BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2015-2016 Regular Session
AB 888 (Bloom)
Version: April 22, 2015
Hearing Date: June 30, 2015
Fiscal: Yes
Urgency: No
TH
SUBJECT
Waste Management: Plastic Microbeads
DESCRIPTION
This bill would prohibit, on and after January 1, 2020, an
individual, business, or other entity, 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, unless the product contains less
than 1 part per million by weight of plastic microbeads.
This bill would make a violator liable for a civil penalty not
to exceed $2,500 per day for each violation, and would specify
that only the Attorney General or specified local prosecutors
may bring actions to enforce its provisions.
BACKGROUND
Microbeads are non-biodegradable pieces of plastic less than one
millimeter in diameter and are frequently found in consumer
personal care products. These microbeads are designed to be
flushed down drains, ultimately ending up in the marine
environment and in marine organisms. Microbeads are an emerging
concern among scientists and environmentalists.
A recent article from the Canadian Broadcasting Corporation
describes the problem as follows:
You've probably seen commercials featuring the use of
microbeads and you may have used them yourself. They are the
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little bits of plastic found in some facial scrubs,
toothpastes, hand sanitizers and other personal care products
that claim to help exfoliate by scrubbing away dirt more
effectively. But to scientists and environmentalists, these
plastic pebbles are hurting fish, wildlife and may even be
damaging human health.
Microbeads are not harmful when used directly, but issues
arise once they are washed down the drain. They are so small
that they can make it through most water treatment plants that
don't have filter systems designed to catch minuscule
particles. The plastic fragments then make their way into
lakes, rivers and streams, where they can be ingested by
water-dwelling organisms such as fish . . .
"The concern is that these microbeads then make it up the food
chain," said Philippe Van Cappellen, an ecohydrology professor
at the University of Waterloo, who spoke to CBC's The Morning
Edition in March. "Since they're so small, they also have a
large surface relative to their mass and certain contaminants
that are present in the environment can actually
preferentially accumulate on those microbeads."
Synthetic chemical compounds such as polychlorinated biphenyls
and polycyclic aromatic hydrocarbons can accumulate on the
plastic bits, according to Van Cappellen. "Those are
compounds that are known - or at least have been suggested -
to be causing cancer or birth defects and those are
contaminants that preferentially will accumulate on the
surfaces on these little plastic particles."
Research shows that microplastics, including microbeads, carry
these contaminants along the food chain, potentially allowing
humans to consume them in food and water, Van Cappellen said.
If a fish eats the plastic and someone eats the fish, the risk
of being affected by these cancer-causing contaminants is
real. Scientists don't have direct evidence that microbeads
pose a direct health problem for humans, but the concern is
there, Van Cappellen says. The potential danger is why
environmentalists in Illinois successfully pushed for a ban on
plastic microbeads in personal care products in 2014. It's
also why U.S. House Rep. Frank Pallone introduced a bill to
ban the products [in the United States] by 2018. (Jonathan
Rumley, Plastic Microbeads: Small Bits With a Big Impact (Jun.
11, 2015) Canadian Broadcasting Corporation <
http://www.cbc.ca/news/technology/plastic-microbeads-small-bits
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-with-a-big-impact-1.3109211 > [as of June 18, 2015].)
This bill seeks to address the growing concern over microbeads
entering into California's waterways and marine ecosystems by
enacting a ban on selling products containing plastic microbeads
on and after January 1, 2020.
This bill was heard by the Senate Environmental Quality
Committee on June 17, 2015, and passed out on a vote of 5-1.
CHANGES TO EXISTING LAW
Existing federal law , the Clean Water Act, generally prohibits
the release of any pollutant into waters of the United States
from a point source, unless that release is authorized by a
permit. (33 U.S.C. Sec. 1251 et seq.)
Existing federal law , 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. Sec. 1901 et seq.)
Existing federal law requires the National Oceanic and
Atmospheric Administration, United States Environmental
Protection Agency, Coast Guard, Navy, and other agencies to
identify, determine sources of, assess, prevent, reduce, and
remove marine debris. (33 U.S.C. Sec. 1951 et seq.)
Existing state law declares that any person who knowingly causes
any hazardous substance to be deposited into the waters of this
state is punishable by imprisonment up to three years and a fine
of not more than ten thousand dollars ($10,000). Existing law
defines "hazardous substance" to mean, among other things, any
material that, because of its quantity, concentration, or
physical or chemical characteristics, poses a significant
present or potential hazard to human health and safety or to the
environment if released into the environment. (Pen. Code Sec.
374.8.)
Existing law , the Porter Cologne Water Quality Control Act,
regulates the discharge of pollutants in storm water and urban
runoff. (Wat. Code Sec. 13000 et seq.)
Existing law controls the discharge of preproduction plastic
pellets into the environment and state waterways. (Wat. Code
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Sec. 13367.)
Existing law prohibits the sale of expanded polystyrene
loosefill packaging material by a wholesaler or manufacturer.
(Pub. Resources Code Sec. 42390.)
This bill would prohibit, on or after January 1, 2020, a person
from selling or offering for promotional purposes any personal
care products containing plastic microbeads that are used to
exfoliate or cleanse in a rinse-off product, as specified,
except for personal care products containing plastic microbeads
in a concentration of less than one part per million (ppm) by
weight, or a product containing natural exfoliants that does not
contain plastic microbeads.
This bill would provide that a person in violation of the above
prohibition may be enjoined in any court of competent
jurisdiction and is liable for a civil penalty, which may be
assessed and recovered in a civil action, not to exceed $2,500
per day for each violation, in addition to any other penalty
established by law.
This bill would require a court, in assessing the amount of a
civil penalty, to consider all of the following:
the nature and extent of the violation;
the number of, and severity of, the violations;
the economic effect of the penalty on the violator;
whether the violator took good faith measures to comply with
the law and the time these measures were taken;
the deterrent effect that the imposition of the penalty would
have on both the violator and the regulated community as a
whole; and
any other factor that justice may require.
This bill would authorize these actions to 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.
This bill would provide that civil penalties collected in a
civil action shall be paid to the office of the city attorney,
city prosecutor, district attorney, or Attorney General,
whichever office brought the action.
This bill would provide the following definitions:
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"natural exfoliant" means a substance occurring in and
generated by the natural environment and includes, but is not
limited to, walnut shells, apricot hulls, sand, clay, or
beeswax;
"person" means an individual, business, or other entity;
"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;
"personal care product" does not include a prescription drug;
and
"plastic microbead" means an intentionally added solid plastic
particle measuring five millimeters or less in size in every
dimension.
This bill would make various related legislative findings and
declarations.
COMMENT
1.Stated need for the bill
The author writes:
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 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 [percent] by a certain date, etc. [AB 888]
would provide a hard phase out date to ensure that plastic
microbeads from personal care products are no longer entering
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our waters.
2.Civil Penalties
This bill would ban the sale of personal care products
containing plastic microbeads measuring five millimeters or less
in diameter at concentrations greater than 1 part per million by
weight. Proponents of this bill assert that such a ban is
necessary to eliminate harmful microbeads from the marine
environment. For example, ACURE, a company that sells organic
consumer care products, states:
As a company that produces and sells personal care products,
we are deeply concerned that plastic microbeads used as
exfoliants have become pervasive in the environment, harm[ing]
marine wildlife, and pollut[ing] seafood consumed by humans.
Plastic debris absorbs and accumulates on its surface
pollutants such as polychlorinated biphenyls, flame
retardants, and DDT. As these contaminated plastics are
ingested by marine life, persistent organic and
bioaccumulative pollutants transfer to fish tissue. While
this puts all people who eat fish at risk, it is of particular
concern for low income communities of color who practice high
levels of subsistence fishing out of economic need or cultural
tradition.
. . .
Fortunately, the environmental and health impacts of plastic
microbeads are easily avoidable as natural alternatives such
as apricot pits, cocoa nuts, and beeswax are readily
available. However, not all companies have made this
commitment and the timelines for those that have are often
unclear. Given that a single personal care product may
contain 350,000 polyethylene or polypropylene microbeads, it
is essential that all such products switch to safer
alternatives. Furthermore, we must level the playing field so
that companies that do the right thing are not at a
disadvantage.
To help achieve a total ban on the sale of personal care
products containing plastic microbeads, this bill would
authorize specified public prosecutors to bring a civil action
to enjoin or assess civil penalties not to exceed $2,500 per day
for each violation. This bill would require a court to consider
various factors when assessing a civil penalty, including:
the nature and extent of the violation;
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the number of, and severity of, the violations;
the economic effect of the penalty on the violator;
whether the violator took good faith measures to comply with
the law and the time these measures were taken;
the deterrent effect that the imposition of a penalty would
have on both the violator and the regulated community; and
any other factor that justice may require.
With these provisions, the court's ability to assess civil
penalties against a business or other entity selling personal
care products will take into account the subjective facts for
each violation and the business's attempts to comply with the
bill. Combined with the delayed phase out of microbeads on
January 1, 2020, this bill seeks to strike a balance that would
protect California's ecosystem, waterways, and public health,
while allowing businesses time to reformulate their products to
meet the new standards created in the bill.
1.Enforcement and Remedies
This bill would only authorize specified public prosecutors to
enjoin or seek civil penalties against individuals and
businesses who sell personal care products containing plastic
microbeads, as specified, after January 1, 2020. However, it
should be noted that this bill also includes language intended
to preserve the ability of private litigants to bring actions
against entities that sell personal care products containing
plastic microbeads when such conduct would give rise to causes
of action under the common law, other statutes, or
administrative regulations. Specifically, the bill states that
it:
does not alter or diminish any legal obligation otherwise
required in common law or by statute or regulation, and [that
it] does not create or enlarge any defense in any action to
enforce the legal obligation. Penalties and sanctions imposed
pursuant to this [bill] shall be in addition to any penalties
or sanctions otherwise prescribed by law.
Consequently, an individual who is harmed by a product
containing plastic microbeads would remain free to bring suit
against the seller and manufacturer of that product, whether or
not the harm occurred before or after the ban proposed in this
bill takes effect. For example, some dental professionals have
expressed concern that plastic microbeads in toothpaste may trap
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bacteria below the gumline and lead to gingivitis. (See Abby
Phillip, Why Dentists are Speaking Out About the Plastic Beads
in Your Toothpaste, Washington Post (Sep. 18, 2014)
[as of Jun. 23, 2015].)
If this bill were to pass, its exclusive remedies provision
would not preclude aggrieved individuals from relying on
California's robust consumer protection laws to seek redress.
2.Opposition Concerns
A coalition of business groups, in opposition, has expressed
concern about the potential negative impacts this bill could
have on the development of "green chemistry" and alternatives to
plastic microbeads. This coalition states:
The nation's personal care products industry is supportive and
has already agreed to the phase out of traditional plastic
microbeads. As a matter of fact, the industry partnered with
environmentalists, legislators and business groups in Illinois
on the nation's first ban on microbeads in rinse-off personal
care products. That said, as currently drafted, AB 888 would
ban naturally derived or nature identical alternatives that
are not considered a "natural exfoliant."
AB 888 needs to include language that will allow for and
incentivize the development of green chemistry and green
materials. Some of the research for new green materials is
being performed in California and it is reasonable to assume
their production would occur in the state. Hence, California
jobs could be at stake.
Staff notes that the concerns raised by this coalition of groups
in opposition were considered by the Senate Environmental
Quality Committee when it heard this bill on June 17, 2015, and
that these concerns more appropriately fall within that
Committee's jurisdiction.
Support : 3 Green Moms; 7th Generation Advisors; ACURE; Aroma
Naturals; As You Sow; 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,
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Research and Education; ChicoBag; City and County of San
Francisco; Clean Oceans Competition; Cleanups for Change;
Coachella Valley Water District; Community Environmental
Council; Defenders of Wildlife; Environment California;
Environmental Action Committee of West Marin; Environmental
Working Group; Heal the Bay; Health Care Without Harm; Hello
Products; Hidden Resources; Green Sangha; Green Science Policy
Institute; Klean Kanteen; Los Angeles Waterkeeper; Lush Handmade
Cosmetics; Manduka; Mango Materials; Monterey Bay Aquarium; Napa
Recycling & Waste Services; Natural Resources Defense Council;
Ocean Conservancy; Oceanic Research Vessel Alguita; Physicians
for Social Responsibility, San Francisco Bay Chapter; Plastic
Pollution Coalition; Plastic Soup Foundation; Preserve; San
Francisco Baykeeper; Save the Bay; Save our Shores; Sea Turtles
Forever; Sierra Club California; Surfrider Foundation; Turtle
Island Restoration Network; Upstream; WeTap; Wildcoast; World
Centric; World Society for the Protection of Animals; Zero Waste
San Diego; three individuals
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; National Federation of Independent Business; Procter &
Gamble; Reckitt Benckiser
HISTORY
Source : 5 Gyres; California Association of Sanitation Agencies;
Californians Against Waste; Clean Water Action; Story of Stuff
Project
Related Pending Legislation : SB 625 (Galgiani, 2015) would
prohibit the sale of personal care products containing synthetic
plastic microbeads on or after January 1, 2020, as specified.
This bill would define synthetic plastic microbead to mean a
non-biodegradable solid plastic particle measuring five
millimeters in size or less in every dimension that retains its
shape during use and after disposal and that is used to
exfoliate or cleanse in a rinse-off personal care product. This
bill would make a violator liable for a civil penalty not to
exceed $2,500 per day for each violation, and would authorize
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the Attorney General to enforce the bill's provisions. This
bill would also prohibit a city, county, or other local public
agency from adopting, amending, enforcing, or otherwise
implementing an ordinance, resolution, regulation, or rule
relating to the sale or offering for promotional purposes of
personal care products that contain synthetic plastic
microbeads. This bill is pending in the Senate Environmental
Quality Committee.
Prior Legislation : AB 1699 (Bloom, 2014) would have provided
that, on or after January 1, 2019, a person shall not sell or
offer for promotional purposes in this state any personal care
products containing plastic microbeads, as defined. This bill
would have provided a content exception to the ban and would
have authorized specified public prosecutors to levy civil
penalties of $2,500 per day against persons who fail to adhere
to the ban. This bill died on the Senate Floor.
Prior Vote :
Senate Environmental Quality Committee (Ayes 5, Noes 1)
Assembly Floor (Ayes 59, Noes 12)
Assembly Appropriations Committee (Ayes 12, Noes 4)
Assembly Environmental Safety and Toxic Materials Committee
(Ayes 6, Noes 0)
Assembly Natural Resources Committee (Ayes 7, Noes 0)
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