BILL ANALYSIS Ó SENATE COMMITTEE ON BUSINESS, PROFESSIONS AND ECONOMIC DEVELOPMENT Senator Jerry Hill, Chair 2015 - 2016 Regular Bill No: AB 2125 Hearing Date: June 27, 2016 ----------------------------------------------------------------- |Author: |Chiu | |----------+------------------------------------------------------| |Version: |May 31, 2016 | ----------------------------------------------------------------- ---------------------------------------------------------------- |Urgency: |No |Fiscal: |Yes | ---------------------------------------------------------------- ----------------------------------------------------------------- |Consultant|Sarah Mason | |: | | ----------------------------------------------------------------- Subject: Healthy Nail Salon Recognition Program SUMMARY: Requires the California Department of Public Health (DPH) to develop and publish guidelines for local governments to implement local healthy nail salon recognition programs with specified criteria, including the use of less toxic nail polishes and polish removers and improved ventilation. Requires DPH to develop awareness campaigns and post specified information on its Internet Web site. Permits DPH to prioritize its outreach to counties with the greatest number of nail salons. NOTE: This bill was referred to the Senate Committee on Environmental Quality first and was passed out of that Committee on June 15, 2016 by a vote of 7-0. Existing law: 1) Provides for the licensure regulation of the practice of barbering, cosmetology and electrolysis under the Barbering and Cosmetology Act (Act) by the Board of Barbering and Cosmetology (BBC). (Business and Professions Code (BPC) § 7300 et. seq.) 2) Establishes nail care as a specialty branch in the practice of cosmetology and defines nail care as the practice of cutting, trimming, polishing, coloring, tinting, cleansing, manicuring or pedicuring the nails of any person or massaging AB 2125 (Chiu) Page 2 of ? or beautifying from the elbow to the fingertips or the knee to the toes of any person. (BPC § 7316 (c)(2)) 3) Provides for licensure of manicurists by BBC to practice nail care and requires applicants to be over the age of 17, complete 10th grade in public California school or equivalent, not subject to denial for licensure and have either completed a course in nail care from a BBC approved school or practiced nail care in another state for a period of time equivalent to the study and training of a BBC approved course or completed an apprenticeship program in nail care. (BPC § 7326) 4) Defines "establishment" as any premises, building or part of a building where any activity licensed under the Act is practiced and sets forth requirements for licensure as an establishment by BBC. (BPC §§ 7346-7352) 5) Requires BBC to maintain a program of random and targeted inspections of establishments to ensure compliance with applicable laws relating to the public health and safety and the conduct and operation of establishments. (BPC § 7353) 6) Prohibits an establishment or school from having on the premises cosmetic products containing hazardous substances which have been banned by the U.S Food and Drug Administration (FDA) for use in cosmetic products, including liquid methyl methacrylate monomer and methylene chloride. Prohibits a product from being used in any manner disapproved by the FDA. (16 California Code of Regulations § 989) This bill: 1)Makes findings and declarations about the impact of certain chemicals in nail polish and cosmetic products and the success of Healthy Nail Salon Recognition Programs (HNSRPs) established in cities and counties throughout the state. 2)Requires the Department of Public Health (DPH), by January 1, 2018, to publish guidelines for cities, counties, and cities and counties to voluntarily implement local HNSRPs. States that the guidelines may include, but are not limited to, all of the following qualifications: AB 2125 (Chiu) Page 3 of ? a) The salon shall not use ingredients that are a chemical classified by the United States Environmental Protection Agency (EPA) as carcinogenic to humans, likely to be carcinogenic to humans, or for which there is suggestive evidence of carcinogenic potential, or identified by the state to cause cancer as listed in the Safe Drinking Water and Toxic Enforcement Act of 1986 list of chemicals known to cause cancer or reproductive toxicity. The salon shall not use ingredients that are a reproductive toxicant that cause birth defects, reproductive harm, or developmental harm as identified by the EPA, or listed in the Safe Drinking Water and Toxic Enforcement Act of 1986 list of chemicals known to cause cancer or reproductive toxicity. The salon shall not use nail polishes that contain dibutyl phthalate, formaldehyde, or toluene, nail polish thinners that contain methyl ethyl ketone or toluene or nail polish removers that contain ethyl or butyl acetate. b) The salon shall ensure that all nail salon staff wear nitrile or other gloves determined to be sufficiently protective when using nail products. c) The salon shall be ventilated to improve air quality and a specific area shall be designated for artificial nail services and be properly ventilated with mechanical ventilation units. d) All salon staff, whether on payroll or on contract, and owners shall be trained on safer practices delineated in the HNSRP guidelines. e) The salon shall not allow clients to bring in outside products for use, unless those products meet the program criteria, as determined by salon staff. f) The salon shall be in compliance the Act and BBC regulations. g) Any other guidelines or best practices determined by the department to further the goals of an HNSRP. 1)Requires the guidelines to impose the following on a city, county, or city and county that adopts a HNSRP: AB 2125 (Chiu) Page 4 of ? a) Coordination with other local HNSRPs to assist businesses in achieving and moving beyond regulatory compliance. b) Training requirements for the salon owners and staff to ensure thorough knowledge of safe and environmentally friendly procedures. c) Providing an approved seal or certificate to a salon that has met all specified requirements, required to be displayed in full public view in the salon location. d) Establishing a process by which a salon can enroll in an HNSRP and be verified by the local entity. e) Establishing the frequency at which the local entity shall verify continued compliance by a salon that has previously met all specified requirements. 4)Requires DPH to consult with the Division of Occupational Safety and Health BBC throughout the process of developing the guidelines. 5)Requires DPH to promote the HNSRP guidelines through a consumer education program, by presenting the guidelines to local health officers, local environmental health departments, and other local agencies as the department deems appropriate, by developing and distributing or posting information on its website including suggestions for successful implementation HNSRPs and resource lists that include names and contact information of vendors, consultants, or providers of financial assistance or loans for purchases of ventilation equipment and by developing a website or section on the DPH website that links to HNSRPs. 6)Authorizes DPH to prioritize its outreach to counties that have the greatest number of nail salons. 7)Authorizes BBC to notify the city, county, or city and county if a recognized salon is issued a citation or administrative fine. FISCAL AB 2125 (Chiu) Page 5 of ? EFFECT: This bill is keyed "fiscal" by Legislative Counsel. According to the Assembly Committee on Appropriations analysis dated April 27, 2016, this bill will result in General Fund costs of $390,000 per year for two years to DPH to implement the bill, including review of current ordinances, development of a model ordinance, field evaluations of nail salon exposures, outreach and education, and other activities. COMMENTS: 1. Purpose. This bill is sponsored by the California Healthy Nail Salon Collaborative and Asian Health Services . According to the Author, "nail salon workers experience unnecessary exposures to harmful chemicals in the workplace?Most nail salon workers are women of reproductive age and are predominately Vietnamese immigrants, often with limited English skills." According to the Author, HNSRPs result in healthier nail salon communities, as nail salons are required to improve ventilation and participate in trainings on best safety and health practices. The Author states that "nail salon owners say being a healthy nail salon is better for their health and good for business too. In a survey conducted by the California Healthy Nail Salon Collaborative and Asian Health Services, the large majority of recognized salons said that by participating in the program, they and their employees are healthier - work-related acute health symptoms disappeared. Most also said that their revenues increased, and that the safety and health trainings are effective." The Author states that passage of this bill would contribute to healthier nail salon workers and consumers. 2. Nail Care in California. Nail care is a specialty branch in the field of cosmetology. In California, a licensed cosmetologist can practice nail care and BBC also licenses manicurists as a separate license category. To become a licensed manicurist, an applicant must submit proof of completion to BBC of 400 training hours covering all practices of a manicurist, according to the following: 300 hours of technical instruction and practical training in nail care - 60 hours of technical instruction in manicures and pedicures (water and oil manicures AB 2125 (Chiu) Page 6 of ? including hand and arm massage, complete pedicure including foot and ankle massage, application of artificial nails including liquid, gel, and powder brush-ons, nail tips, nail wraps and repairs, and nail analysis); 60 hours of practical operations in manicures and pedicures and 180 hours of nails 100 hours of technical instruction and practical training in health and safety - 10 hours on laws and regulations including the Act and BBC Rules and Regulations; 25 hours on chemistry pertaining to the practices of a manicurist including the chemical composition and purpose of nail care preparations, health and safety/hazardous substances, including training in chemicals and health in establishments, material safety data sheets, protection from hazardous chemicals and preventing chemical injuries, health and safety laws and agencies, ergonomics, and communicable diseases, including HIV/AIDS and Hepatitis B; 20 hours on disinfection and sanitation procedures to protect the health and safety of the consumer as well as the technician which entail disinfecting instruments and equipment as specified with special attention given to pedicure foot spa and basin disinfection procedures and; 10 hours in bacteriology, anatomy and physiology BBC also recommends in its regulations that schools provide training in communication skills that includes professional ethics, salesmanship, decorum, record-keeping, client service record cards, basic tax responsibilities related to independent contractors, booth renters, employees, and employers BBC currently licenses 126,872 manicurists, 310,041 cosmetologists (who can also perform nail care services) and 52,785 establishments. BBC does not include information in its establishment license data to differentiate between an establishment offering nail care services specifically and those offering other personal beautification services, nor does BBC collect information on the licensee types or beautification service types offered in any particular establishment. Neither the Act nor BBC regulations define "nail salon". AB 2125 (Chiu) Page 7 of ? 1. Health Concerns In Beautification Service Establishments and Experiences of Nail Salon Employees. In the past number of years, there have been health and safety concerns about many of the products used in BBC licensed establishments and by BBC licensees. Products that may pose a threat to consumers but also to practitioners, have been highlighted through Legislative hearings and media outlets. The FDA's legal authority over cosmetics is different than the FDA's regulation of other products like drugs and medical devices. Certain cosmetic products and their ingredients are not subject to the FDA authority and the FDA has maintained that cosmetic firms are responsible for ensuring that their products are safe prior to marketing them. FDA regulations do, however, prohibit or restrict the use of several ingredients in cosmetic products and require warning statements on the labels of certain types of cosmetics. The EPA is responsible for gathering health and safety and exposure data on pollutants and toxic substances that can affect public health. The U.S. Department of Labor's Occupational Health and Safety Administration sets permissible exposure limits at which many chemicals are considered safe. Certain chemicals found in products used in BBC establishments and by BBC licensees are of concern and listed on California's Proposition 65 list of chemicals known to cause cancer or reproductive toxicity, but are not prohibited for use in cosmetics in the U.S. In 2005, SB 484 (Migden, Chapter 729, Statutes of 2005) was signed into law creating California's Safe Cosmetics Act which requires manufacturers to provide the state with a list of products that contain chemicals known to cause cancer or reproductive toxicity. In recent years, many advocates like the Sponsors of this bill have worked to raise the issue of unsafe products and the harmful exposure to toxic chemicals that can occur for those practicing in professions licensed by the BBC. Nail care services establishments and the experience of those providing nail care services have been the focus of particular attention to health and safety impacts from certain products, given the high preponderance of minority women working for extremely long hours in settings that are not always properly ventilated and having constant contact with potentially dangerous chemicals linked to illness and AB 2125 (Chiu) Page 8 of ? reproductive health problems. In 2008, the Senate Office of Research published a report Pedicures At What Price exploring the unique dangers posed by this profession that also included recommended steps for state regulatory bodies like the BBC to take in order to better promote health and safety. In May 2015, the New York Times (NYT) published two articles stemming from interviews with more than 150 nail salon workers and owners that found a pattern of health ailments amongst nail salon workers including: cancers, miscarriages, and children with low birthweights and developmental disabilities. The most common health effects reported were skin afflictions and an asthma-like cough. The article links these health impacts to the potent chemical solvents, polishes, hardeners, and glues that nail workers handle daily. The author of the article notes that, for example, "Of the 20 common nail product ingredients listed as causing health problems in the appendix of a safety brochure put out by the Environmental Protection Agency, 17 are hazardous to the respiratory tract, according to the agency." According to the NYT, while these ingredients may not cause harm to the patron who visits the salon once every few weeks, nail workers spend their entire work day in a haze of acrylic powder while being overexposed to potentially hazardous chemicals. On August 26, 2015, the Assembly Select Committee on Women in the Workplace, the Assembly Select Committee on Girls and Women of Color, and the Assembly Committees on Health, Business and Professions, and Labor held a joint informational hearing titled "Labor Practices, Health, and Safety in California Nail Salons." The purpose of the hearing was to obtain information, address concerns, and discuss policy recommendations regarding nail salon practices from state agencies, advocates, and industry. The hearing background paper noted that, "According to the Federal Occupational Safety & Health Administration, nail technicians are 'exposed to chemicals found in glues, polishes, removers, emollients and other salon products and may experience negative health effects such as asthma and other respiratory illnesses, skin disorders, liver disease, reproductive loss and cancer'. Repetitive motions, muscle strains and infusion from coming in contact with the blood of clients are also noted as job risk factors". AB 2125 (Chiu) Page 9 of ? 2. Related Legislation This Year. AB 2025 (Gonzalez) updates the Act to ensure that BBC offers all written materials provided to licensees and applicants in English, Spanish and Vietnamese; that the BBC provides practitioner and establishment applicants with information about basic labor laws and; that the BBC includes basic labor law information in health and safety curriculum taught in BBC-approved schools. ( Status: The bill is pending in the Senate.) AB 2437 (Ting) Requires an establishment licensed by BBC, on and after July 1, 2017, to post a model notice pertaining to workplace rights and wage and hour laws, developed by the Labor Commissioner, translated into Spanish, Vietnamese and Korean, and requires the BBC to inspect for compliance of the posting requirement. ( Status: The bill is pending in the Senate.) SB 1125 (Nguyen) requires BBC, for an establishment license, if the establishment will offer nail care services, to include a signed acknowledgement that an applicant understands their responsibility to comply with any applicable state labor laws and comply with the informational materials BBC selects or develops related to basic labor laws. ( Status: The bill is pending in the Assembly Committee on Business and Professions.) 3. Prior Related Legislation. AB 2689 (Tran) of 2008 would have established the Vietnamese Nail Worker Information Act which would require manufacturers and certain other persons that sell or use professional use-only nail care products to prepare, translate and provide material safety data sheets in Vietnamese to purchasers of the products as well as licensed professional nail care employees upon request. ( Status: The bill was held under submission in the Assembly Committee on Appropriations.) 4. Arguments in Support. Supporters write that nail salons represent a significant business sector in California and that every day, nail salon workers handle solvents, glues, polishes and other products containing chemicals known or suspected to cause cancer, allergies, respiratory, neurological and reproductive harm. Supporters state that these workers report serious acute health concerns such as headaches and breathing difficulties. According to AB 2125 (Chiu) Page 10 of ? supporters of this bill, in order to ensure that more Californians are able to enjoy the benefits of the Healthy Nail Salon Recognition Programs that have been adopted in some California cities and counties, this bill is essential to ensure greater awareness and improved health for the workforce and consumers in the beauty services industry across California. 5. BBC Is Not Able To Differentiate Between Establishment Types. This bill sets forth guidelines for local healthy nail salon recognition programs and outlines requirements for nail salons to comply with in order to be designated a healthy nail salon, however BBC does not currently classify licensed establishments based on the types of services they offer, and there is no current definition for "nail salon" under current California law. BBC does not, for example, have the ability to determine the number of licensed establishments that offer nail care services, nor can BBC capture whether an establishment is solely offering nail care services, or offering those in combination with a variety of other beautification services. Language in the bill also directs DPH to prioritize outreach about the HNSRP guidelines to "counties that have the greatest number of nail salons", an approach that may be difficult given the lack of ability to fully capture nail salon establishments from a data collection standpoint. The City and County of San Francisco ordinance outlining a HNSRP specifically includes a definition for nail salon for purposes of the program as "any business establishment including salons, spas and others that offer pedicures, manicures or application of artificial nails and their component processes". It is unclear how a determination would be made about what a "nail salon" is in order to subsequently designate a nail salon as a healthy nail salon under the guidelines established by DPH. 6. Policy Issue : Should All BBC Licensees and Beautification Service Consumers Be Provided the Opportunity to Receive Services In a Healthier Setting? This Committee directed BBC through the sunset review oversight process in 2012 to report on its efforts to promote awareness about potentially harmful products used by practitioners and consumers. Establishments AB 2125 (Chiu) Page 11 of ? throughout the state use and promote the "Brazilian Blowout," hair smoothing process; however, the product was found to contain unsafe levels of dangerous products. The manufacturer label indicated that the product was "formaldehyde free" but in fact the false labeling failed to warn consumers and cosmetics workers about actually high levels of formaldehyde in the product. Formaldehyde is a chemical that can sting eyes and cause respiratory problems and has also been linked to cancer. The AG eventually settled with the manufacturer, requiring the creation of a safety information sheet with the carcinogen warning that must be included with product shipments and posted on the manufacturer's website. The settlement also limited the sale of Brazilian Blowout to professionally licensed stylists and required products to undergo testing at a DOJ approved laboratory. During the 2014 sunset review oversight of BBC, BBC reported that it has taken several steps to increase awareness about potentially harmful products. BBC noted that when it becomes aware of a potentially unsafe product, it conducts research, including contacting other states, the FDA, and the Centers for Disease Control or sometimes consulting technical advisory committees and industry professionals. According to BBC, a course of action may include an industry bulletin, possibly a regulation change and notification on the BBC's web and social media sites. The 2014 sunset review oversight background paper noted that "Given the importance of informing both consumers and licensees, the BBC is well positioned to disseminate important industry-related materials regarding the health and safety of beautification products? as the industry changes and new beautification products are brought to market, the BBC should consider establishing a permanent committee which is designated to review industry trends as they relate to health and safety standards to ensure the timely distribution of information about potential and growing concerns." BBC's Health and Safety Advisory Committee was established in April 2016 and held its first preliminary meeting on June 6. Crossover exists throughout the beatification services industry in California, with an array of beautification services potentially being provided by different BBC license types in multiple types of establishments. Licensed AB 2125 (Chiu) Page 12 of ? manicurists are not, for example, the only licensees performing nail care services, as cosmetologists are authorized to perform this specialty branch of cosmetology, in addition to other beautification services under the broader cosmetology license. These licensees likely utilize the same products as those used in specific nail care services settings, including products with certain chemical ingredients. Findings and declarations in this bill appear to recognize that practitioners in multiple settings, holding different license types, may be exposed to potentially harmful products. In light of this crossover, and the aforementioned lack of definition for nail salon, consideration for, and of, practitioners and licensees in other establishment settings could be provided through a broader healthy salon recognition program, rather than a nail care services-specific program. 7. Policy Issue : Implementation of Program May Be Difficult. BBC has oversight for beautification service establishments, including those that provide nail care services. Many of these establishments may also be subject to rules and requirements for businesses within the local jurisdiction they operate and, as a business in California, are subject to other laws and rules. This bill establishes requirements for businesses to qualify as being recognized by the HNSRP that may be difficult to enforce without specifying the role for state and local agencies, including: the requirement for all staff to receive training on "safer practices delineated in the HNSRP guidelines" the prohibition on clients bringing in outside products for use unless the products meet the program criteria as determined by salon staff the requirement that the salon be in compliance with the Act and all BBC regulations It is unclear how personnel within a local jurisdiction that adopts a HNSRP would know, other than through regular inspections or relying on self-certification by the establishment, that an establishment is in compliance with the HNSRP requirements. Unless staff of the jurisdiction implementing a HNSRP provides training, it may be difficult AB 2125 (Chiu) Page 13 of ? to verify that all staff has been trained on the practices outlined in the guidelines. It is also difficult to determine if clients are in fact not bringing outside products into an establishment and the bill does not specify who would be responsible for ensuring this practice does not occur. Local health officers would not necessarily be made aware of a salon's compliance or lack thereof with the Act unless BBC had already taken administrative action against an establishment or unless BBC was directed to create its own category of recognized healthy nail salons that it would then need to report violations about. Similarly, BBC may not be made aware when a licensed establishment is recognized as a healthy nail salon, thus unable to inform personnel within a local jurisdiction of any violations of the Act committed by the establishment. SUPPORT AND OPPOSITION: Support: ACT for Women and Girls Alameda County Department of Environmental Health Alameda Health Consortium American Cancer Society Cancer Action Network American Lung Association in California American Sustainable Business Council Asian & Pacific Islander American Health Forum Asian Americans Advancing Justice - Asian Law Caucus Asian Americans Advancing Justice - Los Angeles Asian Health Services Asian Immigrant Women Advocates Asian Pacific Environmental Network Association of Asian Pacific Community Health Organizations Berkeley School of Public Health Black Women for Wellness Breast Cancer Action Breast Cancer Fund California Environmental Justice Alliance California Health Advocates California Healthy Nail Salon Collaborative California Immigrant Policy Center California Labor Federation California Pan-Ethnic Health Network AB 2125 (Chiu) Page 14 of ? Cancer Prevention Institute of California Center for Environmental Health Center of Policy Initiatives Center on Race, Poverty & the Environment CHANGE Coalition City of Garden Grove, Mayor Bao Nguyen City of Los Angeles, Mayor Eric Garcetti City of Santa Monica, Mayor Tony Vazquez Clean Water Action California Coalition for Clean Air Community Action Marin Community Health Partnership Environmental Working Group Immigrant Resettlement & Cultural Center Khmer Girls in Action La Maestra Community Health Clinics Los Angeles Community College District, Trustee Mike Fong Mexican American Legal Defense and Education Fund National Council of Jewish Women - California National Employment Law Project Natural Resources Defense Council North County Health Services OCA - Asian Pacific American Advocates: East Bay Chapter (OCA-East Bay) OCA - Sacramento Chapter OCA - San Francisco Chapter Orange County Asian and Pacific Islander Community Alliance (OCAPICA) Pacific Arts Movement Physicians for Social Responsibility - Los Angeles Physicians for Social Responsibility - San Francisco Bay Area Chapter Planned Parenthood Action Fund of the Pacific Southwest Planned Parenthood Affiliates of California Proven Recruiting San Francisco Department of the Environment San Mateo County Board of Supervisors UCLA Labor Occupational Safety and Health Program Vietnamese American Community Center of the East Bay Women's Foundation of California Women's Voices for the Earth Worksafe Numerous Individuals AB 2125 (Chiu) Page 15 of ? Opposition: None on file as of June 21, 2016. -- END --