California Legislature—2013–14 Regular Session

Assembly Bill No. 119

Introduced by Committee on Environmental Safety and Toxic Materials (Alejo (Chair), Bloom, Lowenthal, Stone, and Ting)

January 14, 2013

An act to amend Section 17577.2 of the Business and Professions Code, and to amend Sections 116825, 116840, and 116860 of, to add Sections 116831, 116832, and 116836 to, to repeal Sections 116830 and 116855 of, and to repeal and add Sections 116835, 116845, and 116850 of, the Health and Safety Code, relating to water treatment devices.

LEGISLATIVE COUNSEL’S DIGEST

AB 119, as introduced, Committee on Environmental Safety and Toxic Materials. Water treatment devices.

Existing law prohibits a person from making a claim that a water treatment device, as defined, affects the health or safety of drinking water, in connection with the sale or distribution of the device, unless the device has been certified by the State Department of Public Health or another entity, as specified. Existing law requires the department to adopt regulations setting forth the criteria and procedures for certification of water treatment devices that are claimed to affect the health or safety of drinking water.

This bill would instead require each manufacturer that offers for sale in California a water treatment device for which it makes a health or safety claim, as defined, to submit specified information, including the manufacturer’s contact information, product identification information, and the specific contaminant claimed to be removed or reduced by the device, to the department for purposes of inclusion on the department’s Internet Web site. This bill would also require each manufacturer to pay a reasonable regulatory fee to pay for the cost of publishing information on the department’s Internet Web site and for conducting enforcement actions.

This bill would make related and conforming changes.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.

The people of the State of California do enact as follows:

SECTION 1.  

Section 17577.2 of the Business and Professions
Code is amended to read:

17577.2.  

It is unlawful for any person to do any of the following
in connection with the sale, lease, rental, offer to sell, lease, rent,
or other disposition of water treatment devices:

(a) Make any untrue or misleading oral or written statements
regarding the presence of one or more contaminants in water, or
the performance of water treatment devices, including, but not
limited to, the following oral or written statements:

(1) (A) Any contaminant exists in the water of any person to
whom the statement is directed unless the statement is true, is
reasonably based on factual data, and at least a written summary
of the factual data, that has been prepared or approved by the source
of the factual data, is disclosed to the person to whom the statement
is directed before that person executes any contract for the
purchase, lease, or rental of a water treatment device.

(B) Any contaminant may exist in the water of any person to
whom the statement is directed unless the statement is true and is
reasonably based on factual data.

(2) A relationship between water quality and acute or chronic
illness exists as a scientific certainty unless that statement is true.

(3) The public water system, utility, or treatment plant that
supplies water to the person to whom the statement is directed
does not test, treat, or remove particular substances from water
treated by it unless the statement is true.

(4) A water treatment device removes particular contaminants
or other substances from water unless the statement is true, is
reasonably based on factual data in existence at the time the
statement is made, and the requirements of subparagraphs (A)
through (C) are satisfied.

(A) If the particular contaminants or other substances mentioned
in the statement described in paragraph (4) are not necessarily in
the water of the person to whom the statement is made, the
following disclosure or its equivalent must be clearly and
conspicuously made: “The contaminants or other substances
removed or reduced by this water treatment device are not
necessarily in your water.”

(B) If the statement described in paragraph (4) is oral, the
disclosure described in subparagraph (A) shall be made orally and
shall immediately follow the statement. If the statement is in
writing, the disclosure shall be in writing and shall be placed
immediately next to the written statement.

(C) Notwithstanding subparagraph (A), no statement about the
ability of a water treatment device to remove particular
contaminants or other substances shall be used to imply falsely
that any of those contaminants or other substances are present in
the water of the person to whom the statement is made.

(5) Use news events, reports, or descriptions of water quality
problems or health hazards associated with water systems or
suppliers different from the systems or suppliers of the intended
consumer unless, at the same time, the seller sets forth
conspicuously and prominently a statement, if true, that the seller
has no information that the intended consumer’s water supply has
the water quality problems or health hazards referred to in the news
events, reports, or descriptions.

(6) A water treatment device would provide a health benefit or
diminish a health risk unless it would do so.

(7) A water treatment device will solve or contribute to the
solution of any problem unless the statement is true.

(b) Perform precipitation tests of the individual consumer’s
drinking water without also clearly informing the consumer of the
results, scope, and limits of the test. Precipitation tests may only
be used to demonstrate the hardness or other nonhealth-related
characteristics of the water being tested.

(c) Notwithstanding subdivision (a), make product performance
claims or product benefit claims that the device affects begin insert the end insert health
or the safety of drinking water, unless the device has been begin delete certified end delete
begin insert published on an Internet Web site end insert by the State Department of
begin delete Health Services end delete begin insert Public Health end insert pursuant to Article 3 (commencing
with Section 116825) of Chapter 5 of Part 12 of Division 104 of
the Health and Safety Code. This subdivision does not apply to
the making of truthful and nonmisleading claims regarding the
removal or reduction of contaminants begin delete for which certification is end delete
begin delete not available end delete begin insert not associated with a health or safety claim end insert pursuant
to Article 3 (commencing with Section 116825) of Chapter 5 of
Part 12 of Division 104 of the Health and Safety Code.

begin delete

This subdivision shall become operative one year after the
effective date of the regulations adopted pursuant to Section
116830 of the Health and Safety Code.

end delete

(d) Use pictures, exhibits, graphs, charts, other graphic
portrayals, endorsements, or testimonials in any untrue or
misleading manner.

(e) Fail to disclose clearly and conspicuously, in writing, to the
purchaser, lessee, or renter, prior to the time of purchase, lease, or
rent, the importance of maintaining the water treatment device
according to the manufacturer’s instructions, including, if
applicable, replacement of screens and filters. In addition, a
separate printed gummed label, tag, or other convenient form of
reminder of the importance of proper maintenance shall be provided
to the purchaser, lessee, or renter.

SEC. 2.  

Section 116825 of the Health and Safety Code is
amended to read:

116825.  

Unless the context otherwise requires, the following
definitions shall govern construction of this article:

(a) “Water treatment device” means any point of use or point
of entry instrument or contrivance sold or offered for rental or
lease for residential use, and designed to be added to the plumbing
system, or used without being connected to the plumbing of a water
supply intended for human consumption in order to improve the
water supply by any means, including, but not limited to, filtration,
distillation, adsorption, ion exchange, reverse osmosis, or other
treatment. “Water treatment device” does not include any device
that is regulated pursuant to Article 12 (commencing with Section
111070) of Chapter 5 of Part 5.

(b) “Department” means the begin insert State end insert Department of begin delete Health Services end delete
begin insert Public Health end insert .

(c) “Person” means any individual, firm, corporation, or
association, or any employee or agent thereof.

(d) “Contaminants” means any health-related physical, chemical,
biological, or radiological substance or matter in water.

begin insert

(e) “Health or safety claim” means any claim that the water
treatment device will remove or reduce a contaminant for which
either of the following applies:

end insert begin insert

(1) A primary drinking water standard as defined in Section
116275, or a treatment requirement as authorized in subdivision
(j) of Section 116365 and subdivision (d) of Section 116375, has
been established.

end insert begin insert

(2) A national primary drinking water standard or treatment
requirement has been established under the federal Safe Drinking
Water Act (42 U.S.C. Sec. 300g-1).

end insert begin insert

(f) “Manufacturer” means any of the following:

end insert begin insert

(1) A person that makes, converts, constructs, or produces water
treatment devices for the purposes of sale, lease, or rental to
individuals, corporations, associations, or other entities.

end insert begin insert

(2) A person that assembles water treatment devices or treatment
components from components manufactured by another entity.

end insert begin insert

(3) A person that adds its own product name or product
identification to water treatment devices or treatment components
that have been manufactured or assembled by another entity.

end insert

SEC. 3.  

Section 116830 of the Health and Safety Code is
repealed.

begin delete

116830.  

(a) The department shall adopt regulations setting
forth the criteria and procedures for certification of water treatment
devices that are claimed to affect the health or safety of drinking
water. The regulations shall include appropriate testing protocols
and procedures to determine the performance of water treatment
devices in reducing specific contaminants from public or private
domestic water supplies. The regulations may adopt, by reference,
the testing procedures and standards of one or more independent
testing organizations if the department determines that the
procedures and standards are adequate to meet the requirements
of this section. The regulations may specify any testing
organization that the department has designated to conduct the
testing of water treatment devices.

(b) The regulations required by subdivision (a) shall include
minimum standards for the following:

(1) Performance requirements.

(2) Types of tests to be performed.

(3) Types of allowable materials.

(4) Design and construction.

(5) Instruction and information requirements, including
operational, maintenance, replacement, and estimated cost of these
items.

(6) Any additional requirements, not inconsistent with this
article, as may be necessary to carry out this article.

(c) The department or any testing organization designated by
the department pursuant to this section may agree to evaluate test
data on a water treatment device offered by the manufacturer of
the water treatment device, in lieu of the requirements of this
section, if the department or the testing organization determines
that the testing procedures and standards used to develop the data
are adequate to meet the requirements of this section.

end delete

SEC. 4.  

Section 116831 is added to the Health and Safety Code,
to read:

116831.  

All regulations adopted pursuant to this article prior
to January 1, 2014, are repealed.

SEC. 5.  

Section 116832 is added to the Health and Safety Code,
to read:

116832.  

Commencing January 1, 2014, each manufacturer that
offers for sale in California a water treatment device for which it
makes a health or safety claim shall, for each water treatment
device, submit to the department the following information,
together with the fee prescribed in Section 116850, by March 1 of
each calendar year, for purposes of the department’s publishing
the information on its Internet Web site:

(a) The name, address, telephone number, and Internet Web site
address, if any, of the manufacturer.

(b) The name, address, and telephone number of a contact person
for the manufacturer.

(c) The name and model number of the water treatment device,
and any other product identification used by the manufacturer to
describe the water treatment device or treatment component.

(d) Each specific contaminant claimed to be removed or reduced
by the device.

(e) For each specific contaminant identified in subdivision (d),
the name of the organization that tested the device to verify its
removal or reduction performance for that contaminant, the name
of the testing protocol or standard used to test the device, a
statement from the testing laboratory giving the date of the test, a
summary of the results, and the date, if any, by which the device
must be retested for verification of the removal or reduction
performance to remain effective.

SEC. 6.  

Section 116835 of the Health and Safety Code is
repealed.

begin delete

116835.  

(a)  No water treatment device that makes product
performance claims or product benefit claims that the device affects
health or the safety of drinking water, shall be sold or otherwise
distributed that has not been certified by the department or by
another entity in accordance with subdivision (b). Water treatment
devices not offered for sale or distribution based on claims of
improvement in the healthfulness of drinking water need not be
certified pursuant to this section.

(b)  The department may accept a water treatment device
certification issued by an agency of another state, by an
independent testing organization, or by the federal government in
lieu of its own, if the department determines that certification
program meets the requirements of this article.

(c)  A water treatment device initially installed prior to the
operative date of this section shall not require certification pursuant
to Section 116830.

(d)  Subdivisions (a), (b), and (c) shall become operative one
year after the effective date of the regulations adopted pursuant to
Section 116830. Regulations adopted pursuant to that section shall
be transmitted to the Legislature upon adoption.

end delete

SEC. 7.  

Section 116835 is added to the Health and Safety Code,
to read:

116835.  

A water treatment device for which a health or safety
claim is made shall not be sold or otherwise distributed unless the
device meets either of the following criteria:

(a) The device has a valid certificate issued on or before
December 31, 2013.

(b) The device has been tested by an independent testing
organization that has been accredited by the American National
Standards Institute, and test results verify the health or safety claim,
and the device is included on the list of water treatment devices
published on the department’s Internet Web site.

SEC. 8.  

Section 116836 is added to the Health and Safety Code,
to read:

116836.  

(a) Notwithstanding any other law, a certificate issued
by the department shall not be valid unless the application for
certification was filed on or before November 1, 2013.

(b) A currently valid certificate issued by the department on or
before December 31, 2013, pursuant to this article, shall remain
in effect for five years following the date of initial issuance, except
that any certification that was renewed on or before January 1,
2014, shall remain valid only for the remaining period of that
certification.

SEC. 9.  

Section 116840 of the Health and Safety Code is
amended to read:

116840.  

(a) The department begin delete , end delete or any local health officer begin delete with end delete
begin delete the concurrence of the department, shall end delete begin insert is authorized to end insert enforce
this article.

(b) The department may begin delete suspend, revoke, or deny a certificate end delete
begin delete upon its determination end delete begin insert remove a water treatment device from, or end insert
begin insert determine not to include a water treatment device on, the list of end insert
begin insert water treatment devices on the department’s Internet Web site end insert
begin insert upon its determination end insert of begin delete either end delete begin insert any end insert of the following:

(1) That the water treatment device begin delete does not perform in end delete
begin delete accordance with the claims made under the standard end delete begin insert was not tested end insert
begin insert by the independent testing organization that the manufacturer end insert
begin insert named in its submission to the department pursuant to Section end insert
begin insert 116832 end insert .

(2) That the manufacturer, or any employee or agent thereof,
has violated this article begin delete , any regulation adopted pursuant to this end delete
begin delete article, end delete or Chapter 1 (commencing with Section 17500) of Part 3
of Division 7 of the Business and Professions Code.

begin insert

(3) That any of the information submitted pursuant to Section
116832 is not true.

end insert begin insert

(4) That a certificate issued by the department prior to
December 31, 2013, has expired.

end insert

(c) Any person, corporation, firm, partnership, joint stock
company, or any other association or organization that violates
any provision of this article shall be liable for a civil penalty not
to exceed five thousand dollars ($5,000) for each violation. Where
the conduct constituting a violation is of a continuing nature, each
day of the conduct is a separate and distinct violation. The civil
penalty shall be assessed and recovered in a civil action brought
in the name of the people of the State of California by the Attorney
General, or by any district attorney, county counsel, or city attorney
in any court of competent jurisdiction.

(d) If the action is brought by the Attorney General, one-half
of the penalty collected shall be paid to the treasurer of the county
in which the judgment was entered, and one-half to the State
Treasurer. If brought by a district attorney or county counsel, the
entire amount of penalties collected shall be paid to the treasurer
of the county in which the judgment was entered. If brought by a
city attorney or city prosecutor, one-half of the penalty shall be
paid to the treasurer of the county and one-half to the city.

(e) Unless otherwise provided, the remedies or penalties
provided by this article are cumulative to each other and to
remedies or penalties available under all other laws of this state.

SEC. 10.  

Section 116845 of the Health and Safety Code is
repealed.

begin delete

116845.  

The department shall publish a list of water treatment
devices certified under this article, including the specific standard
under which the device is certified.

end delete

SEC. 11.  

Section 116845 is added to the Health and Safety
Code, to read:

116845.  

The department shall publish on its Internet Web site
both of the following:

(a) (1) A list of water treatment devices for which a valid
certification was issued by the department on or before December
31, 2013.

(2) A list of water treatment devices for which a manufacturer
has submitted information pursuant to Section 116832, except for
those water treatment devices that the department has determined
to remove from, or not include on, the list pursuant to Section
116840.

(b) Consumer information, in English and Spanish, regarding
the appropriate use of water treatment devices.

SEC. 12.  

Section 116850 of the Health and Safety Code is
repealed.

begin delete

116850.  

The department shall charge and collect a fee for each
certificate applied for which shall be an amount reasonably
necessary to produce sufficient revenue to effectively implement
this article.

end delete

SEC. 13.  

Section 116850 is added to the Health and Safety
Code, to read:

116850.  

(a) The department shall charge and collect an annual
fee of up to four thousand dollars ($4,000) per manufacturer that
submits information as required by Section 116832. The fee shall
not exceed the amount necessary to recoup the reasonable
regulatory costs incurred by the department in publishing and
maintaining the information on its Internet Web site as provided
in Section 116845 and in conducting enforcement actions,
including, but not limited to, referring matters for enforcement to
other agencies pursuant to Section 116840.

(b) Notwithstanding any other law, the department may establish
and periodically adjust the fee authorized by subdivision (a) by
publishing the fee on its Internet Web site, and this action by the
department shall not be subject to the rulemaking provisions of
the Administrative Procedure Act (Chapter 3.5 (commencing with
Section 11340) of Part 1 of Division 3 of Title 2 of the Government
Code).

SEC. 14.  

Section 116855 of the Health and Safety Code is
repealed.

begin delete

116855.  

In developing regulations pursuant to this article, the
department shall seek the consultation of representatives from the
industry regulated under the article, from drinking water purveyors,
and from persons with expertise and experience in promoting
public health.

end delete

SEC. 15.  

Section 116860 of the Health and Safety Code is
amended to read:

116860.  

There is in the State Treasury the Water Device
Certification Special Account. Fees collected pursuant to Section
116850 shall be deposited in the account created by this section.
begin insert The money in the account is available for expenditure by the end insert
begin insert department, upon appropriation by the Legislature, solely for the end insert
begin insert purposes specified in this article. end insert