SENATE COMMITTEE ON

Senator Anthony Portantino, Chair

2019 - 2020 Regular Session

AB 1672 (Bloom) - Solid waste: premoistened nonwoven disposable wipes

Bill Summary:

This bill would require labels indicating that a product should not be flushed on specified nonwoven disposable products and establish enforcement provisions and a consumer education and outreach program.

Fiscal Impact:

• The Department of Justice estimates ongoing cost pressure of $524,000 annually (special fund) due to increased workload for the Consumer Law Section within its Public Rights Division to manage and administer the Outreach Program and to pursue civil actions against violators of the statue.
• The State Water Resources Control Board estimates minor costs related to its information technology staff needing to host the reported data from manufacturers on its website, and ensuring accessibility of that data on the site.

Background:

Products that are poorly designed or not at all intended to be flushed down the toilet can cause sewer blockages, which damage sewer lines and can lead to costly sanitary sewer overflows. Damage and overflows present dangers to public health and the environment.

A buildup of nonflushable products has been shown to cause clogs in sewage pumps, lead to entanglements in sewage treatment equipment, lead to sewer backups in residences, and increase the risk of a sanitary sewer overflow during a storm.

Wipes weave together and form large "rags" that can become massive obstructions in sewer lines when they combine with other improperly flushed items and fats, oils, and greases. These obstructions are commonly referred to as "fatburgs," and in addition to being a disgusting environmental problem, local agencies spend significant time and resources to remediate them. In the worst cases, fatburgs attributed to wipes contribute to sanitary sewer overflows, which are a threat to public health and the environment, and result in fines and penalties to public agencies.

Proposed Law:

This bill would:

1. Require certain nonwoven disposable wipes to be labeled clearly and conspicuously to communicate that they should not be flushed, and prescribes specified “Do Not Flush” symbols, size, and location requirements for the label.
   
2. Prohibit a covered entity from making a representation about the flushable attributes, benefits, performance, or efficacy of those premoistened nonwoven disposable wipes, as provided.
3. Establish enforcement provisions.
4. Provide that enforcement actions may be brought by the Attorney General, by a district attorney, by a city attorney, a county counsel, or by a city prosecutor in a city or city and county having a full-time city prosecutor.
   
5. Stipulate that these provisions supersede and preempt all rules, regulations, codes, ordinances, and other laws adopted by a city, county, city and county, municipality, or local agency regarding the labeling of covered products.
   
6. Establish a consumer education and outreach program as specified.
7. Report to the Senate Committee on Environmental Quality, the Assembly Committee on Environmental Safety and Toxic Materials Committee, and the State Water Board on their activities on an annual basis.

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SENATE COMMITTEE ON ENVIRONMENTAL QUALITY

Senator Allen, Chair

2019 - 2020 Regular

Bill No: AB 1672

SUBJECT: Solid waste: premoistened nonwoven disposable wipes

DIGEST: Requires labels indicating that a product should not be flushed on specified nonwoven disposable products and establishes enforcement provisions and a consumer education and outreach program.

Due to the COVID-19 Pandemic and the unprecedented nature of the 2020 Legislative Session, all Senate Policy Committees are working under a compressed timeline. This timeline does not allow this bill to be referred and heard by more than one committee as a typical timeline would allow.

ANALYSIS:

Existing law:

Under federal guidelines:

1. Defines biodegradability and requires environmental marketing claims and claims of degradability, biodegradability, and photodegradability be qualified to the extent necessary to avoid consumer deception about the product or package's ability to degrade in the environment where it is customarily disposed and the rate and extent of degradation. (Federal Trade Commission (FTC), Green Guide Part 260 § 260.8)
2. Regulates the labeling requirements on various consumer products and requires any person who represents in advertising or on the label or container of a consumer good that the product is not harmful to, or is beneficial to, the natural environment, through the use of terms such as "environmental choice," "ecologically friendly," "earth friendly," "environmentally friendly," "ecologically sound," "environmentally sound," "environmentally safe," "ecologically safe," "environmentally lite," "green product," or any other like term, to maintain in written form in its records specified information and documentation supporting the validity of the representation. (FTC, Green Guide Part 260 § 260.4)

Under state law:

1. States that it is the public policy of the state that environmental marketing claims, whether explicit or implied, should be substantiated by competent and reliable evidence to prevent deceiving or misleading consumers about the environmental impact of plastic products. Provides that for consumers to have accurate and useful information about the environmental impact of plastic products, environmental marketing claims should adhere to uniform and recognized standards, including those standard specifications established by the American Society for Testing and Materials. (Public Resources Code § 42355.5)
2. Provides that it is unlawful for a person to make any untruthful, deceptive, or misleading environmental marketing claim, whether explicit or implied. (Business and Professions Code (BCP) § 17580.5 (a))

This bill:

1. Defines "covered product" as a premoistened nonwoven disposable wipe marketed as a baby or diapering wipe or composed of petrochemical-derived fibers and is likely to be used in a bathroom and with significant potential to be flushed, including baby wipes, bathroom cleaning wipes, toilet cleaning wipes, hard surface cleaning wipes, disinfecting wipes, hand sanitizing wipes, antibacterial wipes, facial and makeup removal wipes, general purpose cleaning wipes, personal care wipes for use on the body, feminine hygiene wipes, adult incontinence wipes, adult hygiene wipes, and body cleansing wipes.
   
2. Defines “covered entity” as the manufacturer of a covered product that is sold or offered for sale in the state, including a wholesaler, supplier, or retailer that is responsible for the labeling or packaging of a specified, covered product.
   
3. Commencing January 1, 2022, except as provided, requires certain nonwoven disposable wipes to be labeled clearly and conspicuously to communicate that they should not be flushed, and prescribes specified “Do Not Flush” symbols, size, and location requirements for the label.
   
4. Prohibits a covered entity from making a representation about the flushable attributes, benefits, performance, or efficacy of those premoistened nonwoven disposable wipes, as provided.
5. Establishes enforcement provisions, including authorizing a civil penalty not to exceed $2,500, up to a maximum of $100,000 per violation. Requires the court, in assessing the amount of a civil penalty, to consider all of the following:
   1. The nature, circumstances, extent, and gravity of the violation;
   2. The violator’s past and present efforts to prevent, abate, or clean up conditions posing a threat to the public health or safety or the environment;
   3. The violator’s ability to pay the proposed penalty;
   4. The effect that the proposed penalty would have on the violator and the community as a whole;
   5. Whether the violator took good faith measures to comply with this part and when these measures were taken;
   6. The deterrent effect that the imposition of the penalty would have on both the violator and the regulated community as a whole; and
   7. Any other factor that justice may require.
6. Provides that enforcement actions may be brought by the Attorney General, by a district attorney, by a city attorney, a county counsel, or by a city prosecutor in a city or city and county having a full-time city prosecutor.
   
7. Stipulates that these provisions supersede and preempt all rules, regulations, codes, ordinances, and other laws adopted by a city, county, city and county, municipality, or local agency regarding the labeling of covered products.
   
8. Establishes a consumer education and outreach program as specified, including requiring covered entities to:
   
   1. Collaborate with wastewater agencies for the purpose of gaining understanding of consumer behavior regarding the flushing of covered products as a key input into the design of a consumer education and outreach program;
      
   2. Conduct a consumer opinion survey to identify baseline consumer behavior and awareness regarding the flushing or other disposal of covered products;
      
   3. Conduct a comprehensive multi-media education and outreach program in the state, including promoting consumer awareness and understanding of and compliance with the Do Not Flush symbol and providing education and outreach in Spanish and English.
      
   4. Report to the Senate Committee on Environmental Quality, the Assembly Committee on Environmental Safety and Toxic Materials Committee, and the State Water Board on their activities on an annual basis.
9. Specifies that the education and outreach program shall conclude on December 31, 2025.

Background

1. Flushable vs. non-flushable products: More and more, an increasingly diverse range of disposable products has become available for consumer use. The growth of the market for such products is evidence of their popularity with the public, but their increased use brings with it discussion about their disposal, especially the topic of flushability.

For disposable products that address public health and hygiene considerations, consumers often mistakenly use the wastewater system as a preferred means of disposal. These products include disinfectant wipes and baby wipes (which are often confused with "flushable" wipes), feminine hygiene products, diapers, diaper liners, dog poop bags, wash cloths, condoms, and more. While consumer behavior cannot be legislated, legislation can steer manufacturing and labeling in a direction that better informs consumers how to behave.

1. Problems with non-flushable products: Products that are poorly designed or not at all intended to be flushed down the toilet can cause sewer blockages, which damage sewer lines and can lead to costly sanitary sewer overflows. Damage and overflows present dangers to public health and the environment.

A buildup of nonflushable products has been shown to cause clogs in sewage pumps, lead to entanglements in sewage treatment equipment, lead to sewer backups in residences, and increase the risk of a sanitary sewer overflow during a storm.

Wipes weave together and form large "rags" that can become massive obstructions in sewer lines when they combine with other improperly flushed items and fats, oils, and greases. These obstructions are commonly referred to as "fatburgs," and in addition to being a disgusting environmental problem, local agencies spend significant time and resources to remediate them. In the worst cases, fatburgs attributed to wipes contribute to sanitary sewer overflows, which are a threat to public health and the environment, and result in fines and penalties to public agencies.

1. California Sanitary Sewer Overflow database: The State Water Resources Control Board (State Water Board) considers a sanitary sewer overflow (SSO) as any overflow, spill, release, discharge, or diversion of untreated or partially treated wastewater from a sanitary sewer system. SSOs often contain high levels of suspended solids, pathogenic organisms, toxic pollutants, nutrients, oil, and grease. SSOs pollute surface and ground waters, threaten public health, adversely affect aquatic life, and impair the recreational use and aesthetic enjoyment of surface waters.

According to the State Water Board's data on SSOs, 70% - 75% of the known causes and trends related to the causes of SSOs across the state tend to be tree roots, grease, fats, oils, and general debris. Even if wipes constitute less than 25% of the cause of SSOs, they still remain a disruption and a growing cost to local sanitation agencies to manage.

1. The Cost of Wipes. It is estimated that North American businesses and households spent some $2.5 billion on personal wipes in 2019. There are no reliable statistics about how many wipes are flushed down toilets, but there are hundreds of reports each year of clogged household plumbing and costly damage to public sewer systems and treatment plants caused by wipes when they are flushed. In 2019, the National Association of Clean Water Agencies (NACWA) conducted a nationwide study of the costs of wipes. NACWA estimates that wipes result in about $441 million a year in additional operating costs at US clean water utilities. The study estimates that the cost of wipes in California cities with collection systems is over $47 million a year. Individual utilities in California pay on average about $100,000 a year in additional operating costs because of wipes. Individual O&M associated with wipes cost the average individual in California about $1.85 a year, although that figure varies considerably from city to city, with people in the highest cost city paying $21.39 a year.
2. Increase in SSOs Due to Wipes. In the last decade, while annual non-wipes related SSO’s have gone down by 56%, spills related to wet wipes have increased by 35%. Specifically, according to the California Association of Sanitation Agencies (CASA), in the last decade, wet wipes have been identified in 3,097 sanitary sewer overflows resulting in 5.9 million gallons spilled. Of these, 623 were Category 1 spills for which over 3.5 million gallons reached surface waters. With approximately 43,000 spills reported over the last decade, wet wipes were identified in 7% of incidences. There has been a Category 1 spill every week over the last decade in which wet wipes were identified.

In this year alone, wet wipes have been identified in 145 sanitary sewer overflows resulting in over 45,000 gallons spilled. Of these, 22 were Category 1 spills for which over 15,000 gallons reached surface waters. With 1,300 total spills reported thus far this year, wet wipes were identified in 11% of incidences. This represents a 53% increase in the amount of spills related to wet-wipes compared to the average over the last decade.

1. State Water Board Advisory regarding Flushing Wipes and COVID-19. In March, the Water Board issued an advisory, warning the public not to flush disinfecting wipes down the toilet:

“Flushing wipes, paper towels and similar products down toilets will clog sewers and cause backups and overflows at wastewater treatment facilities, creating an additional public health risk in the midst of the coronavirus pandemic. Even wipes labeled “flushable” will clog pipes and interfere with sewage collection and treatment throughout the state.

“Wastewater treatment facilities around the state already are reporting issues with their sewer management collection systems. These facilities are asking state residents to not discard wipes in the toilet, but instead to throw them in the trash to avoid backups and overflow. A majority of urban centers are on centralized sewage collection systems depend on gravity and enough water flow to move along human waste and biodegrable toilet paper. The systems were not designed for individual nylon wipes and paper towels. The wipes do not break down like toilet paper, and therefore clog systems very quickly.

“Wipes are among the leading causes of sewer system backups, impacting sewer system and treatment plant pumps and treatment systems. Many spills go to our lakes, rivers, and oceans where they have broad ranging impacts on public-health and the environment. Preventing sewer spills is important, especially during this COVID-19 emergency, for the protection of public health and the environment.”

Comments

1. Purpose of Bill. According to the author, “When wet wipes products are flushed into the sewer system they can cause significant issues for private property owners, sewer collection systems, and wastewater treatment plants. Wet wipes products do not break down when flushed and can catch on tree roots or other obstructions in residential sewer laterals and cause costly and dangerous backups for property owners and public wastewater infrastructure. Wet wipes have also been shown to cause significant damage to residential septic systems, resulting in expensive repairs and remediation for homeowners.

“AB 1672 prescribes clear and consistent consumer messaging to help combat the aforementioned problems caused by improperly flushing wet wipes. Wipes that are not intended by the manufacturer to be flushable, which are mostly made with plastic materials, should be labeled clearly and conspicuously to communicate that they should not be flushed. In order to address consumer confusion, AB 1672 would define these non-flushable wipes as “covered products,” and require them to be clearly labeled with the “Do Not Flush” symbol and warning notice. The bill would also require the manufacturers of these products or “covered entities” to conduct a comprehensive statewide consumer education and outreach campaign to inform the public not to flush products covered by the labeling requirement.

“Due to the COVID-19 pandemic and families being quarantined at home, there has been a significant uptick of wipes debris in California public sewer systems. The impact of people using single use disinfecting wipes to sanitize during the coronavirus outbreak, coupled with the toilet paper shortage leading to the use of non-flushable substitutes has exacerbated a problem that has plagued wastewater treatment systems for years. AB 1672 provides clear and consistent information to improve consumer understanding of how to properly dispose of single use plastic wipes.”

1. Consensus Proposal. Prior to the 2020 two-year bill deadline in January, the author, bill sponsors, and industry representatives agreed to enter into a good faith negotiation with the intent to find agreement on amendments to address the labeling of non-flushable wipes. The process was predicated on the understanding that the bill would not move forward unless all stakeholders agreed on the final language, and in that case the industry stakeholders would join as co-sponsors of the bill. Recent amendments to the bill represent the product of these months-long, weekly negotiations – a consensus agreement to establish the strongest non-flushable wipes labeling standard in the country.

The AB 1672 working group initially met and established their joint policy objective to keep plastic wipes out of wastewater by providing clear and consistent consumer information and proceeded in developing language to meet the objective. Throughout subsequent meetings, compromise language was negotiated to define “covered products” as those most likely to be used in a bathroom and flushed, and also as those wipes that are made with plastic fibers. Based on industry best practices, the labeling requirements language requires that “Do Not Flush” labeling is visible during two key consumer interactions with the product: when the product is purchased, and each time a wipe is dispensed from the package. The enforcement provisions were developed to mirror similar environmental policy intended to keep plastic out of wastewater and the agreement strikes a balance of significant daily and total fines to command compliance, but without being overly punitive to the point that human error has the potential to make selling products in California cost prohibitive. Finally, recognizing that education is a driver of behavior change, the stakeholders negotiated provisions requiring manufacturers of covered products to conduct statewide multimedia education and outreach activities to explain the “Do Not Flush” symbol and label notice to consumers, and to gauge the effectiveness of their campaigns with consumer surveys.

Related/Prior Legislation

None

SOURCE:

California Association of Sanitation Agencies, National Stewardship Action Council, and INDA – Association of the Nonwoven Fabric Industry

SUPPORT:

Association of California Water Agencies (ACWA)
Babcock Laboratories, INC.
Bay Area Pollution Prevention Group
Burbank Sanitary District
California Association of Sanitation Agencies
California Manufacturers and Technology Association
California Special Districts Association

California State Association of Counties
California-Nevada Section, American Water Works Association
Camarillo Sanitary District
Carpinteria Sanitary District
Central Contra Costa Sanitary District
City of Camarillo

City of Glendora
City of San Carlos
City of San Diego
City of Thousand Oaks
City of Torrance
City of West Hollywood
Clean Water Action
Delta Diablo
Dublin San Ramon Services District
East Bay Municipal Utility District
Elsinore Valley Municipal Water District
Goleta Sanitary District
INDA, Association of The Nonwoven Fabric Industry
Inland Empire Utilities Agency
Irvine Ranch Water District
Kimberly-clark Corporation
Las Virgenes - Triunfo Joint Powers Authority
League of California Cities
Leucadia Wastewater District
Los Angeles County Division, League of California Cities
Los Angeles County Solid Waste Management Committee/Integrated Waste Management Task Force
National Association of Clean Water Agencies
Northern California Recycling Association
Procter & Gamble
RecycleSmart
San Francisco Public Utilities Commission
Sanitation Districts of Los Angeles County

Sonoma County Water Agency
Stege Sanitary District
StopWaste
Town of Apple Valley
Valley Sanitary District
West County Wastewater District
Western Municipal Water District

OPPOSITION:

None received

ARGUMENTS IN SUPPORT:

According to INDA, “Clear communication on packaging is vital to help ensure consumers understand the proper disposal route for these products and minimize negative impacts of non-flushable products on municipal wastewater systems. Key elements of the INDA labeling Code of Practice – the language-neutral symbol and other elements – are incorporated into the labeling specifications in AB 1672 (Bloom).

“We are proud to continue our work on product stewardship and expand our voluntary labeling practices into a mandate, as set forth in AB 1672. The bill’s provisions on consumer outreach and education to promote awareness, understanding of, and compliance with the Do Not Flush symbol and label notice will help ensure enhanced disposal labeling has greater impact.”

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(Without Reference to File)

ASSEMBLY THIRD READING

ATR Bill Id:AB 1672

Author:(Bloom)

As Amended Ver:January 23, 2020

Majority vote

SUMMARY:

Requires labels indicating that a product should not be flushed on specified nonwoven disposable products.

Major Provisions

1. Defines "covered product" as a nonwoven disposable product that is constructed from nonwoven sheets and designed, marketed, or commonly used for personal hygiene or cleaning purposes, including, but not limited to, diaper wipes, household cleaning wipes, personal care wipes, and facial wipes.
2. Establishes labeling requirements as standards contained in the Code of Practice of the Association of the Nonwoven Fabrics Industry and the European Disposables and Nonwovens Association, titled "Communicating Appropriate Disposal Pathways for Nonwoven Wipes to Protect Wastewater Systems, second edition."
3. Requires all covered products, by January 1, 2021, to be clearly labeled in adherence with the labeling requirements to communicate that it should not be flushed, and prescribes font and color specifications for the label. Provides that a manufacturer that began manufacturing a covered product on or before December 31, 2020, shall comply with the labeling requirements no later than January 1, 2022.
4. Provides that enforcement actions may be brought by the Attorney General, 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. Provides that a manufacturer found in violation of the non-flushable labeling requirements may be liable for a civil penalty not to exceed $2,500 for each violation.

COMMENTS:

What does it mean to be "flushable"? An increasingly diverse range of disposable products has become available for consumer use. The growth of the market for such products is evidence of their popularity with the public, but their increased use brings with it discussion about their disposal, especially the topic of flushability. For disposable products that address public health and hygiene considerations, consumers often mistakenly use the wastewater system as a preferred means of disposal. These products include disinfectant wipes and baby wipes (which are often confused with "flushable" wipes), feminine hygiene products, diapers, diaper liners, dog waste bags, wash cloths, condoms, and more. While consumer behavior cannot be legislated, legislation can steer manufacturing and labeling in a direction that better informs consumers how to behave. In the case of this bill, the intent is to provide clarification to consumers on wipes that are not suitable for flushing.

Problems with nonflushable products: Products that are poorly designed or are not intended to be flushed down the toilet can cause sewer blockages, which damage sewer lines and can lead to costly sanitary sewer overflows. Sewer system damage and overflows present dangers to public health and the environment. A buildup of nonflushable products has been shown to cause clogs in sewage pumps, lead to entanglements in sewage treatment equipment, lead to sewer backups in residences, and increase the risk of a sanitary sewer overflow during a storm.

Non-flushable labeling: Many of the wipes on the market that are not intended by the manufacturer to be flushable (but often are flushed by consumers) are made of cotton and plastic materials to make the wipes more durable (such as cleaning wipes). To try to address some of the consumer confusion, AB 1672 requires covered products, as defined, to be clearly labeled that it is not flushable per the Association of the Nonwoven Fabrics Industry's labeling requirements, which include a "Do Not Flush" symbol for companies to use on product packaging.

According to the Author:

"AB 1672 presents a straightforward solution to helping combat the aforementioned problems caused by improperly flushing wet wipes. The bill prescribes that for all wipes that are not intended to be flushed, they must be conspicuously marked with 'Do Not Flush' labeling."

Arguments in Support:

None on file for the current version of the bill.

Arguments in Opposition:

None on file for the current version of the bill.

FISCAL COMMENTS:

According to the Assembly Appropriations Committee, enactment of this bill could result in unknown costs for the Attorney General to enforce this bill, presumably significantly more than $150,000 annually, partially offset by penalty revenue.

VOTES:

ASM ENVIRONMENTAL SAFETY AND TOXIC MATERIALS: 6-3-0

YES: Quirk, Kalra, Bauer-Kahan, Cristina Garcia, Holden, Muratsuchi

NO: Melendez, Dahle, Mathis

ASM JUDICIARY: 9-2-1

YES: Mark Stone, Chau, Chiu, Gonzalez, Holden, Kalra, Maienschein, Petrie-Norris, Reyes

NO: Gallagher, Obernolte

ABS, ABST OR NV: Kiley

ASM APPROPRIATIONS: 13-4-1

YES: Gonzalez, Bloom, Bonta, Calderon, Carrillo, Chau, Eggman, Gabriel, Eduardo Garcia, Maienschein, Petrie-Norris, Quirk, Robert Rivas

NO: Bigelow, Brough, Diep, Fong

ABS, ABST OR NV: Megan Dahle

UPDATED:

VERSION: January 23, 2020

CONSULTANT: Paige Brokaw / E.S. & T.M. / (916) 319-3965 FN: 0002661

Date of Hearing: May 8, 2019

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez, Chair

ABPCA Bill Id:AB 1672

Author:(Bloom) – As Amended Ver:April 25, 2019

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

SUMMARY:

This bill establishes performance and labeling standards for flushable wipes and provides for the imposition of civil penalties on parties failing to conform to those standards. Specifically, this bill:

1. Provides that on and after January 1, 2021, a covered entity, as defined, shall not label a covered product as safe to flush, safe for sewer systems or safe for septic systems, unless the product is a flushable wipe.
2. Requires, on and after January 1, 2021, a covered entity to test and maintain self-certification records that verify that its covered products meet the performance standards and comply with the labeling requirements of this bill.
3. Provides that, on and after January 1, 2020, a covered product that does not meet the performance standards shall be labeled clearly and conspicuously in adherence with the labeling requirements to communicate it should not be flushed, and this label shall be in a high-contrast font and color respective to the surrounding wording and space on the packaging and shall be in a location that is visible when individual wipes are dispensed from the product packaging.
4. Provides that a person who violates the provisions of the bill may be enjoined and subject to a civil penalty not to exceed $2,500 for each violation
5. Provides that the provisions of the bill may be enforced by the Attorney General, 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.
6. Provides that any civil penalties collected pursuant to this section shall be paid to the office of the city attorney, city prosecutor, district attorney or Attorney General, whichever office brought the action, and that any penalty collected by the Attorney General shall be deposited into the Unfair Competition Law Fund.
7. Provides the provisions of this bill are severable.

FISCAL EFFECT:

Unknown costs for the Attorney General to enforce this bill, presumably significantly over $150,000 annually, partially offset by penalty revenue.

COMMENTS:

1. Purpose. According to the author:

When wet wipes products are flushed into the sewer system they can cause significant issues for private property owners, sewer collection systems, and wastewater treatment plants. Wet products that do not break down can catch on tree roots or other obstructions in residential sewer laterals and cause costly and dangerous backups for property owners. Wet wipes have been shown to cause significant damage to residential septic systems, resulting in expensive repairs and remediation for homeowners.

1. Support and Opposition. There is general consensus that products that are poorly designed or not intended to be flushed down the toilet cause sewer blockages, which damage sewer lines and can lead to costly sanitary sewer overflows and ultimately endanger public health and the environment. However, the difference in positions on this bill is based on differences in preferred standards for flushable wipes. Supporters, including sanitation districts and other agencies managing sewer systems, favor the standard in the bill, which were developed by the International Water Services Flushability Group (IWSFG). Opponents, mainly industry, support the standard developed by the Association for the Nonwoven Fabrics Industry (INDA) and the European Disposables and Nonwovens Association (EDANA) as it appears in their fourth Guidance Document (GD4).

The California Association of Sanitation Agencies (CASA), which represents more than one hundred public agencies that engage in the collection, treatment or disposal of wastewater, resource recovery or water recycling, states that the IWSFG standard is more stringent and will result in fewer wipes adding to backups and clogs.

A coalition of industry and flushable wipe product producers contend the IWSFG standard is not peer-reviewed nor used anywhere else and would prevent some forms of toilet paper from being sold. The coalition further questions the contribution flushable wipes make in sewer blockages based on a previous, although limited, forensic study.

The author and committee may wish to consider whether an appropriate regulatory entity, such as the State Water Resources Control Board, should set the flushability standard through regulation.

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

Date of Hearing: April 23, 2019

ASSEMBLY COMMITTEE ON JUDICIARY

Mark Stone, Chair

ABPCA Bill Id:AB 1672

Author:(Bloom) – As Amended Ver:April 11, 2019

As Proposed to be Amended

SUBJECT: Solid waste: flushable product STANDARDS: ENFORCEMENT

KEY ISSUES:

1. SHOULD CALIFORNIA ADOPT THE International Water Services Flushability Group STANDARD FOR DETERMINING THE FLUSHABILITY OF WIPE PRODUCTS sold in the state?
2. SHOULD WIPE PRODUCTS FAILING TO MEET THE International Water Services Flushability Group STANDARD BE PROHIBITED FROM BEING LABELED in california AS “FLUSHABLE” STARTING ON JANUARY 1, 2021?
3. SHOULD VIOLATIONS OF THE LABELING REQUIREMENTS BE SUBJECT TO CIVIL PENALTIES?

SYNOPSIS

Recognizing that improperly flushed wipe products inflict millions of dollars of damage on California’s wastewater management system, this bill seeks to improve the labeling standard for wipe products to ensure that customers are better informed about what products are, and are not, safe to flush. Accordingly, no later than 2021, this bill would require all wipes sold in California promoting themselves as “flushable” to meet the International Water Services Flushability Group, an advisory group consisting of leading wastewater management agencies from around the world, standard for product flushability. This bill would require wipes that are not deemed flushable to clearly be labeled that they should not be disposed of by flushing. To communicate these messages the bill adopts the labeling standards provided in the “Communicating Appropriate Disposal Pathways for Nonwoven Wipes to Protect Wastewater Systems,” an industry developed guidance document. Finally, this bill would impose civil penalties on any product manufacturer found to be improperly labeling their wipe products.

This measure is sponsored by the California Association of Sanitary Districts, an association of California’s municipal wastewater management organizations. These organizations experience the brunt of the impacts caused by improperly flushed wipes, including equipment break-downs and sewer spills. They support this measure, noting that existing public relations campaigns have not stemmed the tide of non-flushable wipes entering the wastewater stream, and believing that improved labeling is a reasonable next step to lessen the damage caused by wipes. This measure is opposed by a coalition of industry groups, led by INDA – the Association of the Nonwoven Fabrics Industry. INDA and the rest of the opposition contend that the International Water Services Flushability Group standard utilized by this bill would render all of the products they sell to be non-flushable. That standard, along with the rest of this bill, was previously heard and evaluated in the Assembly Committee on Environmental Safety and Toxic Materials where it was approved by a vote of 6-3.

SUMMARY: Establishes performance and labeling standards for flushable wipes and provides for the imposition of civil penalties on parties failing to conform to those standards. Specifically, this bill:

1. Provides that the following terms have the following meanings:
   1. “Covered entity” means the manufacturer of a covered product that is sold in this state or brought into the state for sale. “Covered entity” does not include a wholesaler, supplier, or retailer that is not responsible for the labeling or packaging of a covered product;
   2. “Covered product” means a nonwoven disposable product that is sold in this state or brought into the state for sale, and that is constructed from nonwoven sheets, including moist toilet tissue or cloth, that is designed, marketed, or commonly used for personal hygiene or cleaning purposes, including, but not limited to, diaper wipes, toilet wipes, household cleaning wipes, personal care wipes, and facial wipes;
   3. “Flushable wipe” means a nonwoven disposable product that meets the performance standards set forth in f);
   4. “Labeling requirements” means the labeling standards contained in the Code of Practice of the Association of the Nonwoven Fabrics Industry and the European Disposables and Nonwovens Association, titled Communicating Appropriate Disposal Pathways for Nonwoven Wipes to Protect Wastewater Systems, second edition, as published in April 2017;
   5. “Nonflushable wipe” means a nonwoven disposable product that does not meet the performance standards set forth in f); and
   6. “Performance standards” means the International Water Services Flushability Group testing methods and criteria for flushability, as published in June 2018, as set forth in publicly available specification documents 1, 2, and 3, and as summarized in chapters 6 and 7 of publicly available specification document 1.
2. Provides that on and after January 1, 2021, a covered entity shall not label a covered product as safe to flush, safe for sewer systems, or safe for septic systems, unless the product is a flushable wipe.
3. Provides that, on and after January 1, 2021, unless a product is a flushable wipe, a covered entity shall not, in any manner, including in product names, labels, endorsements, depictions, illustrations, trademarks, and trade namesake, make any of the following representations regarding a covered product:
   1. The product can be flushed;
   2. The product is safe for sewer systems;
   3. The product is safe for septic systems;
   4. The product breaks apart shortly after flushing;
   5. The product will not clog household plumbing systems;
   6. The product will not clog household septic systems;
   7. The product is safe for plumbing;
   8. The product is safe to flush; and
   9. The product will dissolve or disperse in interaction with water.
4. Requires, on and after January 1, 2021, a covered entity to test and maintain self-certification records that verify that its covered products meet the performance standards and comply with the labeling requirements of this bill.
5. Provides that, on and after January 1, 2020, a covered product that does not meet the performance standards shall be labeled clearly and conspicuously in adherence with the labeling requirements to communicate that it should not be flushed, and this label shall be in a high contrast font and color respective to the surrounding wording and space on the packaging and shall be in a location that is visible when individual wipes are dispensed from the product packaging.
6. Provides that the requirements of 5) shall apply to bulk items, as well as the individual packages contained therein.
7. Provides that if a covered product is manufactured prior to December 31, 2019, the covered entity selling the product shall comply with 5) on or before January 1, 2021.
8. Provides that a covered entity, directly or through any corporation, partnership, subsidiary, division, trade name, or association in connection to the manufacturing, labeling, packaging, advertising, promotion, offering for sale, sale, or distribution of a covered product, shall not make any representation, in any manner, expressly or by implication, including through the use of a product name, endorsement, depiction, illustration, trademark, or trade name, about the flushable attributes, benefits, performance, or efficacy of a nonflushable wipe.
9. Provides that a person who violates the provisions of the bill may be enjoined and subject to a civil penalty not to exceed $2,500 for each violation. Provides that in determining the civil penalty a court shall consider the following:
   1. The nature, circumstances, extent, and gravity of the violation;
   2. The violator’s past and present efforts to prevent, abate, or clean up conditions posing a threat to the public health or safety or the environment;
   3. The violator’s ability to pay the proposed penalty;
   4. The effect that the proposed penalty would have on the violator and the community as a whole;
   5. Whether the violator took good faith measures to comply with this bill and when these measures were taken;
   6. The deterrent effect that the imposition of the penalty would have on both the violator and the regulated community as a whole; and
   7. Any other factor that justice may require.
10. Provides that the provisions of the bill may be enforced 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.
11. Provides that any civil penalties collected pursuant to this section shall be paid to the office of the city attorney, city prosecutor, district attorney, or Attorney General, whichever office brought the action, and that any penalty collected by the Attorney General shall be deposited into the Unfair Competition Law Fund.
12. Provides that the provisions of this bill are severable.
13. Makes several findings and declarations related to the bill including the following:
    1. That this bill is intended to protect public health, the environment, water quality, and public infrastructure used for the collection, transport, and treatment of wastewater;
    2. Nonwoven disposable products are increasingly being marketed by manufacturers as flushable and, as a result, are being flushed down the toilet more frequently by consumers;
    3. Nonwoven disposable products often contain microplastics;
    4. Flushing these products presents a growing problem caused by nonwoven disposable products not breaking down after being flushed down the toilet. These products can entangle with tree roots, fats, oils, grease, and other nondispersible products, causing clogs in sewer pipes;
    5. Nonwoven disposable products that do not disperse rapidly in the sewer can also cause damage to private sewer laterals that result in sewage backups and overflow. These products can also cause clogging in septic systems;
    6. In June 2018, a group of international wastewater infrastructure experts, known as the International Water Services Flushability Group, adopted reliable criteria for the quality and characteristics of products that can be appropriately disposed of using sanitary sewer systems;
    7. In April 2017, a group of international nonwoven fabric industry experts, known as the Association of the Nonwoven Fabrics Industry and the European Disposables and Nonwovens Association, adopted baseline labeling requirements for nonwoven disposable products; and
    8. To prevent nondispersable nonwoven disposable products from entering sewer systems and potentially causing overflows, it is the intent of the Legislature to create labeling requirements that will enable consumers to easily identify which nonwoven disposable products are safe to dispose of using sanitary sewer systems.

EXISTING LAW:

1. States that it is the public policy of the state that environmental marketing claims, whether explicit or implied, should be substantiated by competent and reliable evidence to prevent deceiving or misleading consumers about the environmental impact of plastic products. Provides that for consumers to have accurate and useful information about the environmental impact of plastic products, environmental marketing claims should adhere to uniform and recognized standards, including those standard specifications established by the American Society for Testing and Materials. (Public Resources Code Section 42355.5.)
2. Prohibits, on and after January 1, 2020, a person from selling or offering for promotional purposes in this state 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. (Public Resources Code Section 42362.)
3. Provides that any person who violates 2) may be enjoined and subject to a civil penalty of $2,500 per day for each violation. Provides that in assessing the civil penalty a court shall consider:
   1. The nature and extent of the violation;
   2. The number of, and severity of, the violations;
   3. The economic effect of the penalty on the violator;
   4. Whether the violator took good faith measures to comply with the law and when these measures were taken;
   5. The deterrent effect that the imposition of the penalty would have on both the violator and the regulated community as a whole; and
   6. Any other factor that justice may require. (Public Resources Code Section 42364.)
4. Provides that wherever 25 persons in any county, or in two or more counties within the same natural watershed area, desire the formation of a sanitary district within the area, they may sign and present a petition to the board of supervisors of the county in which the greatest portion of the area of the proposed district is situated at the time of the filing of the petition. If the district is to be located in more than one county, the petition shall be signed by no fewer than 15 persons in the county in which the greatest portion of the district is located and by no fewer than 10 persons in each other county in which the district is located. (Health and Safety Code Section 6420.)
5. Provides that a sanitary district may acquire, plan, construct, reconstruct, alter, enlarge, lay, renew, replace, maintain, and operate garbage dumpsites and garbage collection and disposal systems, sewers, drains, septic tanks, and sewerage collection, outfall, treatment works and other sanitary disposal systems, and storm water drains and storm water collection, outfall and disposal systems, and water recycling and distribution systems, as the board deems necessary and proper, and in the performance of these functions, either in or out of the district, it may join through joint powers agreements with any county or municipality or any other district or governmental agency. (Health and Safety Code Section 6512 (a).)
6. Provides that a sanitary district may lay its sewers and drains in any public street or road in the county, and for this purpose enter upon it and make all necessary and proper excavations, restoring it to proper condition. The work of restoring and repairing any such public street or road in the county shall be done under the supervision and control of the county engineer or road commissioner at the cost of the district, and in accordance with the standards established by ordinance of the board of supervisors for restoring and repairing county roads. (Health and Safety Code Section 6518.)
7. Provides that an on-site wastewater disposal zone may be formed to achieve water quality objectives set by regional water quality control boards, to protect existing and future beneficial water uses, protect public health, and to prevent and abate nuisances. Whenever an on-site wastewater disposal zone has been formed pursuant to this chapter, the public agency shall have the powers set forth in this article, which powers shall be in addition to any other powers provided by law. (Health and Safety Code Section 6975.)
8. Provides that an on-site wastewater disposal zone may do all of the following:
   1. Collect, treat, reclaim, or dispose of waste water without the use of communitywide sanitary sewers or sewage systems and without degrading water quality within or outside the zone;
   2. Acquire, design, own, construct, install, operate, monitor, inspect, and maintain on-site wastewater disposal systems in a manner which will promote water quality, prevent the pollution, waste, and contamination of water, and abate nuisances;
   3. Conduct investigations, make analyses, and monitor conditions with regard to water quality within the zone; and
   4. Adopt and enforce reasonable rules and regulations necessary to implement the purposes of the zone. (Health and Safety Code Section 6976.)
9. Provides that it is unlawful for a person to make any untruthful, deceptive, or misleading environmental marketing claim, whether explicit or implied. (Business and Professions Code Section 17580.5 (a).)

FISCAL EFFECT: As currently in print this bill is keyed fiscal.

COMMENTS: Seeking to reduce the proliferation of nonflushable wipe products winding up in California’s wastewater management systems, this bill would establish flushability standards for consumer wipes and impose labeling requirements on wipe manufacturers to better help consumers understand whether or not a product can be safely disposed by flushing it down a toilet. In support of this measure the author states:

When wet wipes products are flushed into the sewer system they can cause significant issues for private property owners, sewer collection systems, and wastewater treatment plants. Wet products that do not break down can catch on tree roots or other obstructions in residential sewer laterals and cause costly and dangerous backups for property owners. Wet wipes have been shown to cause significant damage to residential septic systems, resulting in expensive repairs and remediation for homeowners.

AB 1672 presents a straightforward solution to helping combat the aforementioned problems caused by improperly flushing wet wipes. The bill prescribes clear and consistent consumer messaging for these products that indicates to consumers that either a wipe is “flushable,” or it is not. Under the provisions of AB 1672, wipes can be labeled as “flushable” if they do not cause harm to the sewer system, meaning that manufacturers can demonstrate that their wipes break down in the sewer system like dry toilet paper. For all other wipes that are not intended to be flushed, they must be conspicuously marked with “Do Not Flush” labeling.

Seemingly innocuous wipes can wreak havoc on California’s wastewater management systems. When consumers flush wipes down the toilet that are not engineered to quickly break down or dissolve, the wipes can cause significant problems once they enter the sewer system. Even if a wipe safely clears a consumer’s home piping system and makes it into the wastewater disposal stream, the wipes merge with other improperly flushed products. When fats, oils, and other incorrectly disposed of products are added into the mix, the resulting non-biodegradable mass, charmingly referred to as “fatbergs,” and can damage wastewater treatment equipment and result in environmentally harmful sewer back-ups and spills. In addition to the disgusting nature of these fatbergs, local agencies must spend significant time and resources to remediate them, and if a fatberg results in a release of fluid from the sewer, the fatberg can lead to the imposition of fines and penalties on public agencies by the State Water Resources Control Board. At the same time, it is virtually impossible for the agencies to recover any of their costs for repairing their systems and paying fines for unlawful discharges from those who are truly responsible for the fatbergs and the havoc they reek.

The increased maintenance needed to prevent problems from nonflushable products can be exceedingly costly to public wastewater agencies, who in turn are forced to raise rates on Californians to cover the costs. Many of the sanitation agencies sponsoring this bill are finding that wipes are a significant culprit in causing sewer back-ups and equipment damage. In some cities, costly screening facilities have failed to stop these nonflushable wipes from finding their way through the wastewater system. In 2011, the Orange County Sanitation District conducted nearly 1,000 preventative or corrective maintenance calls on 10 of their 15 regional pump stations. They report that the total labor cost was more than $300,000, and the Orange County Sanitation District continues to spend significant labor hours working to prevent clogs that could lead to a sewer spill. Their crews report having to clean their three most impacted pumping stations twice a week. In 2012, the Orange County Sanitation District reported that the equivalent of 40 large trash bags of materials overburdened their new headworks and completely plugged three new washer compactors. The impact of the wipes on the wastewater management system is forcing some municipalities to invest in costly new equipment. For example, the City of Camarillo’s Waste Water Treatment Plant has invested approximately $500,000 to upgrade its waste water treatment plant pump systems to manage the volume of wipes passing through the system on a daily basis. As noted, all of these costs are eventually borne by California ratepayers—not manufacturers of the wipes that damage the systems--regardless of whether or not they happen to personally use wipe products.

Existing product labels are not helping Californians learn when it’s safe to flush a wipe. Beginning in the 1980s, due to their wide range of household and personal care uses, disposable wipes began to flourish in the California market. In the intervening years, two types of products have come to dominate the disposable wipe market: dispersible and low-strength wipes. Low-strength wipes are designed to collapse in a toilet, presenting a very small profile and the flexibility to travel through pipes unencumbered. However, their low wet strength makes them poor performers in most cleaning jobs. Dispersible wipes are designed to perform like a standard wipe as far as strength and softness, but in a toilet disperse into individual fibers or small groups of fibers.

Many disposable wipe products are placed into the trash. For example, cleaning wipes, like those used in kitchens or on floors, are rarely disposed of in the wastewater stream. However, when it comes to disposable products that address public health and hygiene considerations, consumers often mistakenly use the wastewater system as a preferred means of disposal. These products include baby wipes, feminine hygiene products, and in some cases, diapers. Existing product labels do not always permit consumers to make an educated decision. For example, an internet search of retailers selling baby wipes reveals a variety of products with names that include the phrases “all natural,” “water wipes,” “aqua pure,” “Babyganics,” and “natural care.” (https://www.target.com/s?searchTerm=baby+wipes&Nao=0.) These products certainly give the appearance of being natural and safe, presumably for both a baby and the sewer. Nonetheless, several of these products are not designed to be safely flushed into the wastewater system.

Despite existing public relations campaigns, Californians continue to improperly flush wipes that are not designed to be flushed. When California’s municipal wastewater treatment agencies began to recognize the threat posed to their equipment from improperly flushed wipes, the agencies set out to inform the public of the harms posed by wipes in order to reduce the rate of wipe-related incidents in the wastewater system. The efforts of California’s sanitation agencies are assisted by the International Water Services Flushability Group ongoing campaign to promote the "only the 3Ps” (pee, poop, and paper) set of principles on what should be flushed. Additionally, the California Association of Sanitation Agencies is promoting its own “Wipes Clog Pipes” campaign to boost awareness of the problem in this state. Despite the efforts by the members of the California Association of Sanitation Agencies, the public relations campaign has not made significant progress in lessening the problem. Accordingly, this bill’s proponents suggest that on-product labels are needed to better inform the public. Given the poor track record of public relations campaign aimed at preventing the public from flushing wipes into the waste stream, enhanced product labeling appears to be a reasonable next step to address the issue.

This bill. Recognizing the limits of existing public relations campaigns and seeking to ensure that consumers are better informed and able to make decisions regarding the disposal of wipe products, this bill seeks to improve the labeling of these products. To that end, this bill would prohibit a product from being labeled as “flushable” unless the product can be safely flushed without harming sewer or septic system and breaks down within a short period of time after being flushed so it does not harm plumbing systems. Additionally, for products that do not breakdown quickly, this bill requires those product labels to include clear warnings that they should not be flushed. This bill requires all wipe products sold in California to conform to the labeling standards adopted by the wipe industry and published in the Communicating Appropriate Disposal Pathways for Nonwoven Wipes to Protect Wastewater Systems. In order to determine a wipe’s flushability, the bill utilizes the standards and criteria developed by the International Water Services Flushability Group, a coalition of wastewater management agencies from around the world. As proposed to be amended, the bill proposes to delay the date by which existing products must meet the International Water Services Flushability Group standard until 2021. Finally, the bill vests enforcement authority for the labeling standards with the Attorney General, as well as with local District Attorneys and City or County Counsels, and establishes criteria for evaluating penalty levels. By enabling local agencies to enforce the bill, the author hopes to develop relationships between local wastewater management agencies and local law enforcement officials in order to effectively enforce this measure.

Dueling methods for testing flushability. As disposable wipe products gained increasing market share around the world, the trade association representing 40 manufacturers of disposable wipes began developing an industrywide standard for wipe flushability. The resulting Guidance Document was heavily based on the work of the Water Environment Research Foundation’s Protocols to Assess the Breakdown of Flushable Consumer Products. This framework requires wipes to be tested utilizing a system containing 2 liters of water in an oscillating slosh box in which a single nonwoven wipe is run for 60 minutes. Subsequently, the contents of the box are transferred to, and then rinsed through, a 12.5 millimeter perforated place sieve. The portions of the wipe retained on the sieve are recovered, dried, and analyzed. To be deemed "flushable," the percent of the starting dry mass passing through the 12.5 millimeter perforated plate sieve after 60 minutes must be greater than 60% for at least 80% of the individual replicates tested.

Alternatively, the International Water Services Flushability Group, a global coalition of water service providers including the California Association of Sanitation Agencies and the Sanitation Districts of Los Angeles County, developed criteria for items that can be flushed down the toilet worldwide. The aim of the International Water Services Flushability Group’s standard is to prevent blockages in sewers and household plumbing, thus reducing the human and environmental cost of sewer flooding and pollution. Their standard seeks to ensure that products break into small pieces quickly, are not buoyant, and do not contain plastic or regenerated cellulose and only contains materials which will readily degrade in a range of natural environments. In order to meet the requirement that a wipe break down quickly, the International Water Services Flushability Group requires that after a 1-minute rinse, the percent of the total initial dry mass passing through a 25 millimeter sieve for five test specimens, after 30 minutes of testing, shall be greater than 95%.

The supporters of this bill, California’s local wastewater management agencies, generally favor the International Water Services Flushability Group standard. The wipe manufacturers that oppose this measure, unsurprisingly, favor the more lenient industry-developed standard. The manufacturers opposing this bill contend that the International Water Services Flushability Group standard is so strict as to constitute a de facto ban on their products. To counter this argument, the proponents of this bill have suggested to this Committee that products meeting the standard proposed by this bill are sold abroad by some of the very companies in opposition to this bill and could readily be introduced in the California market. The merits of each standard were previously weighed in the Assembly Committee on Environmental Safety and Toxic Materials, and that Committee accepted the standard preferred by the agencies responsible for maintaining California’s wastewater system as the applicable standard for the bill. This Committee, which has no expertise on the subject matter of the dissolvability of wipes or water quality, sees no reason to quibble with that judgment. Nonetheless, it should be noted that the standards for flushability may evolve over time as new wipe or waste management technologies emerge. Accordingly, as this bill progresses, the author may wish to consider amending the bill to vest ongoing oversight of the standard with a state agency that has expertise in water quality, namely the State Water Resources Control Board.

Product labeling and manufacturer speech. In addition to disagreeing with the method for certifying flushability, wipe manufacturers have challenged similar laws requiring flushability standards and product labeling on First Amendment grounds. In fact, the wipe industry was successful in stopping immediate enforcement of Washington, D.C.’s enactment of an ordinance enacting the International Water Services Flushability Group standard in the District. (Kimberly-Clark Corp. v. District of Columbia (2017) 286 F. Supp. 3d 128.) Courts have long recognized that commercial speech is protected by the First Amendment, although to a far lesser degree than non-commercial speech. Typically, restrictions on commercial speech are aimed at ensuring that advertisements are factual and not misleading, and the United States Supreme Court has held that the government may ban forms of communication more likely to deceive the public than inform it. (Friedman v. Rogers (1979) 440 U.S. 1, 11.) The modern standard for evaluating the legality of regulations on commercial speech originated in the early 1980s. In evaluating commercial speech the Supreme Court applies an intermediate scrutiny level of review of the regulation, and must determine the following: whether the expression is protected by the First Amendment; whether the asserted government interest is substantial; whether the regulation directly advances the government’s interest; and whether the regulation is not more extensive than necessary. (Central Hudson Gas & Electric Corporation v. Public Service Commission of New York (1980) 447 U.S. 557, 566.)

By requiring wipe manufacturers to label their products as not safe to flush if they do not meet a specified standard, this bill implicates protected speech. Accordingly, the labeling requirements must be examined utilizing the Central Hudson test, above. In advancing this bill, the author and local wastewater management agencies, highlight the substantial cost of mitigating the damage caused by wipes. They also contend that in the event that wipes clog the sewer system, resulting in a spill, the environmental harm can be significant. Accordingly, given the cost and potential environmental harms of wipes, it appears that there is a substantial governmental interest in reducing the prevalence of non-flushable wipes in the wastewater system. The bill requires products to be tested for flushability and then labeled accordingly. Proponents of the bill argue that better labeling will reduce customer confusion and, thus reduce the number of wipes improperly flushed into the waste stream. The labeling requirement appears to directly advance this goal. Like most other permissible regulations, the bill simply requires the manufacturer to label their product to indicate whether it is flushable or not in accordance with the Water Services Flushability Group standard. Finally, in order to withstand constitutional review, this bill must not be more extensive than necessary. In arguing against the Washington, D.C. requirements, the wipe manufacturers argued that more public information about wipes was necessary and would have been a more direct means of achieving the District’s goals. As discussed above, several public outreach campaigns have unsuccessfully endeavored to reduce the rate at which wipes are improperly flushed in California, and thus the proponents of this measure argue that the public awareness campaigns in California—unlike the absence of such campaigns in Washington D.C.—have already been tried and found to have failed to sufficiently address the issue. Seeking to craft an appropriate balance, this bill requires enhanced labeling of the wipe products while not going so far as to entirely prohibit the sale of wipe products in California: a far more extreme solution to the problem.

The enforcement measures in this bill resemble existing laws that seek to reduce pollution in California waterways. In recent years, California has been a national leader in seeking to lessen the amount of products entering the waste stream, and eventually making their way to bodies of water. To that end, in 2014, California banned single-use plastic bags across the state. (SB 270 (Padilla) Chap. 850, Stats. 2014.) The plastic bag prohibition was shortly followed by another forward-thinking measure eliminating the use of plastic micro-beads in personal care products, including face and body washes, which are rinsed into the wastewater stream and eventually into the ocean. (AB 888 (Bloom) Chap. 594, Stats. 2015.) In the case of both bills, civil enforcement was determined to be an appropriate deterrence to bad conduct.

As with its predecessors, this bill would impose civil penalties on covered entities found to be in violation of the bill’s labeling requirement. In fact, the author has adopted an enforcement mechanism nearly identical to his AB 888, in that enforcement authority rests with the Attorney General, as well as local District Attorneys and City or County Counsels, and gives the courts guidance for imposing penalties. This method of enforcing environmental regulations is well proven, and thus appears to be an appropriate method of enforcing the labeling requirements imposed by this bill.

As proposed to be amended, this bill seeks to provide manufacturers with additional time to comply with the new standards. In order to ease the implementation of this bill, the author proposes amendments to delay the applicability of the bill to products currently in the stream of commerce. The author recognizes, for example, that labels take time to update and design, and that packaging produced before this bill were to take effect would have to be recalled simply to avoid triggering civil penalties for the manufacturer. Accordingly, the author is proposing to amend the bill to ensure that product labels for products currently on the market do not need to comply with this bill until 2021. To accomplish this goal, the author is proposing the following amendments to Section 49651:

(a) On and after January 1, 2021, 2020 a covered entity shall not label a covered product as safe to flush, safe for sewer systems, or safe for septic systems, unless the product is a flushable wipe.

(b) (1) On or after January 1, 2021, unless Unless a product is a flushable wipe, a covered entity shall not, in any manner, make any of the following representations regarding a covered product…

(c) On and after January 1, 2021, 2020a covered entity shall test and maintain self-certification records that verify that its covered products meet the performance standards and comply with the labeling requirements.

For consistency, a new subdivision (d) will be added to Section 49652 to read:

(c)  If a covered product is manufactured prior to December 31, 2019, the covered entity shall comply with this section no later than before January 1, 2021.

ARGUMENTS IN SUPPORT: This measure is supported by a coalition of local sanitation districts and is sponsored by the California Association of Sanitation Agencies who argues in support of the bill:

AB 1672 presents a straightforward solution to helping combat the problems caused by improperly flushing wet wipes. The bill prescribes clear and consistent consumer messaging for these products that indicates to consumers that either a wipe is “flushable,” or it is not. Under the provisions of AB 1672, wipes can be labeled as “flushable” if they do not cause harm to the sewer system, meaning that manufacturers can demonstrate that their wipes break down in the sewer system like dry toilet paper. For all other wipes that are not intended to be flushed, they must be conspicuously marked with “Do Not Flush” labeling.

ARGUMENTS IN OPPOSITION: This bill is opposed by a coalition of business and manufacturing organizations, led by INDA, the Association of the Nonwoven Fabrics Industry who argues:

AB 1672 seeks to codify the flushability specification created by an informal group of wastewater associations called the International Water Services Flushability Group. Their specification is overreaching in that International Water Services Flushability Group IWSFG’s PAS3 test fails not only all flushable wipes on the market but some toilet paper as well. Unless wastewater experts have decided that their collection systems can no longer handle toilet paper, the necessity for a flushability test so stringent that fails to pass toilet paper is highly questionable.

The Association for the Nonwoven Fabrics Industry and the European Disposables and Nonwovens Association developed a scientifically-based method to gauge product flushability. This framework was based heavily on recommendations in the report by the Water Environment Research Foundation called “Protocols to Assess the Breakdown of Flushable Consumer Products.” The end-result underwent trials accompanied by a rigorous peer review by noted U.S. and European experts in wastewater conveyance and treatment, engineers, and those from academia who study the issue. Among other things, this document established the first broadly-accepted “flushability” definition.

AB 1672’s overreaching standard for flushability is likely to undermine the effectiveness of a California standard for “Do Not Flush” labeling on products not designed to be flushed such as baby wipes and surface or sanitizing wipes. The result will be consumer’s lack of trust with the labeling and therefore they may decide to flush as they see fit, which will increase the flushing of non-flushables – a direction the industry does not want to go as it is inconsistent with our environmental and wastewater treatment goals.

REGISTERED SUPPORT / OPPOSITION:

Support

California Association of Sanitation Agencies (sponsor)

Alameda County Supervisor Nate Miley

Appraccel

Byron-Bethany Irrigation District

California Product Stewardship Council

California Resource Recovery Association

Californians Against Waste

Central Marin Sanitation Agency

Central Contra Costa Sanitary District

City of Camarillo

City of Oxnard

City of Roseville

City of Thousand Oaks

County Sanitation Districts of Los Angeles County

Delta Diablo

Dublin San Ramon Services District

East Bay Municipal Utility District

Eastern Municipal Water District

Gallinas Watershed Council

Goleta Sanitary Water Resources Recovery District

Goleta West Sanitary District

Las Gallinas Valley Sanitary District

Las Virgenes Municipal Water District

National Stewardship Action Council

Orange County Sanitation District

Oro Loma Sanitary District

Sacramento Area Sewer District

Sacramento County Regional Sanitation District

San Francisco Public Utilities Commission

Sanitation Districts of Los Angeles County

Stopwaste

Sonoma Water

Stege Sanitary District

Union Sanitary District

VA Palo Alto Health Care System

Victor Valley Wastewater Reclamation Authority

Opposition

American Forest and Paper Association

California Chamber of Commerce

California Manufacturers and Technology Association

Consumer Healthcare Products Association

Grocery Manufacturers Association

Household and Commercial Products Association

INDA – the Association of the Nonwoven Fabrics Industry

Personal Care Products Council

Analysis Prepared by: Nicholas Liedtke / JUD. / (916) 319-2334

Date of Hearing: April 9, 2019

ASSEMBLY COMMITTEE ON ENVIRONMENTAL SAFETY AND TOXIC MATERIALS

Bill Quirk, Chair

ABPCA Bill Id:AB 1672 (

Author:Bloom) – As Amended Ver:March 28, 2019

SUBJECT: Solid waste: flushable products

SUMMARY: Establishes criteria for "flushability" for nonwoven disposable products and requires non-flushable labels on nonwoven disposable products that do not meet those flushable criteria. Specifically, this bill:

1. States the intent of the Legislature to provide clear direction to manufacturers by setting performance requirements for nonwoven disposable products that are marketed for disposal to the sanitary sewer system.
2. Defines "covered entity" as the manufacturer of a covered product that is sold in this state or brought into the state for sale. Excludes a wholesaler, supplier, or retailer that is not responsible for the labeling or packaging of a covered product.
3. Defines a "covered product" as a nonwoven disposable product that is sold in this state or brought into the state for sale, and that is constructed from nonwoven sheets, including moist toilet tissue or cloth, that is designed, marketed, or commonly used for personal hygiene or cleaning purposes, including, but not limited to, diaper wipes, toilet wipes, household cleaning wipes, personal care wipes, and facial wipes.
4. Defines "enforcing agency" as the California Environmental Protection Agency (CalEPA).
5. Defines "flushable wipe" as a nonwoven disposable product that meets the performance standards set forth in the performance standards.
6. Defines "labeling requirements" as the labeling standards contained in the Code of Practice of the Association of the Nonwoven Fabrics Industry and the European Disposables and Nonwovens Association, titled Communicating Appropriate Disposal Pathways for Nonwoven Wipes to Protect Wastewater Systems, second edition, as published in April 2017.
7. Defines "nonflushable wipe" as a nonwoven disposable product that does not meet the performance standards set forth in the performance standards.
8. Defines "performance standards" as the International Water Services Flushability Group testing methods and criteria for flushability, as published in June 2018, as set forth in publicly available specification (PAS) documents 1, 2, and 3, and as summarized in chapters 6 and 7 of PAS document 1.
9. Prohibits, on and after January 1, 2020, a covered entity from labeling a covered product as safe to flush, safe for sewer systems, or safe for septic systems, unless the product is a flushable wipe.
10. Prohibits, unless a product is a flushable wipe, a covered entity from making, in any manner, any of the following representations regarding a covered product:
    1. The product can be flushed;
    2. The product is safe for sewer systems;
    3. The product is safe for septic systems;
    4. The product breaks apart shortly after flushing;
    5. The product will not clog household plumbing systems;
    6. The product will not clog household septic systems;
    7. The product is safe for plumbing;
    8. The product is safe to flush; or,
    9. The product will dissolve or disperse in interaction with water.
11. Provides that representations include, among other things, product names, labels, endorsements, depictions, illustrations, trademarks, and trade names.
12. Requires, on and after January 1, 2020, a covered product that does not meet the performance standards to be labeled clearly and conspicuously in adherence with the labeling requirements to communicate that it should not be flushed. Requires the label to be in a high contrast font and color respective to the surrounding wording and space on the packaging and in a location that is visible when individual wipes are dispensed from the product packaging.
13. Requires, for products sold in bulk at retail, both the package purchased in the store and the individual packages contained within, to comply with the labeling requirements.
14. Prohibits a covered entity, directly or through any corporation, partnership, subsidiary, division, trade name, or association in connection to the manufacturing, labeling, packaging, advertising, promotion, offering for sale, sale, or distribution of a covered product, from making any representation, in any manner, expressly or by implication, including through the use of a product name, endorsement, depiction, illustration, trademark, or trade name, about the flushable attributes, benefits, performance, or efficacy of a nonflushable wipe.
15. Requires, on and after January 1, 2020, a covered entity to test and maintain self-certification records that verify that its covered products meet the performance standards and comply with the labeling requirements.
16. Requires the records demonstrating a flushable wipe’s compliance with the performance standards to be made available by the covered entity upon request of the enforcing agency, free of charge, within 30 days of the request.
17. Requires verification of a nonflushable wipe’s compliance with the labeling requirements to be made available by the covered entity upon request of the enforcing agency, free of charge, within 30 days of the request.
18. Requires a covered entity that does not properly label flushable wipes or nonflushable wipes that will be sold in California, or are reasonably expected to be sold in California, to be issued a notice of violation by the enforcing agency, providing 30 days for the noncompliant products to be recalled. Provides that the covered entity may be subject to an administrative penalty every day thereafter that those products remain available for purchase at retail or otherwise are distributed in the state.
19. Requires the enforcing agency, in issuing an administrative penalty, to take into consideration the nature, circumstances, extent, and gravity of the violation, the violator’s past and present efforts to prevent, abate, or clean up conditions posing a threat to the public health or safety or the environment, the violator’s ability to pay the proposed penalty, and the effect that the proposed penalty would have on the violator and the community as a whole.
20. Restricts the penalty imposed under this subdivision from exceeding five hundred dollars ($500) per day.
21. Requires penalties collected to be deposited into the Flushable Wipes Fund, which is hereby created. Requires moneys in the fund to be subject to appropriation by the Legislature for purposes of enforcing this part.
22. Provides that a covered entity that violates or threatens to violate this part may be enjoined by the Attorney General in any court of competent jurisdiction, and civil penalties may be assessed and recovered in a civil action brought in any court of competent jurisdiction in an amount not to exceed two thousand five hundred dollars ($2,500) for each violation.
23. Requires moneys collected by the Attorney General to be deposited into the Unfair Competition Law Fund.
24. Provides that to the extent that there is an inconsistency between this bill and a local standard or an updated performance standard that imposes greater restrictions, the greater restrictions shall prevail.
25. Provides that the provisions of this part are severable. Provides that if any provision of this part or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.

EXISTING LAW:

Under federal guidelines:

1. Defines biodegradability and requires environmental marketing claims and claims of degradability, biodegradability, and photodegradability be qualified to the extent necessary to avoid consumer deception about the product or package's ability to degrade in the environment where it is customarily disposed and the rate and extent of degradation. (Federal Trade Commission (FTC), Green Guide Part 260 § 260.8)
2. Regulates the labeling requirements on various consumer products and requires any person who represents in advertising or on the label or container of a consumer good that the product is not harmful to, or is beneficial to, the natural environment, through the use of terms such as "environmental choice," "ecologically friendly," "earth friendly," "environmentally friendly," "ecologically sound," "environmentally sound," "environmentally safe," "ecologically safe," "environmentally lite," "green product," or any other like term, to maintain in written form in its records specified information and documentation supporting the validity of the representation. (FTC, Green Guide Part 260 § 260.4)

Under state law:

1. States that it is the public policy of the state that environmental marketing claims, whether explicit or implied, should be substantiated by competent and reliable evidence to prevent deceiving or misleading consumers about the environmental impact of plastic products. Provides that for consumers to have accurate and useful information about the environmental impact of plastic products, environmental marketing claims should adhere to uniform and recognized standards, including those standard specifications established by the American Society for Testing and Materials. (Public Resources Code § 42355.5)
2. Provides that it is unlawful for a person to make any untruthful, deceptive, or misleading environmental marketing claim, whether explicit or implied. (Business and Professions Code (BCP) § 17580.5 (a))

FISCAL EFFECT: Unknown.

COMMENTS:

Need for the bill: According to the author, "When wet wipes products are flushed into the sewer system they can cause significant issues for private property owners, sewer collection systems, and wastewater treatment plants. Wet products that do not break down can catch on tree roots or other obstructions in residential sewer laterals and cause costly and dangerous backups for property owners. Wet wipes have been shown to cause significant damage to residential septic systems, resulting in expensive repairs and remediation for homeowners.

AB 1672 presents a straightforward solution to helping combat the aforementioned problems caused by improperly flushing wet wipes. The bill prescribes clear and consistent consumer messaging for these products that indicates to consumers that either a wipe is 'flushable,' or it is not. Under the provisions of AB 1672, wipes can be labeled as 'flushable' if they do not cause harm to the sewer system, meaning that manufacturers can demonstrate that their wipes break down in the sewer system like dry toilet paper. For all other wipes that are not intended to be flushed, they must be conspicuously marked with 'Do Not Flush' labeling."

What does it mean to be "flushable"? Generally, toilet paper is universally considered flushable due to the nature of its use as well as the design of the product to disperse upon being flushed. However, there currently is no federal or state definition of what constitutes a "flushable" consumer product.

As a result, companies have used their own definitions and methods to determine the flushability of their products. For consumers and wastewater agencies, this means there has been no single reference from which to assess the flushability of a product other than the marketing claim on a package.

Flushable products: This lack of standardization, or regulation, has led to consumer confusion and lack of clarity in the market place as to the appropriateness of disposing certain products via plumbing systems.

In the 1980s, wipes advertised as "flushable" first appeared on the market. Since then, two types of flushable wipes have been designed and introduced: dispersible and low-strength wipes. Low-strength has been one approach to making nonwovens with permanent bonds flushable. These wipes collapse in a toilet, presenting a very small profile and the flexibility to travel through pipes unencumbered. However, their low wet strength makes them poor performers in most cleaning jobs. The second type of flushable wipe is dispersible. These products perform like a standard wipe as far as strength and softness, but in a toilet disperse into individual fibers or small groups of fibers.

More and more, an increasingly diverse range of disposable products has become available for consumer use. The growth of the market for such products is evidence of their popularity with the public, but their increased use brings with it discussion about their disposal, especially the topic of flushability.

For disposable products that address public health and hygiene considerations, consumers often mistakenly use the wastewater system as a preferred means of disposal. These products include disinfectant wipes and baby wipes (which are often confused with "flushable" wipes), feminine hygiene products, diapers, diaper liners, dog poop bags, wash cloths, condoms, and more. While consumer behavior cannot be legislated, legislation can steer manufacturing and labeling in a direction that better informs consumers how to behave. In the case of this bill, the intent is to better inform wipes intended for flushing and provide clarification to consumers on wipes not suitable for flushing.

Problems with nonflushable products: Products that are poorly designed or not at all intended to be flushed down the toilet can cause sewer blockages, which damage sewer lines and can lead to costly sanitary sewer overflows. Damage and overflows present dangers to public health and the environment.

A buildup of nonflushable products has been shown to cause clogs in sewage pumps, lead to entanglements in sewage treatment equipment, lead to sewer backups in residences, and increase the risk of a sanitary sewer overflow during a storm.

Wipes weave together and form large "rags" that can become massive obstructions in sewer lines when they combine with other improperly flushed items and fats, oils, and greases. These obstructions are commonly referred to as "fatburgs," and in addition to being a disgusting environmental problem, local agencies spend significant time and resources to remediate them. In the worst cases, fatburgs attributed to wipes contribute to sanitary sewer overflows, which are a threat to public health and the environment, and result in fines and penalties to public agencies.

The increased maintenance needed to prevent problems from nonflushable products is very costly to public wastewater agencies. Many of the sanitation agencies are finding wipes are the main culprit of the problem. In some cities, such as Petaluma, costly screening facilities have failed to stop these indispersible products from finding their way through the wastewater system.

In 2011, the Orange County Sanitation District (OCSD) conducted nearly 1,000 preventative or corrective de-ragging maintenance calls on 10 of their 15 regional pump stations. Total labor cost was more than $300,000. OCSD continues to spend labor hours to avoid clogging that could lead to a sewer spill. Their crews routinely remove non-dispersables from their three hardest hit stations every Monday and Thursday. On August 13, 2012, the equivalent of 40 large trash bags on non-dispersable materials overburdened their new headworks and completely plugged three new washer compactors. It took six to eight hours and up to 10 plant employees to restore normal operations. The OCSD notes that operations and maintenance costs are going up. Spending more public agency money to reengineer the problem away by installing new machinery is not a sustainable solution.

The City of Camarillo’s Waste Water Treatment Plant has invested approximately $500,000 to upgrade its waste water treatment plant pump systems to manage the volume of wipes passing through the system on a daily basis.

California Sanitary Sewer Overflow database: The State Water Resources Control Board (State Water Board) considers a sanitary sewer overflow (SSO) as any overflow, spill, release, discharge, or diversion of untreated or partially treated wastewater from a sanitary sewer system. SSOs often contain high levels of suspended solids, pathogenic organisms, toxic pollutants, nutrients, oil, and grease. SSOs pollute surface and ground waters, threaten public health, adversely affect aquatic life, and impair the recreational use and aesthetic enjoyment of surface waters.

According to the State Water Board's data on SSOs, 70% - 75% of the known causes and trends related to the causes of SSOs across the state tend to be tree roots, grease, fats, oils, and general debris. Even if wipes constitute less than 25% of the cause of SSOs, they still remain a disruption and a growing cost to local sanitation agencies to manage.

Plumbing standards: Minimum standards exist for the construction of building drainage pipe systems; these include allowable pipe diameters and slopes, venting requirements, and piping materials. Increasingly, smaller diameter pipes are being installed in new buildings. The passage of solid materials through these systems is dependent on the water being able to move the product. In 1995, the National Energy Policy Act (House Resolution 776) mandated that all new toilets must flush with no more than 1.6 gallons of water. If a flushable product can pass through a low-consumption toilet after one flush, there is a strong likelihood that product could pass through a stronger toilet system.

Establishing a workable flushable standard for flushable wipes: While there is not yet a regulatory standard for what is allowable to be flushed, there are both industry and water association standards that have used rigorous testing and engineering assessments to define "flushability."

INDA Guidance Document: After years of work, involving some 40 companies, in 2008, INDA and EDANA, the trade associations for non-woven fabrics supplied to the market across North America, Europe, the Middle East, and Africa, published the first edition of its Guidance Document, which contains guidelines to provide companies with a comprehensive framework for testing products to determine their flushability.

The Guidance Document contains flow charts of key questions that need to be answered for each route a product could follow post-flushing. The questions are answered through a series of tests. Acceptance criteria for each test and for each question either demonstrate compatibility with the disposal system or determine whether further testing would be required before flushability could be clearly established.

The framework in the Guidance Document was based heavily on recommendations in the report by the Water Environment Research Foundation (WERF) called "Protocols to Assess the Breakdown of Flushable Consumer Products." The end-result underwent trials accompanied by a rigorous peer review by U.S. and European experts in wastewater conveyance and treatment, engineers, and those from academia who study the issue.

The INDA guidelines have continued to evolve. As a result, the INDA guidelines have gone through multiple reviews and iterations and have evolved to one that requires all wipes to pass seven different tests in order to be marketed as flushable. The seven tests include: a slosh box disintegration test; household pump test; settling test; aerobic biodisintegration test; anaerobic biodisintegration test; and, a municipal sewage pump test.

The current version of INDA/EDANA’s Guidance Document 4 (GD4) was released in May of 2018.

INDA's guidance, per GD4, requires a test system containing 2 liters of water in an oscillating slosh box in which a single nonwoven wipe is run for 60 minutes. Subsequently, the contents of the box are transferred to and then rinsed through a 12.5mm perforated place sieve. The portions of the wipe retained on the sieve are recovered, dried, and analyzed. To pass the test as "flushable," the percent of the starting dry mass passing through the 12.5mm perforated plate sieve after 60 minutes must be greater than 60% for at least 80% of the individual replicates tested.

International Water Services Flushability Group (IWSFG): The IWSFG is an international group of water service providers, and the associations and organizations representing them, that developed criteria for items that can be flushed down the toilet worldwide. Members include the National Association of Water Agencies, California Association of Sanitation Agencies, Sanitation Districts of Los Angeles County, as well as the Japan Sewage Works Association, European Water Association, Israeli Water Association, and water associations from Belgium, France, Spain, the Czech Republic, Estonia, Canada, and many more.

The IWSFG's founding principles state that to prevent problems with sewers, pipe, and toilet blockages plus the human and environmental cost of sewer flooding and pollution, the organizations signing this statement below agree that "only the 3Ps – Pee, Poo, and toilet Paper – should be flushed." They also state that new innovations in materials might make it possible for certain products to be flushed, if they pass a technical standard which has been developed and agreed by the water and wastewater industry. The founding principles state that, "Key requirements for any standard include that the product: a) breaks into small pieces quickly; b) must not be buoyant; and, c) does not contain plastic or regenerated cellulose and only contains materials which will readily degrade in a range of natural environments."

The IWSFG developed the International Water Industry Statement on Flushability that was released on September 22, 2016, and signed by more than 250 water organizations. The 2018 IWSFG standards have five performance criteria, of which three utilize INDA standards. An additional criteria is based on Technical Association of the Pulp and Paper Industry (TAPPI)/American National Standards Institute for testing whether there are plastics in the material, and then there is the fifth criteria, where the IWSFG standard deviates from INDA's: the slosh box test.

Under IWSFG's guidance, wipes are placed in a slosh box containing four liters of water, which are then rotated at 18rpm for 30 minutes. The box is then emptied onto a 25mm perforated sieve and the upper surface of the sieve is rinsed at a designated flow. Quantitative analysis of the retained contents on the sieve is assessed to see if the total pass through rate of 95% of the total initial dry mass is met.

While the IWSFG test requires 35% more disintegration, its slosh box test provides a sieve with perforations that are two times the size of the sieve called for by INDA, and the IWSFG allows for twice as much water than the industry’s slosh box test parameters.

Flushability as determined by this bill: Under the IWSFG slosh box test performance standard, 95% of a wipe must disintegrate. In contrast, prior to 2018, the INDA standards for the slosh box test only required 25% of a wipe to break apart and disperse for it to be deemed "flushable," meaning 75% of the wipe could remain and it still be "flushable." Under the current GD 4 standard, up to 39% of the wipe can remain.

The California Association of Sanitation Agencies (CASA), which represents more than one hundred public agencies that engage in the collection, treatment or disposal of wastewater, resource recovery or water recycling, states that the IWSFG standard is more stringent and will result in fewer wipes adding to backups and clogs.

AB 1672, sponsored by CASA, would codify the ostensibly more stringent of the two standards -- the IWSFG testing methods and criteria for flushability.

Non-flushable labeling: There are many kinds of wipes on the market: "flushable" wipes, disinfectant cleaning wipes, makeup remover wipes, personal hygiene wipes, and baby wipes, surely among others. The wipes currently sold as flushable are made of cotton. Many of the wipes on the market not intended by the manufacturer to be flushable (but often are flushed by consumers) are made of cotton and plastic materials to make the wipes more durable (such as cleaning wipes). Both "flushable" wipes and those not intended to be flushed can cause problems for sewer agencies. The flushability criteria in the bill will provide clarification to manufacturers of "flushable" wipes. To try to address some of the consumer confusion, AB 1672 requires any product that does not meet the bill's flushability criteria to be clearly labeled that is it not flushable per INDA's labeling requirements. INDA's Code of Practice includes a "Do Not Flush" symbol for companies to use on product packaging.

Enforcement: The bill designates CalEPA as the enforcing agency to issue violations and administrative penalties to manufacturers not in compliance with the provisions of the bill. CalEPA is not a regulatory agency, and enforcing manufacturer compliance standards is not that state entity's normal purview.

Other state laws that determine manufacturing standards leave enforcement up to the Attorney General and local district attorneys. It may be more appropriate to remove the provisions of the bill from CalEPA and provide enforcement by the Attorney General.

Arguments in support: According to the CASA, the sponsor of the bill, "When wet wipes products are flushed into the sewer system they can cause significant issues for private property owners, sewer collection systems, and wastewater treatment plants. Wet wipes products that do not break down can catch on tree roots or other obstructions in residential sewer laterals and cause costly and dangerous backups for property owners. Wet wipes have also been shown to cause significant damage to residential septic systems, resulting in expensive repairs and remediation for homeowners … AB 1672 presents a straightforward solution to helping combat the problems caused by improperly flushing wet wipes. The bill prescribes clear and consistent consumer messaging for these products that indicates to consumers that either a wipe is 'flushable,' or it is not. Under the provisions of AB 1672, wipes can be labeled as 'flushable' if they do not cause harm to the sewer system, meaning that manufacturers can demonstrate that their wipes break down in the sewer system like dry toilet paper. For all other wipes that are not intended to be flushed, they must be conspicuously marked with 'Do Not Flush' labeling."

Arguments in opposition: According to INDA, "Data from California State Water Resources Control Board Sanitary Sewer Overflow (SSO) Reduction program illustrates that the INDA/EDANA flushability standards are working well as it reflects wipes products are not the cause of overflows and clogs … AB 1672 (Bloom) seeks to codify the flushability specification created by an informal group of wastewater associations called the International Water Services Flushability Group (IWSFG). Their specification is overreaching in that IWSFG’s PAS3 test fails not only all flushable wipes on the market but some toilet paper as well. Unless wastewater experts have decided that their collection systems can no longer handle toilet paper, the necessity for a flushability test so stringent that fails to pass toilet paper is highly questionable."

Committee amendments: The committee may wish to amend the bill as follows:

1. Remove the bill from the jurisdiction of CalEPA and instead leave enforcement up to the Attorney General, district attorneys, and city prosecutors.
2. Delete Section 49652 (f) from the bill to prevent a local standard from superseding the state standard that this bill intends to create.

Double referral: Should this bill be approved by the Assembly Environmental Safety & Toxic Materials Committee, it will be re-referred to the Assembly Judiciary Committee.

REGISTERED SUPPORT / OPPOSITION:

Support

CALIFORNIA ASSOCIATION OF SANITATION AGENCIES (SPONSOR)
CALIFORNIA PRODUCT STEWARDSHIP COUNCIL
CENTRAL CONTRA COSTA SANITARY DISTRICT
CITY OF BURLINGAME

CITY OF CAMARILLO
EASTERN MUNICIPAL WATER DISTRICT
GOLETA WEST SANITARY DISTRICT
LAS GALLINAS VALLEY SANITARY DISTRICT
LAS VIRGENES MUNICIPAL WATER DISTRICT
NATIONAL STEWARDSHIP ACTION COUNCIL
ORANGE COUNTY SANITATION DISTRICT
SACRAMENTO AREA SEWER DISTRICT
SACRAMENTO COUNTY REGIONAL SANITATION DISTRICT (REGIONAL SAN)
SANITATION DISTRICTS OF LOS ANGELES COUNTY
UNION SANITARY DISTRICT

Opposition

AMERICAN FOREST & PAPER ASSOCIATION
CALIFORNIA CHAMBER OF COMMERCE (CALCHAMBER)
CALIFORNIA MANUFACTURES & TECHNOLOGY ASSOCIATION
CONSUMER HEALTHCARE PRODUCTS ASSOCIATION
GROCERY MANUFACTURERS ASSOCIATION
HOUSEHOLD AND COMMERCIAL PRODUCTS ASSOCIATION
INDA, ASSOCIATION OF THE NON-WOVEN FABRICS INDUSTRY
PERSONAL CARE PRODUCTS COUNCIL

Analysis Prepared by: Paige Brokaw / E.S. & T.M. /