whichever date is sooner. The Director’s decision shall be final.”
Exemptions for Raw Meat and Fish and/or Raw Eggs
“For the purpose of this Chapter, Prepared Food includes take-out food, but does not include raw, butchered meats, fish and/or poultry sold from the butcher case or similar retail appliance.”
Under Sec. 1602. Definitions, (l) “Prepared Food”
” ‘Prepared Food’ means any food or beverage prepared for consumption on the food provider’s premises, using any cooking or food preparation technique. This does not include any raw uncooked meat, fish or eggs unless provided for consumption without further food preparation.”
Under Section 5.44.010 Definitions, (h) “Prepared Food”
“5.39.030. Exemptions. The following are exempt from the provisions of this Chapter:
(a) Raw eggs and raw, butchered meat, fish, or poultry that is sold from a butcher case or a similar retail appliance.”
Sample Enforcement Provisions
“a. The City Manager or his/her designee shall have primary responsibility for enforcement of this chapter. The City Manager or his/her designee 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.
b. Anyone violating or failing to comply with any of the requirements of this chapter shall be guilty of an infraction.
c. The City Attorney may seek legal, injunctive, or other equitable relief to enforce this chapter.
d. The remedies and penalties provided in this section are cumulative and not exclusive of one another.”
(Ord. 90-261 § 2 (part), 1990: prior code § 5803)
“Violations of this chapter shall be punishable as follows:
1. For the first violation, the City Manager or his/her designee, upon a determination that a violation of this chapter has occurred, shall issue a written warning notice to the vendor or food packager which will specify the violation and the appropriate penalties in the event of future violations.
2. Thereafter, the following schedule shall apply:
a. A fine not exceeding one hundred dollars ($100.00) for the first violation after the warning notice is given in a one-year period;
b. A fine not exceeding two hundred dollars ($200.00) for a second violation after the warning notice is given in a one-year period.
c. A fine not exceeding five hundred dollars ($500.00) for the third violation after the warning notice is given in a one-year period. Any violation of this chapter shall constitute sufficient grounds for the revocation, suspension, denial or non-renewal of a business license issued by the city, held by the violator for the location at which the violation occurs.”
(Ord. 90-261 § 2 (part), 1990: prior code § 5804)
Examples of Laws That Target Non-Foam Polystyrene Too
South San Francisco Municipal Code (search polystyrene)
Simply: “Food vendors are prohibited from dispensing prepared food to customers in disposable food service ware made from polystyrene.”
“ ‘Disposable food service ware’ means single or non-durable use disposable products used by food vendors in the restaurant or food serving industry for serving or transporting prepared, ready-to-consume food or beverages. This includes, but is not limited to, plates, cups, bowls, utensils, cartons, trays, and hinged or lidded containers for takeout foods and/or leftovers from partially consumed meals prepared at food vendors.
“ ‘Polystyrene’ means and includes blown polystyrene and expanded and extruded foams, sometimes referred to as ‘Styrofoam®,’ a Dow Chemical Co. trademarked form of expanded polystyrene (EPS), processed by any number of techniques including, but not limited to, fusion of polymer spheres, injection molding, foam molding, and extrusion-blow molding. The term ‘polystyrene’ also means clear or solid polystyrene that is generally used to make clear clamshell containers, clear or colored straws, lids and utensils.”
Also noteworthy are its definitions for food packaging (very broad including straws), exemption for purchasing contracts, and its penalty section, which provides for a warning first.
15.60.020 Food Packaging Prohibitions.
“a. No restaurant, retail vendor, food packager, retail food vendor, or non-profit food provider shall provide prepared food to its customers in any food packaging which utilizes polystyrene; or purchase, obtain, keep, distribute, sell for home or personal use, or give, serve, or otherwise provide to customers any food packaging which utilizes polystyrene.”
(Ord. 90-261 § 2 (part), 1990: prior code § 5801)
“3. ‘Food packaging’ shall mean 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.
6. ‘Polystyrene’ shall mean and include polystyrene foam which is a thermoplastic petrochemical material 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). The term ‘polystyrene’ also includes clear polystyrene known as “oriented polystyrene.”
7. ‘Polystyrene food packaging’ shall mean any food packaging which contains polystyrene foam or oriented polystyrene.”
Hermosa Beach’s law applies to all polystyrene containers used for serving or transporting prepared food: plates, bowls, trays, wrappers or wrapping, platters, cartons, condiment containers, cups or drink ware and similar items. Straws, cup lids, and utensils are not included.
Also Special Events, below.
Clarifies That City Departments, City Contractors/Lessees Using City Facilities, and City Facilities Providing Prepared Food Are Covered
Sec. 1602. Definitions
“(e) ‘City contractors and lessees’ means any person or entity that has a contract with the City 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 and County, or to be paid out of monies deposited in the Treasury or out of trust monies under the control or collected by the City and County.
(f) ‘City Facility’ means any building, structure or vehicle owned or operated by the City of San Francisco.
(g) ‘City Facility Food Provider’ means an entity that provides, but does not sell, Prepared Food in City Facilities, including without limitations, San Francisco General Hospital, Laguna Honda Hospital, San Francisco County Jail and the San Bruno Jail Complex.”
Sec. 1602. Prohibited Disposable Food Service Ware
“(a) Food Vendors may sell Prepared Food in Disposable Food Service Ware that contains Polystyrene Foam.
(b) City Facility Food Providers may not provide Prepared Food in Disposable Food Service Ware that contains Polystyrene Foam.
(c) City Departments may not purchase, acquire or use Disposable Food Service Ware that contains Polystyrene Foam.
(d) City contractors and lessees may not use Disposable Food Service Ware that contains Polystyrene Foam in City Facilities and while performing under a City contract or lease.”
Prohibits Sale or Distribution of Polystyrene Food Packaging
15.60.020 Food Packaging Prohibitions.
“a. No restaurant, retail vendor, food packager, retail food vendor, or non-profit food provider shall provide prepared food to its customers in any food packaging which utilizes polystyrene; or purchase, obtain, keep, distribute, sell for home or personal use, or give, serve, or otherwise provide to customers any food packaging which utilizes polystyrene.”
(Ord. 90-261 § 2 (part), 1990: prior code § 5801)
The City of Sunnyvale recently passed, on November 19th, 2013, its Foam Food Container Ordinance, which includes a ban on all commercial sales of expanded polystyrene food containers beginning April 22, 2015. Food establishments are banned from using expanded polystyrene food containers a year earlier on April 22, 2014.
“5.39.020
Polystyrene foam containers and service ware prohibited.
(a) On or after April 22, 2014, a food provider shall not dispense prepared food to a customer in a polystyrene foam food container.
(b) On or after April 22, 2015, polystyrene foam food containers and polystyrene foam food service ware shall not be sold or provided by any vendor in the City of Sunnyvale.”
Restricts Polystyrene at Special Events
The City of Hermosa Beach, CA’s law covers City-sponsored events
“8.64.020 Definitions.
‘City-Sponsored Event’ means any event, activity or meeting organized or sponsored by the City of Hermosa Beach or any department of the City of Hermosa Beach.
‘Person’ means any person, business, corporation, or event organizer or promoter; public, nonprofit or private entity, agency or institution; or partnership, association or other organization or group, however organized.
‘Polystyrene’ means a thermoplastic petrochemical material utilizing the styrene monomer, including but not limited to polystyrene foam or expanded polystyrene, processed by any number of techniques, including but not limited to fusion of polymer spheres (expandable bead polystyrene), injection molding, foam molding, or extrusion-blow molding (extruded foam polystyrene), and clear or solid polystyrene (oriented polystyrene). The Recycle Code for polystyrene is ‘6’ or ‘PS,’ either alone or in combination with other letters. This definition applies to all Polystyrene Food Service Ware, regardless of whether it exhibits a Recycle Code.
‘Polystyrene Food Service Ware’ means Disposable Food Service Ware that contains or utilizes Polystyrene.
‘Prepared Food’ means any food or beverage that is (1) ready to consume without any further food preparation, alteration or repackaging; and (2) prepared, provided, sold or served by a Food Provider using any cooking, packaging or food preparation technique. Prepared Food may be eaten either on or off the Food Provider’s premises. Prepared Food does not include (1) any raw uncooked meat, poultry, fish or eggs, unless provided for consumption without further food preparation, and (2) fresh produce provided for consumption without food preparation or repackaging, including fruits, vegetables, and herbs, sold by grocery stores, supermarkets, food markets, farmers’ markets and other food vendors.
8.64.030 Food Packaging Prohibitions.
A. No Food Provider shall distribute or sell Prepared Food in any Polystyrene Food Service Ware at any location within the City of Hermosa Beach. Food Providers that distribute Prepared Food in Disposable Food Service Ware shall (1) distribute only Disposables that exhibit a Recycle Code other than No. 6 or PS, or (2) maintain documentation onsite of the composition of the Disposable Food Service Ware. Documentation may include information from the supplier, manufacturer, or bulk packaging for the Disposables, and any other relevant information demonstrating that the disposable material is not polystyrene.
B. No Person shall distribute or sell Prepared Food in any Polystyrene Food Service Ware at City Facilities that have been rented, leased or are otherwise being used with permission of the City. This Subsection is limited to use of City facilities for which a Person has entered into an agreement with the City to rent, lease or otherwise occupy a City facility. All facility rental agreements for any City facility shall include a provision requiring contracting parties to assume responsibility for preventing the utilization and/or distribution of Polystyrene Food Service Ware while using City facilities. The facility rental agreement shall indicate that the violating contractor’s security deposit will be forfeited if the City Manager or his/her designee determines that Polystyrene Food Service Ware was used in violation of the rental agreement.
C. No Person shall use or distribute Polystyrene Food Service Ware at City-sponsored events, City-managed concessions and City meetings open to the public. This subsection shall apply to the function organizers, agents of the organizers, City Contractors, Food Providers and any other Person that enters into an agreement with one or more of the function sponsors to sell or distribute Prepared Food or otherwise provide a service related to the function.
D. The City of Hermosa Beach, its Departments, and its City Contractors, agents, and employees acting in their official capacity, shall not purchase or acquire Polystyrene Food Service Ware, or distribute it for public use.”
Palo Alto’s Polystyrene Restriction Ordinance, in addition to applying to food vendors, also prohibits the use of expanded polystyrene or non-recyclable plastic food service containers at City facilities, City managed concessions, City sponsored events, and City permitted events.
“5.30.020 Prohibition on the Use of Polystyrene and Non-Recyclable Plastic
(a) Except as provided by section 5.30.030 food vendors are prohibited from providing prepared food in disposable food service containers made from expanded polystyrene or non-recyclable plastic.
(b) Except as provided by section 5.30.030 all City facilities, City managed concessions, City sponsored events, and City permitted events are prohibited from using disposable food service containers made from expanded polystyrene or non-recyclable plastic.
(c) Nothing in this Ordinance shall be interpreted to restrict the use of any form of fiber or paper disposable food service container, or the use of any form of biodegradable or compostable plastic food service container that meets the definition of Recyclable Plastic, in Section 5.30.010(g).”
Santa Monica’s prohibition on the use of non-recyclable plastic disposable food service containers applies to all City Facilities, City-managed concessions, City sponsored events, and City permitted events.
5.44.020
“C. All City Facilities, City-managed concessions, City sponsored events, and City permitted events are prohibited from using disposable food service containers made from expanded polystyrene or non-recyclable plastic.”
