A06328 Summary:

SAME ASNo same as
COSPNSRGottfried, Englebright, Weisenberg, Ortiz, Dinowitz, Colton, Cymbrowitz, O'Donnell, Peoples-Stokes, Jaffee, Kavanagh, Schimel, Titone, Zebrowski, Abinanti, Hooper, Millman, Paulin, Kellner, Titus, Scarborough, Rosenthal, Roberts, Lupardo, Lifton, Otis, Rozic, Mosley, Weprin, Kearns, Simotas, Clark, Pichardo, Fahy, Skoufis, Steck, Benedetto
MLTSPNSRArroyo, Bronson, Cahill, Cook, Crespo, Cusick, Galef, Glick, Hevesi, Jacobs, Magee, Markey, Miller, Perry, Rivera, Rodriguez, Sepulveda, Solages, Thiele, Weinstein
Add Art 37 Title 9 SS37-0901 - 37-0915, En Con L
Relates to regulation of toxic chemicals in children's products; establishes the interstate chemical clearinghouse.
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A06328 Actions:

03/25/2013referred to environmental conservation
04/16/2013reported referred to codes
04/16/2013reported referred to ways and means
04/18/2013advanced to third reading cal.164
04/23/2013passed assembly
04/23/2013delivered to senate
01/08/2014DIED IN SENATE
01/08/2014ordered to third reading cal.292
03/18/2014passed assembly
03/18/2014delivered to senate
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A06328 Text:

                STATE OF NEW YORK
                               2013-2014 Regular Sessions
                   IN ASSEMBLY
                                     March 25, 2013
        Introduced  by  M.  of  A.  SWEENEY, GOTTFRIED, ENGLEBRIGHT, WEISENBERG,
          ROBERTS,  BOYLAND  --  Multi-Sponsored  by -- M. of A.   CAHILL, COOK,

          ER,  PERRY, THIELE -- read once and referred to the Committee on Envi-
          ronmental 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
     5  Section 37-0901. Definitions.
     6          37-0903. Priority chemicals and chemicals of high concern.
     7          37-0905. Disclosure of information on priority chemicals.

     8          37-0907. Sales prohibition.
     9          37-0909. Applicability.
    10          37-0911. Enforcement and implementation.
    11          37-0913. Interstate chemical clearinghouse.
    12          37-0915. Regulations.
    13  § 37-0901. Definitions.
    14    As  used  in  this  title, unless the context otherwise indicates, the
    15  following terms have the following meanings.
    16    1. "Children's apparel" means any item of clothing  that  consists  of
    17  fabric  or  related  material intended or promoted for use in children's
    18  clothing. Children's apparel does not mean protective equipment designed
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.


        A. 6328                             2
     1  to prevent injury, including,  but  not  limited  to,  bicycle  helmets,
     2  athletic supporters, knee pads or elbow pads.
     3    2.  "Chemical" means a substance with a distinct molecular composition
     4  or a group of structurally related substances and includes the breakdown
     5  products of the substance or substances that form through decomposition,
     6  degradation or metabolism.
     7    3. "Chemicals of high concern" means: (a) chemicals  included  in  the
     8  list  of  "chemicals  of  high  concern"  published in two thousand nine
     9  pursuant to chapter sixteen-D of title 38 of the Maine revised  statutes

    10  annotated;  or  (b)  a  chemical  adopted  by the department pursuant to
    11  section 37-0903 of this title.
    12    4. "Children" means a person or persons aged twelve and under.
    13    5. "Children's product" means a product primarily intended  for,  made
    14  for  or  marketed  for use by children, such as baby products, toys, car
    15  seats, personal care products, a product designed  or  intended  by  the
    16  manufacturer  to  help  a  child with sucking or teething, to facilitate
    17  sleep, relaxation, or the feeding of a child, novelty products, bedding,
    18  furniture, furnishings, and children's apparel.    "Children's  product"
    19  does  not  include  (a)  batteries;  or (b) consumer electronic products
    20  including but not limited to personal computers, audio and video  equip-

    21  ment,  calculators, wireless phones, game consoles, and handheld devices
    22  incorporating a video screen, used to access  interactive  software  and
    23  their  associated  peripherals; or (c) a food or beverage or an additive
    24  to a food or beverage regulated by  the  United  States  Food  and  Drug
    25  Administration;  or (d) a tobacco product or paper or forest product; or
    26  (e) a pesticide regulated by the United States Environmental  Protection
    27  Agency.    Children's  product also does not include a drug, biologic or
    28  medical device regulated by the United States  Food  and  Drug  Adminis-
    29  tration.
    30    6.  "Distributor"  means  a  person  who  sells children's products to
    31  retail establishments on a wholesale basis.

    32    7. "Intentionally added" means the deliberate use in  the  formulation
    33  of  a  product or subpart where its continued presence is desired in the
    34  final product or subpart to provide a specific  characteristic,  appear-
    35  ance or quality.
    36    8.  "Manufacturer" means any person who currently manufactures a chil-
    37  dren's product or whose brand name is affixed to the children's product.
    38  In the case of a children's product that was imported  into  the  United
    39  States, "manufacturer" includes the importer or first domestic distribu-
    40  tor  of  the children's product if the person who currently manufactures
    41  or assembles the children's product or whose brand name  is  affixed  to
    42  the children's product does not have a presence in the United States.

    43    9.  "Novelty  product" means a product intended mainly for personal or
    44  household enjoyment or adornment. Novelty products include, but are  not
    45  limited to, items intended for use as practical jokes, figurines, adorn-
    46  ments, toys, games, cards, ornaments, yard statues and figures, candles,
    47  jewelry, holiday decorations, or similar products.
    48    10. "Priority chemical" means (a) the following chemicals:
    49    CASRN13674-87-8   Tris (1, 3 dichloro-2-propyl) phosphate
    50    CASRN71-43-2      Benzene
    51    CASRN7439-92-1    lead and compounds (inorganic)
    52    CASRN7439-97-6    Mercury and mercury compounds, including methyl
    53                      mercury (CASRN 22967-92-6)

    54    CASRN7439-98-7    Molybdenum and molybdenum compounds
    55    CASRN7440-36-0    Antimony and antimony compounds
    56    CASRN7440-38-2    Arsenic and arsenic compounds including arsenic

        A. 6328                             3
     1                      trioxide (CASRN 1327-53-3)
     2                      and dimethyl arsenic (CASRN 75-60-5)
     3    CASRN7440-43-9    Cadmium
     4    CASRN7440-48-4    Cobalt and cobalt compounds and
     5    (b)  a  chemical adopted by the department pursuant to section 37-0903
     6  of this title.
     7    11. "Toy" means a product designed or intended by the manufacturer  to
     8  be used by a child at play.

     9  § 37-0903. Priority chemicals and chemicals of high concern.
    10    1. Publishing of list. Within one hundred eighty days of the effective
    11  date  of  this title, the department shall post lists of priority chemi-
    12  cals and chemicals of high concern on the department's website.
    13    2. Periodic review. (a)  The  department,  in  consultation  with  the
    14  department of health, may periodically review the list of priority chem-
    15  icals and, through regulation, identify additional priority chemicals or
    16  chemicals  of high concern or remove a chemical from such lists based on
    17  evidence that the chemical is not present in  a  children's  product  or
    18  otherwise  should  not  be  subject  to  the requirements of this title.

    19  Nothing herein shall prevent the department  from  acting  to  add  such
    20  chemicals outside of the periodic review process.
    21    (b) The department, in consultation with the department of health, may
    22  identify  a  chemical  as  a  priority chemical if, upon such review, it
    23  determines that a chemical of high concern meets any  of  the  following
    24  criteria:
    25    (i)  The  chemical or its metabolites have been found through biomoni-
    26  toring to be present in humans, including human  blood,  umbilical  cord
    27  blood, breast milk, urine or other bodily tissues or fluids;
    28    (ii)  The  chemical has been found through sampling and analysis to be
    29  present in household dust, indoor air, drinking water  or  elsewhere  in
    30  the home environment;

    31    (iii)  The chemical has been found through monitoring to be present in
    32  fish, wildlife or the natural environment;
    33    (iv) The chemical is present in a children's product used  or  present
    34  in the home, school, or childcare center; or
    35    (v) The sale or use of the chemical or a product containing the chemi-
    36  cal  has been banned in another state or states within the United States
    37  because of the health effects of such chemical.
    38    (c) If a chemical is removed from the listing  of  chemicals  of  high
    39  concern, it shall also be undesignated as a priority chemical.
    40    (d)  The  department,  in  consultation  with the department of health
    41  shall identify a chemical as a chemical of high concern if, upon review,

    42  it determines that the chemical has been identified by a state,  federal
    43  or international governmental entity on the basis of credible scientific
    44  evidence as:
    45    (i)  A  carcinogen,  a  reproductive  or  developmental toxicant or an
    46  endocrine disruptor;
    47    (ii) Persistent, bioaccumulative and toxic; or
    48    (iii) Very persistent and very bioaccumulative.
    49    (e) In making such determination, the department may consider  but  is
    50  not limited to considering:
    51    (i)  chemicals identified as "Group 1 carcinogens" or "Group 2A carci-
    52  nogens" by the  World  Health  Organization,  International  Agency  for
    53  Research on Cancer;
    54    (ii)  chemicals  identified  as  "known  to be a human carcinogen" and

    55  "reasonably anticipated to be a human carcinogen" by  the  Secretary  of
    56  the  United  States  Department of Health and Human Services pursuant to

        A. 6328                             4
     1  the Public Health Service Act, 42 United States Code, Section 241(b)(4),
     2  as amended;
     3    (iii) chemicals identified as "Group A carcinogens" or "Group B carci-
     4  nogens" by the United States Environmental Protection Agency;
     5    (iv)  chemicals  identified as reproductive or developmental toxicants
     6  by:
     7    (A) the  United  States  Department  of  Health  and  Human  Services,
     8  National Toxicology Program, Center for the Evaluation of Risks to Human
     9  Reproduction; and

    10    (B) the California Environmental Protection Agency, Office of Environ-
    11  mental  Health  Hazard  Assessment pursuant to the California Health and
    12  Safety Code, Safe Drinking Water and  Toxic  Enforcement  Act  of  1986,
    13  Chapter 6.6, Section 25249.8;
    14    (v) chemicals identified as a chemical of high concern for children or
    15  a high priority chemical of high concern for children or as a persistent
    16  bioaccumulative  toxic chemical by the state of Washington department of
    17  ecology, pursuant to chapter 70.240 of the revised code of Washington or
    18  chapter 173-333 of the state of Washington administrative code;
    19    (vi) chemicals of high concern as such chemicals are identified by the
    20  state of Maine's department of environmental conservation and  appearing

    21  on such department's list of chemicals of high concern;
    22    (vii)  chemicals  identified  as  known or likely endocrine disruptors
    23  through screening or testing  conducted  in  accordance  with  protocols
    24  developed  by the United States Environmental Protection Agency pursuant
    25  to the United States Food, Drug and Cosmetic Act, 21 United States Code,
    26  346a(p), as amended by the federal Food Quality Protection  Act  (Public
    27  Law  104-170)  or  the federal Safe Drinking Water Act, 42 United States
    28  Code, Section 300j-17;
    29    (viii) chemicals listed on the basis of  endocrine-disrupting  proper-
    30  ties  in  Annex  XIV, List of Substances Subject to Authorisation, Regu-
    31  lation (EC) No 1907/2006  of  the  European  Parliament  concerning  the

    32  Registration, Evaluation, Authorisation and Restriction of Chemicals;
    33    (ix)  persistent,  bioaccumulative  and  toxic chemicals identified by
    34  other states or the United States Environmental Protection Agency; and
    35    (x) a very persistent, very bioaccumulative chemical listed  in  Annex
    36  XIV,  List  of  Substances  Subject to Authorisation, Regulation (EC) No
    37  1907/2006 of the European Parliament concerning the Registration, Evalu-
    38  ation, Authorisation and Restriction of Chemicals.
    39  § 37-0905. Disclosure of information on priority chemicals.
    40    1. Reporting of chemical use. No later  than  twelve  months  after  a
    41  priority  chemical  is  listed on the list published pursuant to section

    42  37-0903 of this title, every manufacturer who offers a children's  prod-
    43  uct  for  sale  or  distribution  in  this state that contains an inten-
    44  tionally added priority chemical shall report such chemical use  to  the
    45  department.  The  department  may  collaborate  with other states and an
    46  interstate chemicals clearinghouse in developing such form.
    47    (a) This report must at a minimum identify the children's product, the
    48  priority chemical or chemicals contained in the children's product,  and
    49  the  intended  purpose  of the chemicals in the children's product.  The
    50  department may also require reporting of the following information:
    51    (i) the potential for harm to human health and  the  environment  from
    52  specific uses of the priority chemical;

    53    (ii)  the amount of such chemical in each unit of the children's prod-
    54  uct, expressed in a range;
    55    (iii) information on the likelihood that the chemical will be released
    56  from the children's product to the environment during the product's life

        A. 6328                             5
     1  cycle and the extent to which users of the  product  are  likely  to  be
     2  exposed to the chemical; or
     3    (iv) information on the extent to which the chemical is present in the
     4  environment or human body.
     5    (b)  The  department  is  authorized to direct submission of a copy of
     6  such report to the interstate chemicals clearinghouse.
     7    2. Waiver of  reporting.  Upon  application  by  a  manufacturer,  the

     8  commissioner  may  waive all or part of the reporting requirements under
     9  subdivision one of this section for one or  more  specified  uses  of  a
    10  priority  chemical.  In  making such determination, the commissioner may
    11  consider: (a) if substantially equivalent information is already public-
    12  ly available or that the information is not needed for the  purposes  of
    13  this  chapter,  (b)  similar  waivers  granted  by other states, and (c)
    14  whether the specified use or uses are minor in volume.
    15    3. Notice  to  retailers.  A  manufacturer  of  a  children's  product
    16  containing a priority chemical shall notify persons that offer the chil-
    17  dren's  product  for  sale  or  distribution  in  the  state,  in a form

    18  prescribed by the department, of the presence of such priority chemical,
    19  and provide such persons with information regarding the toxicity of such
    20  chemical.
    21    4. Fees. The manufacturer shall pay a fee upon submission of a  report
    22  of  chemical use pursuant to subdivision one of this section or a waiver
    23  request pursuant to subdivision two of this section to cover the depart-
    24  ment's reasonable costs in the amount of six hundred dollars per  chemi-
    25  cal.
    26  § 37-0907. Sales prohibition.
    27    Effective  January  1, 2018, no person shall distribute, sell or offer
    28  for sale in this state a children's product containing a priority chemi-
    29  cal that has been listed for at least one year.   This  provision  shall

    30  not  apply  to  a  children's  product solely based on its containing an
    31  enclosed battery or enclosed electronic components. The commissioner may
    32  exempt a children's product from this prohibition if, in the commission-
    33  er's judgment, the lack of availability of the children's product  could
    34  pose an unreasonable risk to public health, safety or welfare.
    35  § 37-0909. Applicability.
    36    1.  New  children's products. The provisions of this title shall apply
    37  to chemicals in children's products sold or distributed as new and  does
    38  not  apply  to used children's products that are sold or distributed for
    39  free at secondhand stores, yard sales, on the  internet  or  donated  to
    40  charities.

    41    2. Industry. The requirements of this title shall not apply to priori-
    42  ty  chemicals used in or for industry or manufacturing, including chemi-
    43  cals processed or otherwise used in or for industrial  or  manufacturing
    44  processes and not included in the final product.
    45    3.  Transportation.  The requirements of this title shall not apply to
    46  motor vehicles or their component parts, watercraft or  their  component
    47  parts,  all  terrain  vehicles  or their component parts, or off-highway
    48  motorcycles or their component parts, except that the  use  of  priority
    49  chemicals in detachable car seats is not exempt.
    50    4.  Combustion.  The  requirements  of  this  title shall not apply to
    51  priority chemicals generated solely as combustion  by-products  or  that

    52  are present in combustible fuels.
    53    5. Retailers. A retailer is exempt from the requirements of this title
    54  unless  that  retailer knowingly sells a children's product containing a
    55  priority chemical after the effective date of its prohibition for  which

        A. 6328                             6
     1  that retailer has received notification pursuant to subdivision three of
     2  section 37-0905 of this title.
     3  § 37-0911. Enforcement and implementation.
     4    1. Failure to provide notice. A children's product containing a prior-
     5  ity  chemical  may not be sold, offered for sale or distributed for sale
     6  in this state unless the  manufacturer  has  provided  the  notification

     7  required  under  section  37-0905  of this title by the date required in
     8  such section. The commissioner may exempt a children's product from this
     9  prohibition if, in the commissioner's judgment, the lack of availability
    10  of the children's product could pose  an  unreasonable  risk  to  public
    11  health, safety or welfare.
    12    2.  Statement  of  compliance.  If there are grounds to suspect that a
    13  children's product is being offered for sale in violation of this title,
    14  the department may request the manufacturer of the children's product to
    15  provide a statement of compliance on a form provided by the  department,
    16  within  ten days of receipt of a request from the department. The state-
    17  ment of compliance shall:

    18    (a) attest that the children's product does not contain  the  priority
    19  chemical; or
    20    (b)  attest and provide the department with documentation that notifi-
    21  cation of the presence of the priority chemical has been provided to the
    22  department or provide notice as required  by  section  37-0905  of  this
    23  title; or
    24    (c)  attest  that  the  manufacturer has notified persons who sell the
    25  product in this state that the sale of the children's product is prohib-
    26  ited.
    27  § 37-0913. Interstate chemical clearinghouse.
    28    1. The department is authorized to participate in an interstate chemi-
    29  cals clearinghouse to assist in carrying out the  requirements  of  this

    30  title.  The department shall work in collaboration with other states and
    31  an interstate chemicals clearinghouse for the purpose of, including  but
    32  not limited to:
    33    (a)  collection  and  dissemination  of information regarding chemical
    34  hazards;
    35    (b) collection and dissemination of information regarding the  use  of
    36  chemicals in children's products;
    37    (c) assessment of alternatives to chemicals and their use in products;
    38  and
    39    (d) public education.
    40    2.  Such clearinghouse is authorized to maintain information on behalf
    41  of the state of New York, including, but  not  limited  to,  information
    42  regarding  chemicals contained in children's products disclosed pursuant

    43  to section 37-0905 of this title.
    44  § 37-0915. Regulations.
    45    The department may adopt any rules and regulations it deems  necessary
    46  to implement the provisions of this title.
    47    § 2. This act shall take effect on the one hundred twentieth day after
    48  it  shall  have  become  a law. Effective immediately, the department of
    49  environmental conservation is authorized to implement  rules  and  regu-
    50  lations for the timely implementation of this act on its effective date.
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