California Retail Food Code vs Plastic Bags

California Retail Food Code vs Plastic Bags

California Retail Food Code | Plastic Bag Ban Report
I am in a quandary. It has been stated many times that when a plastic bag ban goes into effect in California, that the ban must exempt restaurants.

According to lawyers who fight plastic bag bans, the California Retail Food Code governs all ordinances that pertain to restaurants. So here is my quandary: If restaurants must be exempt under a plastic bag ban, then why aren't restaurants exempt under a polystyrene ban?

A single-use plastic carry-out bag is not a food-contact utensil; a polystyrene container is a food-contact utensil.

30 Years Restaurant Experience
Although I am not a lawyer, in my 30 years in the restaurant business, I have been responsible for interpreting, operating, and the enforcement of the Food Code in many states. I have not worked in California.

Here are my interpretations of the California Retail Food Code that I believe apply to this situation.

California Retail Food Code:
Section 113705. Legislative intent to preempt local standards
The Legislature finds and declares that the public health interest requires that there be uniform statewide health and sanitation standards for RETAIL FOOD FACILITIES to assure the people of this state that the FOOD will be pure, safe, and unADULTERATED. Except as provided in Section 113709, it is the intent of the Legislature to occupy the whole field of health and
sanitation standards for RETAIL FOOD FACILITIES, and the standards set forth in this part and regulations adopted pursuant to this part shall be exclusive of all local health and sanitation standards relating to RETAIL FOOD FACILITIES.

Section 113707. Regulations
The DEPARTMENT shall adopt regulations to implement and administer this part.

Section 113709. Authority to establish local requirements
This part does not prohibit a local governing body from adopting an evaluation or grading system for FOOD FACILITIES, from prohibiting any type of FOOD FACILITY, from adopting an EMPLOYEE health certification program, from regulating the provision of CONSUMER toilet and handwashing facilities, or from adopting requirements for the public safety regulating the type of
vending and the time, place, and manner of vending from vehicles upon a street pursuant to its authority under subdivision (b) of Section 22455 of the Vehicle Code.

The above sections create state authority and responsibility to establish uniform statewide health and sanitation standards for restaurants and other food facilities.

Section 113914. Single-use articles
"SINGLE-USE ARTICLES" mean UTENSILs, TABLEWARE, carry-out UTENSILs, bulk FOOD containers, and other items such as bags, containers, placemats, stirrers, straws, toothpicks, and wrappers that are designed and constructed for one time, one PERSON use, after which they are intended for discard. "SINGLE-USE ARTICLES" also include items such as wax paper, butcher paper, plastic wrap, formed aluminum FOOD containers, jars, plastic tubs or buckets, bread wrappers, pickle barrels, ketchup bottles, and number 10 cans that do not meet the materials, durability, strength, and cleanability specifications for UTENSILs under Sections 114130, 114130.1, and 114130.3.

This section describes items in the normal course of operating a restaurant (used inside the restaurant by employees) that are used once and then discarded. Many types of 'bags' and 'containers' are used for holding and portioning food within the restaurant. In order to speed final preparation and improve consistency, recipe ingredients often are pre-measured into a small bag or container and held until the ingredient is used in the final preparation of the entree. This section also defines lip-contact items that a customer would receive with the food.

Section 113934. Utensil
"UTENSIL" means a FOOD-contact implement or container used in the storage, preparation, transportation, dispensing, sale, or service of FOOD, such as kitchenware or TABLEWARE that is multiuse, single-service, or single-use, gloves used in contact with FOOD, temperature sensing probes of FOOD TEMPERATURE MEASURING DEVICES, and probe-type price or identification tags used in contact with FOOD.

It is very important to note that this section states "food-contact implement or container". It further states "used in contact with food". This section identifies kitchenware or tableware used to prepare the food such as knives, forks, spoons, etc., used to prepare the food. A single-use carry-out bag is not a food-contact implement or container. Food is not put directly into a single-use plastic carry-out bag; food is first put into a sanitary container, then placed into the carry-out bag.

It is also very important to note that this section does not specifically state "carry-out utensil". However, this section does cover these items.

Section 114081. Handling of kitchenware and tableware
(a) SINGLE-USE ARTICLES and cleaned and sanitized MULTISERVICE UTENSILs shall be handled, displayed, and dispensed so that contamination of FOOD and lip-contact surfaces is prevented.
(b) Knives, forks, and spoons that are not pre-wrapped shall be presented so that only the handles are touched by EMPLOYEEs, and by CONSUMERs if CONSUMER self-service is provided.
(c) Except as specified under subdivision (b), SINGLE-USE ARTICLES that are intended for FOOD or lip-contact shall be furnished for CONSUMER self-service with the original individual wrapper intact or from an APPROVED dispenser.
(d) SINGLE-USE ARTICLES shall not be reused.

It has been implied that single-use plastic carry-out bags are covered under this section. I don't see it. This section is defining the handling of kitchenware and tableware.

Section 114130. Equipment and utensils
(a) EQUIPMENT and UTENSILs shall be designed and constructed to be durable and to retain their characteristic qualities under normal use conditions.
(b) Except as specified in subdivision (c), all new and replacement FOOD related and UTENSIL-related EQUIPMENT shall be certified or classified for sanitation by an American National Standards Institute (ANSI) accredited certification program. In the absence of an applicable ANSI certified sanitation standard, FOOD-related and UTENSIL-related EQUIPMENT shall be evaluated for approval by the ENFORCEMENT AGENCY.

Section 114130.1. Characteristics
Materials that are used in the construction of UTENSILs and FOOD CONTACT SURFACEs of EQUIPMENT shall not allow the migration of
deleterious substances or impart colors, odors, or tastes to FOOD and under normal use conditions shall be safe, durable, corrosion-resistant, and nonabsorbent, sufficient in weight and thickness to withstand repeated WAREWASHING, finished to have a SMOOTH, EASILY CLEANABLE surface, and resistant to pitting, chipping, crazing, scratching, scoring, distortion, and decomposition.

114130.2. Single-use characteristics
Materials that are used to make SINGLE-USE ARTICLES shall not allow the migration of deleterious substances or impart colors, odors, or tastes to FOOD, and shall be safe and clean.

These sections apply to the equipment within the restaurant.

As stated above, I am not a lawyer. If, as according to reports, the state alone may regulate the sale and transport of food in restaurants, then how has the many polystyrene bans been able to be enforced?

In my opinion, plastic bag regulations and polystyrene regulations are not covered under the California Retail Food Code.

Copyright © 2012 Plastic Bag Ban Report. All Rights Reserved.

Written by Ted Duboise, Publisher of Plastic Bag Ban Report on June 9, 2012.