1. (a) After making all efforts to find the lowest cost alternative available, there is no alternative product of comparable cost that is not composed of expanded polystyrene foam. As used in this section, comparable cost means the purchase cost that is the same, less than, or does not exceed a cost of 10 percent above the purchase cost of a comparable product that contains expanded polystyrene foam.

2. (b) The purchase, distribution, or use of an alternative product that is not composed of expanded polystyrene foam would create an undue financial hardship. An undue financial hardship may be demonstrated by showing any one or more of the following:

   1. (1) increased costs are expected to result in at least a five percent increase of business operating costs;
   2. (2) increased costs are expected to result in reduction of at least five percent in operating profits; or
   3. (3) the covered food service provider can demonstrate unique circumstances particular to it that create an undue financial hardship.

In addition to the requirements in section 353-2.3 of this Subpart, a covered food service provider seeking a waiver must demonstrate the following: