Amended in Senate August 18, 2015

California Legislature—2015–16 Regular Session

Assembly Bill No. 1435

Introduced by Assembly Member Alejo

(Principal coauthors: Assembly Members Bigelow and Cooper)

(Principal coauthor: Senator Cannella)

(Coauthors: Assembly Members Calderon, Dodd, Eggman, Gordon, Gray, and Olsen)

(Coauthor: Senator Galgiani)

February 27, 2015

An act to amend begin delete Section 25214.12 of end delete begin insert Sections 25214.14 and 25214.15 of, and to add Section 25214.25 to, end insert the Health and Safety Code, relating to hazardous waste.

LEGISLATIVE COUNSEL’S DIGEST

AB 1435, as amended, Alejo. Hazardous waste: toxics: packaging.

The Toxics in Packaging Prevention Act generally prohibits a manufacturer or supplier from offering for sale or for promotional purposes in this state a package or packaging component that includes intentionally introduced lead, mercury, cadmium, or hexavalent chromium in the package or in a packaging component. The act begin delete defines the term “package” as meaning any container that provides a means of marketing, protecting, or handling a product and specifies that a package does not include a reusable bag. end delete begin insert exempted from this prohibition, until January 1, 2010, a package or a packaging component if the manufacturer or supplier complied with specific documentation requirements and the package or packaging component did not contain any intentionally introduced lead, mercury, cadmium, or hexavalent chromium, but exceeded a specific maximum concentration level because of the addition of a recycled material. end insert

This bill would begin delete also exclude a “glass beverage container” and a “glass food or drink container” from the definition of “package.” end delete begin insert provide a similar exemption, until January 1, 2019, for a glass beverage, food, or drink container. The bill would require the Department of Toxic Substances Control to evaluate the packaging of glass beverage, food, and drink containers, as specified, to determine if lead, mercury, cadmium, or hexavalent chromium is present in glass beverage, food, or drink containers sold in California. If the department determines that these metals are present, the bill would require the department to also evaluate whether and under what circumstances those metals can leach from the glass containers into the food or beverage and whether the presence of the metals in the glass containers presents a risk to human health and the environment. The bill would authorize the department to request any information and collect any samples necessary for the evaluations from glass manufacturers or feedstock or raw material suppliers in the state that are subject to the act, and would require the department to provide the results of the evaluations to the Legislature by January 1, 2018. The bill would authorize the department to adopt regulations, pursuant to existing authority, based on these evaluations. The bill would authorize the department to seek reimbursement from the glass manufacturers and feedstock and raw material suppliers to cover the reasonable costs directly related to collecting glass samples, reviewing and processing those samples, analyzing the samples, disseminating certain information, and implementing any regulations that are developed as a result of the evaluations. end insert

begin insert

The bill would delete obsolete provisions and would make conforming changes.

end insert

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.

The people of the State of California do enact as follows:

begin insert

begin insert SECTION 1. end insert   

end insert

begin insert Section 25214.14 of the end insert begin insert Health and Safety Code end insert
begin insert is amended to read: end insert

25214.14.  

A package or a packaging component is exempt
from the requirements of Section 25214.13, and shall be deemed
in compliance with this article, if the manufacturer or supplier
complies with the applicable documentation requirements specified
in Section 25214.15 and the package or packaging component
meets any of the following conditions:

(a) The package or packaging component is marked with a code
indicating a date of manufacture begin delete prior to end delete begin insert before end insert January 1, 2006.

(b) A regulated metal has been added to the package or
packaging component in the manufacturing, forming, printing, or
distribution process, to comply with the health or safety
requirements of a federal or state law.

(c) (1) The package begin delete or packaging component end delete begin insert is a glass beverage
container, as defined in Section 14513 of the Public Resources
Code, or a glass food or drink container, as defined in Section
14513.3 of the Public Resources Code, and the package end insert contains
no intentionally introduced regulated metals, but exceeds the
applicable maximum concentration level set forth in subdivision
(c) of Section 25214.13 only because of the addition of a recycled
material.

(2) This subdivision, and all exemptions provided pursuant to
it, expire on January 1, begin delete 2010. end delete begin insert 2019. end insert

(d) (1) A regulated metal has been added to the package or
packaging component in the manufacturing, forming, printing, or
distribution process for a use for which there is no feasible
alternative.

(2) For purposes of this subdivision, “a use for which there is
no feasible alternative” means a use, other than for purposes of
marketing, for which a regulated metal is essential to the protection,
safe handling, or function, of the package’s contents, and technical
constraints preclude the substitution of other materials.

begin delete

(e) (1) The package or packaging component is reused and
contains no intentionally introduced regulated metals, but exceeds
the applicable maximum concentration level set forth in subdivision
(c) of Section 25214.13, and all of the following apply:

(A) The product being conveyed by the package, the package,
or packaging component is otherwise regulated under a federal or
state health or safety requirement.

(B) The transportation of the packaged product is regulated
under federal or state transportation requirements.

(C) The disposal of the package is otherwise performed
according to the requirements of this chapter or Chapter 8
(commencing with Section 114960) of Part 9 of Division 104.

(2) This subdivision, and all exemptions provided pursuant to
it, expire on January 1, 2010.

(f) (1) The package or packaging component has a controlled
distribution and reuse and contains no intentionally introduced
regulated metals, but exceeds the applicable maximum
concentration level set forth in subdivision (c) of Section 25214.13.

(2) This subdivision, and all exemptions provided pursuant to
it, expire on January 1, 2010.

(g) (1) The packaging or packaging component is a glass or
ceramic package or packaging component that has a vitrified label,
and that, when tested in accordance with the Waste Extraction
Test, described in Appendix II of Chapter 11 (commencing with
Section 66261.1) of Division 4.5 of Title 22 of the California Code
of Regulations does not exceed 1.0 ppm for cadmium, 5.0 ppm
for hexavalent chromium, or 5.0 ppm for lead. A glass or ceramic
package or packaging component containing mercury is not
exempted pursuant to this subdivision.

(2) A glass bottle package with paint or applied ceramic
decoration on the bottle does not qualify for an exemption pursuant
to this section, if the paint or applied ceramic decoration contains
lead or lead compounds in excess of 0.06 percent by weight.

(3) This subdivision, and all exemptions provided pursuant to
it, expire on January 1, 2010.

end delete

begin insert

begin insert SEC. 2. end insert   

end insert

begin insert Section 25214.15 of the end insert begin insert Health and Safety Code end insert begin insert is
amended to read: end insert

25214.15.  

(a) A package or packaging component qualifies
for an exemption pursuant to Section 25214.14 only if the
manufacturer or supplier prepares, retains, and biennially updates
documentation containing all of the following information for that
package or packaging component:

(1) A statement that the documentation applies to an exemption
from the requirements of Section 25214.13.

(2) The name, position, and contact information for the person
who is the manufacturer’s or supplier’s contact person on all
matters concerning the exemption.

(3) An identification of the exemption and a reference to the
applicable subdivision in Section 25214.14 setting forth the
conditions for the exemption.

(4) A description of the type of package or packaging component
to which the exemption applies.

(5) Identification of the type and concentration of the regulated
metal or metals present in the package or packaging component,
and a description of the testing methods used to determine the
concentration.

(6) An explanation of the reason for the exemption.

(7) Supporting documentation that fully and clearly demonstrates
that the package or packaging component is eligible for the
exemption.

(8) The documentation listed in subdivisions (b), (c), (d), begin insert or end insert (e),
begin delete (f), (g), or (h), end delete whichever is applicable for the exemption.

(b) In addition to the requirements specified in subdivision (a),
if an exemption is being claimed under subdivision (a) of Section
25214.14, the manufacturer or supplier shall prepare, retain, and
biennially update documentation containing all of the following
information for the package or packaging component to which the
exemption applies:

(1) Date of manufacture.

(2) Estimated time needed to exhaust current inventory.

(3) Alternative package or packaging component that meets the
requirements of Section 25214.13.

(c) In addition to the requirements specified in subdivision (a),
if an exemption is being claimed under subdivision (b) of Section
25214.14, the manufacturer or supplier shall prepare, retain, and
biennially update documentation that contains all of the following
information for each regulated metal intentionally introduced in
the package or packaging component to which the exemption
applies:

(1) Identification of the specific federal or state law requiring
the addition of the regulated metal to the package or packaging
component.

(2) Detailed information that fully and clearly demonstrates that
the addition of the regulated metal to the package or packaging
component is necessary to comply with the law identified pursuant
to paragraph (1).

(3) A description of past, current, and planned future efforts to
seek or develop alternatives to eliminate the use of the regulated
metal in the package or packaging component.

(4) A description of all alternative measures that have been
considered, and, for each alternative, an explanation as to why the
alternative is not satisfactory for purposes of achieving compliance
with the law identified pursuant to paragraph (1).

(d) In addition to the requirements specified in subdivision (a),
if an exemption is being claimed under subdivision (c) of Section
25214.14, the manufacturer or supplier shall prepare, retain, and
biennially update documentation containing all of the following
information for the package or packaging component to which the
exemption applies:

(1) The type and percentage of recycled material or materials
added to the package or packaging component.

(2) The type and concentration of each regulated metal contained
in each recycled material added to the package or packaging
component.

(3) Efforts to minimize or eliminate the regulated metals in the
package or packaging component.

(4) A description of past, current, and planned future efforts to
seek or develop alternatives to minimize or eliminate the use of
the regulated metal in the package or packaging component.

(e) In addition to the requirements specified in subdivision (a),
if an exemption is being claimed under subdivision (d) of Section
25214.14, the manufacturer or supplier shall prepare, retain, and
biennially update documentation containing all of the following
information for each regulated metal intentionally introduced into
the package or packaging component to which the exemption
applies:

(1) Detailed information and evidence that fully and clearly
demonstrates how the regulated metal contributes to, and is
essential to, the protection, safe handling, or functioning of the
package’s contents.

(2) A description of past, current, and planned future efforts to
seek or develop alternatives to minimize or eliminate the use of
the regulated metal in the package or packaging component.

(3) A description of all alternative measures that have been
considered, and, for each alternative, an explanation as to the
technical constraints that preclude substitution of the alternative
for the use of the regulated metal.

(4) Documentation that the regulated metal is not being used
for the purposes of marketing.

begin delete

(f) In addition to the requirements specified in subdivision (a),
if an exemption is being claimed under subdivision (e) of Section
25214.14, the manufacturer or supplier shall prepare, retain, and
biennially update documentation containing all of the following
information for the package or packaging component to which the
exemption applies:

(1) The percentage of reused materials.

(2) Identification of the federal or state health or safety law
regulating the product being conveyed by the package, the package,
or the packaging component.

(3) Identification of the federal or state transportation law
regulating the transportation of the packaged product.

(4) Information demonstrating that the package is disposed of
in accordance with the requirements of this chapter or Chapter 8
(commencing with Section 114960) of Part 9 of Division 104.

(5) A description of past, current, and planned future efforts to
seek or develop alternatives to minimize or eliminate the use of
the regulated metal in the package or packaging component.

(g) In addition to the requirements specified in subdivision (a),
if an exemption is being claimed under subdivision (f) of Section
25214.14, the manufacturer or supplier shall prepare, retain, and
biennially update documentation containing all of the following
information for the package or packaging component to which the
exemption applies:

(1) The percentage of reused materials.

(2) Information and evidence that demonstrates that the
environmental benefit of the controlled distribution and reuse of
the package or packaging component is significantly greater, as
compared to the same package or packaging component
manufactured in compliance with the applicable maximum
concentration level set forth in subdivision (c) of Section 25214.13.

(3) A means of identifying, in a permanent and visible manner,
any reusable package or packaging component containing a
regulated metal for which the exemption is sought.

(4) A method of regulatory and financial accountability, so that
a specified percentage of the reusable packages or packaging
components that are manufactured and distributed to other persons
are not discarded by those persons after use, but are returned to
the manufacturer or identified designees.

(5) A system of inventory and record maintenance to account
for reusable packages or packaging components placed in, and
removed from, service.

(6) A means of transforming returned packages or packaging
components that are no longer reusable into recycled materials for
manufacturing, or a means of collecting and managing returned
packages or packaging components as waste in accordance with
applicable federal and state law.

(7) A description of past, current, and planned future efforts to
seek or develop alternatives to minimize or eliminate the use of
the regulated metal in the package or packaging component.

(h) In addition to the requirements specified in subdivision (a),
if an exemption is being claimed under subdivision (g) of Section
25214.14, the manufacturer or supplier shall prepare, retain, and
biennially update the following documentation for the package or
packaging component to which the exemption applies:

(1) Applicable test data.

(2) A description of past, current, and planned future efforts to
seek or develop alternatives to minimize or eliminate the use of
the regulated metal in the package or packaging component.

(i)

end delete

begin insert (f) end insert  A manufacturer or supplier shall submit the documentation
required pursuant to subdivisions (a) to begin delete (h), end delete begin insert (e), end insert inclusive, to the
department, as follows:

(1) Upon receipt of a written request from the department, the
manufacturer or supplier shall, on or before 30 calendar days after
the date of receipt, do one of the following:

(A) Submit the required documentation to the department.

(B) Submit a letter to the department indicating the date by
which the documentation shall be submitted, which begin delete may end delete begin insert shall not end insert
be begin delete no end delete more than 90 calendar days after the date of receipt of the
department’s request.

(2) If the department finds that the documentation supplied
pursuant to paragraph (1) is incomplete or incorrect, the department
shall notify the manufacturer or supplier that the documentation
is incomplete or incorrect, and the manufacturer or supplier shall
submit complete and correct documentation to the department
within 60 calendar days after the date of receipt of the notification.

begin delete

(j)

end delete

begin insert (g) end insert  If a manufacturer or supplier fails to comply with subdivision
begin delete (i) end delete begin insert (f) end insert by any of the specified dates in that subdivision, the
manufacturer or supplier shall, with respect to the package or
packaging component to which the documentation request applies,
comply with one of the following:

(1) Immediately cease to offer the package or packaging
component for sale or for promotional purposes in this state.

(2) Replace the package or packaging component with a package
or packaging component that conforms with the regulated metals
limitations specified in Section 25214.13, in accordance with a
schedule approved in writing by the department.

(3) Submit complete and correct documentation for the package
or packaging component, in accordance with a schedule approved
in writing by the department.

begin insert

begin insert SEC. 3. end insert   

end insert

begin insert Section 25214.25 is added to the end insert begin insert Health and Safety
Code end insert begin insert , to read: end insert

begin insert

begin insert 25214.25. end insert   

(a) The department shall evaluate the packaging
of glass beverage, food, and drink containers to determine if
regulated metals are present in glass food, beverage, and drink
containers sold in California. If the department determines
regulated metals are present in those containers, the department
shall also evaluate whether and under what circumstances the
regulated metals can leach from the glass containers into the food
or beverage and whether the presence of the regulated metals in
the glass containers presents a risk to human health or the
environment. The evaluation shall include, but not be limited to,
the following:

(1) An evaluation of the feedstock or raw materials used in the
manufacture of glass beverage, food, and drink containers to
determine the presence and prevalence of regulated metals in the
feedstock or raw materials used to manufacture glass beverage,
food, and drink containers.

(2) An evaluation of the levels of regulated metals, if found, in
glass beverage, food, and drink containers, including an evaluation
of whether or not those regulated metals leach from the glass
containers into the food or beverage.

(3) If department determines regulated metals do leach from
glass beverage, food, or drink containers, an evaluation of the
levels and concentrations of the leached metals and whether any
of those levels pose a risk to human health or the environment.

(4) An evaluation of the practices of the glass manufacturing
industry in the state, including the efforts of glass manufacturers
to comply with this article and steps the glass manufacturers have
taken to reduce the presence of regulated metals in their glass
beverage, food, and drink containers since this article’s enactment.

(b) To carry out the evaluations required by this section, the
department is authorized to request any information and collect
any samples necessary from glass manufacturers and feedstock
or raw material suppliers in the state that are subject to this article.
Any glass manufacturer or feedstock or raw material supplier that
receives a request for information or samples from the department
shall provide the information or samples to the department.

(c) The department may consult with state and federal agencies
to carry out the evaluations required pursuant to this section.

(d) (1) The department may adopt regulations, pursuant to
Section 25150, based on the evaluations required by this section.
The department is authorized to seek reimbursement from glass
manufacturers and feedstock or raw material suppliers subject to
this article for the reasonable costs directly relating to collecting
glass samples, reviewing and processing those samples, analyzing
the samples, disseminating any information necessary to relevant
parties to complete the evaluations required by this section, and
implementing any regulations that are developed as a result of the
evaluations. The amount collected by the department pursuant to
this subdivision shall be determined and adjusted as necessary
based on the duties imposed on the department pursuant to this
section and shall not exceed the costs of implementing this section.

(2) A glass manufacturer or feedstock or raw material supplier
that receives an invoice from the department seeking
reimbursement for costs directly related to carrying out the
provisions of this section shall pay the amount invoiced to the
department no later than 60 days from receiving the invoice.

(e) (1) The department shall provide the results of the
evaluation required by this section to the Legislature no later than
January 1, 2018.

(2) A report to be submitted pursuant to this subdivision shall
be submitted in compliance with Section 9795 of the Government
Code.

end insert

begin delete

SECTION 1.  

Section 25214.12 of the Health and Safety Code
is amended to read:

25214.12.  

For purposes of this article, the following terms have
the following meanings:

(a) “Authorized official” means a representative of a
manufacturer or supplier who is authorized pursuant to the laws
of this state to bind the manufacturer or supplier regarding the
accuracy of the content of a certificate of compliance.

(b) “ASTM” means ASTM International.

(c) “Distribution” means the practice of taking title to a package
or a packaging component for promotional purposes or resale. A
person involved solely in delivering a package or a packaging
component on behalf of a third party is not engaging in distribution.

(d) (1) “Intentional introduction” means the act of deliberately
utilizing a regulated metal in the formation of a package or
packaging component where its continued presence is desired in
the final package or packaging component to provide a specific
characteristic, appearance, or quality.

(2) “Intentional introduction” does not include either of the
following:

(A) The use of a regulated metal as a processing agent or
intermediate to impart certain chemical or physical changes during
manufacturing, where the incidental retention of a residue of that
metal in the final package or packaging component is not desired
or deliberate, if the final package or packaging component is in
compliance with subdivision (c) of Section 25214.13.

(B) The use of recycled materials as feedstock for the
manufacture of new packaging materials, where some portion of
the recycled materials may contain amounts of a regulated metal,
if the new package or packaging component is in compliance with
subdivision (c) of Section 25214.13.

(e) “Incidental presence” means the presence of a regulated
metal as an unintended or undesired ingredient of a package or
packaging component.

(f) “Manufacturer” means any person, firm, association,
partnership, or corporation producing a package or packaging
component.

(g) “Manufacturing” means the physical or chemical
modification of a material to produce packaging or a packaging
component.

(h) (1) Except as provided in paragraph (2), “package” means
any container, produced either domestically or in a foreign country,
providing a means of marketing, protecting, or handling a product
from its point of manufacture to its sale or transfer to a consumer,
including a unity package, an intermediate package, or a shipping
container, as defined in the ASTM specification D 996. “Package”
also includes, but is not limited to, unsealed receptacles, including
carrying cases, crates, cups, pails, rigid foil and other trays,
wrappers and wrapping films, bags, and tubs.

(2) “Package” does not include any of the following:

(A) A “glass beverage container,” as defined in Section 14513
of the Public Resources Code.

(B) A “glass food or drink container,” as defined in Section
14513.3 of the Public Resources Code.

(C) A reusable bag, as defined in subdivision (d) of Section
42250 of the Public Resources Code.

(i) “Packaging component” means any individual assembled
part of a package that is produced either domestically or in a
foreign country, including, but not necessarily limited to, any
interior or exterior blocking, bracing, cushioning, weatherproofing,
exterior strapping, coatings, closures, inks, labels, dyes, pigments,
adhesives, stabilizers, or any other additives. Tin-plated steel that
meets the ASTM specification A 623 shall be considered as a single
package component. Electrogalvanized coated steel and hot dipped
coated galvanized steel that meet the ASTM qualifications A 591,
A 653, A 879, and A 924 shall be treated in the same manner as
tin-plated steel.

(j) “Purchaser” means a person who purchases and takes title
to a package or a packaging component, from a manufacturer or
supplier, for the purpose of packaging a product manufactured,
distributed, or sold by the purchaser.

(k) “Recycled material” means a material that has been separated
from solid waste for the purpose of recycling the material as a
secondary material feedstock. Recycled materials include paper,
plastic, wood, glass, ceramics, metals, and other materials, except
that recycled material does not include a regulated metal that has
been separated from other materials into its elemental or other
chemical state for recycling as a secondary material feedstock.

(l) “Regulated metal” means lead, mercury, cadmium, or
hexavalent chromium.

(m) (1) “Supplier” means a person who does or is one or more
of the following:

(A) Sells, offers for sale, or offers for promotional purposes, a
package or packaging component that is used by any other person
to package a product.

(B) Takes title to a package or packaging component, produced
either domestically or in a foreign country, that is purchased for
resale or promotional purposes.

(C) Acts as an intermediary for the purchase of a package or
packaging component for resale from a manufacturer located in
another country to a purchaser located in this state, and who may
receive a commission or a fee on that sale.

(D) Listed as the importer of record on a United States Customs
Service form for an imported package or packaging component.

(2) “Supplier” does not include a person involved solely in
delivering a package or packaging component on behalf of a third
party.

(n) “Toxics in Packaging Clearinghouse” means the Toxics in
Packaging Clearinghouse (TPCH) of the Council of State
Governments.

end delete