BILL ANALYSIS AB 1329 Page 1 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 AB 1329 Page 2 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. AB 1329 Page 3 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 AB 1329 Page 4 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 AB 1329 Page 5 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, AB 1329 Page 6 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 AB 1329 Page 7 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 Page 8 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