PLEASE NOTE: Legislative Information cannot perform research, provide legal advice, or interpret Maine law. For legal assistance, please contact a qualified attorney.
An Act To Require the Use of Reusable Food Ware at Eating Establishments
Be it enacted by the People of the State of Maine as follows:
Sec. 1.  38 MRSA §1611  is enacted to read:
§ 1611. Single-use disposable food ware
 
1.  Definitions.     As used in this section, unless the context otherwise indicates, the following terms have the following meanings.
 
A.  "Fluorinated chemicals" means the class of organic chemicals containing at least one fully fluorinated carbon atom, including, but not limited to, perfluoroalkyl and polyfluoroalkyl substances.
 
B.  "Food ware" means a bag, sack, wrapper, paper or foil liner, container, bowl, plate, tray, carton, box, cup, mug, utensil, straw or lid and any other implement or item used to hold, serve or consume prepared food or in which prepared food is placed or packaged on a prepared food vendor's premises for consumption on or off the premises.
 
C.  "Prepared food" means food or beverages that are prepared on a prepared food vendor's premises by cooking, chopping, slicing, mixing, freezing, squeezing or other processing and that require no further preparation by a consumer in order to be consumed. "Prepared food" does not include raw meats or raw whole fruits or vegetables.
 
D.  "Prepared food vendor" means the operator of an eating establishment that sells prepared food to customers to be consumed on or off the operator's premises. "Prepared food vendor" includes, but is not limited to, a bakery, cafeteria, drive-in, food products store, food service establishment, drugstore, theater, bar or mobile or temporary food facility.
 
E.  "Reusable food ware" means food ware that is composed of durable material and is designed to be washed and sanitized after each use and reused multiple times over an extended period of time.
 
F.  "Single-use disposable food ware" means food ware that is not designed for repeated use and is expected to be disposed of after a single use.
 
G.  "Take-out food" means prepared food that is sold by a prepared food vendor to a customer to be consumed off the vendor's premises. "Take-out food" includes prepared food delivered to a customer by a prepared food vendor or a 3rd-party delivery service.
 
H.  "Take-out meal" means take-out food consisting of an entree, a full-size salad or a breakfast, lunch or dinner item that is served in up to 3 items of food ware.
 
2.  Reusable food ware required for on-premises consumption.     Except as provided in paragraphs B and C, a prepared food vendor may sell or provide prepared food to a customer for consumption on the vendor's premises only if the prepared food is served to the customer using reusable food ware.
 
A.  Prior to providing prepared food to a customer, a prepared food vendor shall ask the customer whether the customer intends to consume the food on or off the vendor's premises. If the customer intends to consume the food on the premises, the prepared food vendor shall serve the food using reusable food ware pursuant to this subsection. If the customer intends to consume the food off the premises, the prepared food vendor shall serve the food to the customer using single-use disposable food ware that meets the requirements of subsection 3.
 
B.  A prepared food vendor that is unable to wash, rinse and sanitize reusable food ware in accordance with the requirements of the Maine Food Law and the rules adopted pursuant to the Maine Food Law on or off the vendor's premises may request from the department a waiver from compliance with the requirements of this subsection.
 
(1) The department may grant a waiver under this paragraph if it determines that the prepared food vendor is substantially unable to comply with the requirements of this subsection due to space constraints within the vendor's premises or due to financial hardship. A waiver granted by the department may not exceed a term of 3 years, and the department may not grant to a prepared food vendor multiple waivers whose terms exceed 3 years in total.
 
(2) If a prepared food vendor is granted a waiver by the department under this paragraph, the vendor is not required to comply with the requirements of this subsection for the term of the waiver but shall comply with the requirements of subsection 3 for all prepared food served on and off the vendor's premises.
 
(3) The department shall require a prepared food vendor granted a waiver under this paragraph to periodically report to the department on the vendor's efforts to achieve compliance with the requirements of this subsection on or before the date the waiver expires.
 
C.  A prepared food vendor may serve prepared food to a customer for consumption on the vendor's premises using any of the following items of single-use disposable food ware that comply with the requirements of subsection 3: food wrappers, foil sheets, napkins and paper or foil basket and tray liners.
 
3.  Use of single-use disposable food ware for off-premises consumption.     A prepared food vendor may sell or provide prepared food to a customer for consumption off the vendor's premises using single-use disposable food ware only if the prepared food is served to the customer using single-use disposable food ware that has been approved by the department pursuant to this subsection.
 
A.  The department shall develop, maintain and annually update on its publicly accessible website a list of approved items of single-use disposable food ware and the manufacturers or sellers from which those approved items may be obtained. All items of single-use disposable food ware approved by the department under this paragraph:
 
(1) Must be accepted for recycling or composting by a majority of the recycling or composting collection programs in the State;
 
(2) If compostable, must be certified as compostable by a 3rd-party certifying entity recognized by the department; and
 
(3) Beginning January 1, 2022, and with respect to single-use disposable food ware composed wholly of paper or other natural fiber material, must be free of all intentionally added fluorinated chemicals as certified by a 3rd-party certifying entity recognized by the department.
 
B.  The department may require that certain approved items of single-use disposable food ware be composed wholly or in part of post-consumer recycled materials.
 
4.  Fees for single-use disposable food ware.     Except as provided in paragraph C, a prepared food vendor selling or providing take-out food to a customer for consumption off the vendor's premises shall require payment by the customer of a fee of 25¢ for each item of single-use disposable food ware in which the customer's take-out food is served or a fee of 25¢ for each take-out meal served to the customer, whichever is less.
 
A.  A prepared food vendor shall ensure that any fee required under this subsection appears as a separate item on a sales receipt provided to a customer.
 
B.  The fees collected by a prepared food vendor under this subsection are retained by the vendor.
 
C.  The fees required under this subsection do not apply to:
 
(1) Prepared food served to but not fully consumed by a customer on a prepared food vendor's premises that is packaged in items of single-use disposable food ware for the customer to take off the vendor's premises;
 
(2) Any of the following items of single-use disposable food ware made available by a prepared food vendor in accordance with subsection 3: straws, stirrers, cup spill plugs, napkins, condiment packets, utensils and cups; or
 
(3) A purchase made by a customer with a food instrument distributed by the Department of Health and Human Services under the supplemental nutrition assistance program pursuant to Title 22, section 3104 or the Women, Infants and Children Special Supplemental Food Program of the federal Child Nutrition Act of 1966.
 
D.  A prepared food vendor may not charge a customer a fee under this subsection for any of the items of single-use disposable food ware listed in paragraph C, subparagraph (2) and shall provide those items to a customer at the request of the customer or make those items available at a self-service station.
 
E.  The department shall develop and make available on its publicly accessible website a brief statement describing the requirements of this subsection and shall publish guidelines for the posting or provision of that statement by prepared food vendors selling take-out food.
 
F.  A prepared food vendor selling take-out food shall post in a conspicuous location at all points of purchase within the vendor's premises the statement developed by the department in accordance with paragraph E.
 
G.  A prepared food vendor selling take-out food shall include on the vendor's printed and electronically available menus the statement developed by the department in accordance with paragraph E.
 
H.  A 3rd-party delivery service that facilitates the delivery of take-out food from a prepared food vendor to a customer shall include on an electronic sales platform used by the delivery service the statement developed by the department in accordance with paragraph E.
 
I.  A prepared food vendor selling take-out food shall ensure that customers placing telephone orders for take-out food are informed of the fees that may be required under this subsection.
 
5.  Customer-provided food ware; prepackaged prepared food.     Nothing in this section prohibits a prepared food vendor from allowing a customer to bring to the vendor's premises single-use disposable food ware that does not meet the requirements of this section for the customer to use for the consumption of prepared food on or off the vendor's premises. A prepared food vendor that purchases from a seller located outside of the State items of prepared food that are prepackaged in single-use disposable food ware that does not meet the requirements of this section is not required to repackage those items prior to resale to customers in the State.
 
6.  State compliance.     A prepared food vendor or other food service providing or serving prepared food to customers at a state facility or state function shall comply with the requirements of this section.
 
7.  Administration and enforcement; emergency suspension of requirements; rules.     The department shall administer and enforce the requirements of this section. The department may on a temporary basis suspend the application of all or some of the requirements of this section as necessary for the immediate preservation of public health or safety. The department may adopt rules to implement this section. Rules adopted pursuant to this subsection are routine technical rules as defined in Title 5, chapter 375, subchapter 2-A.
Sec. 2. Effective date. This Act takes effect January 1, 2021.
 
SUMMARY
This bill requires that a prepared food vendor may sell or provide prepared food to a customer for consumption on the vendor's premises only if the prepared food is served to the customer using reusable food ware. The bill also requires that a prepared food vendor may sell or provide prepared food to a customer for consumption off the vendor's premises using single-use disposable food ware only if the prepared food is served to the customer using single-use disposable food ware approved by the Department of Environmental Protection as recyclable or compostable.
The bill also requires that a prepared food vendor selling take-out food to a customer for consumption off the vendor's premises must require payment by the customer of a fee, retained by the prepared food vendor, of 25¢ for certain items of single-use disposable food ware in which the customer's take-out food is served or for each take-out meal served to the customer, whichever is less. The provisions of this bill also apply to a prepared food vendor or other food server providing or serving prepared food to customers at a state facility or state function.
This legislation takes effect January 1, 2021.