Amended in Senate September 1, 2015

Amended in Assembly April 22, 2015

Amended in Assembly April 6, 2015

California Legislature—2015–16 Regular Session

Assembly Bill No. 888

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 amended, 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 plastic microbeads that are used to exfoliate or cleanse in a rinse-off product, 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. begin insert The bill would authorize the Department of Toxic Substances Control to additionally exempt plastic microbeads contained in a personal care product, alternatives to plastic microbeads contained in a personal care product, and a personal care product containing plastic microbeads following a specified alternative analysis process, end insert begin insert if a certain finding is made. The bill would require the manufacturer submitting an alternative analysis to reimburse the department for reasonable costs incurred implementing these alternative analysis provisions. end insert

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. The bill would require the civil penalties collected in an action brought pursuant to the act to be retained by the office that brought the action.

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
when ingested and bioaccumulate.

(g) Fish that humans consume have been found to ingest
microplastics, which are then ingested by the humans who consume
these fish.

(h) Consumer personal care products such as facial scrubs,
soaps, and toothpaste increasingly contain thousands of
microplastics in the form of plastic microbeads that are flushed
down drains or make their way into the environment by other
means as part of their intended use.

(i) Plastic microbeads in personal care products are generally
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, reptiles,
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:

begin insert

(a) “Department” means Department of Toxic Substances
Control.

end insert begin delete

(a)

end delete

begin insert (b) end insert  “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.

begin delete

(b)

end delete

begin insert (c) end insert  “Person” means an individual, business, or other entity.

begin delete

(c)

end delete

begin insert (d) end insert  (1) “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 that
type of article.

(2) “Personal care product” does not include a prescription drug,
as defined in Section 110010.2 of the Health and Safety Code.

begin delete

(d)

end delete

begin insert (e) end insert  “Plastic microbead” means an intentionally added solid
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 that are used to exfoliate
or cleanse in a rinse-off product, including, but not limited to,
toothpaste.

42363.  

Section 42362 shall not apply to begin delete either end delete begin insert any end insert 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.

begin insert

(c) A personal care product containing plastic microbeads, or
a potential alternative to plastic microbeads, that has been
exempted by the department pursuant to Section 42363.5.

end insert begin insert

(d) Plastic microbeads and alternatives to plastic microbeads
that are contained in a personal care product and that have been
exempted by the department pursuant to Section 42363.5.

end insert

begin insert

begin insert 42363.5. end insert   

(a) The department shall make available the
two-stage alternative analysis process established in regulations
adopted pursuant to Section 25253 of the Health and Safety Code
for the purpose of evaluating plastic microbeads and alternatives
to plastic microbeads to the following entities for voluntary
submissions pursuant to subdivision (b):

(1) A manufacturer of a personal care product containing plastic
microbeads, or a potential alternative to plastic microbeads.

(2) A manufacturer of a plastic microbead that is contained in
a personal care product.

(3) A manufacturer of an alternative to a plastic microbead that
is contained in a personal care product.

(b) The department, in accordance with that two-stage
alternative analysis process, and consistent with subdivision (c),
shall evaluate the alternative analysis to determine if the plastic
microbead, proposed alternative, or personal care product
containing plastic microbeads or an alternative poses a hazard to
public health or the environment and how to limit or to reduce the
level of hazard posed by the plastic microbead or the alternative.
Following evaluation, the department may exempt the plastic
microbead, its alternative, or the personal care product from the
requirements of Section 42362 under either of the following
circumstances:

(1) The department finds that a regulatory response, as
described in Article 6 (commencing with Section 69506) of Chapter
55 of Division 4.5 of Title 22 of the California Code of Regulations,
for the plastic microbead, its alternative, or the personal care
product is necessary to protect public health, the environment, or
both, and the department requires implementation of one or more
of the regulatory responses as a condition of exempting the plastic
microbead, its alternative or the personal care product from
Section 42362.

(2) The department finds that a regulatory response for the
plastic microbead, its alternative, or the personal care product is
not necessary to protect public health, the environment, or both.

(c) For purposes of an alternative analysis under this section,
all of the following apply:

(1) Evaluation of the alternative analysis and selection of any
regulatory responses shall be in consultation with the State Water
Resources Control Board and the Department of Fish and Wildlife.

(2) An alternative analysis shall consider natural exfoliant
alternatives.

(3) The department shall only accept complete alternative
analyses for evaluation. An abridged alternative analysis shall
not be accepted for purposes of evaluation under this section.

(4) For alternative analyses submitted before January 1, 2017,
the department shall complete the evaluation and notify the
manufacturer of its decision before January 1, 2018, including
whether the product is exempt or if a regulatory response is
necessary. The department shall establish a schedule to implement
this paragraph. It is the intent of the Legislature, in enacting this
paragraph, to provide product manufacturers with a minimum of
two years following the department’s decision to develop
acceptable alternatives to plastic microbeads.

(d) (1) A manufacturer that submits an alternative analysis
pursuant to this section shall reimburse, within 60 days of receiving
an invoice, the department for the reasonable costs incurred by
the department in implementing this section. If there is a dispute
over costs, the manufacturer shall pay any undisputed costs and
shall meet and confer with the department to resolve the disputed
items.

(2) A manufacturer may resubmit an alternative analysis, which
shall be considered a new review.

(3) The department shall strive to limit the costs of each review
conducted pursuant to this section to no more than two hundred
fifty thousand dollars ($250,000). If the department estimates that
costs of a review may exceed two hundred fifty thousand dollars
($250,000), the department shall seek approval of the manufacturer
submitting the alternative analysis before incurring costs in excess
of two hundred fifty thousand dollars ($250,000). A manufacturer
submitting an alternative analysis shall have the right to withdraw
the analysis before incurring costs in excess of two hundred fifty
thousand dollars ($250,000).

end insert

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.

(d) 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.

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.