BILL ANALYSIS Ó
AB 119
Page 1
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