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AB-2787 Microplastics in products.(2021-2022)

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Date Published: 05/19/2022 02:00 PM
AB2787:v97#DOCUMENT

Amended  IN  Assembly  May 19, 2022
Amended  IN  Assembly  April 07, 2022

CALIFORNIA LEGISLATURE— 2021–2022 REGULAR SESSION

Assembly Bill
No. 2787

Introduced by Assembly Member Quirk
(Coauthor: Assembly Member Friedman)

February 18, 2022

An act to add Chapter 5.8 (commencing with Section 42359) to Part 3 of Division 30 of the Public Resources Code, relating to environmental protection.


LEGISLATIVE COUNSEL'S DIGEST


AB 2787, as amended, Quirk. Microplastics in products.
Existing law requires the Ocean Protection Council, on or before December 31, 2024, to adopt and implement a Statewide Microplastics Strategy related to microplastic materials that pose an emerging concern for ocean health, as provided. Existing law declares the goal of the Statewide Microplastic Strategy to be the increase in the understanding of the scale and risks of microplastic materials on the marine environment and to identify proposed solutions to address the impacts of microplastic materials, to the extent feasible. Existing law requires the council, on or before December 31, 2021, to submit to the Legislature the Statewide Microplastics Strategy, along with recommended policy changes, including statutory changes, that may be needed to implement the strategy.
Existing law, the Microbeads Nuisance Prevention Law, prohibits a person from selling or offering for promotional purposes in the 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.
This bill would, on and after specified dates that vary based on the product, ban the sale, distribution in commerce, or offering for promotional purposes in the state of designated products, such as leave-on cosmetic products and waxes and polishes, as defined, if the products contain intentionally added microplastics, as defined. defined, at a concentration equal to or greater than 0.01% weight by weight. The bill would exclude from this ban prescription drugs, as defined, and products consisting, in whole or in part, of specified substances or mixtures containing microplastics. The bill would make a person who violates these provisions liable for a civil penalty not to exceed $2,500 per day for each violation. The bill would authorize the penalty to be assessed and recovered in a civil action brought in any court of competent jurisdiction by the Attorney General or specified local officials. The bill would require the civil penalties collected in an action brought pursuant to the act to be retained by paid to the office that brought the action.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.

 Chapter 5.8 (commencing with Section 42359) is added to Part 3 of Division 30 of the Public Resources Code, to read:
CHAPTER  5.8. Microplastics in Products

42359.
 (a) For purposes of this section, the following terms have the following meanings:
(1) “Cosmetic product” means a substance or mixture intended to be placed in contact with the external parts of the human body, including the epidermis, hair system, nails, lips, and external genital organs, or with the teeth and the mucous membranes of the oral cavity for the exclusive or primary purpose of cleaning, perfuming, protecting, or changing the appearance of those parts, keeping those parts in good condition, or correcting body odors.

(1)

(2) “Intentionally added microplastic” means a microplastic that a manufacturer has intentionally added to a product and that has a functional, technical, or decorative effect in the product.
(3) “Leave-on cosmetic product” means a cosmetic product that is intended to stay in prolonged contact with the skin, hair, or mucous membranes.

(2)

(4) “Microbead” means a microplastic used in a mixture as an abrasive to exfoliate, polish, or clean.

(3)

(5) (A) “Microplastic” means a material consisting of solid polymer-containing particles, to which chemical additives or other substances may have been added, and 1 percent weight by weight (w/w) or more of the particles are either of the following sizes:
(i) Five millimeters (mm) or less in all dimensions.
(ii) For fibers, three nanometers (nm) to 15 mm, inclusive, in length and have a length to a diameter ratio of greater than three.
(B) “Microplastic” does not include a polymer that occurs in nature and that has not been chemically modified, other than by hydrolysis.

(4)

(6) “Person” means an individual, business, or other entity.
(7) “Rinse-off cosmetic product” means a cosmetic product that is intended to be removed after application on the skin, hair, or mucous membranes.
(8) “Waxes and polishes” means a chemically formulated consumer product, including a polish, wax, or restorer, labeled to indicate that the purpose of the product is to polish, protect, buff, condition, temporarily seal, or maintain furniture, floors, metal, leather, or other surfaces.
(b) A person shall not sell, distribute in commerce, or offer for promotional purposes in this state any of the following products, on or after the date specified, if the product contains intentionally added microplastics: microplastics at a concentration equal to or greater than 0.01 percent w/w.
(1) Rinse-off cosmetic products not subject to regulation pursuant to the Microbeads Nuisance Prevention Law (Chapter 5.9 (commencing with Section 42360)), on or after January 1, 2027.
(2) Leave-on cosmetic products, on or after January 1, 2029.
(3) Detergents containing microbeads, encapsulated fragrance, or other microplastics, Detergents, on or after January 1, 2028.
(4) Waxes and polishes, on or after January 1, 2028.
(c) Notwithstanding subdivision (b), this section does not apply to any of the following products:
(1) A product consisting, in whole or in part, of a substance or mixture containing microplastics where the microplastic meets both of the following conditions:
(A) The microplastic is contained by technical means throughout the whole lifecycle to prevent releases of microplastic to the environment.
(B) Any microplastic-containing wastes arising are incinerated or disposed of as hazardous waste.
(2) A product consisting, in whole or in part, of a substance or mixture containing microplastics where the physical properties of the microplastic are permanently modified when the substance or mixture is used so that the polymers no longer fall within the definition of microplastic, as defined in paragraph (3) (5) of subdivision (a).
(3) A product consisting, in whole or in part, of a substance or mixture containing microplastics where the microplastic is permanently incorporated into a solid matrix when used.
(4) A prescription drug, as defined in Section 110010.2 of the Health and Safety Code.

42359.5.
 (a) A person who violates or threatens to violate Section 42359 may be enjoined in any court of competent jurisdiction.
(b) (1) A person who has violated Section 42359 is liable for a civil penalty not to exceed two thousand five hundred dollars ($2,500) per day for each violation, in addition to any other penalty established by law. That civil penalty may be assessed and recovered in a civil action brought in any court of competent jurisdiction.
(2) In assessing the amount of a civil penalty for a violation of this chapter, the court shall consider all of the following:
(A) The nature and extent of the violation.
(B) The number and severity of the violations.
(C) The economic effect of the penalty on the violator.
(D) Whether the violator took good faith measures to comply with this chapter and when these measures were taken.
(E) The deterrent effect that the imposition of the penalty would have on both the violator and the regulated community as a whole.
(F) Any other factors that justice may require.
(c) Actions pursuant to this section may be brought by the Attorney General in the name of the people of the state, by a district attorney, by a city attorney, or by a city prosecutor in a city or city and county having a full-time city prosecutor.
(d) 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.