S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________

                                         4602

                              2009-2010 Regular Sessions

                                 I N  A S S E M B L Y

                                   February 5, 2009
                                      ___________

       Introduced  by  M.  of  A.  ENGLEBRIGHT -- read once and referred to the
         Committee on Consumer Affairs and Protection

       AN ACT to amend the general business law, in relation to prohibiting the
         manufacture, distribution and sale of toys and  child  care  products,
         containing  bisphenol-A, which are intended for use by or upon a child
         under the age of fourteen years

         THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
       BLY, DO ENACT AS FOLLOWS:

    1    Section 1. The general business law is amended by adding a new section
    2  397-b to read as follows:
    3    S  397-B.  TOYS AND CHILD CARE PRODUCTS; BISPHENOL-A.  1. THE LEGISLA-
    4  TURE HEREBY FINDS  THAT  BISPHENOL-A,  AN  ESTROGEN-MIMICKING  ENDOCRINE
    5  DISRUPTER  CHEMICAL, IS USED IN THE PRODUCTION OF EPOXY RESINS AND POLY-
    6  CARBONATE PLASTICS, AND IS THE MAIN  INGREDIENT  IN  HARD  POLYCARBONATE
    7  PLASTICS.  THESE  PLASTICS  ARE  USED  IN  MANY FOOD AND DRINK PACKAGING
    8  APPLICATIONS, AND THE RESINS ARE COMMONLY USED AS LACQUERS TO COAT METAL
    9  PRODUCTS SUCH AS FOOD CANS, BOTTLE TOPS AND WATER SUPPLY PIPES.  BISPHE-
   10  NOL-A  HAS  BEEN  SHOWN  TO HAVE HORMONE DISRUPTING EFFECTS, AND IS ALSO
   11  USED IN MANY PRODUCTS INTENDED FOR USE BY YOUNG CHILDREN INCLUDING TOYS,
   12  PACIFIERS, BABY BOTTLES AND TEETHERS.
   13    2. WHEN USED IN THIS SECTION, THE FOLLOWING DEFINITIONS SHALL APPLY:
   14    (A) "TOY" SHALL MEAN ALL PRODUCTS DESIGNED OR INTENDED BY THE MANUFAC-
   15  TURER TO BE USED BY CHILDREN WHEN THEY PLAY; AND
   16    (B) "CHILD CARE ARTICLE" SHALL MEAN ALL PRODUCTS DESIGNED OR  INTENDED
   17  BY  THE  MANUFACTURER FOR CHILD CARE, INCLUDING BUT NOT LIMITED TO THOSE
   18  TO HELP CHILDREN WITH SUCKING OR TEETHING TO FACILITATE  SLEEP,  RELAXA-
   19  TION OR THE FEEDING OF CHILDREN.
   20    3. NO PERSON, FIRM, PARTNERSHIP, ASSOCIATION, LIMITED LIABILITY COMPA-
   21  NY  OR CORPORATION SHALL MANUFACTURE, DISTRIBUTE, SELL OR OFFER FOR SALE
   22  ANY TOY OR CHILD CARE PRODUCT INTENDED FOR USE BY A CHILD UNDER FOURTEEN
   23  YEARS OF AGE CONTAINING BISPHENOL-A.

        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD06399-01-9
       A. 4602                             2

    1    4. EVERY MANUFACTURER OF A PRODUCT OR TOY PROHIBITED BY  THIS  SECTION
    2  SHALL  USE  THE LEAST TOXIC ALTERNATIVE TO THE BISPHENOL-A IN THE TOY OR
    3  PRODUCT. SUCH ALTERNATIVE SHALL NOT BE (I) A  CARCINOGEN  RATED  BY  THE
    4  UNITED  STATES ENVIRONMENTAL PROTECTION AGENCY AS A, B OR C CARCINOGENS,
    5  OR  SUBSTANCES  LISTED AS KNOWN OR LIKELY CARCINOGENS, KNOWN TO BE HUMAN
    6  CARCINOGENS, LIKELY TO BE HUMAN CARCINOGENS OR SUGGESTIVE OF BEING HUMAN
    7  CARCINOGENS, AS DESCRIBED IN THE "LIST OF CHEMICALS EVALUATED FOR CARCI-
    8  NOGEN POTENTIAL";  OR  (II)  REPRODUCTIVE  TOXICANTS  THAT  CAUSE  BIRTH
    9  DEFECTS,  REPRODUCTIVE  HARM  OR DEVELOPMENTAL HARM AS IDENTIFIED BY THE
   10  UNITED STATES ENVIRONMENTAL PROTECTION AGENCY.
   11    5. THIS SECTION SHALL NOT APPLY TO THE SALE OR DISTRIBUTION OF TOYS OR
   12  CHILD CARE ARTICLES SOLD OR OFFERED FOR SALE, OR DISTRIBUTED BY  CONSUM-
   13  ERS FOR CONSUMER USE.
   14    6.  (A) WHENEVER THERE SHALL BE A VIOLATION OF THIS ARTICLE, AN APPLI-
   15  CATION MAY BE MADE BY THE ATTORNEY GENERAL IN THE NAME OF THE PEOPLE  OF
   16  THE  STATE  OF  NEW  YORK TO A COURT OR JUSTICE HAVING JURISDICTION BY A
   17  SPECIAL PROCEEDING TO ISSUE AN INJUNCTION TO  ENJOIN  AND  RESTRAIN  THE
   18  CONTINUANCE  OF SUCH VIOLATIONS; AND IF IT SHALL APPEAR TO THE SATISFAC-
   19  TION OF THE COURT OR JUSTICE THAT THE DEFENDANT HAS, IN  FACT,  VIOLATED
   20  THIS  ARTICLE,  AN  INJUNCTION  MAY  BE  ISSUED BY SUCH COURT OR JUSTICE
   21  ENJOINING AND RESTRAINING ANY FURTHER VIOLATION, WITHOUT REQUIRING PROOF
   22  THAT ANY PERSON HAS, IN FACT, BEEN INJURED OR DAMAGED  THEREBY.  IN  ANY
   23  SUCH  PROCEEDING,  THE COURT MAY MAKE ALLOWANCES TO THE ATTORNEY GENERAL
   24  AS PROVIDED IN PARAGRAPH SIX OF SUBDIVISION (A) OF SECTION  EIGHTY-THREE
   25  HUNDRED  THREE  OF THE CIVIL PRACTICE LAW AND RULES, AND DIRECT RESTITU-
   26  TION. WHENEVER THE COURT SHALL DETERMINE THAT A VIOLATION OF THIS  ARTI-
   27  CLE  HAS  OCCURRED THE COURT MAY IMPOSE A CIVIL PENALTY OF NOT MORE THAN
   28  ONE THOUSAND DOLLARS FOR EACH  VIOLATION,  EXCEPT  THAT  THE  COURT  MAY
   29  IMPOSE  A  CIVIL  PENALTY  OF NOT MORE THAN FIVE THOUSAND DOLLARS IF THE
   30  VIOLATION IS KNOWING AND WILLFUL. IN CONNECTION WITH ANY  SUCH  PROPOSED
   31  APPLICATION, THE ATTORNEY GENERAL IS AUTHORIZED TO TAKE PROOF AND MAKE A
   32  DETERMINATION OF THE RELEVANT FACTS AND TO ISSUE SUBPOENAS IN ACCORDANCE
   33  WITH THE CIVIL PRACTICE LAW AND RULES.
   34    (B) BEFORE ANY VIOLATION OF THIS ARTICLE IS SOUGHT TO BE ENJOINED, THE
   35  ATTORNEY  GENERAL SHALL BE REQUIRED TO GIVE THE PERSON AGAINST WHOM SUCH
   36  PROCEEDING IS CONTEMPLATED NOTICE BY CERTIFIED MAIL AND  AN  OPPORTUNITY
   37  TO SHOW IN WRITING WITHIN FIVE BUSINESS DAYS AFTER RECEIPT OF NOTICE WHY
   38  PROCEEDINGS  SHOULD  NOT  BE INSTITUTED AGAINST HIM, UNLESS THE ATTORNEY
   39  GENERAL SHALL FIND, IN ANY CASE IN WHICH HE  SEEKS  PRELIMINARY  RELIEF,
   40  THAT TO GIVE SUCH NOTICE AND OPPORTUNITY IS NOT IN THE PUBLIC INTEREST.
   41    S  2. This act shall take effect on the first of January next succeed-
   42  ing the date on which it shall have become a law.