S02408 Summary:

BILL NOS02408
 
SAME ASNo Same As
 
SPONSORPERKINS
 
COSPNSRADDABBO, AVELLA, BRESLIN, DIAZ, DILAN, GIANARIS, HASSELL-THOMPSON, HOYLMAN, KENNEDY, KRUEGER, MONTGOMERY, PANEPINTO, PARKER, PERALTA, SAVINO, SERRANO, SQUADRON, STAVISKY, STEWART-COUSINS
 
MLTSPNSR
 
Add Art 37 Title 9 SS37-0901 - 37-0917, En Con L
 
Relates to regulation of toxic chemicals in children's products; establishes the interstate chemical clearinghouse.
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S02408 Actions:

BILL NOS02408
 
01/23/2015REFERRED TO ENVIRONMENTAL CONSERVATION
01/06/2016REFERRED TO ENVIRONMENTAL CONSERVATION
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S02408 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          2408
 
                               2015-2016 Regular Sessions
 
                    IN SENATE
 
                                    January 23, 2015
                                       ___________
 
        Introduced  by  Sens.  PERKINS,  ADDABBO,  AVELLA, BRESLIN, DIAZ, DILAN,
          GIANARIS, HASSELL-THOMPSON,  HOYLMAN,  KENNEDY,  KRUEGER,  MONTGOMERY,
          PARKER,  PERALTA, SAVINO, SERRANO, SQUADRON, STAVISKY, STEWART-COUSINS
          -- read twice and ordered printed, and when printed to be committed to
          the Committee on Environmental Conservation
 
        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.
    15    As  used  in  this  title, unless the context otherwise indicates, the
    16  following terms have the following meanings.
    17    1. "Children's apparel" means any item of clothing  that  consists  of
    18  fabric  or  related  material intended or promoted for use in children's
    19  clothing. Children's apparel does not mean protective equipment designed
    20  to prevent injury, including,  but  not  limited  to,  bicycle  helmets,
    21  athletic supporters, knee pads or elbow pads.
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD02899-02-5

        S. 2408                             2
 
     1    2.  "Chemical" means a substance with a distinct molecular composition
     2  or a group of structurally related substances and includes the breakdown
     3  products of the substance or substances that form through decomposition,
     4  degradation or metabolism.
     5    3. "Chemical of high concern" means a chemical included in the list of
     6  "Chemicals  of  High Concern" published in June 2009 pursuant to chapter
     7  16-D of title 38 of the Maine revised statutes annotated.
     8    4. "Children" means a person or persons aged twelve and under.
     9    5. "Children's product" means a product primarily intended  for,  made
    10  for  or marketed for use by children, including baby products, toys, car
    11  seats, personal care products, a product designed  or  intended  by  the
    12  manufacturer  to  help  a  child with sucking or teething, to facilitate
    13  sleep, relaxation, or the feeding of a child, novelty products, bedding,
    14  furniture, furnishings, and children's apparel.    "Children's  product"
    15  does  not  include  (a)  batteries;  or (b) consumer electronic products
    16  including but not limited to personal computers, audio and video  equip-
    17  ment,  calculators, wireless phones, game consoles, and handheld devices
    18  incorporating a video screen, used to access  interactive  software  and
    19  their  associated  peripherals; or (c) a food or beverage or an additive
    20  to a food or beverage regulated by  the  United  States  Food  and  Drug
    21  Administration;  or (d) a tobacco product or paper or forest product; or
    22  (e) a pesticide regulated by the United States Environmental  Protection
    23  Agency.    Children's  product also does not include a drug, biologic or
    24  medical device regulated by the United States  Food  and  Drug  Adminis-
    25  tration.
    26    6.  "Distributor"  means  a  person  who  sells children's products to
    27  retail establishments on a wholesale basis.
    28    7. "Intentionally added" means the deliberate use in  the  formulation
    29  of  a  product or subpart where its continued presence is desired in the
    30  final product or subpart to provide a specific  characteristic,  appear-
    31  ance or quality.
    32    8.  "Manufacturer" means any person who currently manufactures a final
    33  children's product or whose brand name  is  affixed  to  the  children's
    34  product.  In the case of a children's product that was imported into the
    35  United States, "manufacturer" includes the importer  or  first  domestic
    36  distributor  of the children's product if the person who currently manu-
    37  factures or assembles the children's product  or  whose  brand  name  is
    38  affixed to the children's product does not have a presence in the United
    39  States.
    40    9.  "Novelty  product" means a product intended mainly for personal or
    41  household enjoyment or adornment. Novelty products include, but are  not
    42  limited to, items intended for use as practical jokes, figurines, adorn-
    43  ments, toys, games, cards, ornaments, yard statues and figures, candles,
    44  jewelry, holiday decorations, or similar products.
    45    10. "Priority chemical" means (a) the following chemicals:
    46    CASRN115-96-8     Tris (2-chloroethyl) phosphate
    47    CASRN71-43-2      Benzene
    48    CASRN7439-92-1    lead and compounds (inorganic)
    49    CASRN7439-97-6    Mercury and mercury compounds, including methyl
    50                      mercury (CASRN 22967-92-6)
    51    CASRN7439-98-7    Molybdenum and molybdenum compounds
    52    CASRN7440-36-0    Antimony and antimony compounds
    53    CASRN7440-38-2    Arsenic and arsenic compounds including arsenic
    54                      trioxide (CASRN 1327-53-3)
    55                      and dimethyl arsenic (CASRN 75-60-5)
    56    CASRN7440-43-9    Cadmium

        S. 2408                             3
 
     1    CASRN7440-48-4    Cobalt and cobalt compounds and
     2    (b)  a  chemical adopted by the department pursuant to section 37-0905
     3  of this title.
     4    11. "Toy" means a product designed or intended by the manufacturer  to
     5  be used by a child at play.
     6  § 37-0903. Chemicals of high concern.
     7    1. Publishing of list. Within one hundred eighty days of the effective
     8  date  of this title, the department shall ensure that a website accessi-
     9  ble to the public is  established  that  lists  all  chemicals  of  high
    10  concern.
    11    2.  Periodic  review.  (a)  The  department,  in consultation with the
    12  department of health, may periodically review the list of  chemicals  of
    13  high  concern  and, through regulation, identify additional chemicals of
    14  high concern, or remove a chemical from the list of  chemicals  of  high
    15  concern  based  on evidence that the chemical does not meet the criteria
    16  of this subdivision.  In the event that a new determination is made by a
    17  state, federal or international  governmental  entity  that  a  chemical
    18  meets  the  high  concern  criteria,  nothing  herein  shall prevent the
    19  department from acting to add such chemicals  outside  of  the  periodic
    20  review process.
    21    (b)  The  department shall, upon this review, identify a chemical as a
    22  chemical of high concern if it determines that  the  chemical  has  been
    23  identified  by  a state, federal or international governmental entity on
    24  the basis of credible scientific evidence as:
    25    (i) A carcinogen, a  reproductive  or  developmental  toxicant  or  an
    26  endocrine disruptor;
    27    (ii) Persistent, bioaccumulative and toxic; or
    28    (iii) Very persistent and very bioaccumulative.
    29    (c)  In  making such determination, the department may consider but is
    30  not limited to considering:
    31    (i) chemicals identified as "Group 1 carcinogens" or "Group 2A  carci-
    32  nogens"  by  the  World  Health  Organization,  International Agency for
    33  Research on Cancer;
    34    (ii) chemicals identified as "known to  be  a  human  carcinogen"  and
    35  "reasonably  anticipated  to  be a human carcinogen" by the Secretary of
    36  the United States Department of Health and Human  Services  pursuant  to
    37  the Public Health Service Act, 42 United States Code, Section 241(b)(4),
    38  as amended;
    39    (iii) chemicals identified as "Group A carcinogens" or "Group B carci-
    40  nogens" by the United States Environmental Protection Agency;
    41    (iv)  chemicals  identified as reproductive or developmental toxicants
    42  by:
    43    (A) the  United  States  Department  of  Health  and  Human  Services,
    44  National Toxicology Program, Center for the Evaluation of Risks to Human
    45  Reproduction; and
    46    (B) the California Environmental Protection Agency, Office of Environ-
    47  mental  Health  Hazard  Assessment pursuant to the California Health and
    48  Safety Code, Safe Drinking Water and  Toxic  Enforcement  Act  of  1986,
    49  Chapter 6.6, Section 25249.8;
    50    (v) chemicals identified as a chemical of high concern for children or
    51  a high priority chemical of high concern for children or as a persistent
    52  bioaccumulative  toxic chemical by the state of Washington department of
    53  ecology, pursuant to chapter 70.240 of the revised code of Washington or
    54  chapter 173-333 of the state of Washington administrative code;

        S. 2408                             4
 
     1    (vi) chemicals of high concern as such chemicals are identified by the
     2  state of Maine's department of environmental conservation and  appearing
     3  on such department's list of chemicals of high concern;
     4    (vii)  chemicals  identified  as  known or likely endocrine disruptors
     5  through screening or testing  conducted  in  accordance  with  protocols
     6  developed  by the United States Environmental Protection Agency pursuant
     7  to the United States Food, Drug and Cosmetic Act, 21 United States Code,
     8  346a(p), as amended by the federal Food Quality Protection  Act  (Public
     9  Law  104-170)  or  the federal Safe Drinking Water Act, 42 United States
    10  Code, Section 300j-17;
    11    (viii) chemicals listed on the basis of  endocrine-disrupting  proper-
    12  ties  in  Annex  XIV, List of Substances Subject to Authorisation, Regu-
    13  lation (EC) No 1907/2006  of  the  European  Parliament  concerning  the
    14  Registration, Evaluation, Authorisation and Restriction of Chemicals;
    15    (ix)  persistent,  bioaccumulative  and  toxic chemicals identified by
    16  other states or the United States Environmental Protection Agency; and
    17    (x) a very persistent, very bioaccumulative chemical listed  in  Annex
    18  XIV,  List  of  Substances  Subject to Authorisation, Regulation (EC) No
    19  1907/2006 of the European Parliament concerning the Registration, Evalu-
    20  ation, Authorisation and Restriction of Chemicals.
    21  § 37-0905. Priority chemicals.
    22    1. Publishing of list. Within one hundred eighty days of the effective
    23  date of this title, the department shall ensure that a website  accessi-
    24  ble to the public is established that lists all priority chemicals.
    25    2.  Periodic  review.  (a)  The  department,  in consultation with the
    26  department of health, may periodically review the list of priority chem-
    27  icals and, through regulation, identify additional priority chemicals or
    28  remove a chemical from the list of priority chemicals based on  evidence
    29  that  the  chemical  is not present in a children's product or otherwise
    30  should not be subject to the requirements of this title.   In the  event
    31  that  a  new  determination is made by a state, federal or international
    32  governmental entity that a chemical meets the priority  chemical  crite-
    33  ria, nothing herein shall prevent the department from acting to add such
    34  chemicals outside of the periodic review process.
    35    (b) The department, in consultation with the department of health, may
    36  identify  a  chemical  as  a  priority chemical if, upon such review, it
    37  determines that a chemical of high concern meets any  of  the  following
    38  criteria:
    39    (i)  The  chemical or its metabolites have been found through biomoni-
    40  toring to be present in humans, including human  blood,  umbilical  cord
    41  blood, breast milk, urine or other bodily tissues or fluids;
    42    (ii)  The  chemical has been found through sampling and analysis to be
    43  present in household dust, indoor air, drinking water  or  elsewhere  in
    44  the home environment;
    45    (iii)  The chemical has been found through monitoring to be present in
    46  fish, wildlife or the natural environment;
    47    (iv) The chemical is present in a children's product used  or  present
    48  in the home, school, or childcare center; or
    49    (v) The sale or use of the chemical or a product containing the chemi-
    50  cal  has been banned in another state or states within the United States
    51  because of the health effects of such chemical.
    52    (c) If a chemical is removed from the listing  of  chemicals  of  high
    53  concern, it shall also be undesignated as a priority chemical.
    54  § 37-0907. Disclosure of information on priority chemicals.
    55    1.  Reporting  of  chemical  use.  No later than twelve months after a
    56  priority chemical is listed on the list published  pursuant  to  section

        S. 2408                             5
 
     1  37-0905  of this title, every manufacturer who offers a children's prod-
     2  uct for sale or distribution in  this  state  that  contains  an  inten-
     3  tionally  added  priority chemical shall report such chemical use to the
     4  department  in  a  form prescribed by the department. The department may
     5  collaborate with other states and an interstate chemicals  clearinghouse
     6  in developing such form.
     7    (a) This report must at a minimum identify the children's product, the
     8  priority  chemical or chemicals contained in the children's product, and
     9  the intended purpose of the chemicals in the children's  product.    The
    10  department may also require reporting of the following information:
    11    (i)  the  potential  for harm to human health and the environment from
    12  specific uses of the priority chemical;
    13    (ii) the amount of such chemical in each unit of the children's  prod-
    14  uct, expressed in a range;
    15    (iii) information on the likelihood that the chemical will be released
    16  from the children's product to the environment during the product's life
    17  cycle  and  the  extent  to  which users of the product are likely to be
    18  exposed to the chemical; or
    19    (iv) information on the extent to which the chemical is present in the
    20  environment or human body.
    21    (b) The department is authorized to direct submission  of  a  copy  of
    22  such report to the interstate chemicals clearinghouse.
    23    2.  Waiver  of  reporting.  Upon  application  by  a manufacturer, the
    24  commissioner may waive all or part of the reporting  requirements  under
    25  subdivision  one  of  this  section  for one or more specified uses of a
    26  priority chemical. In making such determination,  the  commissioner  may
    27  consider: (a) if substantially equivalent information is already public-
    28  ly  available  or that the information is not needed for the purposes of
    29  this chapter, (b) similar waivers  granted  by  other  states,  and  (c)
    30  whether the specified use or uses are minor in volume.
    31    3.  Notice to retailers. A manufacturer or distributor of a children's
    32  product containing a priority chemical shall notify persons  that  offer
    33  the  children's product for sale or distribution in the state, in a form
    34  prescribed by the department, of the presence of such priority chemical,
    35  and provide such persons with information regarding the toxicity of such
    36  chemical.
    37    4. Fees.  The  manufacturer  or  distributor  shall  pay  a  fee  upon
    38  submission  of  a  report of chemical use pursuant to subdivision one of
    39  this section or a waiver request pursuant to  subdivision  two  of  this
    40  section  to cover the department's reasonable costs in the amount of six
    41  hundred dollars per chemical.
    42  § 37-0909. Sales prohibition.
    43    Effective January 1, 2020, no person shall distribute, sell  or  offer
    44  for sale in this state a children's product containing a priority chemi-
    45  cal  that  has  been listed for at least one year.  This provision shall
    46  not apply to a children's product solely  based  on  its  containing  an
    47  enclosed battery or enclosed electronic components. The commissioner may
    48  exempt a children's product from this prohibition if, in the commission-
    49  er's  judgment, the lack of availability of the children's product could
    50  pose an unreasonable risk to public health, safety or welfare.
    51  § 37-0911. Applicability.
    52    1. New children's products. The provisions of this title  shall  apply
    53  to  chemicals in children's products sold or distributed as new and does
    54  not apply to used children's products that are sold or  distributed  for
    55  free  at  secondhand  stores,  yard sales, on the internet or donated to
    56  charities.

        S. 2408                             6
 
     1    2. Industry. The requirements of this title shall not apply to priori-
     2  ty chemicals used in or for industry or manufacturing, including  chemi-
     3  cals  processed  or otherwise used in or for industrial or manufacturing
     4  processes and not included in the final product.
     5    3.  Transportation.  The requirements of this title shall not apply to
     6  motor vehicles or their component parts, watercraft or  their  component
     7  parts,  all  terrain  vehicles  or their component parts, or off-highway
     8  motorcycles or their component parts, except that the  use  of  priority
     9  chemicals in detachable car seats is not exempt.
    10    4.  Combustion.  The  requirements  of  this  title shall not apply to
    11  priority chemicals generated solely as combustion  by-products  or  that
    12  are present in combustible fuels.
    13    5. Retailers. A retailer is exempt from the requirements of this title
    14  unless  that  retailer knowingly sells a children's product containing a
    15  priority chemical after the effective date of its prohibition for  which
    16  that  retailer  has  received  prior  notification  from a manufacturer,
    17  distributor or the state.
    18  § 37-0913.  Enforcement and implementation.
    19    1. Failure to provide notice. A children's product containing a prior-
    20  ity chemical may not be sold, offered for sale or distributed  for  sale
    21  in  this  state  unless the manufacturer or distributor has provided the
    22  notification required under section 37-0907 of this title  by  the  date
    23  required in such section. The commissioner may exempt a children's prod-
    24  uct  from  this prohibition if, in the commissioner's judgment, the lack
    25  of availability of the children's product  could  pose  an  unreasonable
    26  risk to public health, safety or welfare.
    27    2.  Statement  of  compliance.  If there are grounds to suspect that a
    28  children's product is being offered for sale in violation of this title,
    29  the department may request the manufacturer or distributor of the  chil-
    30  dren's  product  to provide a statement of compliance on a form provided
    31  by the department, within ten days of receipt  of  a  request  from  the
    32  department. The statement of compliance shall:
    33    (a)  attest  that the children's product does not contain the priority
    34  chemical; or
    35    (b) attest and provide the department with documentation that  notifi-
    36  cation of the presence of the priority chemical has been provided to the
    37  department  or  provide  notice  as  required by section 37-0907 of this
    38  title; or
    39    (c) attest that the manufacturer has notified  persons  who  sell  the
    40  product in this state that the sale of the children's product is prohib-
    41  ited.
    42  § 37-0915. Interstate chemical clearinghouse.
    43    1. The department is authorized to participate in an interstate chemi-
    44  cals  clearinghouse  to  assist in carrying out the requirements of this
    45  title. The department shall work in collaboration with other states  and
    46  an  interstate chemicals clearinghouse for the purpose of, including but
    47  not limited to:
    48    (a) collection and dissemination  of  information  regarding  chemical
    49  hazards;
    50    (b)  collection  and dissemination of information regarding the use of
    51  chemicals in children's products;
    52    (c) assessment of alternatives to chemicals and their use in products;
    53  and
    54    (d) public education.
    55    2. Such clearinghouse is authorized to maintain information on  behalf
    56  of  the  state  of  New York, including, but not limited to, information

        S. 2408                             7
 
     1  regarding chemicals contained in children's products disclosed  pursuant
     2  to section 37-0907 of this title.
     3  § 37-0917. Regulations.
     4    The  department may adopt any rules and regulations it deems necessary
     5  to implement the provisions of this title.
     6    § 2. This act shall take effect on the one hundred twentieth day after
     7  it shall have become a law. Effective  immediately,  the  department  of
     8  environmental  conservation  is  authorized to implement rules and regu-
     9  lations for the timely implementation of this act on its effective date.
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