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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