BILL ANALYSIS �
AB 2336
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Date of Hearing: April 23, 2012
ASSEMBLY COMMITTEE ON NATURAL RESOURCES
Wesley Chesbro, Chair
AB 2336 (Mansoor) - As Amended: April 9, 2012
SUBJECT : Plastic products: labeling
SUMMARY : Revises the enforcement provisions for labeling of
biodegradable plastic products.
EXISTING LAW :
1)Prohibits the sale of a plastic bag that is labeled with the
term "compostable" or "marine degradable" unless, at the time
of sale, the plastic bag meets the applicable American Society
for Testing and Materials (ASTM) standard specification.
2)Prohibits the sale of a plastic bag that is labeled with the
term "biodegradable," "degradable," or "decompostable," or any
form of those terms, or in any way imply that the bag will
break down, fragment, biodegrade, or decompose in a landfill
or other environment.
3)Sunsets the above provisions, and replaces these requirements
with identical requirements for "plastic products" generally,
on January 1, 2013.
4)Establishes civil penalties for violations of the above
requirements in the amounts of $500 for the first violation,
$1000 for the second violation, and $2000 for the third and
any subsequent violations. Specifies that penalties may be
imposed by a city, county, or the state.
5)Imposes civil liability and criminal penalties for any
unlawful, unfair, or fraudulent business act or any unfair,
deceptive, untrue, or misleading advertising.
THIS BILL :
1)Limits enforcement actions for violations of the compostable
and degradable plastic product labeling requirements to the
Attorney General and specifies that any penalties collected
may only be used by the Attorney General.
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2)Limits enforcement to manufacturers of plastic products.
3)Requires that prior to any "action to enforce" these
requirements, the Attorney General issue a written notice of
violation by certified mail, with return receipt requested,
and allow 30 days to remedy the violation.
FISCAL EFFECT : Unknown
COMMENTS :
1)Background on plastic bag labeling requirements : The labeling
requirements for plastic bags were enacted in 2004 by SB 1749
(Karnette) (Chapter 619). In 2008, after a pattern of
non-compliance with the labeling requirements,
then-Assemblywoman Karnette authored AB 2071 (Chapter 570) to
establish civil penalties for violations. Chapter 436,
Statutes of 2008 (AB 1972, DeSaulnier) updated the labeling
requirements to reflect newer ASTM standard specifications.
In addition to the labeling requirements above, "biodegradable"
plastic bags are subject to enforcement under the Business and
Professions Code 17200 and 17500 for unlawful, unfair, or
fraudulent business practices and unfair, deceptive, untrue,
or misleading advertising. In assessing penalties under
these provisions, the court must take into account the nature
and seriousness of the misconduct, the number of violations,
the persistence of the misconduct, the length of time over
which the misconduct occurred, the willfulness of the
defendant's misconduct, and the defendant's assets,
liabilities, and net worth.
"Biodegradable" plastics may degrade; however, there is no
established standard for degradability (size of the particles
remaining, length of time for degradation). Generally, these
materials simply break down into smaller pieces of plastic,
which continue to pose a threat to the environment. According
to the U.S. Environmental Protection Agency, marine debris has
become a serious problem along shorelines, coastal waters,
estuaries, and oceans throughout the world. It is estimated
that 60-80 percent of all marine debris and 90 percent of
floating debris is plastic. Small bits of plastic are a
threat to marine life, including sea birds and filter feeders.
Recent studies by the Algalita Marine Research Foundation and
the Southern California Coastal Water Research Project have
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found that the average mass of plastics in the seawater off
the coast of Long Beach is two and a half times greater than
the average mass of plankton. After storms with excessive
runoff, the mass of plastics is even greater. A similar study
over seawater 1,000 miles west of San Francisco found the mass
of plastics was six times the mass of plankton in drifts where
marine animals congregate for feeding on plankton.
2)This bill : In December of last year, Doggie Walk Bags, Inc.
(the bill's sponsor) received a cease and desist letter from
the City Attorney of Santa Monica, on behalf of the District
Attorneys of Alameda, Fresno, Monterey, Napa, Sacramento,
Santa Clara, and Solano and Sonoma Counties for selling
plastic dog waste bags labeled "biodegradable." The sponsor
states that "within 10 days" of receipt of this letter, they
had corrected all packaging. After communicating this to the
Santa Monica City Attorney, they state they were asked to
provide a listing of all customers and three years of
financial records to determine fines and penalties. According
to the sponsor, upon receipt of a similar letter, Petco
stopped carrying their pet waste bags, causing significant
harm to their business. The sponsors, and other supporters of
the bill, indicate that the potential fines (no fines have yet
been assessed) may be sufficient to put them out of business.
1) Concerns raised : While this bill is intended to
minimize potential penalties against Doggie Walk Bags,
Inc., and related businesses, the bill would not go into
effect until January 1, 2013. The Legislature does not
generally alleviate penalties retroactively. Moreover,
this bill only applies to the labeling requirements in the
Public Resources Code. Enforcement under the Business and
Professions Code would be unaffected.
The author has not provided the rationale for limiting
enforcement to the Attorney General; however, this
provision would severely limit enforcement of the plastic
bag labeling requirements. Local district attorneys have
proven to be effective at enforcing these requirements.
According to the sponsors, limiting enforcement to
manufacturers of plastic bags in violation of labeling
requirements would protect companies that sell their
products, including Petco. This would have the unintended
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consequence of putting CA bag manufacturers at a
disadvantage, because there would be no mechanism to
enforce these provisions on bags manufactured outside of
California.
Regulatory systems encourage or deter behaviors through the
threat of penalty for non-compliance. In regulatory
systems, there are varying degrees of culpability, ranging
from strict liability, or no fault, to negligent and
intentional violations. Strict liability is important to
the maintenance of a regulatory system because it requires
individuals to know and comply with the law or risk penalty
regardless of intent. In some regulatory systems that do
not involve any permitting or ongoing monitoring, the
chances of enforcement are often slim; the only incentive
for complying with the law is the threat of a penalty. To
achieve deterrence, the penalty must be sufficient to
deprive any economic benefit resulting from a violation, to
reflect the seriousness of the violation taking into
account the violator's financial condition, to and deter
others from the temptation of noncompliance. Requiring
violators to receive a "grace period" would significantly
weaken enforcement of plastic bag labeling requirements.
Violators would be able to willfully market illegally
labeled products, and only begin complying when caught.
REGISTERED SUPPORT / OPPOSITION :
Support
American Pet Products Association
California Grocers Association
Doggie Walk Bags, Inc. (sponsor)
Petpro Products
Opposition
Asean Corporation
Association of Postconsumer Plastic Recyclers
Biodegradable Products Institute
Californians Against Waste
California District Attorneys Association
NatureWorks, LLC
Sierra Club California
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Analysis Prepared by : Elizabeth MacMillan / NAT. RES. / (916)
319-2092