Protects consumers from toxic chemicals in children's products; defines terms; establishes a list of chemicals of high concern to children; discloses information; makes related changes.
STATE OF NEW YORK
________________________________________________________________________
10715
IN ASSEMBLY
June 13, 2016
___________
Introduced by COMMITTEE ON RULES -- (at request of 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 protecting
consumers from toxic chemicals found 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. The general business law is amended by adding a new article
2 28-F to read as follows:
3 ARTICLE 28-F
4 CHEMICALS IN CHILDREN'S PRODUCTS ACT
5 Section 495-a. Legislative declaration.
6 495-b. Definitions.
7 495-c. Chemicals of high concern to children.
8 495-d. Disclosure of information.
9 495-e. Applicability.
10 495-f. Enforcement and implementation.
11 495-g. Regulations.
12 § 495-a. Legislative declaration. It is the policy of the state,
13 consistent with its duty to protect the health, safety, and welfare of
14 its citizens, to reduce exposure among children and other vulnerable
15 populations to hazards posed by chemicals. By enactment of this article,
16 the legislature confers upon the departments of state and health the
17 regulatory power to collect information on chemical use.
18 § 495-b. Definitions. For the purposes of this article, the following
19 terms shall have the following meanings:
20 1. "Children's apparel" means any item of clothing, footwear or
21 apparel, including, but not limited to, accessories that consist of
22 fabric or related material intended or promoted for use in children's
23 clothing. Children's apparel does not mean protective equipment designed
24 to prevent injury, including, but not limited to, bicycle helmets,
25 athletic supporters, knee pads or elbow pads.
26 2. "Chemical" means any organic or inorganic substance of a particular
27 molecular identity, including: (a) any combination of such substances
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD15549-04-6
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1 occurring in whole or in part as a result of a chemical reaction or
2 occurring in nature; and (b) any element or uncombined radical.
3 3. "Chemicals of high concern to children" means: (a) the following
4 chemicals and their Chemical Abstract Service (CAS) registration
5 numbers:
6 1,1,2,2-Tetrachloroethane (79-34-5)
7 1,4-Dioxane (123-91-1)
8 2,2',3,3',4,4',5,5',6,6'-Decabromodiphenyl ether; BDE-209 (1163-19-5)
9 2,4-Diaminotoluene (95-80-7)
10 2-Aminotoluene (95-53-4)
11 2-Ethylhexanoic Acid (149-57-5)
12 2-Ethyl-hexyl-4-methoxycinnamate (5466-77-3)
13 2-Methoxyethanol (109-86-4)
14 3,3'-Dimethylbenzidine and Dyes Metabolized to 3,3'-Dimethylbenzidine
15 (119-93-7)
16 4-Nonylphenol; 4-NP and its isomer mixtures including CAS 84852-15-3
17 and CAS 25154-52-3 (104-40-5)
18 4-tert-Octylphenol; 1,1,3,3-Tetramethyl-4-butylphenol (140-66-9)
19 Acetaldehyde (75-07-0)
20 Acrylonitrile (107-13-1)
21 Aniline (62-53-3)
22 Antimony (7440-36-0) & Antimony compounds
23 Arsenic (7440-38-2) & Arsenic compounds including arsenic trioxide
24 (1327-53-3) & dimethyl arsenic (75-60-5)
25 Asbestos (1332-21-4)
26 Benzene (71-43-2)
27 Benzene, pentachloro (608-93-5)
28 Benzophenone-2 (Bp-2); 2,2',4,4'-Tetrahydroxybenzophenone (131-55-5)
29 Bis(2-ethylhexyl)-tetrabromophthalate(TBPH)(26040-51-7)
30 Bisphenol A (80-05-7)
31 Butyl Benzyl phthalate (BBP) (85-68-7)
32 Butyl paraben (94-26-8)
33 Butylated hydroxyanisole; BHA (25013-16-5)
34 C.I. Solvent Yellow 14 (842-07-9)
35 Cadmium (7440-43-9) & cadmium compounds
36 Carbon disulfide (75-15-0)
37 Cobalt (7440-48-4) & cobalt compounds
38 Di-2-ethylhexyl phthalate (117-81-7)
39 Dibutyl phthalate (84-74-2)
40 Diethyl phthalate (84-66-2)
41 Diisodecyl phthalate (DIDP) (26761-40-0)
42 Diisononyl phthalate (DINP) (28553-12-0)
43 Di-n-Hexyl Phthalate (84-75-3)
44 Di-n-octyl phthalate (DnOP) (117-84-0)
45 Estragole (140-67-0)
46 Ethyl paraben (120-47-8)
47 Ethylbenzene (100-41-4)
48 Ethylene glycol (107-21-1)
49 Ethylene glycol monoethyl ester (110-80-5)
50 Formaldehyde (50-00-0)
51 Hexabromocyclododecane (25637-99-4)
52 Hexachlorobenzene (118-74-1)
53 Hexachlorobutadiene (87-68-3)
54 Lead (7439-92-1)
55 Mercury (7439-97-6) & mercury compounds including methyl mercury
56 (22967-92-6)
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1 Methyl ethyl ketone (78-93-3)
2 Methyl paraben (99-76-3)
3 Methylene chloride (75-09-2)
4 Molybdenum (7439-98-7) & molybdenum compounds
5 N-Methylpyrrolidone (872-50-4)
6 N-Nitrosodimethylamine (62-75-9)
7 N-Nitrosodiphenylamine (86-30-6)
8 Octamethylcyclotetrasiloxane (556-67-2)
9 para-Chloroaniline (106-47-8)
10 Perchloroethylene (127-18-4)
11 Perfluorooctanoic acid (PFOA)(335-67-1)
12 Perfluorooctanyl sulphonic acid and its salts; PFOS (1763-23-1)
13 Phenol (108-95-2)
14 Phenol, 4-octyl- (1806-26-4)
15 Phthalic Anhydride (85-44-9)
16 p-Hydroxybenzoic acid (99-96-7)
17 Propyl paraben (94-13-3)
18 Styrene (100-42-5)
19 Tetrabromobisphenol A (79-94-7)
20 Toluene (108-88-3)
21 Tris(1,3-dichloro-2-propyl)phosphate (13674-87-8)
22 Tris(2-chloroethyl) phosphate (115-96-8)
23 Vinyl chloride (75-01-4); and
24 (b) all phthalates specified as permanently banned from children's
25 toys and child care articles pursuant to section 108(a) of the US
26 Consumer Product Safety Improvement Act of 2008.
27 4. "Child or children" means a person or persons twelve years of age
28 or younger and "children" means persons twelve years of age or younger.
29 5. "Children's product" means a product primarily intended for, made
30 for, or marketed for use by children, including but not limited to: baby
31 products; toys; car seats; children's cosmetics; school supplies; a
32 product designed or intended by the manufacturer to help a child with
33 sucking or teething, to facilitate sleep, relaxation, or the feeding of
34 a child; children's novelty products; children's jewelry; children's
35 bedding, furniture, and furnishings; and children's apparel. This term
36 shall not include: (a) batteries; (b) consumer electronic products,
37 including, but not limited to, personal computers, audio and video
38 equipment, calculators, wireless telephones, game consoles, and handheld
39 devices incorporating a video screen used to access interactive soft-
40 ware, and their associated peripherals; (c) a drug, supplement, soap,
41 food or beverage or an additive to a food or beverage regulated by the
42 United States Food and Drug Administration; (d) a drug, biologic, or
43 medical device regulated by the United States Food and Drug Adminis-
44 tration; or (e) a pesticide product regulated by the United States Envi-
45 ronmental Protection Agency and registered by the department of environ-
46 mental conservation.
47 6. "Scientific evidence" means published scientific research and
48 analyses obtained from reliable sources, including, but not limited to,
49 peer-reviewed scientific journals, and reports from authoritative publ-
50 ic-health and environmental organizations.
51 7. "Component" means a uniquely identifiable or reasonably separate,
52 material that is intended to be included as a part of a finished chil-
53 dren's product. A single chemical is not considered a "component" unless
54 the entire material is composed of that single chemical.
55 8. "Contaminant" means a trace amount of any chemical incidental to
56 manufacturing, which serves no intended function in the finished chil-
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1 dren's product. A "contaminant" includes a chemical that is: an unin-
2 tended byproduct of chemical reactions during the manufacture of the
3 children's product; otherwise occurring in the environment; a trace
4 impurity in feed-stock; a component of incompletely reacted chemical
5 mixtures; and/or a product of degradation.
6 9. "Commissioner" means the commissioner of health.
7 10. "Distributor" means a person who sells children's products to
8 retail establishments.
9 11. "Intentionally added" means the deliberate use of a chemical in
10 the formulation of a product or component where its presence is desired
11 in the final product or component to provide a specific characteristic,
12 appearance or quality.
13 12. "Manufacturer" means any person who currently produces a chil-
14 dren's product or whose brand name is affixed to the children's product.
15 In the case of a children's product that was imported into the United
16 States, "manufacturer" means any person who currently produces a chil-
17 dren's product or whose brand name is affixed to the children's product.
18 In the case of a children's product that was imported into the United
19 States, "manufacturer" includes the importer or related corporate entity
20 that is registered in any state or has not contracted the services of an
21 agent in the United States.
22 13. "Practical quantification limit" (PQL) is the lowest concentration
23 that can be reliably measured within specified limits of precision,
24 accuracy, representativeness, completeness, and comparability during
25 routine laboratory operating conditions. This value is based on scien-
26 tifically defensible, standard analytical methods. The value for a given
27 chemical could be different depending on the matrix and the analytical
28 method used. PQLs are to be established by the department of state in
29 reliance upon findings made by the department of health after review of
30 scientific evidence and measurements using standard analytical methods
31 and in consideration of comparable values established by other authori-
32 tative bodies, including other states.
33 14. "Product category" means the "brick" level of the GS1 global prod-
34 uct classification (GPC) standard, which identifies a category incorpo-
35 rating products (global trade item numbers (GTINs)) that serve a common
36 purpose, are of a similar form and material, and share the same set of
37 category attributes.
38 15. "Retailer" means any person who sells or leases children's
39 products in the state to consumers. Such term shall not include: (a)
40 someone who purchased or acquired a product primarily for personal use
41 and who subsequently resells the product; or (b) any secondhand dealer.
42 16. "Secretary" means secretary of state.
43 § 495-c. Chemicals of high concern to children. 1. Publishing of
44 lists. Within one hundred eighty days of the effective date of this
45 article, the department of state shall post lists of chemicals of high
46 concern to children on its website.
47 2. Periodic review. The department of health may periodically review
48 the lists of chemicals of high concern to children and, through regu-
49 lation, add or remove chemicals of high concern to children from such
50 lists in reliance upon findings made by the department of health after
51 review of scientific evidence, that a chemical proposed for addition to
52 the list meets paragraphs (a) or (b) of this subdivision for chemicals
53 of high concern to children. Such review shall not take place more
54 frequently than once every three years, and not more than ten chemicals
55 may be added during each review period.
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1 (a) The commissioner has determined that an authoritative governmental
2 entity or accredited research university has demonstrated that the chem-
3 ical does one of the following:
4 (i) harms the normal development of a fetus or child or causes other
5 developmental toxicity in an intact organism;
6 (ii) is linked to cancer, genetic damage, is an asthmagen, or is
7 linked to reproductive harm in an intact organism;
8 (iii) disrupts the endocrine system to cause adverse effects in chil-
9 dren;
10 (iv) damages the nervous system, immune system, or organs or causes
11 other systemic toxicity in an intact organism; or
12 (v) is very persistent and very bioaccumulative.
13 (b) The chemical has been found to be present through any of the
14 following:
15 (i) biomonitoring to be present in human blood, umbilical cord blood,
16 breast milk, urine, or other bodily tissues or fluids;
17 (ii) sampling and analysis to be present in household dust, indoor
18 air, drinking water, or elsewhere in the home environment; or
19 (iii) monitoring to be present in fish, wildlife, or the natural envi-
20 ronment.
21 § 495-d. Disclosure of information. 1. Reporting of chemical occur-
22 rence. Every manufacturer who offers for sale or distribution in this
23 state a children's product shall report to the department of state if a
24 chemical of high concern to children is intentionally added to a chil-
25 dren's product component at a level above the PQL; or present in a chil-
26 dren's product component produced by the manufacturer as a contaminant
27 at a concentration above one hundred parts per million.
28 (a) To be in compliance with this requirement, such report shall be
29 submitted to the department of state:
30 (i) within ninety days of the effective date of this article; or
31 (ii) within ninety days of the addition of a chemical to the chemicals
32 of high concern to children list pursuant to section four hundred nine-
33 ty-five-c of this article.
34 (b) Format for notice. The secretary of state shall specify the format
35 for submission of the notice required by this section, provided that the
36 required format shall be consistent with the format for submission of
37 notice in other states with requirements substantially similar to the
38 requirements of this section. Any notice submitted under this section
39 shall contain the following information:
40 (i) the name of the chemical used or produced and its chemical
41 abstracts service registry number or accession number;
42 (ii) a description of the category or categories in which it occurs
43 containing the chemical;
44 (iii) the amount of the chemical contained in each unit of the product
45 or product component, reported by weight or parts per million in ranges
46 as follows:
47 (1) Equal to or more than the PQL but less than 100 ppm (0.01%);
48 (2) Equal to or more than 100 ppm (0.01%) but less than 500 ppm
49 (0.05%);
50 (3) Equal to or more than 500 ppm (0.05%) but less than 1,000 ppm
51 (0.10%);
52 (4) Equal to or more than 1,000 ppm (0.10%) but less than 5,000 ppm
53 (0.5%); or
54 (5) Equal to or more than 5,000 ppm (0.5%) but less than 10,000 ppm
55 (1.0%); or
56 (6) Equal to or more than 10,000 ppm (1.0%).
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1 (c) The department of state and the department of health are author-
2 ized to participate in an interstate chemicals clearinghouse to assist
3 in carrying out the requirements of this article. The department of
4 state may also enter into reciprocal data-sharing agreements with other
5 states in which a manufacturer of children's products is also required
6 to disclose information related to chemicals of high concern to children
7 in children's products.
8 2. Waiver of reporting. Upon application by a manufacturer, the secre-
9 tary may waive all or part of the reporting requirements under subdivi-
10 sion one of this section for one or more specified uses of a chemical of
11 high concern to children. In making such determination, the secretary
12 may consider:
13 (a) whether substantially equivalent information is already publicly
14 available or such information is not needed for the purposes of this
15 article;
16 (b) whether similar waivers have been granted by other states;
17 (c) whether the specified use or uses are minor in volume;
18 (d) whether the manufacturer either individually or jointly submits
19 the information required in a notice under this section to:
20 (i) a state with which the department of state has entered a recipro-
21 cal data-sharing agreement; or
22 (ii) a trade association, the Interstate Chemicals Clearinghouse, a
23 federal governmental agency, or other independent third party, who makes
24 that data available to the department of state on behalf of the manufac-
25 turer;
26 (e) whether the information required to be reported in a notice under
27 this section is provided to the department of state in an alternate but
28 complete format, including reference to information publicly available
29 in other states or by independent third parties; or
30 (f) whether the information required to be reported in a notice under
31 this section is available on or accessible from the department of
32 state's website.
33 3. Notice to retailers. A manufacturer of a children's product
34 containing a chemical of high concern to children shall notify, in a
35 form prescribed by the department of state, retailers that offer the
36 children's product for sale or distribution in the state of the presence
37 of such chemical of high concern to children and any other information
38 the departments of state and health deem appropriate.
39 4. Notice to consumers. The department of state, as deemed appropriate
40 by the secretary, shall notify consumers about children's products
41 containing chemicals of high concern. The notification shall be
42 published on the department of state's website in a form and manner
43 determined by the secretary.
44 5. Fees. The department of state may promulgate rules setting an
45 appropriate fee schedule for manufacturers to help defray the department
46 of state's and department of health's program costs.
47 6. Certificate of compliance. A manufacturer required to submit notice
48 under this section to the secretary of state may rely on a certificate
49 of compliance, data, or information from suppliers for determining
50 reporting obligations. A certificate of compliance provided by a suppli-
51 er under this subdivision shall be solely for the purpose of compliance
52 with the requirements of this article.
53 § 495-e. Applicability. 1. New children's products. The provisions of
54 this article shall apply to chemicals in children's products sold or
55 distributed as new. It shall not apply to used children's products that
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1 are sold or distributed for free at secondhand stores, yard sales, on
2 the internet, or donated to charities.
3 2. Inaccessible components. Components that during reasonably foresee-
4 able use and abuse of the product would not come into direct contact
5 with the child's skin or mouth will not be subject to the requirements
6 of section four hundred ninety-five-d of this article, except by rule,
7 based on a case-by-case evaluation by the department of state.
8 3. Transportation. The requirements of this article shall not apply to
9 motor vehicles or their component parts, watercraft or their component
10 parts, all terrain vehicles or their component parts, or off-highway
11 motorcycles or their component parts, except that the use of chemicals
12 of high concern to children in detachable car seats is not exempt.
13 4. Combustion. The requirements of this article shall not apply to
14 chemicals generated solely as combustion byproducts or that are present
15 in combustible fuels.
16 5. Industry. The requirements of this article shall not apply to chem-
17 icals of high concern to children used in or for industry or manufactur-
18 ing, including chemicals processed or otherwise used in or for indus-
19 trial or manufacturing processes and not present in the final product.
20 § 495-f. Enforcement and implementation. 1. Statement of compliance.
21 If the department of state suspects that a children's product is being
22 offered or sold in violation of this article, the department of state
23 may request the manufacturer of the children's product to provide within
24 thirty days of receipt of a request from the department of state, a
25 statement of compliance on a form provided by the department of state.
26 The statement of compliance shall:
27 (a) attest that the children's product does not contain the chemical
28 of high concern to children; or
29 (b) attest and provide the department of state with documentation that
30 notification of the presence of a chemical of high concern to children
31 was provided to the department pursuant to section four hundred ninety-
32 five-d of this article; or
33 (c) attest that the manufacturer has notified retailers of the pres-
34 ence of chemical of high concern to children pursuant to subdivision
35 three of section four hundred ninety-five-d of this article.
36 2. Unauthorized sales. The secretary may issue an order directing the
37 cessation of the sale or distribution by manufacturers, distributors, or
38 retailers of any children's product being distributed, sold, leased, or
39 otherwise offered for sale in this state that is in violation of this
40 article. In the instance of non-compliance with such order, the depart-
41 ment of state shall provide the attorney general any information on the
42 sale, lease, or distribution of prohibited children's products.
43 3. Enforcement. Where it is determined, following a hearing, that a
44 person has violated one or more provisions of this article, the secre-
45 tary may assess a civil penalty no greater than five thousand dollars
46 per violation. Upon the occasion of a second violation, or subsequent
47 violations of this article, a civil penalty of no greater than fifty
48 thousand dollars may be assessed. Any proceeding conducted pursuant to
49 this subdivision shall be subject to the state administrative procedure
50 act. The hearing officer shall consider whether a retailer knowingly
51 offered such items for sale as a defense to violations of this section.
52 4. Violations. Pursuant to section sixty-three of the executive law,
53 the attorney general shall enforce violations of this article.
54 § 495-g. Regulations. The departments of state and health may adopt
55 such rules and regulations, as well as informal guidance consistent with
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1 other states, deemed necessary to implement the provisions of this arti-
2 cle.
3 § 2. Severability. If any clause, sentence, paragraph, section or part
4 of this act shall be adjudged by any court of competent jurisdiction to
5 be invalid and after exhaustion of all further judicial review, the
6 judgment shall not affect, impair or invalidate the remainder thereof,
7 but shall be confined in its operation to the clause, sentence, para-
8 graph, section or part of this act directly involved in the controversy
9 in which the judgment shall have been rendered.
10 § 3. This act shall take effect April 1, 2017.
