BILL ANALYSIS Ó SENATE COMMITTEE ON ENVIRONMENTAL QUALITY Senator Wieckowski, Chair 2015 - 2016 Regular Bill No: AB 888 ----------------------------------------------------------------- |Author: |Bloom | ----------------------------------------------------------------- |-----------+-----------------------+-------------+----------------| |Version: |4/22/2015 |Hearing |6/17/2015 | | | |Date: | | |-----------+-----------------------+-------------+----------------| |Urgency: |No |Fiscal: |Yes | ------------------------------------------------------------------ ----------------------------------------------------------------- |Consultant:|Rachel Machi Wagoner | | | | ----------------------------------------------------------------- SUBJECT: Waste management: plastic microbeads ANALYSIS: 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 stormwater 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 loose fill packaging material by a wholesaler or manufacturer (PRC §42390). This bill: AB 888 (Bloom) Page 2 of ? Prohibits the sale of personal care products that contain plastic microbeads on and after January 1, 2020. Specifically, this bill: 1)Defines terms used in this bill, including: a) "Personal care product" as an article to be applied to the human body for cleansing, beautifying, promoting attractiveness, or altering the appearance, and an article intended for use as a component of such an article, but excludes prescription drugs. b) "Plastic microbead" as an intentionally added plastic particle that that is five millimeters or less in all dimensions. c) "Person" as an individual, business, or other entity. 2)Beginning January 1, 2020, prohibits a person from selling or offering for promotional purposes a personal care product containing plastic microbeads that is used to exfoliate or cleanse in a rinse-off product. Specifies that this provision does not apply to products that contain plastic microbeads in an amount less than one part per million or products containing natural exfoliants. 3)Establishes enforcement provisions, including civil penalties not to exceed $2,500 per day for each violation, as specified. Authorizes the Attorney General, a district attorney, a city attorney, or a city prosecutor to enforce the requirements of this bill. 4)Specifies that penalties collected be retained by the office that brought the action. AB 888 (Bloom) Page 3 of ? 5)States legislative findings and declarations relating to the impacts of microplastics. Background 1) 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, 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 AB 888 (Bloom) Page 4 of ? 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 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. 2) 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. 3) 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. 4) Efforts to Address Microplastics Usage. In light of the environmental concerns associated with microplastics, and the AB 888 (Bloom) Page 5 of ? discovery of high concentrations of microbeads in various 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 Comments 1) Purpose of Bill. According to the author, "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 AB 888 (Bloom) Page 6 of ? washed down the drain and 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 LA 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 are no longer entering our waters." 2) Definition of "plastic microbead". The definition of "plastic microbead" as specified in SB 888 reflects amendments suggested pursuant to the Senate Environmental Quality Committee hearing of AB 1699 (Bloom, 2014). Related/Prior Legislation AB 1699 (Bloom, 2014) would have prohibited the sale of microbead containing products in California as specified. Specifically it: A. Defined various terms, including "microplastic," "personal care products," "person in the course of doing business," and "plastic." B. Prohibited any person in the course of doing business from selling or promoting personal care products with microplastics after January 1, 2019. The bill offered an exemption for products with less than 1 part per million microplastic by weight. C. Imposed 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. AB 1699 passed the Senate Environmental Quality on a vote of 5-2 but failed passage on the Senate Floor on a vote of 20-14. SOURCE: AB 888 (Bloom) Page 7 of ? Californians Against Waste California Association of Sanitation Agencies Clean Water Action The Story of Stuff Project 5 Gyres Institute SUPPORT: ACURE As You Sow Aroma Naturals Azul Breast Cancer Fund California Coastkeeper Alliance California League of Conservation Voters Campaign for Safe Cosmetics Center for Biological Diversity Center for Environmental Health Center for Oceanic Awareness, Research and Education City of Los Angeles, Mayor Eric Garcetti City of Los Angeles, Councilmember Paul Koretz City and County of San Francisco ChicoBag Clean Oceans Competition Cleanups For Change Coachella Valley Water District Community Environmental Council County Sanitation Districts of Los Angeles Defenders of Wildlife Environment California Environmental Action Committee of West Marin Environmental Working Group Green Sangha Green Science Policy Institute Heal the Bay Health Care Without Harm Hidden Resources Klean Kanteen Los Angeles Waterkeeper Lunch Skins, by 3 Green Moms LUSH Cosmetics Manduka Mango Materials Monterey Bay Aquarium AB 888 (Bloom) Page 8 of ? Napa Recycling and Waste Services Natural Resources Defense Council Ocean Conservancy Physicians for Social Responsibility, SF Bay Chapter Plastic Pollution Coalition Plastic Soup Foundation Preserve San Francisco Bay Keeper San Francisco Department of the Environment Save Our Shores Save The Bay Sea Turtles Forever Seventh Generation Advisors Sierra Club California Surfrider Foundation Team Marine, Santa Monica High School Turtle Island Restoration Network UPSTREAM WeTap Wildcoast World Centric World Society for the Protection of Animals 1 Individual OPPOSITION: Advanced Medical Technology Association Biocom California Chamber of Commerce California Life Sciences Association California Healthcare Products Association California Manufacturers & Technology Association California Retailers Association Chemical Industry Council of California Grocery Manufacturers Association Henkel Consumer Goods, Inc. International Fragrance Association North America Johnson & Johnson Micro Powders, Inc. National Federation of Independent Business Proctor & Gamble Reckitt Benckiser ARGUMENTS IN AB 888 (Bloom) Page 9 of ? SUPPORT: The California Association of Sanitation Agencies (CASA) writes that "Pollution prevention and source control are significant concerns for our member agencies. Plastic pollution is a prolific problem in California, and plastic microbeads in particular are very difficult to filter out during the typical wastewater treatment processes. Thus, microbeads that are flushed down drains as part of their intended use can be discharged into California waterways and released into the environment? The best way to ensure that these pollutants are not discharged to California waterways is to prohibit their introduction to the wastewater stream on the front end." A coalition of about 40 public health and environmental organizations writes, "Studies indicate that plastic microbeads attract and absorb toxins from the surrounding waters and can leach toxic additives (that give microbeads their defined shape and performance attributes) into the aquatic environment. They are also mistaken for food by wildlife, including fish that humans eat. Once ingested, the toxins accumulate in the tissues of organisms and move their way up the food chain, creating a threat both to natural ecosystems and human health? AB 888 is regarded among stakeholders as the model policy that will not only result in a cleaner environment, but also reduce hazards to both humans as well as marine and aquatic wildlife." ARGUMENTS IN OPPOSITION: A coalition of eight industry trade associations writes, "Last year, similar legislation was moved out of the Assembly as a "work in progress" as all parties were very close to agreement. Unfortunately, changes made in the Senate ultimately made the bill unworkable for the industry and we had no choice but to oppose on the Senate Floor. AB 888 is equally problematic, as its scope goes beyond a ban of plastic microbeads in personal care products and would create a legal quagmire, leaving the interpretations of the definitions and what is covered up to the courts? "As you may know, the State of Illinois reached a reasonable framework for legislation to address this issue in June 2014. The Illinois legislation was ultimately included in the Council of State Governments (CSG) "Suggested State Legislation" to help shape future policy on this issue. Since that time, similar legislation has been enacted in Colorado, Maine and New Jersey. AB 888 (Bloom) Page 10 of ? Specifically, the CSG legislation bans the manufacture of personal care products and over-the-counter medications that contain non-biodegradable solid plastic microbeads that are used to exfoliate or cleanse in a rinse-off product." DOUBLE REFERRAL: Should this bill pass the Senate Environmental Quality Committee, it is to be referred to the Committee on the Judiciary for consideration of the provisions relating to the civil penalty. -- END --