Testimony: There’s no ‘reef-safe’ sunscreen

Association representative says ban on products with oxybenzone, octinoxate will harm Maui’s people, visitors

Carlos Gutierrez, vice president for state and local government affairs for the Consumer Healthcare Products Association, speaks in opposition to Maui County’s proposed ban on sunscreen containing oxybenzone and octinoxate, which some scientists have linked to reef damage. Association officials said factors like climate change and runoff were more to blame for coral bleaching than sunscreen. -- The Maui News / COLLEEN UECHI photo

WAILUKU — Saying there is “no such thing as reef-safe sunscreen,” representatives from the Consumer Healthcare Products Association spoke out against Maui County’s proposed ban on sunscreen containing certain chemicals at a Maui County Council meeting Friday.

The bill, introduced by Council Member Elle Cochran, would prohibit the sale and use of sunscreen carrying oxybenzone and octinoxate, which some blame for coral reef damage. It passed out of the Cochran-chaired Infrastructure and Environmental Management Committee on Nov. 13 and was up for a first reading at the full council Friday.

Because of a large amount of public testimony, the council recessed until 9 a.m. Monday without taking action. Public testimony on agenda items is closed.

“What we fear is the unintended consequences to the health of the people of Maui, its tourists, especially given that oxybenzone is not a major reason for reef decline,” said Carlos Gutierrez, the association’s vice president for state and local government affairs. “The bottom line for us is sunscreen saves lives.”

Gutierrez said there’s “no such thing as reef-safe sunscreen” and that “no governmental body has ever awarded that designation.” The Washington, D.C.-based Consumer Healthcare Products Association is the national trade association for manufacturers of over-the-counter medicines and dietary supplements.

Maui County could be the first in the country to enact such a ban. But that’s come with potential legal challenges, which is why some council members were hesitant to send the bill out of committee.

For one, it’s the state — not the county — that has jurisdiction over ocean activities, Deputy Corporation Counsel Richelle Thompson explained in a Nov. 22 memo to Cochran. Thompson also pointed out that the federal Food & Drug Administration has approved both chemicals for use in sunscreen. If Maui County tried to ban products containing the chemicals, federal law could have the final say.

A ban could also trigger the federal commerce clause, which prevents states from interfering with interstate commerce.

“There is no delegation of authority to the counties with respect to the reefs or respect to drugs,” said Margery Bronster, attorney for the Consumer Healthcare Products Association. “If you pass a bill like this, it could be subject to challenge, and we believe would not be sustainable.”

Bronster compared it to the Maui County voter initiative to put a moratorium on genetically modified organisms, which voters passed in 2014 but a federal court later ruled “unenforceable.”

The majority of residents who addressed the ban on the sunscreen chemicals spoke in support of the bill.

Keani Rawlins-Fernandez, testifying from Molokai, said that the island relies on its extensive fringing reef for subsistence and cultural practices.

“Sunscreens with oxybenzone and octinoxate may seem to cost less because the price we pay for the externalities is not obvious to us,” Rawlins-Fernandez said. “We can pay to prevent damage or we can pay to fix the damage, and that always costs more.”

Hannah Bernard, executive director of the Hawaii Wildlife Fund, acknowledged that sunscreen is not the only thing damaging the reefs, but she said that “what we can change, we must.”

“Taking the oxybenzone out of the sunscreen is just one small step we can take,” Bernard said. “Maui has been the leader in taking care of the aina with our (plastic) bag ban, our polystyrene ban, and now if we ban oxybenzone in our sunscreens the whole world will continue to see Maui as the leader in the environmental movement.”

Experts at the Nov. 13 committee meeting said that some spots off South and West Maui have exceeded toxic oxybenzone and octinoxate levels for coral. Craig Downs, executive director of the nonprofit Haereticus Environmental Lab in Virginia, said the two chemicals can lower the resilience of coral reefs to bleaching and can affect the development of fish and coral larvae.

But Jay Sirois, senior director of regulatory and scientific affairs for the Consumer Healthcare Products Association, said more studies point to climate change, growing ocean acidity and runoff as the main causes of bleaching — not sunscreen. He was concerned that “reducing the number of available sunscreens is very likely to result in reduced use,” putting people at greater risk for skin damage.

Cochran said there are plenty of alternative sunscreens and sun protection to keep people safe. She also didn’t believe the bill needed to go back to committee to iron out the legal issues.

“I don’t feel there’s any detrimental harm to industry,” Cochran said. “They can continue business as usual. Sell a different product. We will buy a different product from you, just not that one.”

* Colleen Uechi can be reached at cuechi@mauinews.com.