An Act To Require the Use of Reusable Food Ware at Eating Establishments
Maine Legislature, Session 129, LD 0505
Committee: Environment and Natural Resources
Sponsors: RYKERSON, MIRAMANT, FAY, TERRY, TUCKER
Amends: 38 MRSA §1611

Legislative Document
No. 505
H.P. 362
House of Representatives, January 31, 2019
An Act To Require the Use of Reusable Food Ware at Eating 
Establishments
Reference to the Committee on Environment and Natural Resources suggested and ordered 
printed.
ROBERT B. HUNT
Clerk
Presented by Representative RYKERSON of Kittery.
Cosponsored by Senator MIRAMANT of Knox and
Representatives: FAY of Raymond, TERRY of Gorham, TUCKER of Brunswick.
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 
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.