BILL ANALYSIS Ó
AB 1699
SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
Senator Jerry Hill, Chair
2013-2014 Regular Session
BILL NO: AB 1699
AUTHOR: Bloom
AMENDED: May 20, 2014
FISCAL: Yes HEARING DATE: June 18, 2014
URGENCY: No CONSULTANT: Karen Morrison
SUBJECT : WASTE MANAGEMENT: MICROPLASTICS
SUMMARY :
Existing federal law :
1) Under the Marine Plastic Pollution Research and Control Act
of 1987, prohibits all ships from disposing of plastic and
other solid materials in navigable waters within the United
States (33 U.S.C. §1901 et seq.).
2) Requires the National Oceanic and Atmospheric Administration,
United States Environmental Protection Agency (US EPA), Coast
Guard, Navy, and other agencies to identify, determine
sources of, assess, prevent, reduce, and remove marine debris
(33 U.S.C. §1951 et seq.).
Existing state law :
1) Under the Porter Cologne Water Quality Control Act, regulates
the discharge of pollutants in storm water and urban runoff
(WAT §13000 et seq.).
2) Prohibits the release of preproduction plastic pellets to the
environment that could enter state waters (WAT §13367).
3) Prohibits the sale of expanded polystyrene loosefill
packaging material by a wholesaler or manufacturer (PRC
§42390).
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This bill :
1) Defines various terms, including "microplastic," "personal
care products," "person in the course of doing business," and
"plastic."
2) Prohibits any person in the course of doing business from
selling or promoting personal care products with
microplastics after January 1, 2019. The bill offers an
exemption for products with less than 1 part per million
microplastic by weight.
3) Imposes a civil penalty of up to $2,500 per day for
violations, and allows the fees to be kept by the office that
prosecutes the violation.
COMMENTS :
1) Purpose of Bill . According to the author, "The goal of AB
1699 is to get plastic microbeads out of personal care
products and out of our shared waters.
"Microplastic beads are sold in consumer products as abrasives
and exfoliants (such as in soaps, facial scrubs, etc.). In
some products there are over 350,000 microbeads in one tube
alone. They are directly washed down the drain and [are] too
small to be captured by water treatment facilities. Recent
studies have shown microbeads to be a pervasive marine
pollutant, and have been found in alarming quantities
everywhere from the garbage gyres in the Pacific Ocean to the
Great Lakes to the L.A. River. Research has also shown that
these beads absorb toxins and are being ingested by marine
life, posing a threat to our marine ecosystems.
"Currently there is no law banning their use in consumer
products. While some larger companies such as Unilever,
Proctor & Gamble and Johnson & Johnson have pledged to phase
microbeads out of their products and replace them with
natural alternatives, the proposed phase out dates range all
over the place and in some cases are only 50% by a certain
date, etc. Our bill would provide a hard phase out date to
ensure that plastic microbeads from personal care products
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are no longer entering our waters."
2) Plastics: use, environmental presence and impact . Since the
beginning of commercial production of plastics 80 years ago,
plastic has become a common component of daily living. The
annual global plastic production has risen from 1.9 million
tons in the 1950s to 317 million tons in 2012. In addition,
the some of the properties that make plastics a versatile
material also make them convenient to discard.
Although plastic represents a relatively small fraction of the
overall waste stream in California, plastic waste is the
predominate form of marine debris. Plastics are estimated to
compose 60-80% of all marine debris and 90% of all floating
debris. According to the California Coastal Commission, the
primary source of marine debris is urban runoff. Due to the
interplay of ocean currents, marine debris preferentially
accumulates in certain areas throughout the ocean. The North
Pacific Central Gyre is the ultimate destination for much of
the marine debris originating from the California coast. A
study by the Algalita Marine Research Foundation found an
average of more than 300,000 plastic pieces per square mile
of the Gyre and that the mass of plastic was six times
greater than zooplankton floating on the water's surface.
Most plastic marine debris exists as small plastic particles
due to excessive UV radiation exposure and subsequent
photo-degradation. Hydrophobic chemicals present in the
ocean in trace amounts (e.g., from contaminated runoff and
oil and chemical spills) have an affinity for, and can bind
to, plastic particles and may also enter and accumulate in
the food chain through the same mechanism. In 2011, the
National Oceanic Atmosphere Association found that plastic
debris accumulates pollutants such as polychlorinated
biphenyls (PCBs) up to 100,000 to 1,000,000 times the levels
found in seawater.
Once in the environment, the plastic pieces, or
microplastics, are ingested by aquatic organisms; an
estimated 250 animal species worldwide have already been
negatively affected. The plastic particles can become lodged
in the bloodstreams or digestive tracts of fish. Once inside
a fish or other marine organism, the pollutants that were
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absorbed into the plastic are transferred to the tissues of
the marine organism and can result in long-term harm to
reproduction and other functions. Microplastics have also
been found in predators that eat marine life, including birds
and reptiles.
3) Development of microbeads . Microbeads are small, typically
spherical, plastic particles that commonly range in size from
50 to 500 microns (1 meter has 1 million microns).
Microbeads were introduced in personal care products as a
uniform, nonallergenic exfoliant. Prior to the widespread
use of microbeads in the 1990s, natural exfoliants such as
ground almonds, oatmeal, and sea salt were common. Today,
over 100 cosmetics and personal care products contain
microbeads, and according to 5 Gyres Institute, some products
contain over 350,000 microbeads in one tube.
When used as intended, microbeads are designed to enter
municipal sewer systems for disposal. Many sewer systems are
unable to remove microbeads during the water treatment
process, resulting in the general release of microbeads into
state waters. Microbeads enter the environment with similar
physical properties to the small plastic particles that
result from degradation of plastic in the environment.
4) Microbeads as environmental contaminants . In studying
plastic pollution in the Great Lakes in 2012, researchers
from 5 Gyres Institute and State University of New York
College at Fredonia found significant levels of microplastic
particles throughout the lakes. 58% of all identified
pellets were microbeads, and further evaluation linked these
particles to personal care products. Of particular concern
were samples found in Lake Erie in a location downstream from
Detroit, Cleveland, and Erie, where concentrations of
microplastics rival those found in ocean gyres (over 450,000
plastic pieces per square kilometer).
Earlier this year, research by the 5 Gyres Institute found
microbeads in the Los Angeles River.
5) Efforts to address microplastics usage . In light of the
environmental concerns associated with microplastics, and the
discovery of high concentrations of microbeads in various
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water systems, there has been mounting pressure to remove
plastic microbeads from commercial products.
Ohio, New York, and Illinois have been moving legislation to ban
plastic microbeads. The Ohio legislation (SB 304, Skindell)
would ban the sale of a personal care product containing
microbeads. There is no specified timeline in the
legislation, so presumably the ban would begin in 2015.
The New York legislation (A08744, Sweeny) would ban the sale of
a personal cosmetic product that contains intentionally-added
microbeads effective January 1, 2016. Products that are
regulated as drugs (such as over-the-counter acne medication)
would have until January 1, 2017 to comply.
The Illinois ban on microbeads (SB2727, Steans) was signed by
Governor Quinn on June 8, 2014. The legislation provides a
gradual timeline for the ban of microbeads. Personal care
products containing microbeads would not be accepted for sale
after December 31, 2017 and could not be sold in Illinois
after December 31, 2018. Over-the-counter drugs would have a
one-year extension.
In addition to legislative efforts, numerous companies have
responded to mounting public pressure by announcing voluntary
phase-outs of microbead-containing products. Ongoing
phase-outs include:
? Colgate-Palmolive - end of 2014
? Johnson & Johnson - end of 2015
? L'Oreal - no set date
? Proctor & Gamble - end of 2017 at the earliest
? The Body Shop - end of 2015
? Unilever - end of 2015
1) Arguments in support . According to supporters of the bill,
"Products containing micro-beads are designed to be washed
down the drain." "As a result, these plastic abrasives are
one of the emerging forms of pollution accumulating in our
local waterways and the Pacific Ocean. The beads are capable
of absorbing a wide range of toxins - including DDT and
industrial chemicals - which can then be ingested by marine
life. Over the long run, they will impose serious costs on
the environment and will force taxpayers to spend significant
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funds to clean them up."
Supporters state, "Plastic micro-beads are not essential to
personal care products. Safer, biodegradable, non-polluting
alternatives such as apricot shells and cocoa beans have long
been used as abrasives in personal-care products instead of
plastic micro-beads; indeed, many forward thinking brands
already employ environmentally safe alternatives that are
market viable."
2) Arguments in opposition . The Personal Care Products Council
states, "The introduction of synthetic micro beads into
products was originally done because of their excellent
health and safety properties [?] However our industry shares
a common interest with other stakeholders in protecting our
environment. [?] While we believe synthetic micro beads in
personal care products represents a very small portion of the
overall aquatic plastic pollution, the industry has elected
to be part of the solution and to help lead on this issue."
The Council requests amendments to the definitions of
"synthetic plastic microbead," "plastic," and "personal care
product."
A coalition letter from the California Chamber of Commerce and
others dated May 7, 2014 opposes the bill due to the
abbreviated timeline of the bill. Since that date, the bill
has been amended twice to extend the timeline of
implementation of the bill from 2016 to 2019. It is not
clear if this coalition has removed their opposition.
3) Recommended amendments .
a) The definition of "person" in the bill is highly
prescriptive and could lead to confusion about what
entities are actually covered under the bill.
An amendment is needed to define "person" as an individual,
business, or other entity.
b) The bill currently excludes government agencies, public
water systems, and businesses with fewer than 10 employees
from the ban. If the goal is to prevent the release of
microbeads into the environment, then there should be no
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exemptions from the prohibition.
Amendment are needed to strike the phrase "in the course of
doing business" from the bill and delete the corresponding
definition.
c) The bill defines "personal care products" as "mixtures
or solutions used for bathing and facial or body cleaning"
and includes various examples of products. However,
microbeads are used in other personal care products, such
as hair gels and bar soaps. If the goal is to exclude all
personal care products with microbeads from sale in
California, the definition should be broadened to reflect
the landscape of personal care products that use or could
use microbeads.
An amendment is needed to broaden the definition of "personal
care products."
d) The bill defines "plastic" as "a synthetic material
made from linking monomers through a chemical reaction to
create a polymer chain that can be molded or extruded at
high heat into various forms. Plastics can be made from
many organic substances, including petroleum and natural
gas." Nowhere in current statute is "plastic" defined,
and it may not be appropriate to define the term in
statute at this time.
An amendment is needed to strike the definition of "plastic"
from the bill.
e) The bill defines "microplastic" as "any plastic size 5
millimeter or less in all dimensions." A technical
correction is needed to clarify the definition. In
addition, microplastics in general can result from the
breakdown of larger plastics. It is important to specify
that the prohibited microplastics are plastics that are
intentionally added to personal care products.
An amendment is needed to clarify the definition of
microplastic to reflect plastic microbeads.
4) Opposition policy concerns .
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a) In their opposition letter, the Personal Care Products
Council recommended using the term "synthetic plastic
microbead." Although there is not a definition of
plastics in California law, plastics are recognized
generally and throughout statute to be composed of a
variety of materials, including polyethylene and
polypropylene, and natural substances, such as petroleum.
The use of the term "synthetic" in regards to plastics is
unclear and confusing: these terms are never used together
in statute, and their use would imply that there are
naturally-occurring versions of commonly-used plastics -
which there are not.
As a result, it is not appropriate to use the term "synthetic
plastic."
b) Opponents of the bill have recommended putting in
language to allow the use of biodegradable or
non-persistent microbeads, if and when they are developed.
However, SB 567 (DeSaulnier, Chapter 594, Statutes of
2011) found that the "use of the term 'degradable,'
'biodegradable,' 'decomposable,' or other like terms on
plastic products is inherently misleading" unless certain
claims are made and an appropriate testing method has been
approved.
Just because a material is biodegradable does not mean that
it is environmentally benign. Biodegradation can take
weeks or months, during which time environmental harm
could be done. In addition, appropriate testing methods
must be developed for products based on the material and
its environmental location. A product's ability to
biodegrade is a function of both the physical and chemical
makeup of the product as well as the environmental
conditions to which it is subject; as a result, the
biodegradation of a product in a landfill, a wastewater
treatment plant, or the ocean may all be different.
It is not appropriate at this point for legislation to use
the terms "persistent" or "biodegradable" in reference to
plastic microbeads.
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5) Double Referral to Senate Judiciary Committee . If this
measure is approved by the Senate Environmental Quality
Committee, the do pass motion must include the action to
re-refer the bill to the Senate Judiciary Committee.
SOURCE : 5 Gyres
SUPPORT : All One Ocean
California Association of Sanitation Agencies
California Attorney General's Office
Californians Against Waste
Campaign for Safe Cosmetics
Center for Biological Diversity
City of Los Angeles, Mayor Eric Garcetti
Clean Water Action
County of Los Angeles Board of Supervisors,
Supervisor Zev Yaroslavsky
East Bay Municipal Utility District
Environment California
Environmental Working Group
Heal the Bay
Los Angeles Waterkeeper
Natural Resources Defense Council
Ocean Conservancy
Ocean Voyage Institute/Project Kaisei
Plastic Pollution Coalition
Physicians for Social Responsibility, San
Francisco
Bay Area Chapter
San Luis Obispo Waterkeeper
Save Our Shores
Seventh Generation Advisors
Sierra Club California
Surfrider Foundation
Team Marine
Turtle Island Restoration Network
OPPOSITION : AdvaMed
American Chemistry Council
American Cleaning Institute
Bay Bio
Biocom
California Chamber of Commerce
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California Healthcare Institute
California Manufacturers & Technology Association
California Retailers Association
Chemical Industry Council of California
Consumer Healthcare Products Association
Grocery Manufacturers Association
International Fragrance Association of North America
Personal Care Products Council
Western Plastics Association