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
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|Author: |Chiu |
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|Version: |May 31, 2016 |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant|Sarah Mason |
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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
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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
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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:
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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
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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
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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".
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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
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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".
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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
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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
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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
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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
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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
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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
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Opposition:
None on file as of June 21, 2016.
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