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AB 1276

April 28, 2022

ACCESSORIES UPON REQUEST - IMPLEMENTATION

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Genevieve Abedon, EcoConsult

Alison Waliszewski, 5 Gyres Institute

Miho Ligare, Surfrider Foundation

Emily Parker, Heal the Bay

Miriam Gordon, Upstream

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TODAY’S AGENDA

11:00 Welcome - Introductions and

goals for the webinar

11:05 AB 1276 Requirements vs.

County of Los Angeles Ordinance

11:40 Educational Materials and other

Resources

11:45 Q & A

(Miriam)

Goals for today’s webinar- AB 1276 enacted in 2021 after about 20 jurisdictions enacted their own accessories on request. AB 1276 requires local jurisdictions to appoint enforcement agency by June 1st and to enforce the requirements of the state law at a minimum. However, it’s acceptable for local policies to be more stringent than state law. But while many of the provisions of local policy are different, it’s often hard to interpret whether they go further than state law or are just different. So what does it mean to comply with AB 1276?��Today, we are going to discuss some of the differences between state and local accessories on request laws- using the County of LA/s Accessories ordinance as an example- and talk about what it means to comply with AB 1276.

�We are saving time for Q & A until the end. Please put your questions in chat as they come up so we can try to group them together.

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GUIDANCE ONLY- NOT LEGAL ADVICE

Before we get started-we’d like to make it clear that the panelists presenting today are not providing any legal advice- the point of today’s webinar is to provide and overview of the requirements of AB 1276 as well as guidance/guidelines regarding some of the ways local ordinances differ and ways to interpret compliance with AB 1276.

What makes us qualified to provide compliance guidance? We were original drafters of some of the local versions of this policy as well as the state version -

We know the language well and tracking policy developments in other cities and states- view ourselves as educated interpreters of the language- and members of Reusable LA successfully launched a PE and outreach campaign.

If you have your own law that does not meet the minimum requirements of AB 1276, then you need to be enforcing the requirements of 1276 - today we will walk you through how to analyze each provision to determine what you need to be enforcing. THIS IS NOT LEGAL ADVICE JUST OUR PROFESSIONAL GUIDANCE- you will need to consult your city or county attorneys to provide the legal interpretation of how you should implement the law.

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Unlikely to reduce distribution of unnecessary accessories

AB 1276 “Accessories on Request”

Versus offering accessories

Seeks to create a DEFAULT behavior where no accessories are provided unless specifically requested

GOAL:

ELIMINATE UNNECESSARY

SINGLE-USE ACCESSORIES!

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AB 1276 IMPLEMENTATION - April 28, 2022

AB 1276 (Carrillo)

Foodware Accessories & Condiments Upon Request

(Genevieve)

(Emily to drop bill language into the chat: https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=202120220AB1276)

Brief background - We saw a need for this because due to the pandemic, there was an uptick in this type of waste. As a result, many CLSC orgs working on local #SkipTheStuff campaigns/ordinances, so decided to sponsor a statewide bill to act as a minimum for all cities and counties in CA to meet, with the option to go further. We built upon AB 1884 (Calderon) the straws upon request law in the Public Resources Code, and used some pre-existing definitions from there as well as from the Health and Safety Code.

The Crux of the law is that food facilities, including food facilities using third-party food platforms, are not allowed to provide single-use foodware accessories or condiments to consumers unless they have specifically asked for one. There are a couple of exemptions to this which we will get into shortly.

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AB 1276 IMPLEMENTATION - April 28, 20226

Exaple 1.

Flow Chart

AB 1276 Flowchart

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COUNTY OF LA

KEY DIFFERENCES

Offering: opt-in vs opt-out
Self Service
Accessories covered
Bundling

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AB 1276 IMPLEMENTATION - April 28, 2022

DO YOU HAVE YOUR OWN ORDINANCE?

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AB 1276 Enforcement Requirements

Added to the Public Resources Code:

42272. (a) On or before June 1, 2022, a city, county, or city and county shall authorize an enforcement agency to enforce this chapter.

(b) 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) for each day in violation, but not to exceed three hundred dollars ($300) annually.

42271. (h) Nothing in this section shall prevent a city, county, city and county, or other local public agency from adopting and implementing an ordinance or rule that would further restrict a food facility or a third-party food delivery platform from providing single-use foodware accessories or standard condiments to a consumer.

(Genevieve)

With regards to enforcement, whether or not you have your own ordinance, all local governments are required to enforce this law, and to authorize an enforcement agency to do so. The intention was to give local governments flexibility to determine who that is.

Who could that be? That could be up to whoever is already enforcing the straws upon request law, whoever is authorized to enforce the Public Resources Code, or whoever already has citation authority such as code enforcement or environmental health. If other departments have enforcement authority or are granted it by their governing bodies, they can enforce this law.

And as far as what kind of official authorization is required, any formal action by your City Council or Board of Supervisors, which could be in the form of a resolution or otherwise, which is up to them to decide.

Additionally, AB 1276 is a minimum that all cities and counties have to meet. There is no preemption for stronger requirements.

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LA County Enforcement Requirements

Differences

Who is already tasked with enforcing your local ordinance or AB 1884? Do they have jurisdiction to enforce the state’s Public Resources Code? Do they have citation authority?

LA County Ordinance Enforcement Requirements:

WHEN: November 15, 2021
WHO: Directors of Public Works & Dept of Public Health
HOW:

Violations - food facilities:

Fines up to $100/day
Up to $1,000/year

Violations - online platforms

Up to $100 first day
$200 additional days

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IF YOU HAVE AN ORDINANCE IN PLACE,

ARE THERE DIFFERENCES BETWEEN YOUR ORDINANCE AND AB 1276?

(Genevieve)

Next major question is, if you have an ordinance in place, are there differences between yours and AB 1276? The answer is most likely going to be yes. What could they be, and which might be interpreted as stronger?

To the extent that your ordinance doesn’t meet the minimum requirements of AB 1276, we believe that you would have to interpret and apply your ordinance in such a way that state law is the floor, and would need to consult your city counsel, attorney, or otherwise to inform that process.

Typically, if a law is passed, and now local law conflicts with state law in any way, a city or county counsel or similar will flag it and recommend an action to comply. This could be updating your existing ordinance as an example, but, again, that action is up to local decision making to figure out how to do that.

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IS YOUR ORDINANCE AN OPT-IN OR OPT-OUT?

IS ANY OFFERING OF ACCESSORIES & CONDIMENTS ALLOWED?

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Is Offering is Allowed?

AB 1276 (opt-in)

Minimal offering allowed

Drive-through consumer
Walk-through consumer
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.

County of LA (opt-out)

Full offering allowed
Cup lids, spill plugs, hot beverage sleeves allowed automatically for drive-through and delivery for spillage and safety

Differences/Minimum to Comply

AB 1276 is stronger because it is an opt-in
Each jurisdiction should determine own safety standards

(Genevieve)

AB 1276 is an opt-in policy because consumers have to specifically request accessories or condiments. As a result of stakeholder requests, exemptions were made for drive-through consumers and airport walk-through consumers to be offered accessories if they are deemed necessary for their meal, or for safe transport.

(Alison)

County of LA is opt-out because offering is allowed to consumers, and specific items are allowed to be automatically be given at drive-through, though this is also for spillage and safety purposes.

(Genevieve)

Since AB 1276 only allows for offering to drive-through and walk-through consumers to prevent spills for safe transport, ee view Ab 1276 as stronger than County of LA which allows for full offering, and thus believe the main provisions of AB 1276 must be enforced. That said, each jurisdiction should determine their own safety standards

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Is Self Service Allowed?

AB 1276

Allowed, but with very specific guidelines

County of LA

Allowed, except for straws and stirrers which are disallowed

Differences/Minimum to Comply

AB 1276 requirements are stronger and the minimum that must be met to comply

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What Food Establishments are Covered?

AB 1276 - Minimum to Comply

“Food facility”

Has the same meaning as in Section 113789 of the Health and Safety Code.

An operation that stores, prepares, packages, serves, vends, or otherwise provides food for human consumption at the retail level
Food is consumed on or off the premises
Permanent and nonpermanent food facilities
Examples include restaurants, mobile/temporary food facilities, certified farmer’s markets, etc…

Exemptions: Correctional institutions, Health care facilities, Residential care facilities, Public and private school cafeterias

County of LA

“Food Facilities” (same definition as in 1276)
Examples: Restaurants/Fast Food Restaurants, Bars, Juice Bars
Exemptions: Health Facilities

Differences/Minimum to Comply

Similar definition; County of LA has fewer exemptions so is considered more inclusive and thus stronger

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What is the requirement on food facilities?

AB 1276 (Opt-in)

Food facilities shall not provide any single-use foodware accessory or standard condiment packaged for single use to a consumer unless the single-use foodware accessory or standard condiment is requested by the consumer.
Third party delivery platform menu customization

County of LA (Opt-out)

No food facility may automatically provide single-use foodware accessories or condiments to customers with their order, but they are allowed to offer them to customers .
If food facility is using an online ordering platform (whether their own or a third party), there may be an option for the customer to select what foodware accessories they would like. The facility cannot provide any accessories that the customer did not request.

Differences/Minimum to Comply

Under AB 1276, you cannot offer accessories - the customer must explicitly request them. This is stronger and thus the minimum to comply

(Genevieve) How do food facilities comply with AB 1276?

Food facilities shall not provide any single-use foodware accessory or standard condiment packaged for single use to a consumer UNLESS the single-use foodware accessory or standard condiment is requested by the consumer. (again with the exception of drive or walk through consumers)

If a food facility uses any third-party delivery platform, they shall customize their menu with a list of available accessories and condiments, and only those selected by the consumer shall be provided. If a consumer does not select any accessories or condiments, none shall be provided.

(Alison)

County of LA

No food facility may automatically provide single-use foodware accessories or condiments to customers with their order, but they are allowed to offer them to customers .

If food facility is using an online ordering platform (whether their own or a third party), there may be an option for the customer to select what foodware accessories they would like. The facility cannot provide any accessories that the customer did not request.

(Genevieve)

Under AB 1276, you cannot offer accessories - the customer must explicitly request them. This is stronger and thus the minimum to comply

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What are the

Online/Third Party Businesses Covered & Requirements?

AB 1276

“Third-party food delivery platform”

has the same meaning as in Section 113930.5 of the Health and Safety Code.

A business engaged in the service of online food ordering and delivery from a food facility to a consumer
includes platforms operated directly by food facilities and by third-parties

shall provide consumers with the option to request single-use foodware accessories or standard condiments from a food facility serving ready-to-eat food

County of LA

"Online food-ordering platform"

digital technology provided on a website or mobile application through which a customer can place an order for pick-up or delivery of ready-to-eat food.
includes platforms operated directly by food facilities and by third-parties
must provide food facilities with the opportunity to specify which single-use foodware accessories, if any, the food facilities offer customers, and if they choose not to, there must be a disclaimer

Differences/Minimum to Comply

Nuanced differences,, so can enforce either.

(Emily to drop link (and definition?) into the chat - https://www.lawserver.com/law/state/california/codes/california_health_safety_code_113930-5

(Genevieve)

In AB 1276, here we used another pre-existing definition, which covers any business engaged in online food ordering and delivery. Third party delivery platforms are required to provide consumers with the option to request accessories or condiments from the food facility itself.

(Alison)

For LA County, the definition is slightly different, and their requirement is to provide the food facilties with the opportunity to specify which accessories, if any, they offer to customers, and if they choose not to, there must be a disclaimer that “this restaurant has chosen not to include single-use foodware accessories on its online menu.” Given the nuances, we are unable to determine which is stronger, and recommend that either can be enforced.

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What Foodware Accessories are covered?

AB 1276

Utensils, which is defined as forks, knives, spoons, and sporks;
Chopsticks
Condiment cups and packets
Straws
Stirrers
Splash sticks
Cocktail sticks

County of LA

including straws, stirrers, knives, forks, spoons, chopsticks, condiment packets, condiment containers, napkins, cup lids, spill plugs, and hot beverage sleeves.

Differences/Minimum to Comply

County of LA is more inclusive, so enforcement should include all accessories.

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Is Bundling Allowed?

AB 1276

No bundling allowed

County of LA

Bundling is not mentioned in the ordinance

Differences/Minimum to Comply

The no-bundling provision in AB 1276 is stronger, so that is what must be enforced.

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What Condiments are covered?

AB 1276

“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.

County of LA

"Condiment" has the meaning set forth in California Health and Safety Code section 113756; it includes such foods as ketchup, mustard, mayonnaise, sauerkraut, soy sauce, salsa, syrup, jam, jelly, salt, sugar, sugar substitute, cream, coffee creamer, pepper, chili-pepper or cheese topping.

Differences/Minimum to Comply

Similar, so enforcing either should be fine.

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Key Takeaways & Other Considerations

Consult with local Legal Counsel

Education & Outreach

Update local ordinance?

S

AB 1276 IMPLEMENTATION - April 28, 2022

Overall Benefits

(Miho)

Just to reiterate, we are providing our best guidance, not legal advice. Please consult with your local legal counsel or whoever would reconcile differences between local law and state law.

For the question regarding “do you need to update your local ordinance”? It’s may not be necessarily, but could a reasonable option, and should be determined internally with your legal counsel.

Also remember, AB 1276 is the minimum that your city or county needs to meet, and we hope the flow chart can help you address any differences to be reconciled.

We also underscore the importance of education and outreach as part of your compliance strategy. Get creative, and this can include things such as a press release, updating your website, mailers or newsletters, social media, collaborating with your haulers, communicate cost savings, and providing multilingual outreach materials like the signage samples we are providing for your use.

Ultimately, this is a benefit to both local governments and businesses because this will reduce overall waste and cleanup costs, as well as save businesses money.

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Example Signage

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Example Signage

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Example Signage - Spanish

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Resources Available

Education & Outreach signage templates
Flow Chart
CCDEH Guidance Document
Link to slides
Recording

Outreach

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Q & A

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Genevieve Abedon, EcoConsult

genevieve@ecoconsult.biz

Alison Waliszewski, 5 Gyres

alison@5gyres.org

Miho Ligare, Surfrider Foundation

mligare@surfrider.org

Emily Parker, Heal the Bay

eparker@healthebay.org

Miriam Gordon, Upstream

miriam@upstreamsolutions.org