BILL NUMBER: AB 2901 AMENDED
BILL TEXT
AMENDED IN SENATE JUNE 16, 2004
AMENDED IN ASSEMBLY MAY 20, 2004
AMENDED IN ASSEMBLY APRIL 20, 2004
INTRODUCED BY Assembly Members Pavley and Kehoe
(Coauthors: Assembly Members Hancock, Jackson, Koretz, Levine,
and Lieber)
(Coauthor: Senator Kuehl)
FEBRUARY 20, 2004
An act to add Article 10.4 (commencing with Section
25214.50) to Chapter 6.5 of Division 20 of the Health and Safety
Code, and to add Chapter 8.6 (commencing with Section
42490) to Part 3 of Division 30 of the Public Resources Code,
relating to hazardous and solid waste.
LEGISLATIVE COUNSEL'S DIGEST
AB 2901, as amended, Pavley. Hazardous
Solid waste: cellular telephones cell
phones : recycling.
(1) Existing law prohibits the management of hazardous waste,
except in accordance with the hazardous waste control laws. A
violation of the hazardous waste control laws is a crime. Existing
law requires the Department of Toxic Substances Control to adopt
regulations to prohibit an electronic device, as defined, from being
sold or offered for sale in this state if the electronic device is
prohibited from being sold or offered for sale in the European Union
on and after its date of manufacture, due to the presence of certain
heavy metals. Existing law prohibits those regulations from taking
effect until January 27, 2007, or on or after the date that Directive
2002/95/EC, as adopted by the European Parliament and the Council of
the European Union on January 27, 2003, takes effect, whichever date
is later. Existing law requires the department to exclude certain
electronic devices from the regulations.
This bill would require the department to adopt regulations to
prohibit a cellular telephone, as defined, from being sold or offered
for sale in this state if the cellular telephone is prohibited from
being sold or offered for sale in the European Union on and after its
date of manufacture, due to the presence of heavy metals. The bill
would prohibit those regulations from taking effect until January 1,
2007, or on or after the date that Directive 2002/95/EC takes effect,
whichever date is later. The bill would require the department to
exclude certain cellular telephones from the regulations.
Because a violation of the regulations adopted by the department
would be a crime, the bill would impose a state-mandated local
program by creating a new crime.
(2) Existing law requires the California Integrated Waste
Management Board to administer state programs to recycle various
specified materials, including the Electronic Waste Recycling Act of
2003, which governs certain electronic devices with display screens
greater than 4 inches in size.
This bill would enact the Cell Phone Recycling Act of 2004 and
would make it unlawful to sell, on and after July 1, 2005
2006 , a cell phone in this state to a consumer,
as defined, unless the retailer of that cell phone complies with the
act.
The bill would require a retailer selling a cell phone in this
state to have in place, by July 1, 2005 2006
, a system for the acceptance, collection, reuse, and recycling
or proper disposal of used cell phones. The bill would require the
system to include specified elements.
The bill would require each retailer of a cell phone who sells a
cell phone in this state, by July 1, 2006, and annually thereafter,
to include the number of cell phones sold by the retailer in this
state during the previous calendar year and other information in any
notification submitted to the department pursuant to regulations for
universal waste handlers in existence on January 1, 2005. A retailer
would also be required to make information available to consumers
that describes where and how to return, recycle, and dispose of the
cell phone and opportunities and locations for the collection or
return of the cell phone, through specified means.
The bill would require the board
Department of Toxic Substances Control on July 1, 2006
2007 , and every 3 years
each July 1 thereafter, to establish and update,
as necessary, statewide used cell phone recycling goals
post on its Web site an estimated California recycling rate for
cell phones, as specified . The bill would impose requirements
upon state agencies that purchase or lease cell phones regarding a
certification of compliance with the act by prospective bidders. The
bill would make the act inoperative under specified
circumstances contain a severability clause .
(3) The California Constitution requires the state to reimburse
local agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes no .
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Article 10.4 (commencing with Section 25214.50) is
added to Chapter 6.5 of Division 20 of the Health and Safety Code, to
read:
Article 10.4. Cellular Telephones
25214.50. (a) For purposes of this section, "cellular telephone"
means a wireless telephone device that is designed to send or receive
transmissions through a cellular radiotelephone service, as defined
in Section 22.99 of Title 47 of the Code of Federal Regulations. A
cellular telephone includes the rechargeable battery that may be
connected to that cellular telephone. A cellular telephone does not
include a wireless telephone device that is integrated into the
electrical architecture of a motor vehicle.
(b) The department shall adopt regulations, in accordance with
this section, that prohibit a cellular telephone from being sold or
offered for sale in this state if the cellular telephone is
prohibited from being sold or offered for sale in the European Union
on and after its date of manufacture, to the extent that Directive
2002/95/EC, adopted by the European Parliament and the Council of the
European Union on January 27, 2003, prohibits that sale due to the
presence of certain heavy metals.
(c) The regulations adopted pursuant to subdivision (b) shall take
effect on January 1, 2007, or on or after the date that Directive
2002/95/EC, adopted by the European Parliament and the Council of the
European Union on January 27, 2003, takes effect, whichever date is
later.
(d) The department shall exclude, from the regulations adopted
pursuant to this section, the sale of a cellular telephone that
contains a substance that is used to comply with the consumer,
health, or safety requirements that are required by the Underwriters
Laboratories, the federal government, or the state.
SEC. 2.
SECTION 1. Chapter 8.6 (commencing with Section 42490) is
added to Part 3 of Division 30 of the Public Resources Code, to read:
CHAPTER 8.6. CELL PHONE RECYCLING ACT OF 2004
Article 1. General Provisions
42490. This act shall be known, and may be cited as, the Cell
Phone Recycling Act of 2004.
42490.1. The Legislature finds and declares all of the following:
(a) The purpose of this chapter is to enact a comprehensive and
innovative system for the reuse, recycling, and proper and legal
disposal of used cell phones.
(b) It is the further purpose of this chapter to enact a law that
establishes a program that is convenient for consumers and the public
to return, recycle, and ensure the safe and environmentally sound
disposal of used cell phones, and providing a system that does not
charge when a cell phone is returned.
(c) It is the intent of the Legislature that the cost associated
with the handling, recycling, and disposal of used cell phones be the
responsibility of the producers and consumers of cell phones, and
not local government or their service providers, state government, or
taxpayers.
(d) In order to reduce the likelihood of illegal disposal of
hazardous materials, it is the intent of this chapter to ensure that
all costs associated with the proper management of used cell phones
is internalized by the producers and consumers of cell phones at or
before the point of purchase, and not at the point of discard.
(e) Manufacturers and retailers of cell phones and cell phone
service providers, in working to achieve the goals and objectives of
this chapter, should have the flexibility to partner with each other
and with those private and nonprofit business enterprises that
currently provide collection and processing services to develop and
promote a safe and effective used cell phone recycling system for
California.
(f) The producers of cell phones should reduce and, to the extent
feasible, ultimately phase out the use of hazardous materials in cell
phones.
(g) Cell phones, to the greatest extent feasible, should be
designed for extended life, repair, and reuse.
(h) The purpose of this chapter is to provide for the safe, cost
free, and convenient collection and recycling of 100 percent of the
used cell phones discarded or offered for recycling in the state.
(i) In establishing a cost effective system for the recovery,
reuse, recycling and proper disposal of used cell phones, it is the
intent of the Legislature to encourage manufacturers, retailers and
service providers to build on the retailer take-back systems
initiated recently by some cell phone service providers.
(j) An estimated 5 percent of obsolete cell phones are currently
being recycled through a mechanism, whereby private sector recyclers
provide retailers with a postage paid box for mailing returned cell
phones to the recycler at no cost to the retailers. In some
instances, the scrap value of these used phones is sufficient for the
recycler to either pay the retailer or make a financial contribution
on behalf of the retailer to a nonprofit charity. It is the intent
of the Legislature that this model system be substantially expanded
as a result of the enactment of this act.
Article 2. Definitions
42493. For the purposes of this chapter, the following terms have
the following meanings, unless the context clearly requires
otherwise:
(a) "Board" means the California Integrated Waste Management
Board.
(b) "Cell phone" has the same meaning as a "cellular telephone,"
as defined in Section 25214.50 of the Health and Safety Code.
(c)
(a) "Cell phone" means a wireless telephone device that is
designed to send or receive transmissions through a cellular
radiotelephone service, as defined in Section 22.99 of Title 47 of
the Code of Federal Regulations. A cell phone includes the
rechargeable battery that may be connected to that cell phone. A
cell phone does not include a wireless telephone device that is
integrated into the electrical architecture of a motor vehicle.
(b) "Consumer" means a purchaser or owner of a cell phone.
"Consumer" also includes a business, corporation, limited
partnership, nonprofit organization, or governmental entity, but does
not include an entity involved in a wholesale transaction between a
distributor and retailer.
(d)
(c) "Department" means the Department of Toxic Substances
Control.
(e)
(d) "Retailer" means a person who sells a cell phone in the
state to a consumer, including a manufacturer of a cell phone who
sells that cell phone directly to a consumer. A sale includes, but
is not limited to, transactions conducted through sales outlets,
catalogs, or the Internet, or any other similar electronic means, but
does not include a sale that is a wholesale transaction with a
distributor or retailer.
(f)
(e) (1) "Sell" or "sale" means a transfer for consideration
of title or of the right to use, by lease or sales contract,
including, but not limited to, transactions conducted through sales
outlets, catalogs, or the Internet or any other, similar electronic
means, but does not include a wholesale transaction with a
distributor or a retailer.
(2) For purposes of this subdivision and subdivision (e)
(d) , "distributor" means a person who sells a
cell phone to a retailer.
(g)
(f) "Used cell phone" means a cell phone that is discarded
or disposed of, and which the department determines, when discarded
or disposed, would be a hazardous waste pursuant to Chapter 6.5
(commencing with Section 25100) of Division 20 of the Health and
Safety Code.
Article 3. Cell Phone Recycling
42494. (a) On and after July 1, 2005 2006
, every retailer of cell phones sold in this state shall have
in place a system for the acceptance, collection, reuse, and
recycling or proper disposal of used cell phones.
(b) A system for the acceptance, collection, reuse, and recycling
or proper disposal of used cell phones at a minimum shall include all
of the following elements:
(1) The take-back from the consumer of a used cell phone that the
retailer sold or previously sold to the consumer, at no cost to that
consumer. The retailer may require proof of purchase.
(2) The take-back of a used cell phone from a consumer who is
purchasing a new cell phone from that retailer, at no cost to that
consumer.
(3) The creation and maintenance of a toll-free telephone number
and Internet Web site where a consumer may obtain information on
no-cost opportunities to recover, reuse, and recycle or properly
dispose of used cell phones as described in paragraphs (1) and (2).
(4) The creation and maintenance of a public education program to
promote the recovery, reuse, and recycling or proper disposal of used
cell phones.
(5)
(3) If the retailer delivers a cell phone directly to a
consumer in this state, the system provides the consumer, at the time
of delivery, with a mechanism for the return of used cell phones for
reuse, recycling, or proper disposal, at no cost to the consumer.
(4) Make information available to consumers about cell phone
recycling opportunities provided by the retailer and encourage
consumers to utilize those opportunities. This information may
include, but is not limited to, one or more of the following:
(A) Point-of-purchase signage or display.
(B) Written materials provided to the consumer at the time of
purchase or delivery, or both.
(C) Reference to the cell phone recycling opportunity in retailer
advertising or other promotional materials, or both.
(D) Direct communications with the consumer at the time of
purchase.
42495. On and after July 1, 2005, it shall be
2006, it is unlawful to sell a cell phone to a consumer in
this state unless the retailer of that cell phone complies with this
chapter.
42495.1. (a) On or before July 1, 2006, and annually thereafter
as determined by the department, each retailer of a cell phone who
sells cell phones in this state shall do all of the following:
(1) Include the following information in any notification
submitted to the department pursuant to regulations existing on
January 1, 2005, for universal waste handlers:
(A) The number of cell phones sold by the retailer in the state
during the previous year.
(B) The number of cell phones accepted and or collected from
consumers in this state for recycling or proper disposal during the
previous year.
(2) Make information available to consumers, that describes where
and how to return, recycle, and dispose of a used cell phone and
opportunities and locations for the collection or return of the cell
phone, through the use of a toll-free telephone number, Internet Web
site, information labeled on the cell phone, information included in
the packaging, or information accompanying the sale of a cell phone.
(b) A retailer may comply with the reporting requirements of
paragraph (1) of subdivision (a) by submitting an aggregate report
from multiple retailers.
(c) Any information submitted to the department pursuant to
subdivision (a) that is proprietary in nature or a trade secret shall
be subject to protection under state laws and regulations governing
that information.
Article 4. Statewide Recycling Goals
42496.4. On July 1, 2006, and every three years thereafter, the
board shall establish, and update as necessary, statewide recycling
goals for used cell phones. In implementing this section, the board
shall do all of the following:
(a) Post on its Web site information on the amount of cell phones
sold in the state in the previous year as reported to the board.
(b) Post on its Web site information on the amount of used cell
phones recycled in the state in the previous year as reported to the
board.
(c) Post on its Web site a recycling ratio, the numerator of which
is the amount in subdivision (a) and the denominator of which is the
amount in subdivision (b).
Article 4. Statewide Recycling Goals
42496.4. On July 1, 2007, and each July 1, thereafter, the
department shall post on its Web site an estimated California
recycling rate for cell phones, the numerator of which shall be the
estimated number of cell phones returned for recycling in California
during the previous calendar year, and the denominator of which is
the number of cell phones estimated to be sold in this state during
the previous calendar year.
Article 5. State Agency Procurement
42498. (a) A state agency that purchases or leases cell phones
shall require each prospective bidder, to certify that it, and its
agents, subsidiaries, partners, joint venturers, and subcontractors
for the procurement, have complied with this chapter and any
regulations adopted pursuant to this chapter, or to demonstrate that
this chapter is inapplicable to all lines of business engaged in by
the bidder, its agents, subsidiaries, partners, joint venturers, or
subcontractors.
(b) Failure to provide certification pursuant to this section
shall render the prospective bidder and its agents, subsidiaries,
partners, joint venturers, and subcontractors ineligible to bid on
the procurement of cell phones.
(c) The bid solicitation documents shall specify that the
prospective bidder is required to cooperate fully in providing
reasonable access to its records and documents that evidence
compliance with this chapter.
(d) Any person awarded a contract by a state agency that is found
to be in violation of this section is subject to the following
sanctions:
(1) The contract shall be voided by the state agency to which the
equipment, materials, or supplies were provided.
(2) The contractor is ineligible to bid on any state contract for
a period of three years.
(3) If the Attorney General establishes in the name of the people
of the State of California that any money, property, or benefit was
obtained by a contractor as a result of violating this section, the
court may, in addition to any other remedy, order the disgorgement of
the unlawfully obtained money, property, or benefit in the interest
of justice.
SEC. 3. The provisions of this act are severable. If any
provision of this act or its application is held invalid, that
invalidity shall not affect other provisions or applications that can
be given effect without the invalid provision or application.
SEC. 4. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.