BILL ANALYSIS Ó
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.
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