This is what a Model Ordinance Could Look like
North Carolina’s Solid Management Act doesn’t just give local governments the authority to act on plastics. Because the presence of a pollutant that is harmful to both human health and the environment has been documented in our region, the law mandates that local governments must act.
Below is a model ordinance that we encourage local governments to adapt to their needs.
The Move Away From Plastics Bill: A Local Law To Reduce the Use of Polystyrene and Plastic Bags, Straws, Stirrers, and Splash Guards
FOR [JURISDICTION]:
WHEREAS, in December of 2017, [JURISDICTION] passed a 100% Renewable Energy Goal, and
WHEREAS, plastic pollution starts with fossil fuel extraction to create plastic and affects individuals, communities, and ecosystems all along the supply chain. As these products degrade they emit greenhouse gases; and
WHEREAS, the oil and gas industry’s efforts to increase plastic production as a means to shore up their business model has been well documented; and
WHEREAS, oil refineries, plastic manufacturers and incinerators tend to be located in low-income communities, which bear the brunt of the associated health impacts; and
WHEREAS, recycling is insufficient to meet these threats as plastic production is expected to increase 40 percent over the next decade with plastic production accounting for 20 percent of global fossil fuel consumption. Less than 9 percent of plastic is recycled and that percentage is dropping since the implementation of China’s National Sword policy in January of 2018, as well as policies in other countries which severely restricted the amount of foreign waste these countries accept. These materials are now piling up in recycling centers, being landfilled, or sent to illegal facilities in Southeast Asia where they are incinerated; and
WHEREAS, numerous studies have documented the prevalence of plastic carry out bags littering the environment, blocking storm drains, becoming entangled in tree tops, and fouling public areas; and
WHEREAS, curbing the supply of single-use plastic will expand the lifespan of local landfills; and
WHEREAS, numerous studies have shown the negative environmental and health effects of plastics and the chemicals used to produce them; and
WHEREAS, styrene, the main ingredient in polystyrene, has been declared as a probable carcinogen by the NIH, National Research Council, the World Health Organization, and others; and
WHEREAS, plastic bags and other plastic products are a substantial source of marine debris, responsible for the deaths of tens of thousands of marine animals each year; and
WHEREAS, studies have shown the presence of microplastics in terrestrial and marine life systems throughout the entire planet, resulting in a wholesale contamination of the food supply due to the proliferation of plastic litter and plastic breakdown products; and
WHEREAS, plastic bags cause operational problems at recycling processing facilities, landfills, and transfer stations, and contribute to litter throughout the WNC region; and
WHEREAS, numerous states and cities throughout the United States have enacted single-use plastic bag and single-use plastic bans, resulting in dramatic decreases in plastics waste; and
WHEREAS, major countries throughout the world have banned plastic bags and/or single-use plastics, including China; Germany; Great Britain; Denmark; Ireland; over 15 African countries; and India; and
WHEREAS, [JURISDICTION] has the duty to protect the natural environment, the economy, and the health of its residents and visitors of the city.
WHEREAS, microplastics have been found and quantified in staggering numbers within the [JURISDICTION]’s watershed; and
WHEREAS, North Carolina’s Solid Waste Management Act encourages “counties and municipalities to utilize all means reasonably available to promote efficient and proper methods of managing solid waste,” N.C. Gen. Stat. § 130A-309.03(b)(9), and requires “[e]ach unit of local government [to] establish and maintain a solid waste reduction program.” Id. § 130A-309.06(a)(3); and
WHEREAS, “a city may by ordinance define, prohibit, regulate, or abate acts, omissions, or conditions, detrimental to the health, safety, or welfare of its citizens and the peace and dignity of the city, and may define and abate nuisances.” N.C. Gen. Stat. Ann. § 160A-174. The statute grants authority to cities which should be interpreted broadly, to grant “additional and supplementary powers that are reasonably necessary or expedient to carry [the grant of authority] into execution and effect.” N.C. Gen. Stat. Ann. § 160A-4
Section 1. Definitions. As used in this section, the following terms have the following meanings, unless the context clearly indicates otherwise:
1. “Compostable” means an item that reliably and entirely breaks down and becomes part of usable compost (i.e., soil-conditioning material) within at most 180 days after proper disposal. Compostable items may be made from organic materials such as bagasse, sugarcane, bamboo, paper, hay and/or certified compostable plastics that meet the American Society for Testing and Materials (ASTM) standard specifications for industrially compostable plastics D6400 and compostable plastic coatings D6868.
Permitted compostable plastics, often marketed as biodegradable, must be clearly labeled with the applicable standard on the product.
a. Compostable service ware items must also be verified by the [AD] to be free of per and poly fluoroalkyl substances, more commonly known as PFAS. b. “Adequate composting facility.” An adequate composting facility is a facility permitted through the North Carolina Department of Environmental Quality’s Division of Waste Management that is capable of fully breaking down organic material into a stable product using bacteria in a controlled, aerobic commercial process that results in a safe and positive soil amendment. The facility must be equipped to achieve thermophilic conditions (i.e., sustained temperatures above 50 degrees Celsius) and meet all applicable permitting requirements for industrial waste facilities otherwise imposed by law. The facility should further be able to process compostable materials meeting ASTM D6400 standards within that standard’s 84–180-day period.
2. “Covered business” means a business entity operating within the [JURISDICTION] that: 3. Sells retail goods to retail customers, including any operation that stores, prepares, packages, serves, vends, or otherwise provides food for human consumption. 4. Operates in a manner involving the in-person transfer of goods from the business to the customer. This definition excludes businesses that deliver goods to customers only by mail. It does not exclude businesses that provide goods to customers at home through on-demand delivery services.
Examples of covered businesses: The category of covered businesses expressly includes, but is not limited to, grocery stores, supermarkets, gas stations, convenience stores, restaurants, food trucks, temporary or pop-up vendors, clothing stores, and any other business meeting the requirements in the above definition.
Entities that are not covered businesses: The category of covered businesses excludes healthcare providers, such as hospitals, dentists, and assisted living facilities, as well as food banks and pantries.
5. “Department” means [JURISDICTION] ;
6. “Disposable food serviceware” means products made of plastic or polystyrene that are designed for one-time use by a food provider for serving or transporting, prepared, ready-to-consume food or beverages, including, but not limited to plates, cups, bowls, trays, utensils, plastic straws, stirrers, splash guards, cup lids, and hinged or lidded containers.
7. “Plastic” means an organic or petroleum derivative synthetic or a semisynthetic organic solid that is moldable, and to which additives or other substances may have been added; 8. “Plastic bag” means a carryout bag composed primarily of thermoplastic synthetic material, which is provided by a store to a customer at the point of sale and incidental to the purchase of other goods
9. “Polystyrene” means and includes any food packaging or other packing materials made from a styrene monomer, including but not limited to: expanded polystyrene (EPS) 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, form molding, and extrusion-blow molding (extruded foam polystyrene). The term “polystyrene” also includes clear or solid polystyrene, which is known as “oriented polystyrene”;
Examples: Prohibited items made from polystyrene include but are not limited to: clamshell containers provided in conjunction with takeout orders; hard polystyrene plastic utensils, plates, beverage cups, and condiment containers. Examples of alternatives: In lieu of items commonly made from polystyrene, covered businesses may instead provide similar items that are made from the following materials:
Compostable Mycelium mushroom foam for specially molded, insulated packaging (clamshells and containers)
Compostable bagasse or bamboo for clamshells, containers, and utensils ● Recyclable and reusable glass cups and containers for hot food or liquid items
Recyclable aluminum code 41 ALU containers or foil for hot food items. 10. “Polystyrene foam” means blown polystyrene and expanded and extruded foams using polystyrene;
11. “Post-consumer recycled material” means a material that would otherwise be destined for solid waste disposal, having completed its intended end use and product life cycle. Post-consumer recycled material does not include materials and byproducts generated from, and commonly reused within an original manufacturing and fabrication process;
12. Recyclable” with regard to a material, means a material that would otherwise be disposed of or processed as waste can be recovered, separated, collected, and reprocessed for the purpose of using the reprocessed material in the manufacture of a new product. A recyclable item is processable by facilities charged with accepting curbside recycling from [JURISDICTION]’s residents.
13. “Recyclable serviceware” includes items or easily separable parts of items made entirely from one of the following:
Aluminum code 41 – ALU or foil
Paper codes 21 – PAP, 22 – PAP or cardboard code 20 – PAP
Glass codes GL-70, GL-71, or GL-72
Plastic resin #1 Polyethylene terephthalate (PET)
Plastic resin #2 High-density polyethylene (HDPE).
Plastic utensils and black plastic of any resin number or item type are not processable at recycling facilities within the [JURISDICTION] and are expressly excluded from this definition;
14. “Recycled paper bag” means a paper bag that (i) contains a minimum of 40 percent post-consumer recycled content; (ii) the bag displays the words "made from recycled material" and "recyclable." and (iii) is 100 percent recyclable;
15. “Retail sales establishment” means any person, corporation, partnership, business venture, or vendor that sells or provides merchandise, goods or materials directly to a customer, whether for profit or not for profit, including but not limited to restaurants,
pharmacies, convenience and grocery stores, liquor stores, seasonal and temporary businesses, clothing stores, hardware stores, department stores, jewelry stores, and household goods stores;
16. “Reusable bag” means a bag with handles that is (i) not made of plastics; (ii) specifically designed and manufactured for at least 175 uses; and (iii) is machine-washable; 17. “Reusable straw” shall not be made from plastic;
18. “Single-use plastic straw” means a single-use, disposable tube made of plastic derived from either petroleum or a biologically based polymer, such as corn or other plant sources, used to transfer a beverage from a container to the mouth of the person drinking the beverage.
Examples of alternatives: straws made from non-plastic materials, including, but not limited to metal, glass, paper, pasta, sugar cane, wood, or bamboo; 19. “Single-use plastic stirrer” means a device used to mix beverages that is designed as a single-use product and made of plastic;
20. “Single-use plastic splash stick” means a device that fits into the sip-hole of a beverage container lid, intended to prevent a beverage from splashing, that is made of plastics and designed as a single-use product.
21. “Sustainable service ware” means disposable items that are either recyclable or compostable at adequate composting facilities as defined.
Section 2. Prohibition of Polystyrene, Plastic Bags, Straws, Stirrers & Splash Guards.
1. After (insert date), no business or person may sell or provide in [JURISDICTION] any food ware product composed in whole or in part of polystyrene:
1. No Retail Establishment, Food Distributor, or Food Packager shall serve or sell prepared food or beverage in polystyrene containers and shall not package meats, eggs, bakery products, fruits or vegetables, or other food in polystyrene containers.
2. No Retail Establishment that sells tangible property at retail shall sell or distribute polystyrene food or beverage containers.
3. No polystyrene food or beverage container shall be used in any government facility or at any government-sponsored event.
4. No [JURISDICTION] government department or facility shall purchase or acquire polystyrene food or beverage containers.
5. All parties who contract with the [JURISDICTION] government shall be prohibited from using polystyrene food and beverage containers in [JURISDICTION]government facilities or on [JURISDICTION] government-funded projects within [JURISDICTION].
2. Except as provided in this section after (insert date), a Retail Sales Establishment shall not provide a plastic carryout bag to a customer at the point of sale or otherwise make plastic bags available to customers. This prohibition does not apply to:
1. Non-handled bag used to protect items from damaging or contaminating other purchased items placed in a recycled paper bag or a reusable grocery bag; 2. Bags used by customers inside a business to package loose items, such as fruits, vegetables, nuts, ground coffee, grains, candies, small hardware items; bags used to contain or wrap frozen foods, meat and fish, flowers or potted plants, or other items to contain dampness;
3. Laundry, dry cleaning, or garment bags, including bags provided by hotels to guests to contain wet or dirty clothing;
4. Bags sold in packages containing multiple bags intended for use as garbage, pet waste, or yard waste;
5. Bags used to contain or transport live animals, such as fish or insects sold in pet stores;
6. Bags used to transport chemical pesticides, drain-cleaning chemicals, or other caustic chemicals sold at the retail level; provided that this exemption shall be limited to one bag per customer.
3. After (insert date), a covered business shall not provide a plastic straw to a customer, unless that customer requests a plastic straw.
4. After (insert date), a covered business shall not provide a plastic stirrer to a customer. 5. After (insert date), a covered business shall not provide a plastic splash stick to a customer.
Section 3. Reusable Bags, Recycled Paper Bags.
1. After (insert date), a Retail Sales Establishment shall make available a paper bag for a fee of no less than $0.10 per bag.
2. After (insert date), a retail sales establishment may make available a reusable bag for purchase.
3. A Retail Sales Establishment which collects a bag charge under Section 3(1) shall exempt a customer from the paper bag fee when that customer uses an electronic benefits transfer (EBT) card or is using a payment card or voucher issued by the Supplemental Nutrition Assistance Program (SNAP) or Special Supplemental Nutrition Program for Women, Infants, and Children (WIC).
4. Fees collected pursuant to this section shall be retained by the retail sales establishment.
Section 4. Prohibitions on plasticware
1. Prohibition on plasticware for dine-in customers. Covered businesses shall not provide disposable plasticware to customers dining on the premises of the covered business. Covered businesses may and are encouraged to make reusable alternatives available for dine-in customers;
Exception: Covered businesses may provide any dine-in customer with
“sustainable service ware” upon affirmative request. If the conditions described in Section 4(4) of this Section have been met, covered businesses may provide only service ware meeting the requirements for “sustainable service ware”;
2. Covered businesses making sustainable service ware available to customers shall provide a clearly labeled receptacle for disposable sustainable service ware, separate from receptacles for landfill waste and general recycling;
3. Take-out orders. Covered businesses shall not provide any customer with disposable plasticware in association with a take-out unless it meets the definition of sustainable plasticware outlined in Section 1. Covered businesses shall not provide any customer
with service ware without receiving an affirmative response from a customer indicating the customer’s need for specific service ware items;
4. Hardship findings. A covered business may be excluded from specific legal duties arising under Section 4 of this Ordinance only under the following condition: A covered business lacks the dishwashing capacity necessary to comply with the requirements of Section 4(1) and that acquiring that capacity prior to the effective date would constitute a threat to the business’s ongoing viability.
5. Circumstances insufficient for a hardship finding: A covered business’s bare assertion that compliance with any of Section 4’s requirements would be more expensive than noncompliance shall not alone be a sufficient basis for a hardship finding.
Section 5. Implementation.
1. After (insert date), the [JURISDICTION] shall design and post for free usage on the [JURISDICTION] website educational materials for display in retail establishments. Educational materials shall include, but not be limited to; (i) an announcement of the effective date of this ordinance; (ii) a reminder to bring reusable bags; and (iii) a reminder of the mandatory fee of $0.10 or more charged on paper and reusable bags.
2. After (insert date), the [JURISDICTION] shall issue a news release including (i) an announcement of the effective date of this ordinance; (ii) a reminder to bring reusable bags; and (iii) a reminder of the mandatory fee of $0.10 or more charged on paper and reusable bags.
3. The [JURISDICTION] shall provide a written notice to each affected establishment prior to the effective date of this ordinance.
4. The [JURISDICTION] may promulgate rules and regulations to implement Sections 2 and 3 of this ordinance.
5. A Retail Sales Establishment affected by regulation shall clearly and visibly display at the store entrance and at each check-out counter or register signage developed by the [JURISDICTION]. 6. Covered businesses required to only provide straws upon request shall clearly and visibly display signage developed by the [JURISDICTION].
7. Businesses can use stocks of plastic service ware, bags, cutlery, and polystyrene already on hand or contracted for until the stocks are exhausted.
Section 6. Enforcement Penalty.
1. The local government body that has adopted this ordinance shall set up a website and/or a call number for citizens to report potential violations of this ordinance.
2. Upon being made aware of a potential violation of this ordinance, the (insert name of local Department) shall determine whether a violation has occurred;
3. If it is confirmed that a violation has occurred, the (insert name of local Department) shall give written notice to the owner of the property, the owner’s agent, and/or the person committing the violation that the violation is occurring and must immediately cease;
4. If an additional violation of this ordinance has occurred within one month after a warning notice is issued for an initial violation, the (insert name of local Department) shall issue a notice of violation and shall impose a penalty against the retail establishment;
5. The penalty for each violation that occurs after the issuance of the warning notice shall be no more than;
$100 for the first offense;
$200 for the second offense;
$500 for the third offense and all subsequent offenses. Payment of such fines may be enforced through civil action.
