BILL ANALYSIS
AB 1879
SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
Senator S. Joseph Simitian, Chairman
2007-2008 Regular Session
BILL NO: AB 1879
AUTHOR: Feuer
AMENDED: June 17, 2008
FISCAL: Yes HEARING DATE: June 23, 2008
URGENCY: No CONSULTANT: Bruce Jennings
SUBJECT : HAZARDOUS MATERIALS
SUMMARY :
Existing law :
1) Requires the Office of Environmental Health Hazard
Assessment (OEHHA) to publish a list of chemicals known to
cause cancer or birth defects or other reproductive damage,
pursuant to the Safe Drinking Water and Toxic Enforcement
Act of 1986 (Proposition 65).
2) Authorizes the Department of Toxics Substances Control
(DTSC) to regulate, among other things, packaging
containing lead, mercury, cadmium, or hexavalent chromium;
jewelry containing lead; lights containing lead or mercury;
products containing mercury such as thermometers,
barometers and thermostats; and covered electronic devices
containing lead, cadmium or mercury.
3) Authorizes the Integrated Waste Management Board to
regulate, among other things, products containing mercury
such as batteries, switches, relays and ovens and gas
ranges with mercury diostats; chemicals and measurement
devices in school labs that contain mercury; and novelty
items containing mercury.
4) Requires Director of the Department of Pesticide
Regulation to identify 200 pesticide active ingredients
which the department determines have the most significant
data gaps, widespread use, and which are suspected to be
hazardous to people, pursuant to the Birth Defect
Prevention Act (Chapter 669, Statutes of 1984).
AB 1879
Page 2
5) Requires the California Air Resources Board to adopt
regulations to achieve the maximum feasible reduction in
volatile organic compounds emitted by consumer products,
pursuant to Section 41712 of the Health and Safety Code.
This bill creates a new article in the Health and Safety Code,
entitled "Chemicals of Concern in Consumer Products" with the
following provisions:
1) Authorizes the DTSC to regulate a consumer product
containing a chemical of concern by restricting the sale or
use of such a product to prevent the exposure of
individuals or the environment to the chemical of concern.
2) Authorizes DTSC to take the following actions on a consumer
product, sold prior to January 1, 2010:
a) Require a manufacturer of a product contain a
chemical of concern to establish a take-back program and
set requirements for recycling or responsible disposal
of such a product.
b) Design approaches to extract chemicals of concern
from the chain of commerce and specified environments
and provide for the recycling or safe management of such
chemicals.
c) Take other actions the department deems necessary to
prevent individual or environmental exposures to such a
chemical.
3) Authorizes DTSC to subject consumer products manufactured,
distributed, or sold after January 1, 2010 to the following
actions, conditioned on selecting an action that best meets
the purposes of this act:
a) Require a manufacturer of a product containing a
chemical of concern to establish a take-back program and
set requirements for recycling or responsible disposal
of the product.
b) Restrict the use of a chemical of concern in a
consumer product.
c) Prohibit the use of a chemical of concern in a
AB 1879
Page 3
consumer product.
d) Design approaches to extract chemicals of concern for
the chain of commerce and specified environments and
provide that the extracted chemical of concern be
recycled or managed safely.
e) Take other actions DTSC deems necessary to prevent
individual or environmental exposures to a chemical of
concern.
4) Requires DTSC to prioritize regulatory action for the
following consumer products:
a) Those products used or designed for use by sensitive
populations;
b) Those most likely to expose individuals or the
environment to one or more chemicals of concern.
5) Requires DTSC, in prioritizing regulator action, to
consider both of the following factors, conditioned upon a
regulatory action hat best prevents the exposure of
individuals to a chemical of concern or the release of a
chemical of concern into the environment:
a) The cumulative exposure to one or more chemicals of
concern through multiple products or from multiple
sources, including multiple media.
b) The synergistic effects of exposure to multiple
chemicals of concern.
6) Authorizes DTSC to require a manufacturer to label a
consumer product containing a chemical of concern in ways
that are understandable to the public and that indicate the
presence of a chemical of concern and its associated health
effect or effects.
7) Requires DTSC to implement this act in accordance with
applicable federal laws and regulations.
8) States legislative intent that the enactment of this bill
will explicitly specify the department's regulatory
authority over a consumer product containing a chemical of
concern and that nothing in this act limits or restricts
DTSCs existing regulatory authority over hazardous
AB 1879
Page 4
materials.
9) Defines numerous terms, including "chemical of concern,"
"consumer product," and "responsible disposal."
10)Makes extensive legislative findings relating to toxic
chemicals, products, and health hazards associated with
chemical exposures.
COMMENTS :
1) Purpose of Bill . According to the author, "State and
federal regulatory
authority over consumer products has come under increased
scrutiny due to the recent abundance of products found to
contain hazardous chemicals being recalled by their
manufacturers. The regulatory authority of the Department
of Toxic Substances Control is limited by statute and only
applies to certain classes of consumer products. For
example, lead can be regulated in jewelry and water
faucets, but few other products. Hazardous heavy metals,
such as cadmium or mercury, can be regulated in certain
electronic or other devices, but in few other products. AB
1879 removes these impediments by allowing DTSC to pursue
regulatory action for all consumer products in order to
protect Californians from exposure to these harmful
chemicals."
2) Regulating Products with Known Hazards . California law
authorizes various agencies and departments to regulate a
myriad of products that have emerged over the last two
decades, including: solder in plumbing fittings, plumbing
fixtures containing lead; toys containing lead; tableware
containing lead or cadmium; products containing PBDEs; toys
and childcare articles containing phthalates, lead in
children's jewelry, listed toxins in packaging, volatile
organic compounds in consumer products, and cosmetic
ingredients. These authorities have grown over the years
with an increasing number of bills introduced seeking
action over chemical hazards. Despite the considerable
growth in demands for controls over hazardous chemicals and
their presence in products, California lacks anything
resembling an organized framework for identifying product
AB 1879
Page 5
hazards and the subsequent steps for controlling their
sales, use, or disposal.
3) How to Prioritize the Review of Products Containing
Chemicals of Concern? Determining a scheme for
prioritizing the review of products has a potentially
myriad of approaches - a conundrum that might serve to
delay the rapid implementation of this act.
One of the last times the state engaged in a prioritization
scheme for the review of chemicals occurred with the
implementation of the Birth Defect Prevention Act, a
measure designed for gathering information on pesticide
ingredients. The prioritized approach adopted in this act
rested principally on the following approach: to identify
those ingredients which the department determines have the
most widespread use and which are suspected to be hazardous
to people . The measure also allowed for an examination of
data gaps, but this provided little guidance in the initial
prioritization scheme due to widespread data gaps.
(Section 13127(a) of the Food and Agriculture Code). A
similar approach might be adopted for AB 1879.
In place of potentially confounding factors for prioritizing a
workplan (e.g., evaluating different types of exposures),
it is recommended that the bill strike lines 13 through 26
on page 5, inclusive; and, to rewrite 25251.3(a) (1) in a
fashion that parallels the prioritization process used for
the state's review of pesticide ingredients:
Not later than March 1, 2009, the department shall identify
those chemicals of concern which the department determines
have the most widespread use and which are suspected to be
hazardous to people.
4) Other Amendments for Consideration .
a) Severability Clause. The author may wish to add
severability to this bill, to maintain the operability of
other provisions should one become delayed or
inoperative.
b) Consistency with Federal Law. The author may wish
AB 1879
Page 6
to include a declaration that this law is understood to
be consistent with applicable federal law, including the
Consumer Product Safety Act (paralleling the findings
contained in SB 509).
5) A Work in Progress. Because SB 509 covers novel terrain
and is sufficiently complex, it is expected that the bill will
be subject to further refinements based on discussions with
stakeholders during the summer.
SOURCE : Assembly Member Feuer
SUPPORT : Asian Communities for Reproductive Justice,
Asian Law Caucus, Breast Cancer Fund, Breath
California, California Association of
Professional Scientists, California League for
Environmental Enforcement Now, California
League of Conservation Voters, Californians
Against Waste, Clean Water Action, Coalition
for Clean Air, East Bay Municipal Utility
District, Environment California, Environmental
Defense Fund, Heal the Bay, Healthy Children
Organizing Project, Planning and Conservation
League, Sierra Club California
OPPOSITION : Advanced Medical Technology Association
(AdvaMed), American Chemistry Council, American
Electronics Association, American Forest &
Paper Association, California Chamber of
Commerce, California Grocers Association,
California Industrial Hygiene Council,
California Manufacturers & Technology
Association, California Retailers Association,
Can Manufacturers Institute, Chemical Industry
Council of California, Citizens for Fire Safety
Institute, Consumer Specialty Products
Association, Department of Finance, Grocery
Manufacturers Association, Industrial
Environmental Association, Personal Care
Products Council, Silicon Valley Leadership
Group, Western Plant Health Association,
Western States Petroleum Association
AB 1879
Page 7
[numerous opposition letters are conditional - "unless
amended"]