The Safe Drinking Water and Toxic Enforcement Act of 1986 (Proposition 65) prohibits any person, in the course of doing business, from knowingly and intentionally exposing any individual to a chemical known to the state to cause cancer or reproductive toxicity without giving a specified warning, or from discharging or releasing such a chemical into any source of drinking water, except as specified. Existing law prohibits the sale of expanded polystyrene packaging material by a wholesaler or manufacturer. Existing law prohibits a person from selling a plastic product in this state that is labeled with the term compostable, home compostable, or marine degradable unless, at the time of sale, the plastic product meets the applicable ASTM International standard specification.

This bill would prohibit, 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 plastic microbeads that are used to exfoliate or cleanse in a rinse-off product, 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.

The bill would make a violator liable for a civil penalty not to exceed $2,500 per day for each violation. The bill would authorize the penalty to be assessed and recovered in a civil action brought in any court of competent jurisdiction by the Attorney General or local officials. The bill would require the civil penalties collected in an action brought pursuant to the act to be retained by the office that brought the action.

The Safe Drinking Water and Toxic Enforcement Act of 1986 (Proposition 65) prohibits any person, in the course of doing business, from knowingly and intentionally exposing any individual to a chemical known to the state to cause cancer or reproductive toxicity without giving a specified warning, or from discharging or releasing such a chemical into any source of drinking water, except as specified. Existing law prohibits the sale of expanded polystyrene packaging material by a wholesaler or manufacturer. Existing law prohibits a person from selling a plastic product in this state that is labeled with the term compostable, home compostable, or marine degradable unless, at the time of sale, the plastic product meets the applicable ASTM International standard specification.

This bill would prohibit, 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 plastic microbeads that are used to exfoliate or cleanse in a rinse-off product, 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.

The bill would make a violator liable for a civil penalty not to exceed $2,500 per day for each violation. The bill would authorize the penalty to be assessed and recovered in a civil action brought in any court of competent jurisdiction by the Attorney General or local officials. The bill would require the civil penalties collected in an action brought pursuant to the act to be retained by the office that brought the action.

The Safe Drinking Water and Toxic Enforcement Act of 1986 (Proposition 65) prohibits any person, in the course of doing business, from knowingly and intentionally exposing any individual to a chemical known to the state to cause cancer or reproductive toxicity without giving a specified warning, or from discharging or releasing such a chemical into any source of drinking water, except as specified. Existing law prohibits the sale of expanded polystyrene packaging material by a wholesaler or manufacturer. Existing law prohibits a person from selling a plastic product in this state that is labeled with the term compostable, home compostable, or marine degradable unless, at the time of sale, the plastic product meets the applicable ASTM International standard specification.

This bill would prohibit, 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 plastic microbeads that are used to exfoliate or cleanse in a rinse-off product, 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. The bill would authorize the Department of Toxic Substances Control to additionally exempt plastic microbeads contained in a personal care product, alternatives to plastic microbeads contained in a personal care product, and a personal care product containing plastic microbeads following a specified alternative analysis process, if a certain finding is made. The bill would require the manufacturer submitting an alternative analysis to reimburse the department for reasonable costs incurred implementing these alternative analysis provisions. microbeads.

The bill would make a violator liable for a civil penalty not to exceed $2,500 per day for each violation. The bill would authorize the penalty to be assessed and recovered in a civil action brought in any court of competent jurisdiction by the Attorney General or local officials. The bill would require the civil penalties collected in an action brought pursuant to the act to be retained by the office that brought the action.

The Safe Drinking Water and Toxic Enforcement Act of 1986 (Proposition 65) prohibits any person, in the course of doing business, from knowingly and intentionally exposing any individual to a chemical known to the state to cause cancer or reproductive toxicity without giving a specified warning, or from discharging or releasing such a chemical into any source of drinking water, except as specified. Existing law prohibits the sale of expanded polystyrene packaging material by a wholesaler or manufacturer. Existing law prohibits a person from selling a plastic product in this state that is labeled with the term compostable, home compostable, or marine degradable unless, at the time of sale, the plastic product meets the applicable ASTM International standard specification.

This bill would prohibit, 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 plastic microbeads that are used to exfoliate or cleanse in a rinse-off product, 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. The bill would authorize the Department of Toxic Substances Control to additionally exempt plastic microbeads contained in a personal care product, alternatives to plastic microbeads contained in a personal care product, and a personal care product containing plastic microbeads following a specified alternative analysis process, if a certain finding is made. The bill would require the manufacturer submitting an alternative analysis to reimburse the department for reasonable costs incurred implementing these alternative analysis provisions.

The bill would make a violator liable for a civil penalty not to exceed $2,500 per day for each violation. The bill would authorize the penalty to be assessed and recovered in a civil action brought in any court of competent jurisdiction by the Attorney General or local officials. The bill would require the civil penalties collected in an action brought pursuant to the act to be retained by the office that brought the action.

The Safe Drinking Water and Toxic Enforcement Act of 1986 (Proposition 65) prohibits any person, in the course of doing business, from knowingly and intentionally exposing any individual to a chemical known to the state to cause cancer or reproductive toxicity without giving a specified warning, or from discharging or releasing such a chemical into any source of drinking water, except as specified. Existing law prohibits the sale of expanded polystyrene packaging material by a wholesaler or manufacturer. Existing law prohibits a person from selling a plastic product in this state that is labeled with the term compostable, home compostable, or marine degradable unless, at the time of sale, the plastic product meets the applicable ASTM International standard specification.

This bill would prohibit, 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 that are used to exfoliate or cleanse in a rinse-off product, 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.

The bill would make a violator liable for a civil penalty not to exceed $2,500 per day for each violation. The bill would authorize the penalty to be assessed and recovered in a civil action brought in any court of competent jurisdiction by the Attorney General or local officials. The bill would require the civil penalties collected in an action brought pursuant to the act to be retained by the office that brought the action.

The Safe Drinking Water and Toxic Enforcement Act of 1986 (Proposition 65) prohibits any person, in the course of doing business, from knowingly and intentionally exposing any individual to a chemical known to the state to cause cancer or reproductive toxicity without giving a specified warning, or from discharging or releasing such a chemical into any source of drinking water, except as specified. Existing law prohibits the sale of expanded polystyrene packaging material by a wholesaler or manufacturer. Existing law prohibits a person from selling a plastic product in this state that is labeled with the term compostable, home compostable, or marine degradable unless, at the time of sale, the plastic product meets the applicable ASTM International standard specification.

This bill would prohibit, 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.

The bill would make a violator liable for a civil penalty not to exceed $2,500 per day for each violation. The bill would authorize the penalty to be assessed and recovered in a civil action brought in any court of competent jurisdiction by the Attorney General or local officials, or by a person in the public interest, as provided. officials. The bill would require 50% of the civil penalties collected in an action brought pursuant to the act to be retained by the entity or person who brough office that brought the action.

The Safe Drinking Water and Toxic Enforcement Act of 1986 (Proposition 65) prohibits any person, in the course of doing business, from knowingly and intentionally exposing any individual to a chemical known to the state to cause cancer or reproductive toxicity without giving a specified warning, or from discharging or releasing such a chemical into any source of drinking water, except as specified. Existing law prohibits the sale of expanded polystyrene packaging material by a wholesaler or manufacturer. Existing law prohibits a person from selling a plastic product in this state that is labeled with the term compostable, home compostable, or marine degradable unless, at the time of sale, the plastic product meets the applicable ASTM International standard specification.

This bill would prohibit, 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.

The bill would make a violator liable for a civil penalty not to exceed $2,500 per day for each violation. The bill would authorize the penalty to be assessed and recovered in a civil action brought in any court of competent jurisdiction by the Attorney General or local officials, or by a person in the public interest, as provided. The bill would require 50% of the civil penalties collected in an action brought pursuant to the act to be retained by the entity or person who brough the action.

The bill would establish the Plastic Pollution Fund in the State Treasury. The bill would authorize the Department of Resources Recycling and Recovery to expend the funds, upon appropriation by the Legislature, to implement and administer the act and reduce plastic pollution by, among other things, providing grants to local governments or other entities. The bill would require 50% of all civil penalties collected pursuant to the act, and any interest earned on the money in the fund, to be deposited into the fund.

CONCURRENCE IN SENATE AMENDMENTS

CSA1 Bill Id:AB 888

Author:(Bloom)

As Amended Ver:September 3, 2015

Majority vote

Original Committee Reference: NAT. RES.

SUMMARY: Prohibits the sale of personal care products that contain plastic microbeads on and after January 1, 2020.

The Senate amendments delete references to "natural exfoliants."

EXISTING LAW:

1. Under the federal Marine Plastic Pollution Research and Control Act of 1987 (Public Law 100-220, Title II), prohibits the at-sea disposal of plastic and other solid materials for all navigable waters within the United States. The law also requires the United States Environmental Protection Agency (EPA), the National Oceanic and Atmospheric Administration, and the US Coast Guard to jointly conduct a public education program on the marine environment.

2. Under the federal Clean Water Act, requires the state to identify a list of impaired water-bodies and develop and implement Total Maximum Daily Loads (TMDLs) for impaired water bodies.

3. Under the Porter Cologne Water Quality Control Act, regulates 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.

4. Establishes the Preproduction Plastic Debris Program, which requires the State Water Resources Control Board (SWRCB) and regional boards to develop a program that requires plastic manufacturing, handling, and transportation facilities to implement best management practices to control discharges of preproduction plastic pellets. The program includes inspections, stakeholder outreach efforts, and enforcement activities.

FISCAL EFFECT: According to the Senate Appropriations Committee, pursuant to Senate Rule 28.8, negligible state costs.

COMMENTS: Plastic microbeads are small plastic pellets that are added to personal care products as exfoliants and abrasives. Unlike other forms of plastic pollution, microbeads in personal care products are designed to be washed down the drain. Wastewater treatment systems are not capable of capturing these small particles, and they pass directly into the state's waterways and eventually to the ocean. Biodegradable alternatives that do not contribute to marine debris exist and are widely used by some product manufacturers, including ground apricot shells and cocoa beans. 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 contain more than 350,000 beads per bottle.

Plastic is the predominate form of marine debris. Plastics are estimated to comprise 60-80% of all marine debris and 90% of all floating debris. According to the California Coastal Commission, the 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. According to Eriksen et al. (2014), 24 expeditions from 2007-13 estimated that there is approximately 96,400 metric tons of floating plastic in the Northern Pacific 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. Even large pieces of plastic break down into small particles due to excessive Ultraviolet radiation exposure and subsequent photo-degradation. These plastic pieces are confused with small fish, plankton, or krill and ingested by aquatic organisms. Over 600 marine animal species have been negatively affected by ingesting plastic worldwide. Last month, scientists at the ARC Centre of Excellence for Coral Reef Studies at James Cook University found that corals are also ingesting small plastic particles, which remain in their small stomach cavities and impede their ability to consume and digest normal food.

In addition to the physical impacts of plastic pollution, microplastics have toxicological effects. Research suggests that microplastics attract and absorb persistent organic pollutants, such as PCBs, DDT, and PBDEs. Studies conducted by University of California Santa Barbara's National Center for Ecological Analysis and Synthesis (NCEAS) show that about 78% of the chemicals recognized by the 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.

Analysis Prepared by: Elizabeth MacMillan / NAT. RES. / (916) 319-2092 FN: 0002220

 THIRD READING  

Bill No: AB 888

Author: Bloom (D)

Amended: 9/3/15 in Senate

Vote: 21

SENATE ENVIRONMENTAL QUALITY COMMITTEE: 5-1, 6/17/15

AYES: Wieckowski, Hill, Jackson, Leno, Pavley

NOES: Bates

NO VOTE RECORDED: Gaines

SENATE JUDICIARY COMMITTEE: 4-1, 6/30/15

AYES: Jackson, Leno, Monning, Wieckowski

NOES: Anderson

NO VOTE RECORDED: Moorlach, Hertzberg

SENATE FLOOR: 19-16, 9/3/15 (FAIL)

AYES: Allen, Beall, Block, De León, Hall, Hancock, Hill, Hueso, Jackson, Lara, Leno, Liu, McGuire, Mendoza, Mitchell, Monning, Pavley, Wieckowski, Wolk

NOES: Anderson, Bates, Berryhill, Cannella, Gaines, Hernandez, Huff, Leyva, Moorlach, Morrell, Nguyen, Nielsen, Roth, Runner, Stone, Vidak

NO VOTE RECORDED: Fuller, Galgiani, Glazer, Hertzberg, Pan

ASSEMBLY FLOOR: 59-12, 5/22/15 - See last page for vote

SUBJECT: Waste management: plastic microbeads

SOURCE: Author

DIGEST: This bill prohibits the sale of personal care products that contain plastic microbeads on and after January 1, 2020.

Senate Amendments taken 9/3/15 remove 1) references to natural exfoliants and 2) the alternative assessment process by which Department of Toxic Substances Control (DTSC) may evaluate alternative plastic microbeads and alternatives to plastic microbeads.

Senate Floor Amendments of 9/1/15 authorize an alternative analysis process by which the DTSC may evaluate alternative plastic microbeads and alternatives to plastic microbeads.

ANALYSIS:

Existing federal law:

1. Prohibits, under the Marine Plastic Pollution Research and Control Act of 1987, 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. Regulates, under the Porter Cologne Water Quality Control Act, 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).
   
   

This bill:

1. Defines terms used in this bill, including:

1. "Personal care product" as an article to be applied to the human body for cleansing, beautifying, promoting attractiveness, or altering the appearance, and an article intended for use as a component of such an article, but excludes prescription drugs.

2. "Plastic microbead" as an intentionally added plastic particle that that is five millimeters or less in all dimensions.

3. "Person" as an individual, business, or other entity.

2. Prohibits, beginning January 1, 2020, a person from selling or offering for promotional purposes a personal care product containing plastic microbeads that is used to exfoliate or cleanse in a rinse-off product. Specifies that this provision does not apply to products that contain plastic microbeads in an amount less than one part per million or products containing natural exfoliants.

3. Establishes enforcement provisions, including civil penalties not to exceed $2,500 per day for each violation, as specified. Authorizes the Attorney General, a district attorney, a city attorney, or a city prosecutor to enforce the requirements of this bill.

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 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.

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 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.
   
   

Related/Prior Legislation

AB 1699 (Bloom, 2014) would have prohibited the sale of microbead containing products in California as specified.

AB 1699 passed the Senate Environmental Quality on a vote of 5-2 but failed passage on the Senate Floor on a vote of 20-14.

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: No

SUPPORT: (Verified 9/4/15)

Californians Against Waste (co-source)

California Association of Sanitation Agencies (co-source)

Clean Water Action (co-source)

The Story of Stuff Project (co-source)

5 Gyres Institute (co-source)

ACURE

As You Sow

Aroma Naturals

Azul
Breast Cancer Fund
California Coastal Commission

California Coastkeeper Alliance
California League of Conservation Voters

California State Lands Commission

Campaign for Safe Cosmetics
Center for Biological Diversity
Center for Environmental Health
Center for Oceanic Awareness, Research and Education
City of Los Angeles, Mayor Eric Garcetti

City of Los Angeles, Councilmember Paul Koretz
City and County of San Francisco

ChicoBag
Clean Oceans Competition

Cleanups For Change
Coachella Valley Water District
Community Environmental Council

County Sanitation Districts of Los Angeles
Defenders of Wildlife
Environment California
Environmental Action Committee of West Marin
Environmental Working Group
Green Sangha
Green Science Policy Institute
Heal the Bay
Health Care Without Harm
Hidden Resources
Klean Kanteen
Los Angeles Waterkeeper
Lunch Skins, by 3 Green Moms

LUSH Cosmetics
Manduka

Mango Materials

Monterey Bay Aquarium
Napa Recycling and Waste Services
Natural Resources Defense Council
Ocean Conservancy
Physicians for Social Responsibility, SF Bay Chapter
Plastic Pollution Coalition
Plastic Soup Foundation

Preserve
San Francisco Bay Keeper

San Francisco Department of the Environment
Save Our Shores
Save The Bay

Sea Turtles Forever
Seventh Generation Advisors
Sierra Club California
Surfrider Foundation
Team Marine, Santa Monica High School
Turtle Island Restoration Network

UPSTREAM
WeTap

Wildcoast

World Centric

World Society for the Protection of Animals

1 Individual

OPPOSITION: (Verified 9/4/15)

Advanced Medical Technology Association

Biocom

California Chamber of Commerce

California Life Sciences Association

California Healthcare Products Association

California Manufacturers & Technology Association

California Retailers Association

Chemical Industry Council of California

Grocery Manufacturers Association

Henkel Consumer Goods, Inc.

International Fragrance Association North America

Johnson & Johnson

Micro Powders, Inc.

National Federation of Independent Business

Proctor & Gamble

Reckitt Benckiser

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 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."

ASSEMBLY FLOOR: 59-12, 5/22/15

AYES: Achadjian, Baker, Bloom, Bonilla, Bonta, Brown, Burke, Calderon, Campos, Chang, Chau, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle, Daly, Dodd, Eggman, Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray, Hadley, Roger Hernández, Holden, Irwin, Jones-Sawyer, Kim, Lackey, Levine, Linder, Lopez, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Mullin, Nazarian, Obernolte, Perea, Quirk, Rendon, Ridley-Thomas, Santiago, Mark Stone, Thurmond, Ting, Wilk, Williams, Wood, Atkins

NOES: Travis Allen, Bigelow, Brough, Chávez, Beth Gaines, Gallagher, Grove, Harper, Jones, Patterson, Steinorth, Wagner

NO VOTE RECORDED: Alejo, Frazier, Melendez, O'Donnell, Olsen, Rodriguez, Salas, Waldron, Weber

Prepared by: Rachel Machi Wagoner / E.Q. / (916) 651-4108

9/4/15 10:02:28

**** END ****

 THIRD READING  

Bill No: AB 888

Author: Bloom (D)

Amended: 4/22/15 in Assembly

Vote: 21

SENATE ENVIRONMENTAL QUALITY COMMITTEE: 5-1, 6/17/15

AYES: Wieckowski, Hill, Jackson, Leno, Pavley

NOES: Bates

NO VOTE RECORDED: Gaines

SENATE JUDICIARY COMMITTEE: 4-1, 6/30/15

AYES: Jackson, Leno, Monning, Wieckowski

NOES: Anderson

NO VOTE RECORDED: Moorlach, Hertzberg

SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8

ASSEMBLY FLOOR: 59-12, 5/22/15 - See last page for vote

SUBJECT: Waste management: plastic microbeads

SOURCE: Californians Against Waste

California Association of Sanitation Agencies

Clean Water Action

The Story of Stuff Project

5 Gyres Institute

DIGEST: This bill prohibits the sale of personal care products that contain plastic microbeads on and after January 1, 2020.

ANALYSIS:

Existing federal law:

1. Prohibits, under the Marine Plastic Pollution Research and Control Act of 1987, 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. Regulates, under the Porter Cologne Water Quality Control Act, 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).
   
   

This bill:

1. Defines terms used in this bill, including:

1. "Personal care product" as an article to be applied to the human body for cleansing, beautifying, promoting attractiveness, or altering the appearance, and an article intended for use as a component of such an article, but excludes prescription drugs.

2. "Plastic microbead" as an intentionally added plastic particle that that is five millimeters or less in all dimensions.

3. "Person" as an individual, business, or other entity.

2. Prohibits, beginning January 1, 2020, a person from selling or offering for promotional purposes a personal care product containing plastic microbeads that is used to exfoliate or cleanse in a rinse-off product. Specifies that this provision does not apply to products that contain plastic microbeads in an amount less than one part per million or products containing natural exfoliants.

3. Establishes enforcement provisions, including civil penalties not to exceed $2,500 per day for each violation, as specified. Authorizes the Attorney General, a district attorney, a city attorney, or a city prosecutor to enforce the requirements of this bill.

4. Specifies that penalties collected be retained by the office that brought the action.

5. States legislative findings and declarations relating to the impacts of microplastics.

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 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 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 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:

1. Colgate-Palmolive – end of 2014

2. Johnson & Johnson – end of 2015

3. L’Oreal – no set date

4. Proctor & Gamble – end of 2017 at the earliest

5. The Body Shop – end of 2015

6. Unilever – end of 2015

Comments

1. Purpose of 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 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."

Related/Prior Legislation

AB 1699 (Bloom, 2014) would have prohibited the sale of microbead containing products in California as specified. Specifically it:

1. Defined various terms, including “microplastic,” “personal care products,” “person in the course of doing business,” and “plastic.”

2. Prohibited any person in the course of doing business from selling or promoting personal care products with microplastics after January 1, 2019. The bill offered an exemption for products with less than 1 part per million microplastic by weight.

3. Imposed 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 passed the Senate Environmental Quality on a vote of 5-2 but failed passage on the Senate Floor on a vote of 20-14.

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: No

SUPPORT: (Verified 7/14/15)

Californians Against Waste (co-source)

California Association of Sanitation Agencies (co-source)

Clean Water Action (co-source)

The Story of Stuff Project (co-source)

5 Gyres Institute (co-source)

ACURE

As You Sow

Aroma Naturals

Azul
Breast Cancer Fund
California Coastal Commission

California Coastkeeper Alliance
California League of Conservation Voters

California State Lands Commission

Campaign for Safe Cosmetics
Center for Biological Diversity
Center for Environmental Health
Center for Oceanic Awareness, Research and Education
City of Los Angeles, Mayor Eric Garcetti

City of Los Angeles, Councilmember Paul Koretz
City and County of San Francisco

ChicoBag
Clean Oceans Competition

Cleanups For Change
Coachella Valley Water District
Community Environmental Council

County Sanitation Districts of Los Angeles
Defenders of Wildlife
Environment California
Environmental Action Committee of West Marin
Environmental Working Group
Green Sangha
Green Science Policy Institute
Heal the Bay
Health Care Without Harm
Hidden Resources
Klean Kanteen
Los Angeles Waterkeeper
Lunch Skins, by 3 Green Moms

LUSH Cosmetics
Manduka

Mango Materials

Monterey Bay Aquarium
Napa Recycling and Waste Services
Natural Resources Defense Council
Ocean Conservancy
Physicians for Social Responsibility, SF Bay Chapter
Plastic Pollution Coalition
Plastic Soup Foundation

Preserve
San Francisco Bay Keeper

San Francisco Department of the Environment
Save Our Shores
Save The Bay

Sea Turtles Forever
Seventh Generation Advisors
Sierra Club California
Surfrider Foundation
Team Marine, Santa Monica High School
Turtle Island Restoration Network

UPSTREAM
WeTap

Wildcoast

World Centric

World Society for the Protection of Animals

1 Individual

OPPOSITION: (Verified 7/14/15)

Advanced Medical Technology Association

Biocom

California Chamber of Commerce

California Life Sciences Association

California Healthcare Products Association

California Manufacturers & Technology Association

California Retailers Association

Chemical Industry Council of California

Grocery Manufacturers Association

Henkel Consumer Goods, Inc.

International Fragrance Association North America

Johnson & Johnson

Micro Powders, Inc.

National Federation of Independent Business

Proctor & Gamble

Reckitt Benckiser

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 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."

ASSEMBLY FLOOR: 59-12, 5/22/15

AYES: Achadjian, Baker, Bloom, Bonilla, Bonta, Brown, Burke, Calderon, Campos, Chang, Chau, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle, Daly, Dodd, Eggman, Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray, Hadley, Roger Hernández, Holden, Irwin, Jones-Sawyer, Kim, Lackey, Levine, Linder, Lopez, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Mullin, Nazarian, Obernolte, Perea, Quirk, Rendon, Ridley-Thomas, Santiago, Mark Stone, Thurmond, Ting, Wilk, Williams, Wood, Atkins

NOES: Travis Allen, Bigelow, Brough, Chávez, Beth Gaines, Gallagher, Grove, Harper, Jones, Patterson, Steinorth, Wagner

NO VOTE RECORDED: Alejo, Frazier, Melendez, O'Donnell, Olsen, Rodriguez, Salas, Waldron, Weber

Prepared by: Rachel Machi Wagoner / E.Q. / (916) 651-4108

7/14/15 16:57:11

**** END ****

SENATE JUDICIARY COMMITTEE

Senator Hannah-Beth Jackson, Chair

2015-2016 Regular Session

Bill No: AB 888 (Author:Bloom)

Version: April 22, 2015

Hearing Date: June 30, 2015

Fiscal: Yes

Urgency: No

Consultant: TH

SUBJECT

Waste Management: Plastic Microbeads

DESCRIPTION

This bill would prohibit, on and after January 1, 2020, an individual, business, or other entity, from selling or offering for promotional purposes in this state a personal care product containing plastic microbeads that are used to exfoliate or cleanse in a rinse-off product, unless the product contains less than 1 part per million by weight of plastic microbeads.

This bill would make a violator liable for a civil penalty not to exceed $2,500 per day for each violation, and would specify that only the Attorney General or specified local prosecutors may bring actions to enforce its provisions.

BACKGROUND

Microbeads are non-biodegradable pieces of plastic less than one millimeter in diameter and are frequently found in consumer personal care products. These microbeads are designed to be flushed down drains, ultimately ending up in the marine environment and in marine organisms. Microbeads are an emerging concern among scientists and environmentalists.

A recent article from the Canadian Broadcasting Corporation describes the problem as follows:

You’ve probably seen commercials featuring the use of microbeads and you may have used them yourself. They are the little bits of plastic found in some facial scrubs, toothpastes, hand sanitizers and other personal care products that claim to help exfoliate by scrubbing away dirt more effectively. But to scientists and environmentalists, these plastic pebbles are hurting fish, wildlife and may even be damaging human health.

Microbeads are not harmful when used directly, but issues arise once they are washed down the drain. They are so small that they can make it through most water treatment plants that don’t have filter systems designed to catch minuscule particles. The plastic fragments then make their way into lakes, rivers and streams, where they can be ingested by water-dwelling organisms such as fish . . .

“The concern is that these microbeads then make it up the food chain,” said Philippe Van Cappellen, an ecohydrology professor at the University of Waterloo, who spoke to CBC’s The Morning Edition in March. “Since they’re so small, they also have a large surface relative to their mass and certain contaminants that are present in the environment can actually preferentially accumulate on those microbeads.”

Synthetic chemical compounds such as polychlorinated biphenyls and polycyclic aromatic hydrocarbons can accumulate on the plastic bits, according to Van Cappellen. “Those are compounds that are known — or at least have been suggested — to be causing cancer or birth defects and those are contaminants that preferentially will accumulate on the surfaces on these little plastic particles.”

Research shows that microplastics, including microbeads, carry these contaminants along the food chain, potentially allowing humans to consume them in food and water, Van Cappellen said. If a fish eats the plastic and someone eats the fish, the risk of being affected by these cancer-causing contaminants is real. Scientists don’t have direct evidence that microbeads pose a direct health problem for humans, but the concern is there, Van Cappellen says. The potential danger is why environmentalists in Illinois successfully pushed for a ban on plastic microbeads in personal care products in 2014. It’s also why U.S. House Rep. Frank Pallone introduced a bill to ban the products [in the United States] by 2018. (Jonathan Rumley, Plastic Microbeads: Small Bits With a Big Impact (Jun. 11, 2015) Canadian Broadcasting Corporation < http://www.cbc.ca/news/technology/plastic-microbeads-small-bits-with-a-big-impact-1.3109211 > [as of June 18, 2015].)

This bill seeks to address the growing concern over microbeads entering into California’s waterways and marine ecosystems by enacting a ban on selling products containing plastic microbeads on and after January 1, 2020.

This bill was heard by the Senate Environmental Quality Committee on June 17, 2015, and passed out on a vote of 5-1.

CHANGES TO EXISTING LAW

Existing federal law, the Clean Water Act, generally prohibits the release of any pollutant into waters of the United States from a point source, unless that release is authorized by a permit. (33 U.S.C. Sec. 1251 et seq.)

Existing federal law, 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. Sec. 1901 et seq.)

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

Existing state law declares that any person who knowingly causes any hazardous substance to be deposited into the waters of this state is punishable by imprisonment up to three years and a fine of not more than ten thousand dollars ($10,000). Existing law defines “hazardous substance” to mean, among other things, any material that, because of its quantity, concentration, or physical or chemical characteristics, poses a significant present or potential hazard to human health and safety or to the environment if released into the environment. (Pen. Code Sec. 374.8.)

Existing law, the Porter Cologne Water Quality Control Act, regulates the discharge of pollutants in storm water and urban runoff. (Wat. Code Sec. 13000 et seq.)

Existing law controls the discharge of preproduction plastic pellets into the environment and state waterways. (Wat. Code Sec. 13367.)

Existing law prohibits the sale of expanded polystyrene loosefill packaging material by a wholesaler or manufacturer. (Pub. Resources Code Sec. 42390.)

This bill would prohibit, on or 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, as specified, except for personal care products containing plastic microbeads in a concentration of less than one part per million (ppm) by weight, or a product containing natural exfoliants that does not contain plastic microbeads.

This bill would provide that a person in violation of the above prohibition may be enjoined in any court of competent jurisdiction and is liable for a civil penalty, which may be assessed and recovered in a civil action, not to exceed $2,500 per day for each violation, in addition to any other penalty established by law.

This bill would require a court, in assessing the amount of a civil penalty, to consider all of the following:

• the nature and extent of the violation;

• the number of, and severity of, the violations;

• the economic effect of the penalty on the violator;

• whether the violator took good faith measures to comply with the law and the time these measures were taken;

• the deterrent effect that the imposition of the penalty would have on both the violator and the regulated community as a whole; and

• any other factor that justice may require.

This bill would authorize these actions to be brought by the Attorney General in the name of the people of the state, by a district attorney, by a city attorney, or by a city prosecutor in a city or city and county having a full-time city prosecutor.

This bill would provide that civil penalties collected in a civil action shall be paid to the office of the city attorney, city prosecutor, district attorney, or Attorney General, whichever office brought the action.

This bill would provide the following definitions:

• “natural exfoliant” means a substance occurring in and generated by the natural environment and includes, but is not limited to, walnut shells, apricot hulls, sand, clay, or beeswax;

• “person” means an individual, business, or other entity;

• “personal care product” means 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 such an article;

• “personal care product” does not include a prescription drug; and

• “plastic microbead” means an intentionally added solid plastic particle measuring five millimeters or less in size in every dimension.

This bill would make various related legislative findings and declarations.

COMMENT

1. Stated need for the bill

The author writes:

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 [are] 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 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 [percent] by a certain date, etc. [AB 888] would provide a hard phase out date to ensure that plastic microbeads from personal care products are no longer entering our waters.

2. Civil Penalties

This bill would ban the sale of personal care products containing plastic microbeads measuring five millimeters or less in diameter at concentrations greater than 1 part per million by weight. Proponents of this bill assert that such a ban is necessary to eliminate harmful microbeads from the marine environment. For example, ACURE, a company that sells organic consumer care products, states:

As a company that produces and sells personal care products, we are deeply concerned that plastic microbeads used as exfoliants have become pervasive in the environment, harm[ing] marine wildlife, and pollut[ing] seafood consumed by humans. Plastic debris absorbs and accumulates on its surface pollutants such as polychlorinated biphenyls, flame retardants, and DDT. As these contaminated plastics are ingested by marine life, persistent organic and bioaccumulative pollutants transfer to fish tissue. While this puts all people who eat fish at risk, it is of particular concern for low income communities of color who practice high levels of subsistence fishing out of economic need or cultural tradition.

. . .

Fortunately, the environmental and health impacts of plastic microbeads are easily avoidable as natural alternatives such as apricot pits, cocoa nuts, and beeswax are readily available. However, not all companies have made this commitment and the timelines for those that have are often unclear. Given that a single personal care product may contain 350,000 polyethylene or polypropylene microbeads, it is essential that all such products switch to safer alternatives. Furthermore, we must level the playing field so that companies that do the right thing are not at a disadvantage.

To help achieve a total ban on the sale of personal care products containing plastic microbeads, this bill would authorize specified public prosecutors to bring a civil action to enjoin or assess civil penalties not to exceed $2,500 per day for each violation. This bill would require a court to consider various factors when assessing a civil penalty, including:

• the nature and extent of the violation;

• the number of, and severity of, the violations;

• the economic effect of the penalty on the violator;

• whether the violator took good faith measures to comply with the law and the time these measures were taken;

• the deterrent effect that the imposition of a penalty would have on both the violator and the regulated community; and

• any other factor that justice may require.

With these provisions, the court’s ability to assess civil penalties against a business or other entity selling personal care products will take into account the subjective facts for each violation and the business’s attempts to comply with the bill. Combined with the delayed phase out of microbeads on January 1, 2020, this bill seeks to strike a balance that would protect California’s ecosystem, waterways, and public health, while allowing businesses time to reformulate their products to meet the new standards created in the bill.

3. Enforcement and Remedies

This bill would only authorize specified public prosecutors to enjoin or seek civil penalties against individuals and businesses who sell personal care products containing plastic microbeads, as specified, after January 1, 2020. However, it should be noted that this bill also includes language intended to preserve the ability of private litigants to bring actions against entities that sell personal care products containing plastic microbeads when such conduct would give rise to causes of action under the common law, other statutes, or administrative regulations. Specifically, the bill states that it:

does not alter or diminish any legal obligation otherwise required in common law or by statute or regulation, and [that it] does not create or enlarge any defense in any action to enforce the legal obligation. Penalties and sanctions imposed pursuant to this [bill] shall be in addition to any penalties or sanctions otherwise prescribed by law.

Consequently, an individual who is harmed by a product containing plastic microbeads would remain free to bring suit against the seller and manufacturer of that product, whether or not the harm occurred before or after the ban proposed in this bill takes effect. For example, some dental professionals have expressed concern that plastic microbeads in toothpaste may trap bacteria below the gumline and lead to gingivitis. (See Abby Phillip, Why Dentists are Speaking Out About the Plastic Beads in Your Toothpaste, Washington Post (Sep. 18, 2014) <http://www.washingtonpost.com/news/ to-your-health/wp/2014/09/18/why-dentists-are-speaking-out-about-the-plastic-beads-in-your-toothpaste/> [as of Jun. 23, 2015].) If this bill were to pass, its exclusive remedies provision would not preclude aggrieved individuals from relying on California’s robust consumer protection laws to seek redress.

4. Opposition Concerns

A coalition of business groups, in opposition, has expressed concern about the potential negative impacts this bill could have on the development of “green chemistry” and alternatives to plastic microbeads. This coalition states:

The nation’s personal care products industry is supportive and has already agreed to the phase out of traditional plastic microbeads. As a matter of fact, the industry partnered with environmentalists, legislators and business groups in Illinois on the nation’s first ban on microbeads in rinse-off personal care products. That said, as currently drafted, AB 888 would ban naturally derived or nature identical alternatives that are not considered a “natural exfoliant.”

AB 888 needs to include language that will allow for and incentivize the development of green chemistry and green materials. Some of the research for new green materials is being performed in California and it is reasonable to assume their production would occur in the state. Hence, California jobs could be at stake.

Staff notes that the concerns raised by this coalition of groups in opposition were considered by the Senate Environmental Quality Committee when it heard this bill on June 17, 2015, and that these concerns more appropriately fall within that Committee’s jurisdiction.

Support: 3 Green Moms; 7th Generation Advisors; ACURE; Aroma Naturals; As You Sow; Azul; Breast Cancer Fund; California Coastkeeper Alliance; California League of Conservation Voters; Campaign for Safe Cosmetics; Center for Biological Diversity; Center for Environmental Health; Center for Oceanic Awareness, Research and Education; ChicoBag; City and County of San Francisco; Clean Oceans Competition; Cleanups for Change; Coachella Valley Water District; Community Environmental Council; Defenders of Wildlife; Environment California; Environmental Action Committee of West Marin; Environmental Working Group; Heal the Bay; Health Care Without Harm; Hello Products; Hidden Resources; Green Sangha; Green Science Policy Institute; Klean Kanteen; Los Angeles Waterkeeper; Lush Handmade Cosmetics; Manduka; Mango Materials; Monterey Bay Aquarium; Napa Recycling & Waste Services; Natural Resources Defense Council; Ocean Conservancy; Oceanic Research Vessel Alguita; Physicians for Social Responsibility, San Francisco Bay Chapter; Plastic Pollution Coalition; Plastic Soup Foundation; Preserve; San Francisco Baykeeper; Save the Bay; Save our Shores; Sea Turtles Forever; Sierra Club California; Surfrider Foundation; Turtle Island Restoration Network; Upstream; WeTap; Wildcoast; World Centric; World Society for the Protection of Animals; Zero Waste San Diego; three individuals

Opposition: Advanced Medical Technology Association; Biocom; California Chamber of Commerce; California Life Sciences Association; California Healthcare Products Association; California Manufacturers & Technology Association; California Retailers Association; Chemical Industry Council of California; Grocery Manufacturers Association; Henkel Consumer Goods Inc.; International Fragrance Association North America; Johnson & Johnson; National Federation of Independent Business; Procter & Gamble; Reckitt Benckiser

HISTORY

Source: 5 Gyres; California Association of Sanitation Agencies; Californians Against Waste; Clean Water Action; Story of Stuff Project

Related Pending Legislation: SB 625 (Galgiani, 2015) would prohibit the sale of personal care products containing synthetic plastic microbeads on or after January 1, 2020, as specified. This bill would define synthetic plastic microbead to mean a 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. This bill would make a violator liable for a civil penalty not to exceed $2,500 per day for each violation, and would authorize the Attorney General to enforce the bill’s provisions. This bill would also prohibit 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 bill is pending in the Senate Environmental Quality Committee.

Prior Legislation: AB 1699 (Bloom, 2014) would have provided that, on or after January 1, 2019, a person shall not sell or offer for promotional purposes in this state any personal care products containing plastic microbeads, as defined. This bill would have provided a content exception to the ban and would have authorized specified public prosecutors to levy civil penalties of $2,500 per day against persons who fail to adhere to the ban. This bill died on the Senate Floor.

Prior Vote:

Senate Environmental Quality Committee (Ayes 5, Noes 1)

Assembly Floor (Ayes 59, Noes 12)

Assembly Appropriations Committee (Ayes 12, Noes 4)

Assembly Environmental Safety and Toxic Materials Committee (Ayes 6, Noes 0)

Assembly Natural Resources Committee (Ayes 7, Noes 0)

**************

SENATE COMMITTEE ON ENVIRONMENTAL QUALITY

Senator Wieckowski, Chair

2015 - 2016 Regular

Bill No: AB 888

SUBJECT: Waste management: 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).
   
   

This bill:

Prohibits the sale of personal care products that contain plastic microbeads on and after January 1, 2020. Specifically, this bill:

1. Defines terms used in this bill, including:

   1. "Personal care product" as an article to be applied to the human body for cleansing, beautifying, promoting attractiveness, or altering the appearance, and an article intended for use as a component of such an article, but excludes prescription drugs.

   2. "Plastic microbead" as an intentionally added plastic particle that that is five millimeters or less in all dimensions.

   3. "Person" as an individual, business, or other entity.

2. Beginning January 1, 2020, prohibits a person from selling or offering for promotional purposes a personal care product containing plastic microbeads that is used to exfoliate or cleanse in a rinse-off product. Specifies that this provision does not apply to products that contain plastic microbeads in an amount less than one part per million or products containing natural exfoliants.

3. Establishes enforcement provisions, including civil penalties not to exceed $2,500 per day for each violation, as specified. Authorizes the Attorney General, a district attorney, a city attorney, or a city prosecutor to enforce the requirements of this bill.

4. Specifies that penalties collected be retained by the office that brought the action.

5. States legislative findings and declarations relating to the impacts of microplastics.

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 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 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 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

Comments

1. Purpose of 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 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."

2. Definition of “plastic microbead”. The definition of “plastic microbead” as specified in SB 888 reflects amendments suggested pursuant to the Senate Environmental Quality Committee hearing of AB 1699 (Bloom, 2014).
   
   

Related/Prior Legislation

AB 1699 (Bloom, 2014) would have prohibited the sale of microbead containing products in California as specified. Specifically it:

1. Defined various terms, including “microplastic,” “personal care products,” “person in the course of doing business,” and “plastic.”

2. Prohibited any person in the course of doing business from selling or promoting personal care products with microplastics after January 1, 2019. The bill offered an exemption for products with less than 1 part per million microplastic by weight.

3. Imposed 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 passed the Senate Environmental Quality on a vote of 5-2 but failed passage on the Senate Floor on a vote of 20-14.

SOURCE:

Californians Against Waste

California Association of Sanitation Agencies

Clean Water Action

The Story of Stuff Project 

5 Gyres Institute

SUPPORT:

ACURE

As You Sow

Aroma Naturals

Azul
Breast Cancer Fund
California Coastkeeper Alliance
California League of Conservation Voters

Campaign for Safe Cosmetics
Center for Biological Diversity
Center for Environmental Health
Center for Oceanic Awareness, Research and Education
City of Los Angeles, Mayor Eric Garcetti

City of Los Angeles, Councilmember Paul Koretz
City and County of San Francisco

ChicoBag
Clean Oceans Competition

Cleanups For Change
Coachella Valley Water District
Community Environmental Council

County Sanitation Districts of Los Angeles
Defenders of Wildlife
Environment California
Environmental Action Committee of West Marin
Environmental Working Group
Green Sangha
Green Science Policy Institute
Heal the Bay
Health Care Without Harm
Hidden Resources
Klean Kanteen
Los Angeles Waterkeeper
Lunch Skins, by 3 Green Moms

LUSH Cosmetics
Manduka

Monterey Bay Aquarium
Napa Recycling and Waste Services
Natural Resources Defense Council
Ocean Conservancy
Physicians for Social Responsibility, SF Bay Chapter
Plastic Pollution Coalition
Plastic Soup Foundation

Preserve
San Francisco Bay Keeper

San Francisco Department of the Environment
Save Our Shores
Save The Bay

Sea Turtles Forever
Seventh Generation Advisors
Sierra Club California
Surfrider Foundation
Team Marine, Santa Monica High School
Turtle Island Restoration Network

UPSTREAM
WeTap

Wildcoast

World Centric

World Society for the Protection of Animals

1 Individual

OPPOSITION:

Advanced Medical Technology Association

Biocom

California Chamber of Commerce

California Life Sciences Association

California Healthcare Products Association

California Manufacturers & Technology Association

California Retailers Association

Chemical Industry Council of California

Grocery Manufacturers Association

Henkel Consumer Goods, Inc.

International Fragrance Association North America

Johnson & Johnson

Micro Powders, Inc.

National Federation of Independent Business

Proctor & Gamble

Reckitt Benckiser

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 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."

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 --

SENATE COMMITTEE ON ENVIRONMENTAL QUALITY

Senator Wieckowski, Chair

2015 - 2016 Regular

Bill No: AB 888

SUBJECT: Waste management: 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).
   
   

This bill:

Prohibits the sale of personal care products that contain plastic microbeads on and after January 1, 2020. Specifically, this bill:

1. Defines terms used in this bill, including:

   1. "Personal care product" as an article to be applied to the human body for cleansing, beautifying, promoting attractiveness, or altering the appearance, and an article intended for use as a component of such an article, but excludes prescription drugs.

   2. "Plastic microbead" as an intentionally added plastic particle that that is five millimeters or less in all dimensions.

   3. "Person" as an individual, business, or other entity.

2. Beginning January 1, 2020, prohibits a person from selling or offering for promotional purposes a personal care product containing plastic microbeads that is used to exfoliate or cleanse in a rinse-off product. Specifies that this provision does not apply to products that contain plastic microbeads in an amount less than one part per million or products containing natural exfoliants.

3. Establishes enforcement provisions, including civil penalties not to exceed $2,500 per day for each violation, as specified. Authorizes the Attorney General, a district attorney, a city attorney, or a city prosecutor to enforce the requirements of this bill.

4. Specifies that penalties collected be retained by the office that brought the action.

5. States legislative findings and declarations relating to the impacts of microplastics.

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 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 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 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

Comments

1. Purpose of 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 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."

2. Definition of “plastic microbead”. The definition of “plastic microbead” as specified in SB 888 reflects amendments suggested pursuant to the Senate Environmental Quality Committee hearing of AB 1699 (Bloom, 2014).
   
   

Related/Prior Legislation

AB 1699 (Bloom, 2014) would have prohibited the sale of microbead containing products in California as specified. Specifically it:

1. Defined various terms, including “microplastic,” “personal care products,” “person in the course of doing business,” and “plastic.”

2. Prohibited any person in the course of doing business from selling or promoting personal care products with microplastics after January 1, 2019. The bill offered an exemption for products with less than 1 part per million microplastic by weight.

3. Imposed 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 passed the Senate Environmental Quality on a vote of 5-2 but failed passage on the Senate Floor on a vote of 20-14.

SOURCE:

Californians Against Waste

California Association of Sanitation Agencies

Clean Water Action

The Story of Stuff Project 

5 Gyres Institute

SUPPORT:

ACURE

As You Sow

Aroma Naturals

Azul
Breast Cancer Fund
California Coastkeeper Alliance
California League of Conservation Voters

Campaign for Safe Cosmetics
Center for Biological Diversity
Center for Environmental Health
Center for Oceanic Awareness, Research and Education
City of Los Angeles, Mayor Eric Garcetti

City of Los Angeles, Councilmember Paul Koretz
City and County of San Francisco

ChicoBag
Clean Oceans Competition

Cleanups For Change
Coachella Valley Water District
Community Environmental Council

County Sanitation Districts of Los Angeles
Defenders of Wildlife
Environment California
Environmental Action Committee of West Marin
Environmental Working Group
Green Sangha
Green Science Policy Institute
Heal the Bay
Health Care Without Harm
Hidden Resources
Klean Kanteen
Los Angeles Waterkeeper
Lunch Skins, by 3 Green Moms

LUSH Cosmetics
Manduka

Mango Materials

Monterey Bay Aquarium
Napa Recycling and Waste Services
Natural Resources Defense Council
Ocean Conservancy
Physicians for Social Responsibility, SF Bay Chapter
Plastic Pollution Coalition
Plastic Soup Foundation

Preserve
San Francisco Bay Keeper

San Francisco Department of the Environment
Save Our Shores
Save The Bay

Sea Turtles Forever
Seventh Generation Advisors
Sierra Club California
Surfrider Foundation
Team Marine, Santa Monica High School
Turtle Island Restoration Network

UPSTREAM
WeTap

Wildcoast

World Centric

World Society for the Protection of Animals

1 Individual

OPPOSITION:

Advanced Medical Technology Association

Biocom

California Chamber of Commerce

California Life Sciences Association

California Healthcare Products Association

California Manufacturers & Technology Association

California Retailers Association

Chemical Industry Council of California

Grocery Manufacturers Association

Henkel Consumer Goods, Inc.

International Fragrance Association North America

Johnson & Johnson

Micro Powders, Inc.

National Federation of Independent Business

Proctor & Gamble

Reckitt Benckiser

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 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."

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 --

ASSEMBLY THIRD READING

ATR Bill Id:AB 888

Author:(Bloom)

As Amended Ver:April 22, 2015

Majority vote

SUMMARY: Prohibits the sale of personal care products that contain plastic microbeads on and after January 1, 2020. Specifically, this bill:

1. Defines terms used in this bill, including:

   1. "Personal care product" as an article to be applied to the human body for cleansing, beautifying, promoting attractiveness, or altering the appearance, and an article intended for use as a component of such an article, but excludes prescription drugs.

   2. "Plastic microbead" as an intentionally added plastic particle that that is five millimeters or less in all dimensions.

   3. "Person" as an individual, business, or other entity.

2. Beginning January 1, 2020, prohibits a person from selling or offering for promotional purposes a personal care product containing plastic microbeads that is used to exfoliate or cleanse in a rinse-off product. Specifies that this provision does not apply to products that contain plastic microbeads in an amount less than one part per million or products containing natural exfoliants.

3. Establishes enforcement provisions, including civil penalties not to exceed $2,500 per day for each violation, as specified. Authorizes the Attorney General, a district attorney, a city attorney, or a city prosecutor to enforce the requirements of this bill.

4. Specifies that penalties collected be retained by the office that brought the action.

5. States legislative findings and declarations relating to the impacts of microplastics.

FISCAL EFFECT: According to the Assembly Appropriations Committee, this bill has negligible state costs and provides for enforcement through civil penalties collected and retained by the enforcing agency.

COMMENTS: 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 quantities everywhere from the garbage gyres in the Pacific Ocean to the Great Lakes to the LA [Los Angeles] 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 [are inconsistent] and in some cases are only 50% by a certain date. [AB 888] would provide a hard phase out date to ensure that plastic microbeads from personal care products are no longer entering our waters.

Plastic microbeads are small plastic pellets that are added to personal care products as exfoliants and abrasives. Unlike other forms of plastic pollution, microbeads in personal care products are designed to be washed down the drain. Wastewater treatment systems are not capable of capturing these small particles, and they pass directly into the state's waterways and eventually to the ocean. Biodegradable alternatives that do not contribute to marine debris exist and are widely used by some product manufacturers, including ground apricot shells and cocoa beans. 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 contain more than 350,000 beads per bottle.

Plastic is the predominate form of marine debris. Plastics are estimated to comprise 60% to 80% of all marine debris and 90% of all floating debris. According to the California Coastal Commission, the 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. According to Eriksen et al. (2014), 24 expeditions from 2007 to 2013 estimated that there is approximately 96,400 metric tons of floating plastic in the Northern Pacific 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. Even large pieces of plastic break down into small particles due to excessive ultraviolet radiation exposure and subsequent photo-degradation. These plastic pieces are confused with small fish, plankton, or krill and ingested by aquatic organisms. Over 600 marine animal species have been negatively affected by ingesting plastic worldwide. Last month, scientists at the Australian Research Council Centre of Excellence for Coral Reef Studies at James Cook University found that corals are also ingesting small plastic particles, which remain in their small stomach cavities and impede their ability to consume and digest normal food.

In addition to the physical impacts of plastic pollution, microplastics have toxicological effects. Research suggests that microplastics attract and absorb persistent organic pollutants, such as Polychlorinated Biphenyls, dichloro-diphenyl-trichloroethane, and Polybrominated diphenyl ethers. Studies conducted by University of California Santa Barbara's National Center for Ecological Analysis and Synthesis (NCEAS) show that about 78% of the chemicals recognized by the United States Environmental Protection Agency 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.

Analysis Prepared by: Elizabeth MacMillan / NAT. RES. / (916) 319-2092 FN: 0000434

Date of Hearing: May 13, 2015

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Jimmy Gomez, Chair

ABPCA Bill Id:AB 888

Author:(Bloom) – As Amended Ver:April 22, 2015

Urgency: No State Mandated Local Program: No Reimbursable: No

SUMMARY:

This bill prohibits the sale of personal care products containing plastic microbeads on or after January 1, 2020. Specifically, this bill:

1. Prohibits, on or 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.

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.

3. Specifies prescription drugs are not included in the definition of personal care products.

4. Defines plastic microbeads as intentionally added solid plastic particles measuring five millimeters or less in every dimension.

5. Specifies that the prohibition does not apply to products containing plastic microbeads in an amount of less than 1 part per million (ppm) by weight and products containing natural (nonplastic) exfoliants.

6. Provides that a person who violates or threatens to violate the provisions of the bill 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 of a city having a population in excess of 750,000 persons, or a city prosecutor to enforce the provisions of the bill. Requires the civil penalties collected to be retained by the office of the city attorney, city prosecutor, district attorney, or Attorney General, whichever office brought the action.

FISCAL EFFECT:

Negligible state costs. This bill provides for enforcement through civil penalities collected and retained by the enforcing agency.

COMMENTS:

1. Rationale. According to the author, microplastic beads are used in consumer products, such as soaps and facial scrubs as abrasives and exfoliants. In some products there are over 350,000 microbeads in one tube alone. When washed directly down the drain, the beads are too small to be captured by water treatment facilities. Recent studies have shown microbeads to be a pervasive marine pollutant, and have been found 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. This bill will ensure microplastic beads no longer enter the waterways.

2. Background. 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.

3. Voluntary Efforts. Some larger companies such as Unilever, Proctor & Gamble and Johnson & Johnson have removed or pledged to phase-out microbeads from their products and replace them with natural alternatives.

4. Related and Prior Legislation. SB 625 (Galgiani) 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 a two-year bill.

AB 1699 (Bloom, 2014) was substantially similar to AB 888. AB 1699 was held on the Senate Inactive file.

Analysis Prepared by: Jennifer Galehouse / APPR. / (916) 319-2081

Date of Hearing: April 28, 2015