BILL ANALYSIS Ó AB 888 Page 1 Date of Hearing: April 28, 2015 ASSEMBLY COMMITTEE ON ENVIRONMENTAL SAFETY AND TOXIC MATERIALS Luis Alejo, Chair AB 888 (Bloom) - As Amended April 22, 2015 SUBJECT: Waste management: plastic microbeads SUMMARY: Prohibits, on and after January 1, 2020, the sale of personal care products containing plastic microbeads. Specifically, this bill: 1)Makes legislative findings about microplastics and microbeads and their effects on the environment. 2)Defines "personal care product" as an article intended to be rubbed, poured, sprinkled, or sprayed on, introduced to, or otherwise applied to, the human body or any part thereof for cleansing, beautifying, promoting attractiveness, or altering the appearance, and an article intended for use as a component of that type of article. Prescription drugs are not included in the definition of personal care products. 3)Defines "plastic microbead" as an intentionally added solid plastic particle measuring five millimeters or less in every dimension. AB 888 Page 2 4)Prohibits, on and after January 1, 2020, a person from selling or offering for promotional purposes any personal care products containing plastic microbeads that are used to exfoliate or cleanse in a rinse-off product including but not limited to, toothpaste. 5)Exempts from the prohibition the following: a) A person that sells or offers for promotional purposes a personal care product containing plastic microbeads in less than 1 part per million by weight; and, b) A product containing natural exfoliants that does not contain plastic microbeads. 6)Provides that a person who violates or threatens to violate the prohibitions may be enjoined in any court of competent jurisdiction and is liable for a civil penalty not to exceed $2,500 per day for each violation, as specified. 7)Authorizes the Attorney General, a district attorney, a city attorney, or a city prosecutor to enforce the prohibition and provides that the civil penalties collected shall be paid to whichever office brought the action. EXISTING LAW: AB 888 Page 3 1)Prohibits, under the federal Marine Plastic Pollution Research and Control Act of 1987, the at-sea disposal of plastic and other solid materials for all navigable waters within the United States. (33 U.S.C. § 1901 et seq.) 2)Regulates, under the Porter-Cologne Water Quality Control Act, discharges of pollutants in storm water and urban runoff by regulating, through the National Pollution Discharge Elimination System (NPDES), industrial discharges and discharges through the municipal storm drain systems. (Water Code § 13000 et seq.) 3)Requires the State Water Resources Control Board (SWRCB) and the regional water boards to implement a program to control discharges of preproduction plastic (nurdles) from point and nonpoint sources. Requires the SWRCB to determine the appropriate regulatory methods to address the discharges from these point and nonpoint sources. (Water Code § 13367) 4)Declares that littered plastic products have caused and continue to cause significant environmental harm and have burdened local governments with significant environmental cleanup costs. (Public Resources Code (PRC) § 42355) FISCAL EFFECT: Unknown. COMMENTS: Need for the bill: According to the author, "Microplastic beads are sold in consumer products as abrasives and exfoliants (such as in soaps, facial scrubs, etc.). In some products there are over 350,000 microbeads in one tube alone. They are directly washed down the drain and too small to be captured by water treatment facilities. Recent studies have shown microbeads to be a pervasive marine pollutant, and have been found in alarming AB 888 Page 4 quantities everywhere from the garbage gyres in the Pacific Ocean to the Great Lakes to the LA River. Research has also shown that these beads absorb toxins and are being ingested by marine life, posing a threat to our marine ecosystems. Currently there is no law banning their use in consumer products. While some larger companies such as Unilever, Proctor & Gamble and Johnson & Johnson have pledged to phase microbeads out of their products and replace them with natural alternatives, the proposed phase out dates range all over the place and in some cases are only 50% by a certain date, etc. Our bill would provide a hard phase out date to ensure that plastic microbeads from personal care products are no longer entering our waters." Microplastics in the marine environment: According to the United States Environmental Protection Agency (US EPA), marine debris is a serious problem that impacts the environment, economy, and human health and safety. Plastic pollution is the predominant type of anthropogenic debris found in the marine environment. Microplastics enter the marine environment as larger plastic objects that eventually degrade into smaller components, as shed synthetic fibers from textiles during clothes washing, or as microbeads that originate in personal care products. According to The 5 Gyres Institute, microplastic particles and microbeads, which are typically made of polyethylene, polypropylene, polyethylene terephthalate, polymethyl methacrylate or nylon, can be found in facial and body scrubs, shampoos, soaps, toothpaste, eyeliners, lip gloss, deodorant, and sunblock sticks. Some of these products, most of which are designed to be flushed down the sink or bath drain, contain more than 350,000 beads per bottle. A number of studies have shown that microplastics pass through wastewater treatment facilities and into waterways, eventually flowing to the ocean. Additional microplastics reach rivers and oceans as a result of wastewater overflow during heavy rainfall events. AB 888 Page 5 Impacts of discarded microplastic: The US EPA states that marine animals accidentally eat marine debris while feeding on natural food. Ingestion can lead to starvation or malnutrition when the debris collects in the animal's stomach and causes the animal to stop feeding. Internal injuries and infections may also result from ingestion. In addition to causing these types of injuries to wildlife, microplastics can have toxicological effects. Research suggests that microplastics attract and absorb persistent organic pollutants, such as PCBs, DDT, and PBDEs. Studies conducted by UC Santa Barbara's National Center for Ecological Analysis and Synthesis (NCEAS) show that about 78 percent of the chemicals recognized by the US EPA are associated with microplastic pollution. Additional studies at NCEAS show that toxic concentrations of pollutants and additives enter the tissue of animals that have eaten microplastic. These pollutants bioaccumulate and bioamplify, having the potential to impact ecosystems and human health. Are microplastic beads necessary in personal care products? Alternatives to plastic microbeads, such as ground fruit pits, seeds, cocoa beans, rice, sugar, and salt, are commonly used in personal care products. While some opponents argue that these components don't offer the same scrubbing feeling or hypoallergenic properties as microbeads, many major manufacturers are already voluntarily phasing out microplastics and using these or other alternatives. For example, Unilever's website states, "We decided to phase-out plastic scrub beads from personal care products because we believed we could provide consumers with products that deliver a similar exfoliating performance without the need to use plastics. We completed the phase-out globally by 1 January 2015 using suitable alternatives that best match the sensory experience that the plastic scrub beads provided." Colgate-Palmolive's website states, "We recognize that consumers have questions and are reformulating AB 888 Page 6 with alternate ingredients the small number of our products containing microplastics. Much of this work has already been accomplished, and the process will be completed by 2014." Johnson & Johnson, L'Oreal, and Proctor & Gamble have also eliminated, or have committed to eliminating, the use of microplastics in their products. Arguments in support: The California Association of Sanitation Agencies (CASA) writes that "Pollution prevention and source control are significant concerns for our member agencies. Plastic pollution is a prolific problem in California, and plastic microbeads in particular are very difficult to filter out during the typical wastewater treatment processes. Thus, microbeads that are flushed down drains as part of their intended use can be discharged into California waterways and released into the environment? The best way to ensure that these pollutants are not discharged to California waterways is to prohibit their introduction to the wastewater stream on the front end." A coalition of about 40 public health and environmental organizations writes, "Studies indicate that plastic microbeads attract and absorb toxins from the surrounding waters and can leach toxic additives (that give microbeads their defined shape and performance attributes) into the aquatic environment. They are also mistaken for food by wildlife, including fish that humans eat. Once ingested, the toxins accumulate in the tissues of organisms and move their way up the food chain, creating a threat both to natural ecosystems and human health? AB 888 is regarded among stakeholders as the model policy that will not only result in a cleaner environment, but also reduce hazards to both humans as well as marine and aquatic wildlife." Arguments in opposition: A coalition of eight industry trade associations writes, "Last year, similar legislation was moved out of the Assembly as a "work in progress" as all parties were very close to agreement. Unfortunately, changes made in the Senate ultimately made the bill unworkable for the industry and we had no choice but to oppose on the Senate Floor. AB 888 is AB 888 Page 7 equally problematic, as its scope goes beyond a ban of plastic microbeads in personal care products and would create a legal quagmire, leaving the interpretations of the definitions and what is covered up to the courts? "As you may know, the State of Illinois reached a reasonable framework for legislation to address this issue in June 2014. The Illinois legislation was ultimately included in the Council of State Governments (CSG) "Suggested State Legislation" to help shape future policy on this issue. Since that time, similar legislation has been enacted in Colorado, Maine and New Jersey. Specifically, the CSG legislation bans the manufacture of personal care products and over-the-counter medications that contain non-biodegradable solid plastic microbeads that are used to exfoliate or cleanse in a rinse-off product." Related legislation: 1)SB 625 (Galgiani). SB 625 prohibits, on and after January 1, 2020, a person from selling or offering for promotional purposes a personal care product containing synthetic plastic microbeads; however, it includes different definitions, different enforcement provisions, and a state preemption provision. SB 625 is set to be heard in the Senate Environmental Quality Committee on April 29, 2015. 2)AB 1699 (Bloom, 2014) was substantially similar to AB 888. AB 1699 passed the Environmental Safety and Toxic Materials Committee on a 5 - 2 vote, and was subsequently held on the Senate Inactive file. Double referral: This bill was double referred to the Assembly Committee on Natural Resources, where it passed on April 13, 2015, on a 7 - 0 vote. AB 888 Page 8 REGISTERED SUPPORT / OPPOSITION: Support Californians Against Waste (sponsor) California Association of Sanitation Agencies (sponsor) Clean Water Action (sponsor) The Story of Stuff Project (sponsor) 5 Gyres Institute (sponsor) Azul Breast Cancer Fund California Coastkeeper Alliance California League of Conservation Voters Campaign for Safe Cosmetics Carpinteria Sanitary District Center for Biological Diversity Center for Environmental Health Center for Oceanic Awareness Research and Education Central Contra Costa Sanitary District Central Marin Sanitation Agency City of Palo Alto City and County of San Francisco Clean Oceans Competition Cleanups For Change Coachella Valley Water District Community Environmental Council Councilmember Paul Koretz, City of Los Angeles Costa Mesa Sanitary District Defenders of Wildlife AB 888 Page 9 Delta Diablo East Bay Municipal Utility District Environment California Environmental Action Committee of West Marin Environmental Working Group Goleta Sanitary District Green Sangha Green Science Policy Institute Heal the Bay Health Care Without Harm Hidden Resources Klean Kanteen Las Gallinas Valley Sanitary District Las Virgenes - Triunfo Joint Powers Authority Leucadia Wastewater District LA City Councilmember Paul Koretz LA Waterkeeper Lunch Skins LUSH Cosmetics Manduka Napa Recycling and Waste Services Natural Resources Defense Council Ocean Conservancy Physicians for Social Responsibility, SF Bay Chapter Plastic Pollution Coalition Plastic Soup Foundation Ross Valley Sanitary District San Francisco Public Utilities Commission San Francisco Water Power Sewer Save Our Shores Save The Bay Seventh Generation Advisors Sierra Club California Surfrider Foundation Team Marine, Santa Monica High School Turtle Island Restoration Network Victor Valley Wastewater Reclamation Authority AB 888 Page 10 World Centric Opposition American Chemistry Council Biocom California Manufacturers & Technology Association California Retailers Association Chemical Industry Council of California Consumer Healthcare Products Association International Fragrance Association, North America Personal Care Products Council Analysis Prepared by:Shannon McKinney / E.S. & T.M. / (916) 319-3965 AB 888 Page 11