Chapter 12. Single-Use Foodware Accessory and Standard Condiment Reduction Ordinance

5-12.01 Title.

This Chapter shall be known as the “single-use foodware accessory and standard condiment reduction ordinance” and may be so cited. (Ord. 538 § 1, 2022)

5-12.02 Purpose and Applicability.

The City Council finds and declares that the purpose of this Chapter is to comply with AB 1276 and mandate that all single-use foodware accessories and standard condiments be made available upon request only. (Ord. 538 § 1, 2022)

5-12.03 Definitions.

(a) “AB 1276” means the California State Assembly Bill regulating the distribution of single-use foodware accessories by food vendors to be made available only upon request of the consumer. The new law applies to plastic and nonplastic single-use foodware items and standard condiments. This law requires the City of Hercules to authorize an enforcement agency on or before June 1, 2022.

(b) “Single-use foodware accessories” means disposable products intended for a single or limited number of uses, used in the restaurant and food service industry for serving or transporting prepared, ready-to-consume food or beverages. Single-use foodware includes, but is not limited to, plates, cups, bowls, trays, hinged or lidded containers, straws, stirrers, lid plugs, lids and utensils. This does not include disposable packaging for unprepared foods.

(c) “Standard condiment” 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.

(d) “Food service vendor” means any business, organization, entity, group, or individual providing prepared food or beverages for public consumption on or off its premises within the City of Hercules.

(e) “Digital ordering platform” means the digital technology provided by an internet website or mobile application used by customers to order food and/or schedule food delivery.

(f) “Refillable self-service dispenser” means a container or equipment that is used to hold disposable foodware accessories for customers to obtain at their discretion. (Ord. 538 § 1, 2022)

5-12.04 Requirements for Food Service Vendors.

(a) Food service vendors shall only distribute single-use foodware accessories and standard condiments upon the request of the customer, unless a local, county or state emergency order is in effect requiring distribution of such single-use foodware accessories and standard condiments. However, employees are not prohibited from asking customers if they would like any single-use foodware accessories or standard condiments and providing the amount requested by the customer.

(b) Food service vendors shall place signs on the premises to inform customers and employees that single-use foodware accessories and standard condiments are offered only upon request.

(c) Food service vendors shall include in their digital ordering platforms for ordering food a statement that communicates that single-use foodware accessories are offered only upon request and shall include the ability for customers to select which foodware accessories or standard condiments they want. The food service vendor shall customize its menu with a list of available single-use foodware accessories and standard condiments, and only those single-use foodware accessories or standard condiments selected by the consumer shall be provided by the food facility. If a consumer does not select any single-use foodware accessories or standard condiments, no single-use foodware accessory or standard condiment shall be provided by the food facility for delivery of ready-to-eat food.

(d) Food service vendors shall instruct employees to inform customers that single-use foodware accessories and standard condiments are offered only upon request.

(e) Food service vendors shall not package single-use foodware accessories and standard condiments in a manner that prohibits a customer from taking only the type of single-use foodware accessory or standard condiment desired without also having to take a different type of single-use foodware accessory or standard condiment.

(f) Food service vendors may ask a drive-through customer if the consumer wants a single-use foodware accessory if the single-use foodware accessory is necessary for the consumer to consume ready-to-eat food, or to prevent spills of or safely transport ready-to-eat food. (Ord. 538 § 1, 2022)

5-12.05 Exemptions.

(a) This Chapter shall not apply to refillable self-service dispensers. Food service vendors may therefore make standard condiments and single-use foodware accessories available for customers to obtain as needed. Food service vendors are encouraged to use bulk dispensers for the condiments rather than condiments packaged for single use.

(b) This Chapter shall not apply to the following institutions or facilities:

(1) Correctional institutions, which has the same meaning as in Section 7502 of the Penal Code.

(2) Health care facilities licensed pursuant to Article 1 (commencing with Section 1250) of Chapter 2 of Division 2 of the Health and Safety Code or facilities that are owned or operated by a health care service plan licensed pursuant to Chapter 2.2 (commencing with Section 1240) of Division 2 of the Health and Safety Code.

(3) Residential care facilities licensed pursuant to Division 2 (commencing with Section 1200) of the Health and Safety Code.

(4) Public and private school cafeterias, as referenced in paragraph (1) of subdivision (b) of Section 113789 of the Health and Safety Code. (Ord. 538 § 1, 2022)

5-12.06 Enforcement and Penalties.

(a) The first and second violations of this Chapter shall result in a notice of violation, and any subsequent violation shall constitute an infraction punishable by a fine of twenty-five dollars ($25.00) for each day in violation, but not to exceed an amount of three hundred dollars ($300.00) annually.

(b) Unless otherwise provided for in this Chapter, the City’s procedures on imposition of administrative fines, Sections 1-4.01 through 1-4.03, are hereby incorporated in their entirety, as modified from time to time, and shall govern the imposition, enforcement, collection, and review of administrative citations issued to enforce this Chapter and any rule or regulation adopted pursuant to this Chapter. This Chapter shall only apply to those entities subject to the City’s regulatory jurisdiction.

(c) The City Manager, or his/her designee, shall have primary responsibility for enforcement of this Chapter and shall have authority to issue citations for violation of any provision of this Chapter. The City Manager, or his/her designee, may establish regulations or administrative procedures and take any actions reasonable and necessary to further the purposes of this Chapter or to obtain compliance with this Chapter, including, without limitation, performing an inspection of a retail establishment’s premises to verify compliance with this Chapter.

(d) Any violation of any of the requirements of this Chapter shall constitute an infraction. Each and every day that a violation occurs shall constitute a separate violation.

(e) The remedies and penalties provided in this Chapter are cumulative and not exclusive, and nothing in this Chapter shall preclude the City from pursuing any other remedies. The City Attorney may seek legal, injunctive, or any other relief to enforce the provisions of this Chapter and any regulation or administrative procedure developed pursuant hereto. (Ord. 538 § 1, 2022)