BILL ANALYSIS                                                                                                                                                                                                    



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          Date of Hearing:  April 9, 2013

                            ASSEMBLY COMMITTEE ON HEALTH
                                 Richard Pan, Chair
           AB 119 (Environmental Safety Committee) - As Amended:  April 1,  
                                        2013
           
          SUBJECT  :  Water treatment devices.

           SUMMARY  :  Deletes existing law that requires water treatment  
          devices to be certified by the Department of Public Health (DPH)  
          and instead requires manufacturers, commencing January 1, 2014,  
          to submit to DPH specified information for inclusion on DPH's  
          Internet Web site.  Prohibits a water treatment device for which  
          a health or safety claim is made from being sold or distributed  
          unless the device has a valid certificate issued on or before  
          December 31, 2013 or the device has been certified by an  
          independent certification organization that has been accredited  
          by the American National Standards Institute (ANSI), as  
          specified and the device is included on the list of water  
          treatment devices published on DPH's Web site.  Specifically,  
           this bill  :  

          1)Requires, commencing January 1, 2014, that each manufacturer  
            that offers for sale in California a water treatment device  
            for which it makes a health or safety claim to, for each water  
            treatment device, submit to DPH the following  information  ,  
            together with a specified fee, by March 1 of each calendar  
            year, for purposes of DPH 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 1) d) above,  
               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  








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               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.

          2)Prohibits a water treatment device for which a health or  
            safety claim is made from being sold or distributed unless the  
            device meets either of the following:

             a)   The device has a valid certificate issued on or before  
               December 31, 2013; or, 
             b)   The device has been certified by an independent  
               certification organization that has been tested by an  
               independent testing organization that has been accredited  
               by the ANSI, the test results verify the health or safety  
               claim, and the device is included on the list of water  
               treatment devices published on DPH's Web site.

          3)Provides that a certificate issued by DPH is not valid unless  
            the application for certification was filed on or before  
            November 1, 2013.

          4)Indicates that a currently valid certificate issued by DPH on  
            or before December 31, 2013 remains in effect for five years  
            following the date of initial issuance, except that any  
            certification that was renewed on or before January 1, 2014  
            remains valid only for the remaining period of that  
            certification.

          5)Authorizes, instead of requires, DPH or any local health  
            officer to enforce this bill's requirements.  

          6)Deletes DPH's authority to suspend, revoke or deny a  
            certificate and instead authorizes DPH to remove a water  
            treatment device from, or determine not to include a water  
            treatment device on, the list of water treatment devices on  
            DPH's Web site upon its determination that: the water  
            treatment device was not certified by an independent  
            certification organization that the manufacturer named in its  
            submission, as specified; that any information submitted, as  
            specified is not true; or, that a certificate issued by DPH  
            prior to December 31, 2013 has expired.

          7)Repeals existing law provisions that: require certification by  








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            DPH of water treatment devices; require DPH to adopt  
            regulations relating to such certification; require DPH to  
            publish a list of water treatment devices that are certified,  
            including the specific standard under which the device is  
            certified.

          8)Requires DPH to publish on its Internet Web site all of the  
            following:

             a)   A list of water treatment devices for which a valid  
               certification was issued by DPH on or before December 31,  
               2013;
             b)   A list of water treatment devices for which a  
               manufacturer has submitted specified information, except  
               for those water treatment devices that DPH has determined  
               to remove from, or not include on, the list, as specified.
             c)   Consumer information, in English and Spanish, regarding  
               the appropriate use of water treatment devices.

          9)Requires DPH to charge and collect an annual fee of up to  
            $4,000 per manufacturer that submits the information specified  
            in 1) above.  Requires the fee not to exceed the amount  
            necessary to recoup the reasonable regulatory costs incurred  
            by DPH in publishing and maintaining the information on its  
            Internet Web site and in conducting enforcement actions,  
            including, but not limited to, referring matters for  
            enforcement to other agencies, as specified.  Authorizes DPH  
            to establish and periodically adjust the fee by publishing the  
            fee on its Internet Web site, and exempts this action from the  
            Administrative Procedure Act.

          10)Provides that money in the Water Device Certification Special  
            Account is available for expenditure by DPH, upon  
            appropriation by the Legislature, solely for the purposes of  
            water treatment devices, as specified.

          11)Provides that all regulations adopted relating to the  
            certification of water treatment devices prior to January 1,  
            2014 are repealed.

          12)Makes it unlawful to make product performance claims or  
            product benefits claims that a water treatment device affects  
            the health or the safety of drinking water unless the device  
            has been published on an Internet Web site by DPH, as  
            specified. 








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          13)Defines the following terms:

             a)   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:

               i)     A primary drinking water standard, as specified; or,
               ii)    A national primary drinking water standard or  
                 treatment requirement, as specified.

             b)   Manufacturer means any of the following:

               i)     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;
               ii)    A person that assembles water treatment devices or  
                 treatment components from components manufactured by  
                 another entity; or,
               iii)   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.

          14)Makes other technical, clarifying, and conforming changes.

           EXISTING LAW  :  

          1)Makes it unlawful for any person to make product performance  
            claims or product benefit claims that a water treatment device  
            affects the health or the safety of drinking water, unless the  
            device has been certified by DPH, as specified.  Provides that  
            a violation of this is a misdemeanor.  Indicates that a buyer,  
            lessee, or renter of a water treatment device may bring an  
            action against any person who violates the above provision,  
            for the recovery of actual damages, exemplary damages,  
            reasonable attorney's fees and costs, and appropriate  
            equitable relief.

          2)Establishes the Division of Drinking Water and Environmental  
            Management within DPH to promote and maintain a physical,  
            chemical, and biological environment that contributes  
            positively to health, prevents illness, and assures protection  
            of the public.








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          3)Requires DPH 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.

          4)Requires the regulations specified in 3) above to 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.    


          5)States that the regulations specified in 3) above may adopt,  
            by reference, the testing procedures and standards of one or  
            more independent testing organizations if DPH determines that  
            the procedures and standards are adequate to meet specified  
            requirements.

          6)Authorizes the regulations to specify any testing organization  
            that DPH has designated to conduct the testing of water  
            treatment devices.

          7)Requires the regulations specified in 3) above to include  
            minimum standards for the following:

             a)   Performance requirements;
             b)   Types of tests to be performed;
             c)   Types of allowable materials; 
             d)   Design and construction;
             e)   Instruction and information requirements, including  
               operational, maintenance, replacement, and estimated cost  
               of these items; and, 
             f)   Any additional requirements as may be necessary.

          8)Specifies that DPH or any testing organization designated by  
            DPH may agree to evaluate test data on a water treatment  
            device offered by the manufacturer of the water treatment  
            device, in lieu of its own, if DPH or the testing organization  
            determines that the testing procedures and standards used to  
            develop the data are adequate to meet existing requirements.

          9)Prohibits the sale or distribution of a water treatment device  
            that makes product performance claims or product benefit  
            claims that the device affects health or the safety of  
            drinking water, unless certified by DPH or by another entity,  








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            as specified.  States that water treatment devices not offered  
            for sale or distribution based on claims of improvement in the  
            healthfulness of drinking water need not be certified.

          10)Allows DPH to 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 it determines that certification program meets  
            specified requirements.

          11)Defines water treatment device as any point of use (POU) or  
            point of entry (POE) 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.  


          12)Allows DPH to suspend, revoke, or deny a certificate upon its  
            determination of either of the following: 

             a)   That the water treatment device does not perform in  
               accordance with the claims made under the standard; or,
             b)   That the manufacturer, or any employee or agent has  
               violated existing law or regulation, as specified.

          13)States that any person, corporation, firm, partnership, joint  
            stock company, or any other association or organization that  
            violates any provision of existing requirements shall be  
            liable for a civil penalty not to exceed $5,000 for each  
            violation.  Indicates that where the conduct constituting a  
            violation is of a continuing nature, each day of the conduct  
            is a separate and distinct violation.  Requires the civil  
            penalty to 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.

           FISCAL EFFECT  :  This bill has not yet been analyzed by a fiscal  
          committee.

           COMMENTS  :









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           1)PURPOSE OF THIS BILL  .  According to the author, the current  
            program for water treatment devices requires DPH to  
            independently certify each POU water treatment device before  
            it can be sold in retail outlets in the state.  While the  
            purpose of this program was laudable, the certification  
            program provides no added value, as it simply duplicates  
            testing already performed by third party accrediting entities  
            and serves to delay the availability of new devices in the  
            state.

           2)BACKGROUND  .  

              a)   Drinking Water Safety  .  In 1974 the federal Safe  
               Drinking Water Act (SDWA) was passed to protect public  
               health by regulating the nation's public drinking water  
               supply, which requires the US Environmental Protection  
               Agency (EPA) to establish mandatory nationwide drinking  
               water standards.  Two years after the SDWA was passed,  
               California adopted its own safe drinking water act.  The  
               state's act has two main goals: to continue the state's  
               drinking water program, and to be the delegated authority  
               (referred to as the "primacy") by the EPA for enforcement  
               of the federal SDWA.  As required by SDWA, the state's  
               drinking water program must set drinking water standards  
               that are at least as stringent as the EPA's standards.   
               Each community water system also must monitor for a  
               specified list of contaminants, and the findings must be  
               reported to DPH.  In 1989 the California Legislature passed  
               AB 21 (Sher), Chapter 823, Statutes of 1989, which amended  
               California's safe drinking water act.  AB 21 requires the  
               development of a comprehensive safe drinking water plan,  
               sets forth requirements for adopting primary drinking water  
               standards, requires large water systems to identify all  
               reasonable measures to reduce contaminant levels in their  
               water, and requires operators of public water systems to  
               notify DPH and the public whenever the system is not in  
               compliance with drinking water standards.  "Every citizen  
               of California has the right to pure and safe drinking  
               water," according to California state law.  And how safe is  
               the state's water?  The most recent statistics indicate  
               that in 2007 about 97% of Californians who received their  
               drinking water from a public water system received water  
               that met drinking-water quality standards, compared to the  
               national state average of 92%.  However, given that  
               California's approximately 8,000 public water systems vary  








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               in size, location, and fiscal condition, ensuring that all  
               Californians receive safe drinking water is a challenge.   
               Many consumers in California have purchased water treatment  
               devices to further enhance the safety of their drinking  
               water.

              b)   Water Treatment Devices  .  According to DPH's Internet  
               Web site, there are approximately 300 California-certified  
               drinking water treatment devices.  Carbon filters are the  
               most common type of device, typically sold in the form of  
               counter top, faucet-mount or under counter models.  Other  
               types of technologies available include distillation,  
               reverse-osmosis, ion-exchange, ceramic filter, and  
               ultraviolet light.  When a manufacturer claims that a  
               drinking water treatment device will reduce toxic chemicals  
               or makes other health related performance claims, the  
               device must be certified.  DPH certification means that the  
               device has been tested by an independent, state-approved  
               laboratory to: i) verify the manufacturer's health-related  
               performance claims; and, ii) ensure that materials within  
               the device do not add contaminants to the treated water.   
               These devices are intended to provide an additional level  
               of protection for individuals who need or want drinking  
               water of a higher quality.  Contaminants removed by  
               certified devices include organic chemicals such as  
               methyltributylethanol (MTBE), pesticides, herbicides and  
               solvents; inorganics such as lead, mercury, and  
               perchlorate; and, waterborne pathogens, such as bacteria,  
               virus, and protozoan cysts, such as Giardia and  
               Cryptosporidium.

             Generally, to be approved for certification, there is a  
               nonrefundable fee of $1400 per device, and the application  
               must include the following: contaminant reduction and  
               extraction test reports from approved laboratories, the  
               testing must comply with California-approved protocols; the  
               device or system label with required information;  
               performance data sheet; promotional materials must be  
               consistent with certified claims; and, engineering drawings  
               and parts list for the system. 

              c)   Private Certification  .  This bill provides that a water  
               treatment device cannot be sold or distributed unless the  
               device has been tested by an independent testing  
               organization that has been accredited by ANSI.  ANSI is a  








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               private, not-for-profit organization that oversees the  
               development of voluntary standards for various things  
               including products, services, processes, and systems.  It  
               also provides accreditation for product certification  
               programs and coordinates US standards with international  
               standards so that American products can be used worldwide.   
               For purposes of drinking water treatment units, ANSI  
               Standard 42 covers POU and POE systems designed to reduce  
               specific aesthetic or non-health related contaminants, such  
               as chlorine, taste and odor, and particulates that may be  
               present in public or private drinking water.  The scope of  
               Standard 42 is to establish minimum requirements for  
               material safety, structural integrity, product literature,  
               and aesthetic, non-health related contaminant reduction  
               performance claims.  This standard applies mostly to carbon  
               filtration.  ANSI Standard 53 addresses POU and POE systems  
               designed to reduce specific health-related contaminants.   
               The most common technology addressed by this standard is  
               carbon filtration.  Testing and certification under  
               Standard 53 occurs if a filter system reduces a significant  
               amount of specific harmful contaminants from drinking  
               water, including microbiological, chemical, or particulate  
               in nature.  There are other standards that apply including  
               those for water softener systems, systems that use  
               ultraviolet light, reverse osmosis technology, or  
               distillation systems.  DPH's Internet Web site states that  
               there are three recognized independent testing  
               organizations certified by ANSI for product testing  
               approved in California: National Sanitation Foundation,  
               Water Quality Association, and Underwriter Laboratories.

              d)   DPH Proposed Budget  .  On April 5, 2012, DPH sent a  
               letter to manufacturers and certifying bodies for  
               residential water treatment devices.  In this letter, DPH  
               states that it is proposing to eliminate the Residential  
               Water Treatment Device certification program effective with  
               the passage of the 2012-13 Budget Act.  DPH proposed to  
               modify existing law to require "approval" rather than  
               "certification" of water treatment devices offered for sale  
               in California that make health claims.  It states that the  
               approval must be provided by an independent testing  
               organization that has been accredited by ANSI or by the  
               federal government.  This proposal was initially approved  
               but was eventually rejected by the Legislature because  
               concerns were raised that removing the state's role in  








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               certifying these water devices could impact public health.   
               Senate Budget staff's comment and recommendation on this  
               proposal indicated "It is important for the state to  
               approve technologies for specific contamination types and  
               review the technology that is being used in California.   
               Leaving the approval in the hands of a third-party entity  
               does not ensure that the state's public health is the  
               primary focus of the certification.  Consequently, it is  
               recommended to reject this proposal."  

           3)SUPPORT  .  The Clean Water Action provides that the current  
            program which requires DPH to independently certify each POU  
            water treatment device before it can be sold in the state has  
            provided no added value because it simply duplicates testing  
            already performed by third party accrediting entities, and  
            serves to delay the availability of new devices in the state.   
            This bill allows DPH to rely upon third party certification  
             entities to provide information on water treatment devices,  
            and allows DPH to focus on activities that will provide  
            greater consumer protection that the current program.

          The Association for California Water Agencies states that the  
            goal of this bill is to streamline the regulatory requirements  
            that currently apply to water treatment devices.  This  
            streamlining may increase the availability of treatment  
            devices where they are needed.  Water treatment device  
            manufacturers, including Pentair, Dow Chemical Company,  
            Brondell, and Culligan state that this bill promotes public  
            health, streamline government, saves public funds, and offers  
            consumers confidence in the products they are buying. 

           4)CONCERNS .  BioVir Laboratories Inc. states that this bill  
            limits private certification to three companies that are not  
            located in California.    

           5)PREVIOUS LEGISLATION  .  AB 2539 (Nielsen) of 2012, would have  
            required, instead of allowed, DPH to adopt by reference, the  
            testing procedures and standards of one or more independent  
            testing organizations for purposes of certifying water  
            treatment devices.  AB 2539 was referred to this Committee but  
            was never heard and eventually died.  

          SB 962 (Anderson) of 2012 would have required DPH to expand  
            their emergency regulations regarding the permitted use of POE  
            and POU treatment to apply to water systems with less than 500  








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            service connections, which may remain in effect until January  
            1, 2016, as specified.  SB 962 died in the Assembly  
            Appropriations Committee.

           6)SUGGESTED TECHNICAL AMENDMENTS .  To clarify that this bill  
            makes it unlawful to make product performance claims or  
            product benefit claims unless the device has been certified,  
            as specified, the bill on pages 3 - 4 should be amended as  
            follows:

               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  complies with   has been published on an  
               Internet Web site by the State Department of Public Health  
               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 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.

           7)POLICY CONCERNS  .

              a)   Enforcement  .  This bill authorizes, instead of requires  
               (current law) DPH or local health officers to enforce the  
               requirements of this bill.  To assure enforcement, the  
               author may wish to amend this bill and restore the  
               requirement that DPH or local health officers enforce the  
               requirements of this bill.

              b)   Lack of state standards  .  Similar to the concerns raised  
               in DPH's 2012-2013 budget proposal as discussed in the  
               background above, this bill relies on the certification  
               standards of a third party, and DPH provides a stamp of  
               approval absent any independent verification.  Does the  
               certification mechanism proposed in this bill adequately  
               protect the public interest?  Should this bill require DPH  
               to establish minimum standards that water treatment devices  
               must comply with even with third party certification? At a  
               minimum, should this bill require DPH to publish on its  
               Internet Web site the product worksheet that it currently  
               prepares for each device? 








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           REGISTERED SUPPORT / OPPOSITION  :  

           Support 
           
          3M
          Association of California Water Agencies
          Barrier Water Filters
          Brondell, Inc
          Clean Water Action 
          Clorox Company
          Culligan International Company 
          Dow Chemical Company
          Ecowater Systems
          Oko Superior Eco Hydration
          Pacific Water Quality Association
          Pentair
          TST Water, LLC
          Water Quality Association

           Opposition 

           None on file.
           
          Analysis Prepared by  :    Rosielyn Pulmano / HEALTH / (916)  
          319-2097