BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 1329
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          Date of Hearing:   April 28, 2009

           ASSEMBLY COMMITTEE ON ENVIRONMENTAL SAFETY AND TOXIC MATERIALS
                                Wesley Chesbro, Chair
                   AB 1329 (Brownley) - As Amended:  April 20, 2009
           
          SUBJECT  :   Product management: polyvinyl chloride (PVC)  
          packaging.

           SUMMARY  :   Prohibits a retail establishment from selling,  
          distributing, or importing a rigid or flexible polyvinyl  
          chloride packaging container, on and after January 1, 2013, and  
          on and after January 1, 2014, respectively.  Specifically,  this  
          bill  :


          1)Defines "flexible polyvinyl chloride packaging container" as a  
            container that is used to contain, hold, protect, or display  
            another product, alone or in combination with paperboard or  
            other materials, if all of the following conditions apply:



             a)   Polyvinyl chloride plastic resin is the primary  
               component of the container.



             b)   The container is only intended to hold, protect, or  
               display another product until that product is opened or  
               consumed, at which point the container is intended to be  
               discarded. 



             c)   The container has the shape of a sack, pouch, or other  
               packaging shape, including a shrink or stretch wrap.



             d)   The container has a flexible shape or form.



          2)Defines "rigid polyvinyl chloride packaging container" as a  








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            container that is used to contain, hold, protect, or display  
            another product, alone or in combination with paperboard or  
            other materials, if all of the following conditions apply:



             a)   Polyvinyl chloride plastic resin is the primary  
               component of the container.



             b)   The container is only intended to hold, protect, or  
               display another product until that product is opened or  
               consumed, at which point the container is intended to be  
               discarded.



             c)   The container has the shape of a cup, bottle, bowl,  
               clamshell, or other packaging shape.



             d)   The container has an inflexible or finite shape or form  
               and is capable of maintaining its shape while holding other  
               products and has essentially the same shape empty as full.



          3)Prohibits, on and after January 1, 2013, a retail  
            establishment from selling, distributing, or importing in  
            commerce a rigid polyvinyl chloride packaging container in  
            this state.



          4)Prohibits, on and after January 1, 2014, a retail  
            establishment from selling, distributing, or importing in  
            commerce a flexible polyvinyl chloride packaging container in  
            this state.













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           EXISTING LAW  :

          Under the Toxics in Packaging Prevention Act (AB 455, Ch. 679,  
          Statutes of 2003):
          1)Prohibits, with exceptions, a manufacturer, supplier or person  
            from offering for sale or for promotional purposes a package  
            or packaging component that contains, as defined, a regulated  
            metal.

          2)Defines "regulated metal" as lead, mercury, cadmium, or  
            hexavalent chromium.

          3)Authorizes DTSC, if it determines that other substances  
            contained in packaging should be added as regulated metals in  
            order to further reduce the toxicity of packaging waste, to  
            submit recommendations to the Governor and the Legislature for  
            additions to the list.

          4)Provides that a manufacturer or supplier of a package or  
            packaging component who knowingly and intentionally offers for  
            sale or for promotional purposes a package or packaging  
            component that contains regulated metals is guilty of a  
            misdemeanor punishable by a fine of not less than $5,000 nor  
            more than $100,000, by imprisonment in a county jail for not  
            more than one year, or by both the fine and imprisonment.

           FISCAL EFFECT  :   Unknown.

           COMMENTS  :
           
          Purpose  :  According to the author's office, "Retailers are  
          currently allowed to sell products in PVC plastic packaging.   
          There is virtually no recycling market for this type of plastic,  
          so almost all PVC packaging is land filled.  PVC packaging is a  
          contaminant in the recycling stream of other plastics, such as  
          Polyethylene Terephthalate (PET).  Recyclers who try to recover  
          container types that have a high prevalence of PVC, like product  
          containers, risk expensive contamination issues.  Furthermore,  
          PVC plastic packaging pose human health risks that warrant a  
          phase-out from consumer use faster than is likely to be achieved  
          through DTSC's Green Chemistry program.  Vinyl Chloride  
          production emits toxic pollution in an around manufacturing  
          facilities, including vinyl chloride.  PVC packaging contains  
          toxic additives at a very high rate, including phthalates, lead  








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          and cadmium that poses a threat both as packaging in the home  
          and as litter. As solid waste, PVC is a major source of chlorine  
          and dioxins at incineration facilities."

           Polyvinyl Chloride (PVC):   Polyvinyl Chloride (PVC) is a widely  
          used thermoplastic polymer.  As a hard plastic, it is used as  
          vinyl siding, window casings, plumbing, and some fixtures.   
          Since hydrochloric acid formed during the degradation of PVC  
          causes a progressive loss of strength, metal stabilizers  
          including salts of lead, cadmium, barium, calcium, zinc,  
          dibutyltin and monobutyltin are commonly added to PVC at a  
          concentration of approximately 0.5%.  Softer and more flexible  
          PVC plastics are made mainly by also adding phthalate  
          plasticizers.  Flexible PVC is used in clothing, upholstery,  
          flexible tubing, flooring, electrical insulation (where it  
          doubles as a fire retardant), as well as, in packaging materials  
          and food wraps.  

           Risks associated with PVC  :  There is very little evidence of  
          specific risks associated with PVC itself.  Much of the  
          available information and literature focuses on the plasticizers  
          and pigments used in PVC.  Toxic metals and plasticizers can  
          leach from PVC products.  Many flexible PVC packaging materials  
          have also been shown to contain excessive levels of toxic  
          metals, including lead and cadmium, which are listed under  
          Proposition 65 as known to cause cancer and/or reproductive  
          toxicity.  Exposure to lead may result in irreversible  
          neurological damage as well as renal disease, cardiovascular  
          effects, and reproductive toxicity.  Exposure to cadmium may  
          result in renal, pulmonary and reproductive toxicity.  

          Phthalates in PVC food packing and wraps also readily leach into  
          foods, especially during microwave heating.  Several phthalates  
          found in PVC films and packaging materials, including Di  
          (2-ethylhexyl) phthalate (DEHP), Butyl benzyl phthalate (BBP),  
          Di-n-butyl phthalate (DBP), Di-isodecyl phthalate (DIDP) and  
          Di-n-hexyl phthalate (DnHP) are listed as reproductive or  
          developmental toxicants under California Proposition 65.  DEHP  
          is also identified as a cancer-causing toxicant under  
          Proposition 65.  Given the similar effects in rodents, phthalate  
          exposures are hypothesized as a potential cause of the increased  
          incidence of reproductive developmental maladies and testicular  
          cancer in humans.      

           Manufacture of PVC  :  Several toxic chemicals including chlorine  








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          gas, ethylene dichloride and vinyl chloride, are used in the  
          manufacture of PVC.  Chlorine gas is highly corrosive and  
          acutely toxic.  Ethylene dichloride is toxic and is recognized  
          as a cancer-causing agent by Proposition 65 and as a probable  
          human carcinogen by US EPA.  Vinyl chloride, the building block  
          of PVC resins is classified as a carcinogen by Proposition 65  
          and as a known human carcinogen by US EPA.  Manufacturers must  
          apply and meet specific air toxics permitting requirements in  
          order to manufacture PVC.  The materials and chemicals used in  
          this manufacturing process are closely monitored through air  
          toxics permitting requirements at the ARB.

           Alternatives to PVC packaging:   Opponents to the bill claim that  
          certain products may need to be packaged in PVC due to sealing  
          and the need for a certain type of packaging.  For example, PVC  
          has moisture barrier properties that help protect and extend the  
          shelf life of pharmaceuticals.  Additionally, PVC blisters offer  
          protection from germs since the pills are only handled at the  
          time of use as compared to multiple times when packaged in  
          bottles.  Also, they contend that PVC has better forming,  
          cutting and RF sealing capabilities than comparable  
          alternatives.  They say that forcing alternatives may lead to  
          significant increases in product costs to consumers.  For  
          example, common blister packaging substitutes can cost 20 to 40  
          percent more than PVC blister packaging.  It is also unclear  
          whether prohibiting PVC will simply increase the use of another,  
          potentially less well known, type of plastic packaging.  

          Focus on packaging:   While this bill seeks to reduce problems  
          posed by PVC is the waste stream, it solely focuses only on PCV  
          packaging, not on other uses of PVC or on the production of PVC.  
           According to the California Integrated Waste Management Board's  
          waste characterization data, all rigid plastic "clamshell  
          containers" constitute 0.06% of all solid waste that is  
          disposed, while "other plastic containers" constitute 0.05%.   
          PVC containers are a subset of this number.  Therefore, toxics  
          and waste reduction achieved by this bill remain unclear. 

           Toxics in Packaging Prevention Act  :  The Toxics in Packaging  
          Prevention Act (Act) prohibits the sale of any package or  
          packaging component that contains: lead, mercury, cadmium, or  
          hexavalent chromium (referred to as "regulated metals").  AB  
          2901 (Brownley) Chapter 575, Statutes of 2008, clarified and  
          expanded DTSC's enforcement authority under the Act, authorizing  
          a representative of DTSC to enter and inspect a factory,  








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          warehouse, or establishment in which a package or packaging  
          component is manufactured, packed, held, or sold, and have  
          access to records, for the purpose of administering and  
          enforcing the Act.  AB 2901 also provided that a manufacturer or  
          supplier of a package or packaging component who knowingly and  
          intentionally sells a package or packaging component containing  
          regulated metals in violation of the Act is guilty of a  
          misdemeanor punishable by imprisonment, a fine or by both a fine  
          and imprisonment. 

           Support:   Supporters content, "Very little of the 60,000 tons of  
          PVC packaging generated annually in California is recycled due  
          to prohibitively high costs and lack of infrastructure and  
          markets.  Nearly indistinguishable from recyclable, non-toxic  
          PET bottles and containers, studies by recyclers have concluded  
          that just 0.001% PVC contamination can ruin a batch PET?  And  
          PVC packaging contributes disproportionately to the state's  
          solid waste burden, compared to readily available and  
          competitively priced alternatives, because there is virtually no  
          recycling market or opportunity?  PVC production results in the  
          release of toxic chemicals, like dioxins and chlorine gas that  
          have required intensive and expensive clean-up in the past?As  
          packaging, PVC contains threatening additives at very high  
          rates, including phthalates, lead, and cadmium? The Toxics in  
          Packaging Clearinghouse recently found that 61% of PVC products  
          tested contained lead or cadmium, both of which are toxic in  
          even small amounts and are especially dangerous to children."   
           
          Opposition  :  Opponents contest this legislation because the  
          bill: 1) Fails to consider the technological and performance  
          aspects of PVC packaging containers which necessitate their use  
          for specific applications; and  2)  Ignores existing statutory  
          authority that rests with DTSC to regulate the use of heavy  
          metals in packaging.  Stricter enforcement of this statute, with  
          an emphasis on packaging materials that are imported, would be  
          the most prudent public health and environmental protection  
          policy the state could take; and, 3) Wrongly assumes that PVC  
          packaging and bottles are not being recycled or pose a  
          significant threat to the recycling of other plastic packaging;  
          and 4) Focuses scarce state resources on a miniscule portion of  
          the solid waste stream.

           Recent related legislation  :

          1)AB 2505 (Brownley, 2008).  Would have banned both rigid and  








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            PVC packaging containers in the state of California.  Passed 5  
            - 2 out of the Assembly ESTM Committee, and was held on the  
            Senate Appropriations Committee suspense file.

          2)AB 2901 (Brownley) Chapter 575, Statutes of 2008.  Authorized  
            DTSC to take specified measures to enforce compliance with  
            existing prohibitions on packaging containing regulated metals  
            (e.g., lead, mercury, cadmium, or hexavalent chromium).  

           REGISTERED SUPPORT / OPPOSITION  :

           Support
           
          Californians Against Waste (sponsor)
          Blue Ridge Environmental Defense League
          Breast Cancer Action 
          Breast Cancer Fund
          Californians Against Waste
          Center for Environmental Health
          Center for Health, Environment and Justice
          City and County of San Francisco
          Clean Water Action 
          Dogwood Alliance
          Environmental Health Fund
          Global P.E.T., Inc.
          Greenpeace
          Heal the Bay
          Making Our Milk Safe (MOMS)
          Ocean Health Institute
          Oregon Center for Environmental Health
          Protect All Children's Environment
          Public and Environmental Health Committee
          Puerto Rico College of Physicians and Surgeons
          Sierra Club California
          US International Campaign for Justice in Bhopal 

           Opposition  

          American Chemistry Council
          California Chamber of Commerce
          California Film Extruders & Converters Association
          California Manufacturers and Technology Association
          California Restaurant Association
          Consumer Specialty Products Association
          Industrial Environmental Association








                                                                  AB 1329
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          Information Technology Industry Council
          Toy Industry Association
          Vinyl Institute
          Western Growers Association
          Western States Petroleum Association
           

          Analysis Prepared by  :    Shannon McKinney / E.S. & T.M. / (916)  
          319-3965