Amended in Assembly April 16, 2013

Amended in Assembly April 1, 2013

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 amended, 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 the health
or the safety of drinking water, unless the device begin delete has been
published on an Internet Web site by the State Department of
Public Health pursuant to end delete begin insert complies with end insert 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 not associated with a health
or safety claim pursuant to Article 3 (commencing with Section
116825) of Chapter 5 of Part 12 of Division 104 of the Health and
Safety Code.

(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 State Department of Public Health.

(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.

(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:

(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.

(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).

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

(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.

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

(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.

SEC. 3.  

Section 116830 of the Health and Safety Code is
repealed.

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 certified 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.

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 certified by an independent certification
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 begin delete department end delete begin insert department, end insert or any local health
begin delete officer is authorized to end delete begin insert officer end insert begin insert with the concurrence of the
department, shall end insert enforce this article.

(b) The department may remove a water treatment device from,
or determine not to include a water treatment device on, the list of
water treatment devices on the department’s Internet Web site
upon its determination of any of the following:

(1) That the water treatment device was not certified by the
independent certification organization that the manufacturer named
in its submission to the department pursuant to Section 116832.

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

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

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

(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.

SEC. 11.  

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

116845.  

The department shall publish on its Internet Web site
begin delete both of end delete begin insert end insert 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.

begin insert

(3) A product worksheet for each water treatment device.

end insert

(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.

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.

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.
The money in the account is available for expenditure by the
department, upon appropriation by the Legislature, solely for the
purposes specified in this article.