A legal advisor for the county has determined that a proposed bill to ban the sale of all but a few types of sunscreen on the Big Island does not interfere with a similar state law, but County Council members remain divided on the matter.
The Council discussed Wednesday a bill that would prohibit the sale or distribution of any “non-mineral” sunscreen on the Big Island. Under the bill, any sunscreen that uses as its active ingredient anything other than titanium dioxide or zinc oxide would be illegal to sell in the county.
Those two chemicals are the only two out of about 16 commonly used sunscreen active ingredients that the U.S. Food and Drug Administration considers to be comparatively safe for coral reefs and other marine life. The National Academy of Sciences is conducting a study on the environmental impacts of sunscreen ingredients on marine life which is expected to be completed this year.
The bill had previously been discussed at a committee hearing in mid-May. That committee generally supported the bill, but worried that it overlapped too greatly with a similar state law that also banned certain types of sunscreen in the state.
However, at Wednesday’s meeting, County Corporation Counsel Elizabeth Strance said she believes the county bill does not interfere with the state law.
The state law, passed in 2018, banned the sale of sunscreens containing the chemicals oxybenzone and octinoxate, and also prohibited the counties from making its own rules pertaining those chemicals only until 2021. Strance said this was a measure to keep the counties from acting faster than the state.
Despite this, several council members were still concerned about the bill. Aaron Chung, an attorney, said he felt there is still a strong argument that the county bill interferes with the state law.
“The state laws says no county can enact an ordinance prohibiting the sale of those two chemicals … but it only deals with those two chemicals,” Chung said, suggesting that the more wide-reaching county bill may not be permissible under state law.
Furthermore, other council members were skeptical about the bill’s overall purpose.
“Are we trying to encourage better behavior or just ban certain types of sunscreen?” asked South Hilo Councilwoman Sue Lee Loy.
Lee Loy said that removing tools to prevent skin cancer goes against the council’s goals of improving public health, but said she could support the bill if it was paired with a pilot program for a series of stations at popular beaches where beachgoers can purchase mineral sunscreens.
But West Hawaii Councilman Holeka Inaba — who co-sponsored the bill along with fellow Kona Councilwoman Rebecca Villegas — countered, saying that if the harmful sunscreens are permitted to be sold on the island, then most beachgoers will already have the sunscreen when they arrive at a beach, rendering any such stations pointless.
Villegas also said that the reason the bill only permits two chemicals — as opposed to prohibiting specific chemicals — is because of the potential for exploiting loopholes.
Villegas said vast majority of sunscreens that would be prohibited under the bill contain avobenzone, a chemical with similar properties and harmful effects as oxybenzone, but is still permitted under state law. She added that only prohibiting specific chemicals allows manufacturers to swap out the offending substance with a similar substance not covered by the ban, while only allowing specific chemicals removes that ambiguity.
Hamakua Councilwoman Heather Kimball suggested that sunscreen manufacturers might still be able to circumvent the ban by skirting the bill’s definition of “sunscreen.”
“Maybe they say ‘oh, this isn’t sunscreen, this is “topical sun-prevention rub,”’” Kimball said.
Ultimately, six Council members voted in favor of the bill, and two — Lee Loy and Puna Councilwoman Ashley Kierkiewicz — voted against it. It must next pass second reading at Council in two weeks.
Email Michael Brestovansky at mbrestovansky@hawaiitribune-herald.com.
