Erie County retailers must remove all beauty and body products containing tiny, plastic beads from their shelves starting Sunday, everything from toothpastes to facial scrubs, under a law passed by the County Legislature last summer.
In theory, at least.
The county won’t enforce the ban right away.
And the county’s own lawyer said the ban might not stand up to a court challenge.
But county lawmakers said Thursday that they want to stick with their measure aimed at keeping millions of plastic particles from draining into Lake Erie and other waterways.
“This body took a position on the policy, and I think we should stand by that,” said Legislator Patrick Burke, D-Buffalo, who sponsored the microbead ban.
Erie County passed one of the toughest microbead bans in the country, giving retailers only six months to stop selling body products containing microbeads.
But when President Obama signed the Microbead-Free Waters Act in December, to the delight of environmentalists, Legislature Chairman John Mills said he heard from industry lobbyists who questioned whether the county law still applied. A section of the county microbead ban law states the county law is “null and void” if the state or federal government passes a law with “substantially similar provisions.”
Similar language exists in the federal act. The federal law states that no state or local government can have its own microbead law in place of the federal law unless it’s identical to the federal law. Erie County’s is not.
County Attorney Michael Siragusa sent the Legislature a three-page opinion arguing that the county’s law is not “substantially similar” to the federal law, essentially because the federal law’s timeline is so much longer.
The federal act gives manufacturers until July 1, 2017, to stop making products containing plastic microbeads and gives retailers until July 1, 2018, to stop selling them. The county law forbids local retailers from selling these products starting Sunday.
On Thursday, Siragusa told county legislators at the Government Affairs Committee that they don’t need to give in to the corporate beauty industry.
“They don’t want to go to court and have a PR nightmare on their hands,” he said. “They want us to roll over.”
Anthony Dias, a Washington, D.C.-based lawyer representing the Personal Care Products Council, responded by telling legislators that while he admires their work to end microbead pollution, the law is clear: The federal Microbead-Free Waters Act pre-empts the county’s law immediately.
Dias issued a seven-page response to Siragusa’s opinion, filled with legal citations. He argued Thursday that the federal law not only explicitly forbids local governments from establishing their own microbead ban laws in place of the federal law, its language and intent also implies a pre-emption of local laws.
Siragusa, the county attorney, acknowledged that if the matter were to go to court, the county would face an “uphill battle.”
“You have to have the appetite for litigation,” he said. “I can’t guarantee the outcome.”
Majority Leader Joseph Lorigo, C-West Seneca, said that while he would prefer to ignore the federal law and adhere to the county’s tougher anti-pollution message, fighting a losing legal battle is a waste of county time and resources.
“Taking on an issues we are likely not to prevail in, by the county attorney’s own admission, seems kind of foolish,” he said.