NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A3141A
SPONSOR: Sweeney (MS) TITLE OF BILL: An act to amend the environmental conservation law, in
relation to regulation of toxic chemicals in children's products
PURPOSE OR GENERAL IDEA OF BILL: The purpose of this bill is to
provide greater regulation of children's products,
SUMMARY OF SPECIFIC PROVISIONS: This bill would:
* children's apparel;
* define chemical;
* define chemical of high concern; * define children;
* define children's product;
* define distributor;
* define manufacturer;
* define novelty product;
* define priority chemical;
* define toy;
* requires the Department of Environmental Conservation to establish a
website within one hundred and eighty days of the effective date of this
title, that is accessible to the public which lists all chemicals of
high concern and all priority chemicals;
* allows the Department of Environmental Conservation, in consultation
with the Department of Health to periodically review the list of chemi-
cals of high concern and identify or remove priority chemicals or chemi-
cals of high concern or based on credible scientific evidence;
*permit designation of a priority chemical if:
o found to be present in humans;
o found to be present in household dust, indoor air, or drinking water;
o found to be present in fish, wildlife or the natural environment;
o found to be present in a consumer product or present in the home,
school or children's day care center;
o banned for sale in another state
* require every manufacturer that offers a children's product for sale
in this state that contains an intentionally added priority chemical, to
report to the department, in a form prescribed by the department, the
following information:
o the identification of the product,
o the name of the priority chemical,
o the intended purpose of the chemicals
* authorize DEC to waive all or part of the reporting requirement for
one or more specified uses of a priority chemical;
* require a manufacturer or distributor of a children's product contain-
ing a priority chemical to notify persons that offer the children's
product for sale or distribution in the state, of the presence of such
priority chemical, and provide such persons with information regarding
the toxicity of such chemical;
* require the manufacturer or distributor to pay a fee upon submitting
the report of chemical use or waiver request in the amount of six
hundred dollars per chemical;
* prohibit the sale, effective January 1, 2016, of a children's product
containing a priority chemical;
* specify that the provisions of this act shall apply only to new
products;
o exempt the following uses:
o in or for manufacturing;
o motor vehicles, watercrafts, combustion by-products, all terrain
vehicles or their component parts, or off-highway motorcycles or
their components;
o priority chemicals generated solely as combustion by-products or that
are present in combustible fuels;
o retailers who do not knowingly sell a prohibited children's product;
* prohibit the sale or distribution of a children's product if the
manufacturer or distributor has failed to provide the required informa-
tion; and,
* authorize DEC to participate in an interstate chemical clearing house
to assist in carrying out this title
JUSTIFICATION: Currently, New York identifies or prohibits the use of
dangerous chemicals on a chemical by chemical basis. This approach is
especially problematic for children's products since children are often
more vulnerable to smaller amounts of chemicals. Several other states,
including Washington, California, and Maine have adopted more comprehen-
sive chemical policies, This. legislation is modeled after those states
and is intended to prevent the use of dangerous chemicals and ensure the
use of safer chemical alternatives in children's products.
PRIOR LEGISLATIVE HISTORY: A.10089B of 2010 - Ways and Means
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS: Minimal impli-
cations to the state since the state already funds the Interstate Chemi-
cal Clearinghouse.
EFFECTIVE DATE: This act shall take effect on the 120th day.
STATE OF NEW YORK
________________________________________________________________________
3141--A
2011-2012 Regular Sessions
IN ASSEMBLY
January 24, 2011
___________
Introduced by M. of A. SWEENEY, WEISENBERG, BOYLAND, MILLMAN, JAFFEE,
DINOWITZ, TITONE, GIBSON, BARRON, CASTRO, TITUS, ROSENTHAL, ENGLE-
BRIGHT, SCHIMEL, KELLNER, ZEBROWSKI, COLTON, O'DONNELL, ORTIZ, LIFTON,
KAVANAGH, HOOPER, P. RIVERA, SCARBOROUGH, CYMBROWITZ, ROBERTS, GOTT-
FRIED, ABINANTI, PEOPLES-STOKES -- Multi-Sponsored by -- M. of A.
CAHILL, CASTELLI, COOK, CRESPO, GABRYSZAK, GALEF, GLICK, JACOBS,
LATIMER, LUPARDO, MAGEE, MARKEY, McENENY, M. MILLER, PERRY, REILLY,
THIELE -- read once and referred to the Committee on Environmental
Conservation -- recommitted to the Committee on Environmental Conser-
vation in accordance with Assembly Rule 3, sec. 2 -- reported and
referred to the Committee on Codes -- committee discharged, bill
amended, ordered reprinted as amended and recommitted to said commit-
tee
AN ACT to amend the environmental conservation law, in relation to regu-
lation of toxic chemicals in children's products
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Article 37 of the environmental conservation law is amended
2 by adding a new title 9 to read as follows:
3 TITLE IX
4 TOXIC CHEMICALS IN CHILDREN'S PRODUCTS
5 Section 37-0901. Definitions.
6 37-0903. Chemicals of high concern.
7 37-0905. Priority chemicals.
8 37-0907. Disclosure of information on priority chemicals.
9 37-0909. Sales prohibition.
10 37-0911. Applicability.
11 37-0913. Enforcement and implementation.
12 37-0915. Interstate chemical clearinghouse.
13 37-0917. Regulations.
14 § 37-0901. Definitions.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD03600-06-2
A. 3141--A 2
1 As used in this title, unless the context otherwise indicates, the
2 following terms have the following meanings.
3 1. "Children's apparel" means any item of clothing that consists of
4 fabric or related material intended or promoted for use in children's
5 clothing. Children's apparel does not mean protective equipment designed
6 to prevent injury, including, but not limited to, bicycle helmets,
7 athletic supporters, knee pads or elbow pads.
8 2. "Chemical" means a substance with a distinct molecular composition
9 or a group of structurally related substances and includes the breakdown
10 products of the substance or substances that form through decomposition,
11 degradation or metabolism.
12 3. "Chemical of high concern" means a chemical included in the list of
13 "Chemicals of High Concern" published in June 2009 pursuant to chapter
14 16-D of title 38 of the Maine revised statutes annotated.
15 4. "Children" means a person or persons aged twelve and under.
16 5. "Children's product" means a product primarily intended for, made
17 for or marketed for use by children, including baby products, toys, car
18 seats, personal care products, a product designed or intended by the
19 manufacturer to help a child with sucking or teething, to facilitate
20 sleep, relaxation, or the feeding of a child, novelty products, bedding,
21 furniture, furnishings, and children's apparel. "Children's product"
22 does not include (a) batteries; or (b) consumer electronic products
23 including but not limited to personal computers, audio and video equip-
24 ment, calculators, wireless phones, game consoles, and handheld devices
25 incorporating a video screen, used to access interactive software and
26 their associated peripherals; or (c) a food or beverage or an additive
27 to a food or beverage regulated by the United States Food and Drug
28 Administration; or (d) a tobacco product or paper or forest product; or
29 (e) a pesticide regulated by the United States Environmental Protection
30 Agency. Children's product also does not include a drug, biologic or
31 medical device regulated by the United States Food and Drug Adminis-
32 tration.
33 6. "Distributor" means a person who sells children's products to
34 retail establishments on a wholesale basis.
35 7. "Intentionally added" means the deliberate use in the formulation
36 of a product or subpart where its continued presence is desired in the
37 final product or subpart to provide a specific characteristic, appear-
38 ance or quality.
39 8. "Manufacturer" means any person who currently manufactures a final
40 children's product or whose brand name is affixed to the children's
41 product. In the case of a children's product that was imported into the
42 United States, "manufacturer" includes the importer or first domestic
43 distributor of the children's product if the person who currently manu-
44 factures or assembles the children's product or whose brand name is
45 affixed to the children's product does not have a presence in the United
46 States.
47 9. "Novelty product" means a product intended mainly for personal or
48 household enjoyment or adornment. Novelty products include, but are not
49 limited to, items intended for use as practical jokes, figurines, adorn-
50 ments, toys, games, cards, ornaments, yard statues and figures, candles,
51 jewelry, holiday decorations, or similar products.
52 10. "Priority chemical" means (a) the following chemicals:
53 CASRN115-96-8Tris (2-chloroethyl) phosphate
54 CASRN71-43-2Benzene
55 CASRN7439-92-1lead and compounds (inorganic)
56 CASRN7439-97-6Mercury and mercury compounds, including methyl
A. 3141--A 3
1 mercury (CASRN 22967-92-6)
2 CASRN7439-98-7Molybdenum and molybdenum compounds
3 CASRN7440-36-0Antimony and antimony compounds
4 CASRN7440-38-2Arsenic and arsenic compounds including arsenic
5 trioxide (CASRN 1327-53-3)
6 and dimethyl arsenic (CASRN 75-60-5)
7 CASRN7440-43-9Cadmium
8 CASRN7440-48-4Cobalt and cobalt compounds and
9 (b) a chemical adopted by the department pursuant to section 37-0505
10 of this title.
11 11. "Toy" means a product designed or intended by the manufacturer to
12 be used by a child at play.
13 § 37-0903. Chemicals of high concern.
14 1. Publishing of list. Within one hundred eighty days of the effective
15 date of this title, the department shall ensure that a website accessi-
16 ble to the public is established that lists all chemicals of high
17 concern.
18 2. Periodic review. (a) The department, in consultation with the
19 department of health, may periodically review the list of chemicals of
20 high concern and, through regulation, identify additional chemicals of
21 high concern, or remove a chemical from the list of chemicals of high
22 concern based on evidence that the chemical does not meet the criteria
23 of this subdivision. In the event that a new determination is made by a
24 state, federal or international governmental entity that a chemical
25 meets the high concern criteria, nothing herein shall prevent the
26 department from acting to add such chemicals outside of the periodic
27 review process.
28 (b) The department shall, upon this review, identify a chemical as a
29 chemical of high concern if it determines that the chemical has been
30 identified by a state, federal or international governmental entity on
31 the basis of credible scientific evidence as:
32 (i) A carcinogen, a reproductive or developmental toxicant or an
33 endocrine disruptor;
34 (ii) Persistent, bioaccumulative and toxic; or
35 (iii) Very persistent and very bioaccumulative.
36 (c) In making such determination, the department may consider but is
37 not limited to considering:
38 (i) chemicals identified as "Group 1 carcinogens" or "Group 2A carci-
39 nogens" by the World Health Organization, International Agency for
40 Research on Cancer;
41 (ii) chemicals identified as "known to be a human carcinogen" and
42 "reasonably anticipated to be a human carcinogen" by the Secretary of
43 the United States Department of Health and Human Services pursuant to
44 the Public Health Service Act, 42 United States Code, Section 241(b)(4),
45 as amended;
46 (iii) chemicals identified as "Group A carcinogens" or "Group B carci-
47 nogens" by the United States Environmental Protection Agency;
48 (iv) chemicals identified as reproductive or developmental toxicants
49 by:
50 (A) the United States Department of Health and Human Services,
51 National Toxicology Program, Center for the Evaluation of Risks to Human
52 Reproduction; and
53 (B) the California Environmental Protection Agency, Office of Environ-
54 mental Health Hazard Assessment pursuant to the California Health and
55 Safety Code, Safe Drinking Water and Toxic Enforcement Act of 1986,
56 Chapter 6.6, Section 25249.8;
A. 3141--A 4
1 (v) chemicals identified as a chemical of high concern for children or
2 a high priority chemical of high concern for children or as a persistent
3 bioaccumulative toxic chemical by the state of Washington department of
4 ecology, pursuant to chapter 70.240 of the revised code of Washington or
5 chapter 173-333 of the state of Washington administrative code;
6 (vi) chemicals of high concern as such chemicals are identified by the
7 state of Maine's department of environmental conservation and appearing
8 on such department's list of chemicals of high concern;
9 (vii) chemicals identified as known or likely endocrine disruptors
10 through screening or testing conducted in accordance with protocols
11 developed by the United States Environmental Protection Agency pursuant
12 to the United States Food, Drug and Cosmetic Act, 21 United States Code,
13 346a(p), as amended by the federal Food Quality Protection Act (Public
14 Law 104-170) or the federal Safe Drinking Water Act, 42 United States
15 Code, Section 300j-17;
16 (viii) chemicals listed on the basis of endocrine-disrupting proper-
17 ties in Annex XIV, List of Substances Subject to Authorisation, Regu-
18 lation (EC) No 1907/2006 of the European Parliament concerning the
19 Registration, Evaluation, Authorisation and Restriction of Chemicals;
20 (ix) persistent, bioaccumulative and toxic chemicals identified by
21 other states or the United States Environmental Protection Agency; and
22 (x) a very persistent, very bioaccumulative chemical listed in Annex
23 XIV, List of Substances Subject to Authorisation, Regulation (EC) No
24 1907/2006 of the European Parliament concerning the Registration, Evalu-
25 ation, Authorization and Restriction of Chemicals.
26 § 37-0905. Priority chemicals.
27 1. Publishing of list. Within one hundred eighty days of the effective
28 date of this title, the department shall ensure that a website accessi-
29 ble to the public is established that lists all priority chemicals.
30 2. Periodic review. (a) The department, in consultation with the
31 department of health, may periodically review the list of priority chem-
32 icals and, through regulation, identify additional priority chemicals or
33 remove a chemical from the list of priority chemicals based on evidence
34 that the chemical is not present in a children's product or otherwise
35 should not be subject to the requirements of this title. In the event
36 that a new determination is made by a state, federal or international
37 governmental entity that a chemical meets the priority chemical crite-
38 ria, nothing herein shall prevent the department from acting to add such
39 chemicals outside of the periodic review process.
40 (b) The department, in consultation with the department of health, may
41 identify a chemical as a priority chemical if, upon such review, it
42 determines that a chemical of high concern meets any of the following
43 criteria:
44 (i) The chemical or its metabolites have been found through biomoni-
45 toring to be present in humans, including human blood, umbilical cord
46 blood, breast milk, urine or other bodily tissues or fluids;
47 (ii) The chemical has been found through sampling and analysis to be
48 present in household dust, indoor air, drinking water or elsewhere in
49 the home environment;
50 (iii) The chemical has been found through monitoring to be present in
51 fish, wildlife or the natural environment;
52 (iv) The chemical is present in a children's product used or present
53 in the home, school, or childcare center; or
54 (v) The sale or use of the chemical or a product containing the chemi-
55 cal has been banned in another state or states within the United States
56 because of the health effects of such chemical.
A. 3141--A 5
1 (c) If a chemical is removed from the listing of chemicals of high
2 concern, it shall also be undesignated as a priority chemical.
3 § 37-0907. Disclosure of information on priority chemicals.
4 1. Reporting of chemical use. No later than twelve months after a
5 priority chemical is listed on the list published pursuant to section
6 37-0905 of this title, every manufacturer who offers a children's prod-
7 uct for sale or distribution in this state that contains an inten-
8 tionally added priority chemical shall report such chemical use to the
9 department in a form prescribed by the department. The department may
10 collaborate with other states and an interstate chemicals clearinghouse
11 in developing such form.
12 (a) This report must at a minimum identify the children's product, the
13 priority chemical or chemicals contained in the children's product, and
14 the intended purpose of the chemicals in the children's product. The
15 department may also require reporting of the following information:
16 (i) the potential for harm to human health and the environment from
17 specific uses of the priority chemical;
18 (ii) the amount of such chemical in each unit of the children's prod-
19 uct, expressed in a range;
20 (iii) information on the likelihood that the chemical will be released
21 from the children's product to the environment during the product's life
22 cycle and the extent to which users of the product are likely to be
23 exposed to the chemical; or
24 (iv) information on the extent to which the chemical is present in the
25 environment or human body.
26 (b) The department is authorized to direct submission of a copy of
27 such report to the interstate chemicals clearinghouse.
28 2. Waiver of reporting. Upon application by a manufacturer, the
29 commissioner may waive all or part of the reporting requirements under
30 subdivision one of this section for one or more specified uses of a
31 priority chemical. In making such determination, the commissioner may
32 consider: (a) if substantially equivalent information is already public-
33 ly available or that the information is not needed for the purposes of
34 this chapter, (b) similar waivers granted by other states, and (c)
35 whether the specified use or uses are minor in volume.
36 3. Notice to retailers. A manufacturer or distributor of a children's
37 product containing a priority chemical shall notify persons that offer
38 the children's product for sale or distribution in the state, in a form
39 prescribed by the department, of the presence of such priority chemical,
40 and provide such persons with information regarding the toxicity of such
41 chemical.
42 4. Fees. The manufacturer or distributor shall pay a fee upon
43 submission of a report of chemical use pursuant to subdivision one of
44 this section or a waiver request pursuant to subdivision two of this
45 section to cover the department's reasonable costs in the amount of six
46 hundred dollars per chemical.
47 § 37-0909. Sales prohibition.
48 Effective January 1, 2016, no person shall distribute, sell or offer
49 for sale in this state a children's product containing a priority chemi-
50 cal that has been listed for at least one year. This provision shall
51 not apply to a children's product solely based on its containing an
52 enclosed battery or enclosed electronic components. The commissioner may
53 exempt a children's product from this prohibition if, in the commission-
54 er's judgment, the lack of availability of the children's product could
55 pose an unreasonable risk to public health, safety or welfare.
56 § 37-0911. Applicability.
A. 3141--A 6
1 1. New children's products. The provisions of this title shall apply
2 to chemicals in children's products sold or distributed as new and does
3 not apply to used children's products that are sold or distributed for
4 free at secondhand stores, yard sales, on the internet or donated to
5 charities.
6 2. Industry. The requirements of this title shall not apply to priori-
7 ty chemicals used in or for industry or manufacturing, including chemi-
8 cals processed or otherwise used in or for industrial or manufacturing
9 processes and not included in the final product.
10 3. Transportation. The requirements of this title shall not apply to
11 motor vehicles or their component parts, watercraft or their component
12 parts, all terrain vehicles or their component parts, or off-highway
13 motorcycles or their component parts, except that the use of priority
14 chemicals in detachable car seats is not exempt.
15 4. Combustion. The requirements of this title shall not apply to
16 priority chemicals generated solely as combustion by-products or that
17 are present in combustible fuels.
18 5. Retailers. A retailer is exempt from the requirements of this title
19 unless that retailer knowingly sells a children's product containing a
20 priority chemical after the effective date of its prohibition for which
21 that retailer has received prior notification from a manufacturer,
22 distributor or the state.
23 § 37-0913. Enforcement and implementation.
24 1. Failure to provide notice. A children's product containing a prior-
25 ity chemical may not be sold, offered for sale or distributed for sale
26 in this state unless the manufacturer or distributor has provided the
27 notification required under section 37-0907 of this title by the date
28 required in such section. The commissioner may exempt a children's prod-
29 uct from this prohibition if, in the commissioner's judgment, the lack
30 of availability of the children's product could pose an unreasonable
31 risk to public health, safety or welfare.
32 2. Statement of compliance. If there are grounds to suspect that a
33 children's product is being offered for sale in violation of this title,
34 the department may request the manufacturer or distributor of the chil-
35 dren's product to provide a statement of compliance on a form provided
36 by the department, within ten days of receipt of a request from the
37 department. The statement of compliance shall:
38 (a) attest that the children's product does not contain the priority
39 chemical; or
40 (b) attest and provide the department with documentation that notifi-
41 cation of the presence of the priority chemical has been provided to the
42 department or provide notice as required by section 37-0907 of this
43 title; or
44 (c) attest that the manufacturer has notified persons who sell the
45 product in this state that the sale of the children's product is prohib-
46 ited.
47 § 37-0915. Interstate chemical clearinghouse.
48 1. The department is authorized to participate in an interstate chemi-
49 cals clearinghouse to assist in carrying out the requirements of this
50 title. The department shall work in collaboration with other states and
51 an interstate chemicals clearinghouse for the purpose of, including but
52 not limited to:
53 (a) collection and dissemination of information regarding chemical
54 hazards;
55 (b) collection and dissemination of information regarding the use of
56 chemicals in children's products;
A. 3141--A 7
1 (c) assessment of alternatives to chemicals and their use in products;
2 and
3 (d) public education.
4 2. Such clearinghouse is authorized to maintain information on behalf
5 of the state of New York, including, but not limited to, information
6 regarding chemicals contained in children's products disclosed pursuant
7 to section 37-0907 of this title.
8 § 37-0917. Regulations.
9 The department may adopt any rules and regulations it deems necessary
10 to implement the provisions of this title.
11 § 2. This act shall take effect on the one hundred twentieth day after
12 it shall have become a law. Effective immediately, the department of
13 environmental conservation is authorized to implement rules and regu-
14 lations for the timely implementation of this act on its effective date.
