Legislature(2015 - 2016)BARNES 124
03/09/2015 01:00 PM RESOURCES
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
HB 14-BAN PLASTIC MICROBEADS IN COSMETICS 2:41:10 PM CO-CHAIR TALERICO announced that the third order of business is HOUSE BILL NO. 14, "An Act banning the manufacture, sale, or offering for sale of a cosmetic that contains plastic microbeads; and providing for an effective date." 2:41:17 PM REPRESENTATIVE HAWKER moved to adopt the proposed committee substitute (CS), labeled 29-LS0098\W, Nauman, 3/6/15, as the working document. REPRESENTATIVE SEATON objected for purposes of explanation of the changes. REPRESENTATIVE JOSEPHSON, sponsor, explained that the change is just one word. The proposed CS deletes the word "biodegradable" from Section 3, page 3, line 3, of the original bill. The reason for this deletion goes to the essence of the bill itself. He said he believes that there is very little that is actually biodegradable and that by leaving that term in the bill, the industry finds alternatives for microbeads that result in continual problem for the fisheries, for birds, and for other marine life. REPRESENTATIVE SEATON removed his objection. There being no further objection, Version W was before the committee. 2:43:15 PM REPRESENTATIVE JOSEPHSON said he had never heard of microbeads until the August 2014 meeting of the Council of State Governments where it was discussed by the Suggested State Legislation Committee. The term came before that committee in regard to efforts to rid the cosmetics industry of what some see as a scourge. He explained that, if passed, HB 14 would prohibit the use or sale of microbeads in Alaska. It would modify Title 17.20, Alaska's Food, Drug and Cosmetic Act, with just a handful of words. REPRESENTATIVE JOSEPHSON defined microbeads as being plastic, synthetic microspheres that are widely used in the cosmetics, skin care, and the personal care industries, measuring less than five millimeters. They are principally made of polyethylene and polypropylene, as well as two other less common compounds. They are used by the cosmetics industry in toothpaste, facial creams and cleansers, as well as shaving creams, shower gels and exfoliating products. Prior to about 10 years ago, they were not as commonly used and yet, he quipped, his recollection is that people back then had clean skin and healthy teeth. He said that in his view microbeads are not a requirement in the hygiene and cosmetics trades. They were adopted by the industry because they are cheap to produce and give a gritty and abrasive quality to cleansers, washes, and pastes. To provide a sense of the scope of the problem, he noted that the Neutrogena product called "Deep Clean" contains 350,000 microbeads in a single tube. The small sizes of microbeads enable them to get past the filtering systems of waste water treatment facilities and they end up in rivers, lakes, and oceans. REPRESENTATIVE JOSEPHSON discussed some science to provide a better sense of what microbeads are. He said he has read hour upon hour of literature on the subject of microbeads. For all practical purposes he has never found an industry claim that microbeads are not getting into rivers, lakes, and oceans, or a claim that microbeads are not being consumed by marine life and birds. From marine life, there is every reason to believe that, in turn, humans are consuming microbeads or toxins connected to microbeads. This happens when fish and other marine life consume microbeads that have absorbed persistent organic pollutants (POPS), including polychlorinated biphenyls (PCBs) and dichlorodiphenyltrichloroethane (DDT). These are also called persistent bioaccumlative toxins (PBTs). Primarily this occurs because people are consuming fish and other marine life. Pesticides and toxins are hydrophobic, so they glom onto microbeads and find a home with them in waterways and oceans. It is believed that they move along the food chain as a consequence. Mistaking them for eggs or other food, they are readily consumed by fish. Fish also feel full when they are not really full and some are unable to excrete plastic, causing internal damage. Study after study supports this fact. 2:46:57 PM REPRESENTATIVE JOSEPHSON related that the industry, almost to the company, concedes it has a problem and that it wishes to fix that problem. The important thing to ask is what the fix is and who pays for the fix. First, there is no evidence, and the industry doesn't really suggest in the literature that there is, that microbeads can biodegrade. Industry says that word should be excised from the production line, industry says get rid of microbeads. The industry basically admits that microbeads, at least as currently designed, cannot biodegrade. Similarly, the industry, while it is striving to find a substitute for microbeads, seems to believe that it can still produce a plastic of some sort that will biodegrade. The more likely reality may be that no such substance exists. The industry might suggest that polylactic acids (PLAs) and also polyhydroxyalkanoates (PHAs) will break down in the environment and can be substituted for microbeads. However, these plastics only breakdown in industrial composting facilities at temperatures of 120 degrees Fahrenheit. Even if something could biodegrade, many of what is being recommended would remain in the environment for at least six months, and perhaps three years. It would persist in the aquatic environment and remain bioavailable to wildlife who mistake it for food during that period of time. REPRESENTATIVE JOSEPHSON pointed out that there are cosmetics and toiletries companies that use plastics substitutes right now, just as the large industrial cosmetics makers used to do. Those substitutes include things like rice, apricot seeds, walnut shells, powdered pecan shells, and even bamboo. Other identified alternatives include sea salt, oatmeal, pumice, and ground almonds. Companies that use safe materials include Lush Cosmetics, Acure Organics, Burt's Bees, St. Ives, Alba Botanica, and Bulldog. It is possible that these substitutes will result in greater cost, although he allowed he hasn't read that and he cannot say what exactly that cost would be. However, he said, that extra cost should be weighed against the cost to fisheries and human health. 2:49:21 PM REPRESENTATIVE JOSEPHSON discussed the bill, stating he thinks Version W is generous toward the industry in one major way: it has an effective date of January 2018, which is as late as any that will be found in the state legislatures. Some have a graduated scale, but it begins before 2018. Literally dozens of state legislatures are introducing bills right now to stop the release of microbeads into waters, streams, and oceans. It has become a worldwide movement of sorts. Just last month the Indiana House, where there are 29 Democrats and 71 Republicans, voted 97-0 to ban microbeads, although that bill allows some substitutes and Version W is a little tougher in that respect. Version W is less generous to the industry in that it requires a real ban, not what he would call a ban that doesn't move the needle. He said he thinks that any time a discussion is invited about biodegradability, it invites discussion of substitutes for microbeads that may be equally harmful. He said he has letters in his file from Johnson & Johnson, L'Oreal, Crest, Avon, Colgate, Palmolive, The Body Shop, and others, conceding that something must be done about the microbeads. REPRESENTATIVE JOSEPHSON allowed that the fiscal note may give pause to committee members. He said Ms. Busse [of the Department of Environmental Conservation (DEC)] might suggest that the permits for 2,200 distributors would be $100-$200 apiece. Theoretically that could create some parody and help alleviate the cost associated with enforcement, which presumably wouldn't begin until 2018. He added that the committee may be hearing from witnesses who will testify about gyres, and how microbeads move into the North Pacific and into the Arctic through circulation around the ocean. 2:51:57 PM REPRESENTATIVE HAWKER inquired why, if this is such a pervasive national issue, the U.S. Food and Drug Administration (FDA) or the U.S. Environmental Protection Agency (EPA) have not stepped in and taken action. He said those agencies could make this problem go away with the stroke of a pen. REPRESENTATIVE JOSEPHSON offered his belief that the FDA wouldn't have jurisdiction and said he doesn't know whether the EPA would. According to what he has read, the FDA has actually approved microbeads. He related that he has seen photographs, which he does not believe were doctored, of microbeads lodged in human gums even though the [American Dental Association] says that that can't be. He said the products are safe when humans first apply the plastics to their faces or brush their teeth with them, but the concern is the food chain and marine health. 2:53:45 PM REPRESENTATIVE SEATON drew attention to the letters from the American Chemistry Council and the Personal Care Products Council, noting they appear to be supportive of this legislation but want amendments that would align it with the existing law in Illinois. He asked whether HB 14 is aligned with Illinois. REPRESENTATIVE JOSEPHSON replied that the bill is only aligned in the sense that both bills are striving for better human and environmental health. He said the Illinois bill is an industry bill and the industry is comfortable with that language. Essentially the Illinois bill uses an allowance for an exemption for a replacement kind of microbead and this goes to the question about the change made in the CS. The change that Illinois adopted is not, in his opinion, nearly as protective as what he is suggesting. He is suggesting going back to the laboratory and using sea salt or oatmeal or apricot shells like what was done when he was growing up. The Illinois bill is a compromise bill that uses different kinds of synthetic plastics. The Great Lakes is one of the worst places for this phenomenon and Illinois is on Lake Michigan. Will the Illinois bill see some improvement? It might. He deferred to witnesses on line to answer the question further. REPRESENTATIVE SEATON understood microbeads are "synthetic plastic microbeads" not "microbeads". Thus, he concluded, the almond shells, pecan shells, and such are ground and fit within the use category that would be allowed and none of those things would be prohibited under the term "microbeads". REPRESENTATIVE JOSEPHSON responded correct. 2:56:50 PM CO-CHAIR TALERICO opened public testimony. 2:57:10 PM BOB KING stated his support for Version W of HB 14 to ban microbeads from cosmetics. For the sake of brevity, he said he associates himself with the comments made by Representative Josephson. He said he has worked on a variety of ocean issues and a variety of different areas for the past 10 years, including that of marine debris, specifically plastics, in the marine environment. The potential impact to marine mammals, to fisheries, and the like is a very big problem. Just trying to remove these plastics from the oceans is extremely difficult. Therefore, the best solution is a simple effective one such as this bill, which would ban them from getting into the ecosystem to begin with. He said he agrees with Representative Hawker in regard to potential national legislation because it is an issue that begs a national fix. In one of his previous jobs he worked along those lines on draft legislation, but the states are taking the lead here and a number of states have already passed legislation similar to HB 14 that would move this forward. Industry has recognized that this is a problem and is responding as well. It is appropriate for Alaska to join in this, given Alaska's leadership on ocean issues. He urged the committee to move the bill. 2:59:48 PM SEAN MOORE, Associate Director, State Government Affairs, Consumer Healthcare Products Association (CHPA), noted his trade association represents manufacturers and marketers of over-the- counter medicines and dietary supplements. He said CHPA supports the concept raised in HB 14, but opposes the bill as drafted and would like to see it amended to match similar law that was adopted last year in Illinois. The CHPA in-state [lobbyist], Mr. Eldon Mulder, has provided proposed amendments on the association's behalf. He disagreed with the sponsor's characterization of the Illinois bill as being an industry bill, saying it was a compromise bill negotiated with environmental groups in Illinois. He related that at the August 2014 Council of State Governments meeting, the Suggested State Legislation Committee adopted the Illinois law as the suggested state legislation. He added that CHPA's member companies do understand that plastic pollution in the environment is a serious concern. Many manufacturers began practicably phasing out the use of synthetic plastic microbeads prior to the introduction of any legislation. There has been plenty of legislation aimed at microbeads. Already in 2015, two dozen states have considered legislation on this issue and more is still to come. It can be difficult for companies marketing products on a national level to deal with a patchwork of differing state laws. For this reason, CHPA supports state bills modeled after the Illinois law to provide one uniform solution to this issue. By mirroring the existing Illinois law, Alaska can mandate microbeads be phased out of personal care products and over-the-counter medicines while ensuring reasonable effective dates and uniform definitions for key terms. This would closely align with proposals that have been approved by the Indiana House of Representatives, the Colorado House of Representatives, and both houses of the New Jersey legislature, all of which passed bills that mirror the Illinois law. To this end, CHPA proposes to amend HB 14 with definitions to the terms plastic and synthetic plastic microbeads that are identical to the Illinois law, as well as propose to incorporate the implementation of timeframes from Illinois beginning with the ban on manufacturing personal care products with microbeads after January 1, 2018, and over-the-counter drugs on January 1, 2019. Sales bans for each product category would take effect one year later in 2019 and 2020, respectively. This timeframe is important because it provides manufacturers the time necessary to identify viable alternatives to plastic microbeads. Mr. Moore urged the committee to amend the bill so that it mirrors the existing Illinois law and to subsequently support this common sense approach. 3:03:05 PM PAMELA MILLER, Biologist and Executive Director, Alaska Community Action on Toxics (ACAT), supported HB 14 and specifically Version W, saying it is an important measure to protect Alaska fisheries that depend on clean and healthy marine and freshwater environments. She pointed out that her statewide organization is comprised of scientists, public health professionals, and community advocates who conduct research and provide educational programs, technical assistance, and training. She continued as follows: As noted in Representative Josephson's sponsor statement, hundreds of personal care products on the market here in the U.S., including toothpastes and scrubs, contain these tiny plastic microbeads that pass from household waste streams through wastewater systems and into rivers, lakes, and ultimately the marine environment. These tiny plastic particles are now ubiquitous and increasing rapidly in the ocean. They are extremely persistent in the cold marine environment. Marine organisms, including zooplankton, shellfish, and fish cannot distinguish these plastic microbeads from the food they need. Therefore, the plastic particles are taken into the bodies of these animals where they accumulate, may prevent them from getting the nutrients required for their survival, and can lead to physical internal damage from abrasion and blockage, as well as toxicological harm. Recent scientific investigations have demonstrated the disturbing prevalence of plastic microbeads in the marine environment, including the North Pacific, Beaufort, and Chukchi seas. A recent study showed that concentrations of microplastics in the Arctic at least two orders of magnitude greater than those reported from contaminated waters of the Atlantic Ocean north of Scotland and North Pacific subtropical gyre. The researchers conclude that Arctic sea ice represents a major global sink for microplastic particles, and that these particles are released into the marine environment as sea ice melts. We are especially concerned that plastic microbeads absorb and concentrate highly toxic and persistent chemicals, including legacy chemicals that have been banned for many years such as PCBs and DDT, but as well currently used chemicals such as polybrominated diphenyl ethers (PBDEs) which are toxic flame retardants, nonylphenols which are used in detergents, and bisphenol-A which is used in plastics. These accumulate at much higher levels than in surrounding waters. Due to their large surface area to volume ratio, these microplastics can become heavily contaminated and can concentrate up to six orders of magnitude greater than ambient seawater with persistent bioaccumulative chemicals. The microplastics that are ingested by marine organisms therefore pose a hazard to human health because they could be a significant route of exposure to endocrine- disrupting and carcinogenic, or cancer causing, chemicals. This is an especially important concern here in Alaska obviously where we depend on the health and safety of our commercial and subsistence fisheries. I urge you to please enact HB 14 to protect our fisheries from the insidious harm associated with plastic microbeads. MS. MILLER, responding to Representative Seaton, agreed to provide the committee with a written copy of her testimony. 3:07:18 PM STIV WILSON, Director of Campaigns, The Story of Stuff Project, noted he began this campaign several years ago and it was originally a market facing campaign petitioning some of the big producers like Proctor & Gamble, Johnson & Johnson, The Body Shop, and L'Oreal. Through a variety of tactics his project was able to get these companies to agree publically to phase plastic microbeads out. However, they did not say when they would do it or with what. After further investigation and seeing about 200 different products in the United States, his project decided that a legislative approach was going to be the best course of action. Legislation was introduced last session in New York and California and independently legislation was introduced in Illinois. As the bills in New York and California were worked through and some of industry's definitions of biodegradability were considered, his project acknowledged that large loopholes were being left for so-called biodegradable plastics that would not biodegrade in the environment, as well as for other non- thermal formed plastics such as the type of polyester plastic used in a cigarette filters. So, amendments were made to ensure that this loophole would be closed. This was not something that the environmental groups that worked on the bill in Illinois understood as a loophole and when his project pointed that out the bill had already passed. So, if those environmental groups were to be asked now, they would support stronger legislation like the legislation that Alaska is considering right now. On a geological timescale, he explained, everything is biodegradable technically. His project wants to ensure that this is done in a timely manner. Even if innovators do come forward with a type of plastic that will degrade in the marine environment, there is no third party certification that is applicable to this. There was an American Society for Testing and Materials (ASTM) standard in effect for marine degradability, but that has since been withdrawn. His project is therefore looking for some qualification of what biodegradable is going to mean and that it be included and, if included, then some sort of third party oversight to ensure that these substitutes are safe. He affirmed the comments made in the previous testimonies regarding the issues with regard to persistent organic pollutant uptake and bioavailability to marine organisms. 3:10:56 PM MICHAEL THOMPSON, Senior Vice President of Government Affairs, Personal Care Products Council, stated he and Karen Ross were the industry representatives that really worked on Illinois, New York, California, and others. He said the committee has heard both facts and fiction today. He related that the council's members decided to get ahead of this issue and have taken a lead, but there seems to be a backfilling of folks creating disagreement. The concept that this is an industry bill is about the furthest thing from the truth if anything is known about the state of Illinois or other states. That bill was well negotiated over a period of three months with about 15-20 stakeholders, including the Illinois attorney general, Illinois Environmental Protection Agency, and others. Defining exactly what was being banned and ensuring that that was done was what was wanted, and to stay away from much bigger global issues such as biodegradability, composting plastics, and so forth. A specific bill was wanted that banned specific ingredients in the products. This bill passed unanimously in Illinois and in other states, but it did not pass in California or New York as was earlier alleged and the council looks forward to continuing to work on it. His organization was in Anchorage last summer when the Council of State Governments took this up and suggested a model legislation. The reason why his organization was able to do this is because there is science, there is no evidence on either side that supports the allegations, but industry is doing the right thing. The concept brought up by the sponsor that industry is going to use an ingredient biodegradable at 120 degrees is not appropriate because it needs to be biodegradable in the product. This legislation just simply levels the playing field for both domestic and international companies and what the council is looking for is national consistency. 3:13:43 PM REPRESENTATIVE HERRON requested Mr. Thompson to provide a follow-up letter outlining the fiction that was heard today. MR. THOMPSON agreed to do so. 3:14:02 PM REPRESENTATIVE JOHNSON inquired whether offering for sale is the equivalent of advertising. MR. THOMPSON replied the concept of offering for sale was language put in by the regulators in Illinois who did not want the added burden of having to conduct shelf surveys. The regulators told the council that they probably could figure out exactly who would violate the statute, the type of store, the type of product, and where it was coming from, and that they would rather find a pallet load than finding one bottle. So, it was the regulators' recommendation to have it offered for sale and it is offered for sale to a retailer. REPRESENTATIVE JOHNSON stated that, in his opinion, advertising toothpaste is offering to sell it. MR. THOMPSON responded yes, it would also ban that. REPRESENTATIVE JOHNSON posed a scenario in which a national commercial for Crest, which has microbeads in it, is aired on a local television station. He asked who is responsible given the television station has the license and is offering to sell the toothpaste even though it is coming from a national advertiser. MR. THOMPSON answered he cannot speak for that company, but said he understands that company has announced it is phasing it out. REPRESENTATIVE JOHNSON requested Mr. Thompson to ignore that specific company and answer for any company. MR. THOMPSON said he will consult with the council's attorneys about advertising and get back to the committee with an answer. REPRESENTATIVE JOHNSON remarked he doesn't want to put a local television or radio station or newspaper in violation of this even though someone else has placed the ad and the station or newspaper are not responsible for the product in any fashion. Therefore, he said, he would like to receive a legal opinion. 3:16:27 PM CO-CHAIR TALERICO closed public testimony after ascertaining no one else wished to testify. 3:16:42 PM REPRESENTATIVE SEATON pointed out that page 1, lines 1-2, state contains "plastic microbeads", but the definition is for "synthetic plastic microbeads". He said he is drawing attention to this to ensure that all the same thing is being talked about. 3:17:09 PM CO-CHAIR TALERICO held over HB 14.