BILL NUMBER: AB 888 INTRODUCED BILL TEXT INTRODUCED BY Assembly Member Bloom FEBRUARY 26, 2015 An act to add Chapter 5.9 (commencing with Section 42360) to Part 3 of Division 30 of the Public Resources Code, relating to waste management. LEGISLATIVE COUNSEL'S DIGEST AB 888, as introduced, Bloom. Waste management: plastic microbeads. The Safe Drinking Water and Toxic Enforcement Act of 1986 (Proposition 65) prohibits any person, in the course of doing business, from knowingly and intentionally exposing any individual to a chemical known to the state to cause cancer or reproductive toxicity without giving a specified warning, or from discharging or releasing such a chemical into any source of drinking water, except as specified. Existing law prohibits the sale of expanded polystyrene packaging material by a wholesaler or manufacturer. Existing law prohibits a person from selling a plastic product in this state that is labeled with the term "compostable," "home compostable," or "marine degradable" unless, at the time of sale, the plastic product meets the applicable ASTM International standard specification. This bill would prohibit, on and after January 1, 2020, a person, as defined, from selling or offering for promotional purposes in this state a personal care product containing intentionally added plastic microbeads, as specified. The bill would exempt from those prohibitions the sale or promotional offer of a product containing less than 1 part per million (ppm) by weight of plastic microbeads, as provided. The bill would make a violator liable for a civil penalty not to exceed $2,500 per day for each violation. The bill would authorize the penalty to be assessed and recovered in a civil action brought in any court of competent jurisdiction by the Attorney General or local officials, or by a person in the public interest, as provided. The bill would require 50% of the civil penalties collected in an action brought pursuant to the act to be retained by the entity or person who brough the action. The bill would establish the Plastic Pollution Fund in the State Treasury. The bill would authorize the Department of Resources Recycling and Recovery to expend the funds, upon appropriation by the Legislature, to implement and administer the act and reduce plastic pollution by, among other things, providing grants to local governments or other entities. The bill would require 50% of all civil penalties collected pursuant to the act, and any interest earned on the money in the fund, to be deposited into the fund. 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. Chapter 5.9 (commencing with Section 42360) is added to Part 3 of Division 30 of the Public Resources Code, to read: CHAPTER 5.9. PLASTIC MICROBEADS NUISANCE PREVENTION LAW 42360. The Legislature finds and declares all of the following: (a) Plastic does not biodegrade into elements or compounds commonly found in nature like other organic materials, but instead, upon exposure to the elements photodegrades into smaller pieces of plastic causing land and water pollution that is virtually impossible to remediate. (b) Plastic pollution is the dominant type of anthropogenic debris found throughout the marine environment. (c) Plastic pollution is an environmental and human health hazard and a public nuisance. (d) Microplastics that are five millimeters or less in diameter become bioavailable as soon as they enter the marine environment and are ingested by marine organisms. (e) Microplastics are persistent organic compounds that attract other pollutants commonly present in the environment, many of which are recognized to have serious deleterious impacts on human health or the environment, including DDT, DDE, PCBs, and flame retardants. (f) PAHs, PCBs and PBDEs from plastic transfer to fish tissue during digestion and bioaccumulate, resulting in liver damage. (g) Fish that humans consume have been found to ingest microplastics. (h) Consumer personal care products such as facial scrubs, soaps, and toothpaste increasingly contain thousands of microplastics in the form of plastic microbeads which are flushed down drains or make their way into the environment by other means as part of their intended use. (i) Some plastic microbeads in personal care products are not recoverable through ordinary wastewater treatment and can be released into the environment. (j) Plastic microbeads have been found in surface waters within the United States, as well as in fish, marine mammals, and reptiles, and in the digestive and circulatory systems of mussels and worms. (k) There are economically feasible alternatives to plastic microbeads used in personal care products, as evidenced by the current use of biodegradable, natural, abrasive materials in personal care products such as beeswax, shells, nuts, seeds, and sand. 42361. As used in this chapter, the following terms have the following meanings: (a) "Natural Exfoliant" means a substance occurring in and generated by the natural environment and includes, but is not limited to, the following substances: walnut shells, apricot hulls, sand, clay, or beeswax. (b) "Person" means an individual, business, or other entity. (c) "Personal care product" means an article intended to be rubbed, poured, sprinkled, or sprayed on, introduced to, or otherwise applied to, the human body or any part thereof for cleansing, beautifying, promoting attractiveness, or altering the appearance, and an article intended for use as a component of such an article. (d) "Plastic microbead" means an intentionally added plastic particle measuring five millimeters or less in every dimension. 42362. On and after January 1, 2020, a person shall not sell or offer for promotional purposes in this state any personal care products containing plastic microbeads. 42363. Section 42362 shall not apply to either of the following: (a) A person that sells or offers for promotional purposes a personal care product containing plastic microbeads in less than 1 part per million (ppm) by weight. (b) A product containing natural exfoliants that does not contain plastic microbeads. 42364. (a) A person who violates or threatens to violate Section 42362 may be enjoined in any court of competent jurisdiction. (b) (1) A person who has violated Section 42362 is liable for a civil penalty not to exceed two thousand five hundred dollars ($2,500) per day for each violation in addition to any other penalty established by law. That civil penalty may be assessed and recovered in a civil action brought in any court of competent jurisdiction. (2) In assessing the amount of a civil penalty for a violation of this chapter, the court shall consider all of the following: (A) The nature and extent of the violation. (B) The number of, and severity of, the violations. (C) The economic effect of the penalty on the violator. (D) Whether the violator took good faith measures to comply with this chapter and when these measures were taken. (E) The deterrent effect that the imposition of the penalty would have on both the violator and the regulated community as a whole. (F) Any other factor that justice may require. (c) Actions pursuant to this section may be brought by the Attorney General in the name of the people of the state, by a district attorney, by a city attorney, or by a city prosecutor in a city or city and county having a full-time city prosecutor, or as provided in subdivision (d). (d) Actions pursuant to this section may be brought by a person in the public interest if both of the following requirements are met: (1) The private action is commenced more than 30 days from the date that the person has given notice of an alleged violation of Section 42362 that is the subject of the private action to the Attorney General and the district attorney, city attorney, or prosecutor in whose jurisdiction the violation is alleged to have occurred, and to the alleged violator. (2) Neither the Attorney General, a district attorney, a city attorney, nor a prosecutor has commenced and is diligently prosecuting an action against the violation. (3) The court, in issuing any final order in any action brought pursuant to this section, shall award costs of litigation, including reasonable attorney and expert witness fees, to any prevailing or substantially prevailing plaintiff. (e) Fifty percent of all civil penalties collected pursuant to this section shall be paid to the office of the city attorney, city prosecutor, district attorney, or Attorney General, whichever office brought the action, or, in the case of an action brought by a person under subdivision (d), to the person taking action in the public interest. 42365. (a) The Plastic Pollution Fund is hereby established in the State Treasury. The department may expend the funds in the Plastic Pollution Fund, upon appropriation by the Legislature, to implement and administer this chapter and for the purpose of reducing plastic pollution. (b) In addition to any other money that may be deposited in the Plastic Pollution Fund, all of the following amounts shall be deposited in the fund: (1) Fifty percent of all civil penalties collected pursuant to this chapter. (2) Any interest earned upon the money deposited into the Plastic Pollution Fund. (c) The department may expend the funds in the Plastic Pollution Fund by directly expending those funds, by transferring those funds to other state agencies, or by providing grants to local governments or other entities deemed eligible by the department, including, but not limited to, nongovernmental organizations and conservation corps. 42366. This chapter does not alter or diminish any legal obligation otherwise required in common law or by statute or regulation, and this chapter does not create or enlarge any defense in any action to enforce the legal obligation. Penalties and sanctions imposed pursuant to this chapter shall be in addition to any penalties or sanctions otherwise prescribed by law.