BILL ANALYSIS                                                                                                                                                                                                    



          SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
                              Senator Wieckowski, Chair
                                2015 - 2016  Regular 
           
          Bill No:            SB 625
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          |Author:    |Galgiani                                             |
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          |Version:   |4/20/2015              |Hearing      |4/29/2015       |
          |           |                       |Date:        |                |
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          |Urgency:   |No                     |Fiscal:      |Yes             |
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          |Consultant:|Rachel Machi Wagoner                                 |
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          SUBJECT:  Waste management:  synthetic plastic microbeads

            ANALYSIS:
          
          Existing federal law:  

          1. Under 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. 1901 et seq.).

          2. Requires the National Oceanic and Atmospheric Administration,  
             United States Environmental Protection Agency (US EPA), Coast  
             Guard, Navy, and other agencies to identify, determine  
             sources of, assess, prevent, reduce, and remove marine debris  
             (33 U.S.C. 1951 et seq.).

          Existing state law:

          1. Under the Porter Cologne Water Quality Control Act, regulates  
             the discharge of pollutants in stormwater and urban runoff  
             (WAT 13000 et seq.).

          2. Prohibits the release of preproduction plastic pellets to the  
             environment that could enter state waters (WAT 13367).

          3. Prohibits the sale of expanded polystyrene loose fill  
             packaging material by a wholesaler or manufacturer (PRC  
             42390).








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          This bill: 

          1. Prohibits, on and after January 1, 2020, a person, as  
             defined, from selling or offering for promotional purposes in  
             this state a personal care product containing synthetic  
             plastic microbeads, as specified. 

          2. Exempts from those prohibitions the sale or promotional offer  
             of a product containing less than 1 part per million (ppm) by  
             weight of synthetic plastic microbeads, as provided.

          3. Makes a violator liable for a civil penalty not to exceed  
             $2,500 per day for each violation.

          4. Authorizes the penalty to be assessed and recovered in a  
             civil action brought in any court of competent jurisdiction  
             by the Attorney General, to be retained by that office.

          5. Makes these moneys available to the office of the Attorney  
             General, upon appropriation, for the purpose of enforcing  
             these provisions. 

          6. Prohibits 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.

            Background
          
          1. Plastics:  Use, Environmental Presence and Impact.  

             Since the beginning of commercial production of plastics 80  
             years ago, plastic has become a common component of daily  
             living.  The annual global plastic production has risen from  
             1.9 million tons in the 1950s to 317 million tons in 2012.   
             In addition, some of the properties that make plastics a  
             versatile material also make them convenient to discard.

             Although plastic represents a relatively small fraction of  
             the overall waste stream in California, plastic waste is the  
             predominate form of marine debris.  Plastics are estimated to  
             compose 60-80% of all marine debris and 90% of all floating  
             debris.  According to the California Coastal Commission, the  








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             primary source of marine debris is urban runoff.  Due to the  
             interplay of ocean currents, marine debris preferentially  
             accumulates in certain areas throughout the ocean.  The North  
             Pacific Central Gyre is the ultimate destination for much of  
             the marine debris originating from the California coast.  A  
             study by the Algalita Marine Research Foundation found an  
             average of more than 300,000 plastic pieces per square mile  
             of the Gyre and that the mass of plastic was six times  
             greater than zooplankton floating on the water's surface. 

             Most plastic marine debris exists as small plastic particles  
             due to excessive UV radiation exposure and subsequent  
             photo-degradation.  Hydrophobic chemicals present in the  
             ocean in trace amounts (e.g., from contaminated runoff and  
             oil and chemical spills) have an affinity for, and can bind  
             to, plastic particles and may also enter and accumulate in  
             the food chain through the same mechanism.  In 2011, the  
             National Oceanic Atmosphere Association found that plastic  
             debris accumulates pollutants such as polychlorinated  
             biphenyls (PCBs) up to 100,000 to 1,000,000 times the levels  
             found in seawater.

             Once in the environment, the plastic pieces, or  
             microplastics, are ingested by aquatic organisms; an  
             estimated 250 animal species worldwide have already been  
             negatively affected.  The plastic particles can become lodged  
             in the bloodstreams or digestive tracts of fish.  Once inside  
             a fish or other marine organism, the pollutants that were  
             absorbed into the plastic are transferred to the tissues of  
             the marine organism and can result in long-term harm to  
             reproduction and other functions.  Microplastics have also  
             been found in predators that eat marine life, including birds  
             and reptiles.

          2. Development of Microbeads.  
              
              Microbeads are small, typically spherical, plastic particles  
             that commonly range in size from 50 to 500 microns (1 meter  
             has 1 million microns).  Microbeads were introduced in  
             personal care products as a uniform, nonallergenic exfoliant.  
              Prior to the widespread use of microbeads in the 1990s,  
             natural exfoliants such as ground almonds, oatmeal, and sea  
             salt were common.  Today, over 100 cosmetics and personal  
             care products contain microbeads, and according to 5 Gyres  








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             Institute, some products contain over 350,000 microbeads in  
             one tube.

             When used as intended, microbeads are designed to enter  
             municipal sewer systems for disposal.  Many sewer systems are  
             unable to remove microbeads during the water treatment  
             process, resulting in the general release of microbeads into  
             state waters.  Microbeads enter the environment with similar  
             physical properties to the small plastic particles that  
             result from degradation of plastic in the environment.

          3. Microbeads as Environmental Contaminants.  

             In studying plastic pollution in the Great Lakes in 2012,  
             researchers from 5 Gyres Institute and State University of  
             New York College at Fredonia found significant levels of  
             microplastic particles throughout the lakes.  58% of all  
             identified pellets were microbeads, and further evaluation  
             linked these particles to personal care products.  Of  
             particular concern were samples found in Lake Erie in a  
             location downstream from Detroit, Cleveland, and Erie, where  
             concentrations of microplastics rival those found in ocean  
             gyres (over 450,000 plastic pieces per square kilometer).

             Earlier this year, research by the 5 Gyres Institute found  
             microbeads in the Los Angeles River.

          4. Efforts to Address Microplastics Usage. 

             In light of the environmental concerns associated with  
             microplastics, and the discovery of high concentrations of  
             microbeads in various water systems, there has been mounting  
             pressure to remove plastic microbeads from commercial  
             products.

             Ohio, New York, and Illinois have been moving legislation to  
             ban plastic microbeads.  The Ohio legislation (SB 304,  
             Skindell) would ban the sale of a personal care product  
             containing microbeads.  There is no specified timeline in the  
             legislation, so presumably the ban would begin in 2015.

             The New York legislation (A08744, Sweeny) would ban the sale  
             of a personal cosmetic product that contains intentionally  
             added microbeads effective January 1, 2016.  Products that  








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             are regulated as drugs (such as over-the-counter acne  
             medication) would have until January 1, 2017 to comply.

             The Illinois ban on microbeads (SB2727, Steans) was signed by  
             Governor Quinn on June 8, 2014.  The legislation provides a  
             gradual timeline for the ban of microbeads.  Personal care  
             products containing microbeads would not be accepted for sale  
             after December 31, 2017 and could not be sold in Illinois  
             after December 31, 2018.  Over-the-counter drugs would have a  
             one-year extension.

             In addition to legislative efforts, numerous companies have  
             responded to mounting public pressure by announcing voluntary  
             phase-outs of microbead-containing products.  Ongoing  
             phase-outs include:
              ?      Colgate-Palmolive - end of 2014
              ?      Johnson & Johnson - end of 2015
              ?      L'Oreal - no set date
              ?      Proctor & Gamble - end of 2017 at the earliest
              ?      The Body Shop - end of 2015
              ?      Unilever - end of 2015




          5. AB 1699 (Bloom, 2014). 

             AB 1699 would have prohibited the sale of microbead  
             containing products in California as specified.  Specifically  
             it:

             A.    Defines various terms, including "microplastic,"  
                "personal care products," "person in the course of doing  
                business," and "plastic."
             B.    Prohibits any person in the course of doing business  
                from selling or promoting personal care products with  
                microplastics after January 1, 2019.  The bill offers an  
                exemption for products with less than 1 part per million  
                microplastic by weight.
             C.    Imposes a civil penalty of up to $2,500 per day for  
                violations, and allows the fees to be kept by the office  
                that prosecutes the violation.

             AB 1699 failed passage on the Senate Floor on a vote of  








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             20-14.
           
          Comments
          
          1. Amendments Needed.

             A.    Intent language.
                The bill makes a series of statements about plastics in  
                the environment that are scientifically questionable  
                because of the qualifying language added.  For example  
                "conventional" plastic does not biodegrade and "synthetic"  
                plastic microbeads have been found in surface water of the  
                United States.  It implies that non-conventional plastics  
                and biodegradable microbeads do not pose the same threat.   
                The intent language should be stricken from the bill in  
                its entirety.

             B.    There are several key differences between AB 1699 and  
                SB 625 that the Senate Environmental Quality Committee  
                considered last year in the hearing of AB 1699.  
                 
                (1)        The Governing Definition of Microbead.

                             In the final version of AB 1699 the  
                     definition was:
                     "Synthetic plastic microbead" means "an intentionally  
                     added particle of non-water-soluble plastic measuring  
                     five millimeters or less in size in every dimension."

                             In the version of AB 1699 heard by the  
                     Senate Environmental Quality Committee the definition  
                     stated:
                     "Plastic microbead" means "an intentionally added  
                     plastic particle measuring five millimeters or less  
                     in size in every dimension."

                             In SB 625 the definition is:
                     "Synthetic plastic microbead" is "an intentionally  
                     added 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."









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                    By using "non-biodegradable" instead of "non-water  
                    soluble" and adding the additional qualifiers that it  
                    is 1) "synthetic" and 2) "retains its shape during use  
                    and after disposal, and that is used to exfoliate or  
                    cleanse in a rinse-off personal care product," this  
                    definition creates a large loophole for certain  
                    plastics to continue to be used in these products.

                    In their opposition letter last year to AB 1699, the  
                    Personal Care Products Council recommended using the  
                    term "synthetic plastic microbead."  

                    The Senate Environmental Quality Committee analysis of  
                    AB 1699 points out the flaws in this definition as  
                    follow:

                     a)              "Synthetic" - That although there is  
                          not a definition of plastics in California law,  
                          plastics are recognized generally and throughout  
                          statute to be composed of a variety of  
                          materials, including polyethylene and  
                          polypropylene, and natural substances, such as  
                          petroleum.  The use of the term "synthetic" in  
                          regards to plastics is unclear and confusing:  
                          these terms are never used together in statute,  
                          and their use would imply that there are  
                          naturally-occurring versions of commonly-used  
                          plastics - which there are not.

                     As a result, it is not appropriate to use the term  
                          "synthetic plastic."

                     b)              "Bio-degradable" Language to allow  
                          the use of biodegradable or non-persistent  
                          microbeads is inappropriate.  

                         Just because a material is biodegradable does not  
                         mean that it is environmentally benign.   
                         Biodegradation can take weeks or months, during  
                         which time environmental harm could be done.  In  
                         addition, appropriate testing methods must be  
                         developed for products based on the material and  
                         its environmental location.  A product's ability  
                         to biodegrade is a function of both the physical  








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                         and chemical makeup of the product as well as the  
                         environmental conditions to which it is subject;  
                         as a result, the biodegradation of a product in a  
                         landfill, a wastewater treatment plant, or the  
                         ocean may all be different.

                         SB 567 (DeSaulnier, Chapter 594, Statutes of  
                         2011) found that the "use of the term  
                         'degradable,' 'biodegradable,' 'decomposable,' or  
                         other like terms on plastic products is  
                         inherently misleading" unless certain claims are  
                         made and an appropriate testing method has been  
                         approved.

                         It is not appropriate at this point for  
                         legislation to use the terms "persistent" or  
                         "biodegradable" in reference to plastic  
                         microbeads.

                     The bill should be amended to use the definition of  
                     "Plastic microbead" as approved by this committee  
                     last year - "An intentionally added plastic particle  
                     measuring five millimeters or less in size in every  
                     dimension."

                (1)        Enforcement.
                      
                     AB 1699 and SB 655 both contain provisions making a  
                     violation of this law a civil penalty with a civil  
                     penalty not to exceed $2,500 per day for each  
                     violation.  

                     However, SB 655 specifically designates that penalty  
                     to be used for enforcement by the Attorney General  
                     and prohibits 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  
                     preemption language severely limits the enforcement  
                     of this matter.

                    An amendment is needed to strike the preemption  








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                    language from the bill.




            Related/Prior Legislation

          AB 888 (Bloom, 2015) prohibits on and after January 1, 2020, a  
          person, as defined, from selling or offering for promotional  
          purposes in this state a personal care product containing  
          intentionally added plastic microbeads, as specified.  The bill  
          would exempt from those prohibitions the sale or promotional  
          offer of a product containing less than 1 part per million (ppm)  
          by weight of plastic microbeads, as provided.

          AB 1699 (Bloom, 2014) prohibits after January 1, 2019, a person,  
          as defined, from selling or offering for promotional purposes in  
          this state a personal care product containing synthetic plastic  
          microbeads, as specified, unless the personal care product is an  
          over-the-counter drug, and would prohibit a person, after  
          January 1, 2020, from selling or offering a personal care  
          product containing synthetic plastic microbeads, including a  
          personal care product that is an over-the-counter drug. AB 1699  
          failed passage on the Senate Floor on a vote of 20-14.
           
           SUPPORT/ OPPOSITION:    

          This bill was amended on April 20, 2015, striking simple intent  
          language (a "spot bill") and adding significant operative  
          language.  It was then referred to policy committees from the  
          Rules Committee on April 22, 2015.  By amending and referring  
          the bill so close to the final hearing of this committee on  
          April 29, 2015, there was not adequate time for ALL stakeholders  
          to review and register positions and concerns prior to the bill  
          being heard.  Because of this, no support or opposition is  
          included in the analysis. 

          DOUBLE REFERRAL:

          Should this bill pass the Senate Environmental Quality  
          Committee, it is to be referred to the Committee on the  
          Judiciary for consideration of the provisions relating to the  
          civil penalty.
                                      -- END --








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