Whereas, in the Commonwealth of Massachusetts, food and beverage packaging comprise most street litter and are significant contributors to the total amount of waste entering the waste stream, and

local governments in the U.S. spend $11.5 billion annually cleaning up litter, and

all disposable food-ware is un-recyclable, and

many types of disposable food-ware are not accepted in commercial compost facilities because they cause contamination and lower the quality and value of compost, and

food packaging materials, including food contact papers and compostable paperboard- containers and molded plastics, frequently contain harmful poly and perfluoroalkyl chemicals that are linked to serious health impacts, and

many of the chemical additives used in packaging are known to migrate into food and beverages. Hundreds of common packaging chemicals are known to be hazardous to human health and in the environment, many are extremely persistent and bioaccumulative, therefore

the Commonwealth of Massachusetts sets forward this act to reduce restaurant packaging waste.

Section 1: Definitions

In this Act, these words are defined as follows:

a. “Commissioner” means the commissioner of the Department of Environmental Protection.

b. “Consumer” means a person purchasing prepared food, raw food, or beverages.

c. “Consumption on the Premises” means the consumption of prepared food within the physical structure owned and operated by the restaurant.

d. “The Commonwealth” means the Commonwealth of Massachusetts.

e. “Department” means the Department of Environmental Protection.

f. “Food Service Provider” means any store, establishment, provider, government entity non-profit vendor, or business, operating within the Commonwealth that sells or provides food or beverages for human consumption to consumers directly or indirectly through a delivery or takeout service, regardless of whether such food is consumed on or off the premises. “Food service provider” includes, but is not limited to, restaurants, retail food establishments, caterers, cafeterias, stores, shops, retail sales outlets, grocery stores, delicatessens serving the public, mobile or temporary food providers, vehicles or carts, or roadside stands.

g. “Full-Service Restaurant” means an establishment or business where food may be consumed on the premises, and where each of the following would typically occur when a customer consumes food on the premises:

(1) The customer is escorted or directed to an assigned eating area either by an employee of the restaurant or by the customer themselves;

(2) Except for food that is included in a buffet or salad bar, the customer’s food and beverage order are delivered directly to the customer; and

(3) If a customer wants additional items with the customer’s food or beverage order, the customer requests such items from a server or waitstaff.

h. “Prepared Food” means food that is serviced, cooked, packaged, or otherwise prepared for individual customers or consumers. Prepared Food does not include raw eggs or raw, butchered meats, fish, raw vegetables, fruit, and/or poultry sold from a butcher case, a refrigerator case, or similar retail appliance.

i. “Reusable Food Serviceware” means food serviceware or beverage containers, such as utensils, cups, plates, and bowls, that are designed and manufactured to maintain its shape and structure, and be materially durable for repeated sanitizing washing, and reuse.

j. “Single-Use Food Serviceware” means all types of items provided by food service providers in relation to the consumption and enjoyment of food or beverages, including, but not limited to, forks, spoons, knives, napkins, straws, stirrers, cocktail sticks, splash sticks, toothpicks, wet-wipes, cup lids, cup sleeves, beverage trays, and unfilled cups, plates, and take-out containers that are designed for single-use.

k. “Single-Use 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 or others as determined by the Department that are designed for single-use.

l. “Single-Use” means a product that is designed to be used once and then discarded, and not designed for repeated use and sanitizing.

m. “Third-Party Food Delivery Platform” means a business engaged in the service of online food ordering and/or delivery of food or beverages from a food service provider to a consumer.

Section 2: Food Serviceware Upon Request

a. Only upon request by a customer, may a food service provider provide single-use food serviceware or single-use condiment.

b. Should a customer request single-use serviceware or single-use condiments, the restaurant may charge a $0.75 fee per transaction. 100% of this fee will be retained by the restaurant.

c. Single-use food serviceware and single-use condiments provided by food service providers for use by consumers shall not be bundled or packaged in a manner that prohibits a consumer from taking only the type of single-use food serviceware or single-use condiment desired without also having to take a different type of single-use food serviceware or single-use condiment.

d. Food service providers may ask a drive-through consumer if the consumer wants single-use food serviceware if the single-use food serviceware is necessary for the consumer to consume ready-to-eat food, or to prevent spills of or safely transport ready-to-eat food.

e. A food service provider that is located entirely within a public use airport, as defined in Section 77.3 of Title 14 of the Code of Federal Regulations, may ask a walk-through

consumer if the consumer wants a single-use food serviceware if it is necessary for the consumer to consume ready-to-eat food, or to prevent spills of or safely transport ready-to-eat food.

f. Nothing in this section shall be construed to prohibit a food service provider from selling or providing food or beverages that are pre-packaged by the manufacturer in single-use food serviceware.

Section 3: Requirements for Third-Party Delivery Platforms

a. A third-party food delivery platform shall provide consumers with the option to request single-use food serviceware and single-use condiments from food service providers.

b. A third-party food delivery platform shall customize its menu with a list of available single-use food serviceware and single-use condiments, and only those single-use food serviceware and single-use condiments selected by the consumer shall be provided by the food service provider or the third-party food delivery platform. If a consumer does not select any single-use food serviceware or single-use condiments, no single-use food serviceware or single-use condiments shall be provided by the food service provider or the third-party delivery platform.

c. Should a customer request single-use serviceware or single-use condiments through a third-party food delivery platform, the food delivery platform may charge a $0.75 fee per transaction. 100% of this fee will be remitted to the restaurant by the third party.

Section 4: Enforcement and Compliance

a. The Department is required to promulgate rules and regulations for the implementation and enforcement of this act.

b. The Department is required to take actions reasonable and necessary to enforce this article, including, but not limited to, receiving, and responding to complaints, investigating violations, issuing fines, and entering the premise of any food service provider during business hours to monitor compliance.

c. A food service provider and third-party food delivery platform shall be subject to the following:

(1) A written notice for a first violation

(2) An administrative fine not to exceed $50 for a second violation.

(3) An administrative fine of at least $150 for each subsequent violation.

d. Each administrative fine shall be due and payable to the Department within 30 calendar days from the date the written notice of violation is served. Failure to timely pay the fine will result in the assessment of a late fee. The Department may collect any unpaid fine, including the late fee, by means of civil action, injunctive relief, and specific performance in accordance with applicable law.

e. All fines and late fees collected under this act shall be used by the Department as part of the Reduce, Reuse, Repair Micro-Grant program.

f. A food service provider or third-party deliver platform who receives a written notice of violation pursuant to this article may request an administrative review of the accuracy of the violation determination by filing a signed, written notice of appeal with the Department, no later than 30 days from the date the notice of violation was served. The appeal must include all facts supporting the appeal and any supporting documentation, including copies of all photos, statements, and other documents that the appellant wishes to be considered in connection with the appeal. The Department, may sustain, rescind, or modify the notice of violation and/or administrative fine, as applicable.

Section 5: Prohibition on Permitting of New Food Service Establishments That Do Not Provide Reusable Food Serviceware

a. New business licenses for full-service restaurants applied for after the effective date of this act shall only be granted if the applicant can demonstrate that, for all on-premise dining, the applicant will only serve food or beverages using reusable food serviceware, except that the applicant may still provide single-use paper food wrappers, foil wrappers, napkins, straws, paper-tray- and plate-liners. b. Nothing in this section is intended to prevent a full-service restaurant from providing single-use food serviceware or single-use condiments to customers with take-out food, or as a container for customers to transport uneaten food, if such single-use food serviceware or single-use condiments otherwise comply with the requirements of this Chapter.

Section 6: Education and Outreach

a. The Department is required to conduct education and outreach to consumers, food service providers, and third-party food delivery platforms regarding the requirements and purpose of the law.

b. The education and outreach shall, at a minimum, include:

(1) Information regarding the environmental and public health harms associated with single-use food serviceware;

(2) The environmental, economic, and social benefits of reusable food serviceware;

(3) Information regarding the environmental and public health concerns associated with landfilling and incinerating waste;

(4) The requirements of this act; and

(5) How food service providers and third-party delivery platforms can comply with the requirements of this act and the penalties for non-compliance;

c. The education and outreach conducted by the Department shall utilize multiple forms of media, including, but not limited to print and web-based media to produce information directly to consumers, food service providers, and third-party food delivery platforms, and shall be provided in multiple languages.

d. The Department of Public Health is responsible for educating full-service restaurants about the environmental benefits of reusable food serviceware, as well as the requirements of section 5 of this act.

Section 7: Severability

a. If any provision of this article is found to be unconstitutional or otherwise invalid by any court of competent jurisdiction, that invalidity shall not affect the remaining provisions of this article which can be implemented without the invalid provisions, and to this end, the provisions of this article are declared to be severable.

Section 8: Preemption

a. Nothing in this act shall limit the ability of any city or county within the jurisdiction of the Commonwealth of Massachusetts from passing more restricting laws, ordinances, or regulations, governing the use of single-use food serviceware or single-use condiments, so long as those laws, ordinances, or regulations do not violate the provisions of this act.

Section 9: Effective Date

a. Section 6 of this act shall take effect immediately upon enactment.

b. Section 5 of this act shall take effect one year after enactment.

c. The remainder of the act shall take effect one year after enactment.