Sunscreen Bill Still Alive, but Some Councilmembers Say it Needs More Work

A measure supported by hundreds of people and that Hawai’i County Council members unanimously voted for at the committee level still couldn’t move forward without some dissent.

The Council during its regular meeting Wednesday voted 6-2, with Councilman Tim Richards absent and members Ashely Kierkiewicz and Sue Lee Loy voting no, to approve the first reading of Bill 167, which would prohibit the sale and distribution of non-mineral sunscreens on the Big Island, unless prescribed by a health care provider, beginning Dec. 1.

Non-mineral sunscreens use active ingredients other than titanium dioxide or zinc oxide.

The measure was proposed by students at Innovations Public Charter School in Kona and modeled off a similar bill that Maui County passed last year. According to Councilman Holeka Inaba, one of the council members who introduced the bill, its intent is to support efforts to protect the environment, especially the island’s shorelines and coral reefs.

State legislators took up the issue in 2018, passing Act 104 which bans the sale of sunscreens containing two chemicals — oxybenzone and octinoxate. The two chemicals commonly found in sunscreens are harmful to coral reefs. That law went into effect Jan. 1, 2021.

With so many testifying in support of the bill, an opinion from county Corporation Counsel Elizabeth Strance that the measure does not pre-empt the state sunscreen law and studies, and science and research saying that non-mineral sunscreens can be harmful to marine life and even humans, Bill 167 seemed to be almost in the bag.

“Thank you so much for the activists, the ocean lovers, the reef ecologists, the athletes and the water people who sent in over 200 written testimonies in support of this legislation,” Councilwoman Rebecca Villegas, who co-introduced the bill with Inaba, said during Wednesday’s meeting. “The time is now for us to make this pivotal change and to prioritize the health and safety of our ocean ecosystems and ourselves for our future generations.”

The proposal also passed by a 9-0 vote for a favorable recommendation by the council’s Climate Resilience and Natural Resource Management Committee in March.

Inaba admitted there have been studies and research done to support both sides of the argument. Even Councilwoman Heather Kimball, a scientist, at one point during Wednesday’s meeting said the science behind how the chemicals in non-mineral sunscreens impact reef ecosystems is not definitive and likely never will be.

“There are so many confounding factors in a reef ecosystem,” Kimball said.

What has been found is that when particular chemicals are presented in a controlled environment, they do impact marine life. Her assessment is that the chemicals in question in non-mineral sunscreens do contribute to the poor health of marine ecosystems to a percentage, but she doesn’t know to what extent.

“Really, we know there’s been studies done, and the point of this and the intention of this bill is to make sure that we’re protecting our reefs, protecting our shoreline most especially, and on the bigger scale, all marine life around our island,” Inaba said.

He said the two active ingredients allowed by Bill 167 in sunscreens — titanium dioxide or zinc oxide — are the only two regarded as safe and effective by the U.S. Food and Drug Administration.

“Our skin is our largest organ, and the sunscreen that we use on our skin, whether or not we are spending time in the ocean or time on land, washes off and ends up in our oceans,” Villegas said.

However, no matter how overwhelming the support and voices behind Bill 167 seemed, several council members continued to have reservations about the measure, even some who eventually voted in favor of its first reading.

While he found the testimony and information favoring the bill compelling, Councilman Matt Kaneali’i-Kleinfelder said one of the things that caught his attention Wednesday was that sunscreen is not just worn when someone goes in the ocean. He worked on roofs for 10 years and put sunscreen on everyday but was nowhere near the water.

“I’m a little torn today,” he said.

Lee Loy and Kimball also brought that up in comments Wednesday before voting on the bill. But while Kimball voted to move the measure ahead with hopes that Villegas and Inaba could make improvements before the council considers its second reading, such as aligning it more closely with the state’s legislation, Lee Loy was not as convinced.

“I’m a sunscreen user everyday. I run everyday. So like Mr. Kaneali’i mentioned, he puts it on because he gets up on a roof; I put it on my kids ’cause they’re outside,” she said. “So for me, this felt like a huge stick, and there’s different ways to write policies — carrots and sticks.”

She said one of the testifiers during Wednesday’s meeting spoke about stations put up at Kahaluʻu Bay in Kona by the Kahalu’u Bay Education Center — a project of The Kohala Center — where people can get non-mineral sunscreen. That made her question whether Bill 167 is trying to encourage better behavior or just taking a dull axe to the issue.

She would like to see the measure include a pilot that would provide these reef-safe types of sunscreen at heavily used beaches around the island.

“At the beaches is where we want it to happen,” Lee Loy said. “But still allow others to use sunscreen protection in their daily lives, whether they’re up on a roof, working on construction or our kids on the soccer field.”

She wants to support the measure, but said “if we’re taking a stick to people’s behavior, we’re not going to get the result that we want.” She voted no on the first reading of Bill 167 because she thinks there’s room for improvement.

“As of this iteration, it doesn’t achieve what I think it could potentially achieve by second reading,” Lee Loy said.

“I’m really on the fence here,” Kierkiewicz said during Wednesday’s meeting. “I think we’re all on the same page in wanting to protect our coral reefs and our ocean ecosystem.”

But she agreed with Kimball and Councilman Aaron Chung about the science and data being inconclusive. She also wants to make sure people can still get necessary and effective protection from the sun. She also agreed with Lee Loy that the policy should be backed up by an educational piece.

“I haven’t made up my mind as to where I’m going to go with this,” Kierkiewicz said. “I wish we had a little bit more time. I think this could use a little bit more work and finesse based on all of the really great comments that my colleagues provided. I hope the introducers take that to heart and work on this before we’re having to vote on it again.”

Chung, while he eventually voted in favor of Bill 167’s first reading, also expressed concern about how difficult the legislation will be to enforce and asked why the funds generated by violations would go to a solid waste account. He also didn’t agree with Strance’s opinion that there was no pre-emption with the state’s legislation and said the issue should be handled by the state instead of at the county level.

“I can find a lot of reasons to not like this piece of legislation,” he said.

But despite all of the reasons he could vote against the measure, he said “tantamount to all of this is trying to protect our coral reefs.”

“I’m asking for my colleagues’ support and having the courage to take this stand,” Villegas said prior to Wednesday’s vote on Bill 167. “I’m hearing terms like blunt axe, and yet when we sit here for other pieces of legislation, we’re asked to accept a blunt axe until a sharper axe can be brought forth. So once again, as I’ve stated on this dais before, I’m asking for the same standards and expectations to be respected for all of us when we bring forth good pieces of legislation for the health and safety and the future of our island home, which we all love and care for, and finding solutions to mitigate the devastation that people that spend everyday in our waters are seeing.”

She urged each council member to consider the risk vs. the reward.

“We have brought forth the science, we have brought forth the evidence, we have brought forth the reasons, and the time to be courageous in a county that hosts sustainability summits and environmental TED Talks, the time is now,” Villegas said.

Inaba and Villegas each acknowledged the concerns and suggestions from their fellow council members. Inaba said they will be following up between Wednesday and the second reading of the bill, which will be on the council’s June 15 regular meeting agenda.

He said there are many efforts being made by different organizations to take care of and protect the island’s reefs and marine ecosystems, which he is happy to support. And there are more than enough mineral sunscreens in stores for people to buy.

“So at what point do we help people to make better decisions by providing them with safe sunscreens, numerous options in the stores and then we can follow up on the back end with education and providing those resources and partnering with those organizations as well,” Inaba said, adding if the county continues to allow non-mineral sunscreens, they will continue to be purchased and used on the island. “I use sunscreen everyday, too. I try to use these mineral sunscreens because I know it’s going to be safer, whether I’m swimming in the water or taking a shower at the Naniloa hotel, where there might be potential for that to end up in the water.”

Before taking the vote Wednesday, Chairwoman Maile David said the council has a tough job to do when it comes to Bill 167. She said there has been some great discussion and thinks the suggestions and concerns expressed during the meeting should be addressed.

While she has a hard time attributing the decline in the island’s reefs, fish and limu to one particular item — sunscreen — she had to speak clearly about her experience, especially at Kahalu’u Bay.

“Ten-plus years ago, before this ban came up, I took my family down there because that’s where I grew up and used to swim there,” David said Wednesday. “I went in the water with goggles and a snorkel and I immediately came out. It was like a slick of oil on the water. I have never gone back to Kahalu’u.”

She, too, is on the fence about Bill 167 and hopes Inaba and Villegas can improve the measure before second reading, but honored their request for support.

“I really, really hope to see something that this body can embrace because this is a really important issue for our ocean,” David said.