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SR 08-28-2018 7D City Council Report City Council Meeting: August 28, 2018 Agenda Item: 7.D 1 of 1 To: Mayor and City Council From: Lane Dilg, City Attorney, City Attorney’s Office Subject: Second Reading and Adoption of Ordinance Amending Chapter 5.44 of the Santa Monica Municipal Code to Prohibit the Distribution of Non-Marine Degradable Disposable Food Service Ware and Polystyrene Beverage Lids Recommended Action Staff recommends that City Council adopt the attached Ordinance. Executive Summary At its meeting on August 14, 2018, the City Council introduced for first reading an ordinance amending Chapter 5.44 of the Santa Monica Municipal Code to prohibit the distribution of non-marine degradable disposable food service ware and polystyrene beverage lids. The ordinance is now presented to City Council for adoption. Prepared By: Elsa Kapsinow, Executive Assistant to the City Attorney Approved Forwarded to Council Attachments: A. Ordinance - Sustainability - Marine Degradable Disposable Food Service Ware - Second Reading - 08282018 B. Written Comments 1 City Council Meeting: August 28, 2018 Santa Monica, California ORDINANCE NUMBER 2216 (CCS) (City Council Series) AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA MONICA AMENDING CHAPTER 5.44 OF THE SANTA MONICA MUNICIPAL CODE TO PROHIBIT THE DISTRIBUTION OF NON-MARINE DEGRADABLE DISPOSABLE FOOD SERVICE WARE WHEREAS, the City of Santa Monica (“City”) has been a leader in setting goals for sustainable resource consumption, including maintaining ecosystems in order to provide clean water from sustainable sources, keeping marine waters safe for active and passive recreation, supporting a sustainable climate that supports thriving human life and a flourishing biodiverse environment, and implementing comprehensive waste disposal systems that do not degrade the environment; and WHEREAS, the state Legislature has recognized that littered plastic products have caused and continue to cause significant environmental harm and have burdened lo cal governments with significant environmental cleanup costs (California Public Resources Code Section 42355); and WHEREAS, the state Legislature has further declared its intent to ensure that environmental marketing claims, including claims of biodegradation of plastics, do not lead to an increase in environmental harm associated with plastic litter by providing 2 consumers with a false belief that certain plastic products are less harmful to the environment (California Public Resources Code Section 42355); and WHEREAS, over one hundred municipalities in California, including the City, have adopted ordinances prohibiting or restricting polystyrene food service ware and requiring the utilization of cost-effective reusable, recyclable, or biodegradable alternatives, which have reduced the volume of polystyrene products in our waste streams and throughout our natural environment; and WHEREAS, the City wishes to prohibit the distribution of certain non-marine degradable disposable food service ware by food and beverage providers within the City in order to promote health, safety, and general welfare. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SANTA MONICA DOES HEREBY ORDAIN AS FOLLOWS: SECTION 1. Chapter 5.44 of the Santa Monica Municipal Code is hereby amended to read as follows: Chapter 5.44 NON-MARINE DEGRADABLE DISPOSABLE FOOD SERVICE WARE 5.44.010 Definitions. (a) “Director” means the Director of Public Works or his or her designee. (b) “Disposable food service ware” means disposable products intended for single or limited number of uses, used in the restaurant and food service industry for 3 serving or transporting prepared, ready-to-consume food or beverages. Disposable food service ware 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) “Food or beverage provider” 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 Santa Monica. (d) “Marine degradable” means products recognized as “marine degradable” under California state law, Public Resources Code Section 42357, or designed to biodegrade under the marine environmental conditions of aerobic marine waters or anaerobic marine sediments in less than 120 days. Products predominantly made with plastics, either petroleum or biologically based, shall not be considered marine degradable. (e) “Polystyrene” means a synthetic material made from polymerizing styrene. This type of plastic can be identified as Plastic #6. (f) “Prepared food” means any food or beverage prepared 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 consu mption without further food preparation. Prepared food may be eaten either on or off the premises. 5.44.020 Prohibition on the use of non-marine degradable disposable food service ware. 4 (a) Except as otherwise provided in this Chapter, a food or beverage provider shall dispense prepared food or beverages to customers only in marine degradable disposable food service ware. (b) A food or beverage provider shall provide marine degradable disposable straws and utensils to customers only upon request. A food or beverage provider may ask customers whether disposable straws or disposable utensils are needed. (c) All City facilities, whether owned or leased by the City, City-managed concessions, City-sponsored events, and City-permitted events shall use only marine degradable disposable food service ware to dispense prepared food or beverages. (d) Food and beverage providers, as well as City facilities, City-managed concessions, City-sponsored events, and City-permitted events, may retain and dispense plastic straws as an accommodation to people with disabilities who request them to enjoy equal access to food and beverage services within the City. 5.44.030 Exemptions. (a) The Director may exempt a food or beverage provider from the requirements of this Chapter, in whole or in part, upon showing by the food or beverage provider that complying with the requirements of this Chapter would cause significant economic hardship to the food or beverage provider and no reasonable alternative exists that is consistent with the requirements of this Chapter and would mitigate such significant economic hardship. 5 (b) Exemptions shall be granted only by the Director for one-year and only upon written application by the food and beverage provider setting forth the factual basis for the exemption. Further exemptions may only be granted by the City Council. (c) Exemption decisions shall be effective immediately and shall not be subject to administrative appeal. 5.44.040 Regulations. (a) The Director is authorized to promulgate regulations to implement the provisions of this Chapter. 5.44.050 Enforcement, penalties, and fines. (a) Any person violating any provision of this Chapter, including any administrative regulation authorized herein, shall be guilty of an infraction, which shall be punishable by a fine of not more than two hundred and fifty dollars per violation. (b) Any person violating any provision of this Chapter, including any administrative regulation authorized herein, may be subject to administrative citations pursuant to Chapter 1.09 of this Code. (c) The City Attorney may seek legal, injunctive, or any other relief to enforce this Chapter, including any administrative regulation authorized herein. SECTION 2. Any provision of the Santa Monica Municipal Code or appendices thereto inconsistent with the provisions of this Ordinance, to the extent of such 6 inconsistencies and no further, is hereby repealed or modified to that extent necessary to effect the provisions of this Ordinance. SECTION 3. If any section, subsection, sentence, clause, or phrase of this Ordinance is for any reason held to be invalid or unconstitutional by a decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Ordinance. The City Council hereby declares that it would have passed this Ordinance and each and every section, subsection, sentence, clause, or phrase not declared invalid or unconstitutional without regard to whether any portion of the ordinance would be subsequently declared invalid or unconstitutional. SECTION 4. The Mayor shall sign and the City Clerk shall attest to the passage of this Ordinance. The City Clerk shall cause the same to be published once in the official newspaper within 15 days after its adoption. This Ordinance shall become effective on January 1, 2019. APPROVED AS TO FORM: _________________________ LANE DILG City Attorney 1 Vernice Hankins From:Tim James <tjames@CAGrocers.com> Sent:Tuesday, August 28, 2018 11:39 AM To:Clerk Mailbox Subject:FW: Food Packaging Ordinance - 8/28 Hearing Forwarding for your record. Thank you, Tim Timothy James Sr. Manager, Local Government Relations California Grocers Association 916‐448‐3545 From: Tim James <tjames@CAGrocers.com> Date: Tuesday, August 28, 2018 at 11:23 AM To: "ted.winterer@smgov.net" <ted.winterer@smgov.net>, "gleam.davis@smgov.net" <gleam.davis@smgov.net>, "tony.vazquez@smgov.net" <tony.vazquez@smgov.net>, "kevin.mckeown@smgov.net" <kevin.mckeown@smgov.net>, "sue.himmelrich@smgov.net" <sue.himmelrich@smgov.net>, "pam.oconnor@smgov.net" <pam.oconnor@smgov.net>, "terry.oday@smgov.net" <terry.oday@smgov.net> Cc: James Velez‐Conway <James.Velez‐Conway@SMGOV.NET>, Shannon Parry <Shannon.Parry@SMGOV.NET>, Amanda Grossman <Amanda.Grossman@SMGOV.NET> Subject: Food Packaging Ordinance ‐ 8/28 Hearing Councilmembers, on behalf of the California Grocers Association, I write to communicate serious concerns with the amended food packaging ordinance scheduled for Second Reading. The language offered in the Second Reading of this ordinance is significantly different than discussions and expectations provided by the City and during the stakeholder’s process. The requirements include several mandates which are physically not possible for prepared food provided by grocery stores. The most concerning is “marine degradable” food packaging does not exist. There is a reference to “marine degradable” in California State Code, but there is no actual food packaging which meets the requirements. Specifically, CA State Public Resources Code 42356.b.1.B uses the “ASTM Standard Specification for Non‐Floating Biodegradable Plastics in the Marine Environment D7081.” This standard was withdrawn as an ASTM standard back in 2014. Our understanding is ASTM D7081‐05 was allowed to expire in 2014 because no entity was able to meet its requirements. https://www.astm.org/Standards/D7081.htm The draft ordinance also mentions being “designed to biodegrade under the marine environmental conditions of aerobic marine waters or anaerobic marine sediments in less than 120 days.” This language is simply an explanation of the ASTM D7081‐05 standard which has been withdrawn. In consultation with food packaging experts and food packaging manufacturers it has been made clear to us that “marine degradable” food packaging does not exist because it cannot serve the role of keeping food safe and retaining its quality while still being able to degrade in marine environments. It is important, to note that Item 7-D 08/28/18 1 of 4 Item 7-D 08/28/18 2 even simple products, such as paper and bagasse, contain different coatings and glues which prohibit it from achieving “marine degradable” status. City Council made very clear at the First Reading of this ordinance they wish to have a stringent and progressive food packaging ordinance. However, our assessment of the current draft of the ordinance that it has crossed the line from progressive into unrealistic. As an industry, we are open working with Santa Monica on a food packaging ordinance that calls for food packaging to be environmentally progressive while maintaining food safety and quality. Unfortunately, the current draft of the ordinance jeopardizes food safety, will lead to unnecessary food waste, and prevents grocery stores for offering many prepared foods consumers rely on. We urge the Council to hold off on final passage of this ordinance until technical adjustments can be made which allows compliance by food retailers. Without further exploration of ordinance impacts and a review of technical requirements it will result in impossible challenges for the city and food retailers to achieve compliance and delayed environmental gain. Thank you for your consideration and we look forward to working further on this ordinance before its passage. Timothy James Sr. Manager, Local Government Relations California Grocers Association 916‐448‐3545 Item 7-D 08/28/18 2 of 4 Item 7-D 08/28/18 1 Vernice Hankins From:Santa Monica City Manager's Office Sent:Tuesday, August 28, 2018 3:44 PM To:councilmtgitems Cc:Stephanie Venegas Subject:FW: Food Packaging Ordinance - 8/28 Hearing FYI From: Jessica Mause [mailto:jessica@rodriguezstrategies.com] Sent: Tuesday, August 28, 2018 11:44 AM To: Amanda Grossman <Amanda.Grossman@SMGOV.NET>; James Velez‐Conway <James.Velez‐Conway@SMGOV.NET> Cc: Santa Monica City Manager's Office <manager.mailbox@SMGOV.NET>; Rick Cole <Rick.Cole@SMGOV.NET>; Yibin Shen <Yibin.Shen@SMGOV.NET>; Lane Dilg <Lane.Dilg@SMGOV.NET> Subject: FW: Food Packaging Ordinance ‐ 8/28 Hearing Hi Amanda and James, I just wanted to make sure you received the below email from Tim James with the California Grocers Association this morning. I know there was a lengthy discussion at the last council meeting on packaging (I was there and provided comment). However, upon review of the amended packaging ordinance on tonight’s agenda, we have serious concerns about the viability/availability of “marine degradable” packaging, which upon further research is a standard that was discontinued in 2014 because no entity was able to meet its requirements. Please see Tim’s full note below. I want to emphasize that we’d like to work with you on progressive solutions but request a delay at this time. Please don’t hesitate to reach me on my cell to discuss, 202‐306‐8938. Thanks, Jessica -- Jessica Mause Senior Vice President, Rodriguez Strategies e: jessica@rodriguezstrategies.com c: 202-306-8938 From: Tim James <tjames@CAGrocers.com> Date: Tuesday, August 28, 2018 at 11:23 AM Councilmembers, on behalf of the California Grocers Association, I write to communicate serious concerns with the amended food packaging ordinance scheduled for Second Reading. The language offered in the Second Reading of this ordinance is significantly different than discussions and expectations provided by the City and during the stakeholder’s process. The requirements include several mandates which are physically not possible for prepared food provided by grocery stores. The most concerning is “marine degradable” food packaging does not exist. Item 7-D 08/28/18 3 of 4 Item 7-D 08/28/18 2 There is a reference to “marine degradable” in California State Code, but there is no actual food packaging which meets the requirements. Specifically, CA State Public Resources Code 42356.b.1.B uses the “ASTM Standard Specification for Non‐Floating Biodegradable Plastics in the Marine Environment D7081.” This standard was withdrawn as an ASTM standard back in 2014. Our understanding is ASTM D7081‐05 was allowed to expire in 2014 because no entity was able to meet its requirements. https://www.astm.org/Standards/D7081.htm The draft ordinance also mentions being “designed to biodegrade under the marine environmental conditions of aerobic marine waters or anaerobic marine sediments in less than 120 days.” This language is simply an explanation of the ASTM D7081‐05 standard which has been withdrawn. In consultation with food packaging experts and food packaging manufacturers it has been made clear to us that “marine degradable” food packaging does not exist because it cannot serve the role of keeping food safe and retaining its quality while still being able to degrade in marine environments. It is important, to note that even simple products, such as paper and bagasse, contain different coatings and glues which prohibit it from achieving “marine degradable” status. City Council made very clear at the First Reading of this ordinance they wish to have a stringent and progressive food packaging ordinance. However, our assessment of the current draft of the ordinance that it has crossed the line from progressive into unrealistic. As an industry, we are open working with Santa Monica on a food packaging ordinance that calls for food packaging to be environmentally progressive while maintaining food safety and quality. Unfortunately, the current draft of the ordinance jeopardizes food safety, will lead to unnecessary food waste, and prevents grocery stores for offering many prepared foods consumers rely on. We urge the Council to hold off on final passage of this ordinance until technical adjustments can be made which allows compliance by food retailers. Without further exploration of ordinance impacts and a review of technical requirements it will result in impossible challenges for the city and food retailers to achieve compliance and delayed environmental gain. Thank you for your consideration and we look forward to working further on this ordinance before its passage. Timothy James Sr. Manager, Local Government Relations California Grocers Association 916‐448‐3545 Item 7-D 08/28/18 4 of 4 Item 7-D 08/28/18 REFERENCE: Ordinance No. 2586 (CCS)