STATE OF NEW YORK
________________________________________________________________________
501--B
Cal. No. 457
2019-2020 Regular Sessions
IN SENATE(Prefiled)
January 9, 2019
___________
Introduced by Sens. KAMINSKY, ADDABBO, BOYLE, GAUGHRAN, KRUEGER, METZ-
GER, SERRANO -- read twice and ordered printed, and when printed to be
committed to the Committee on Environmental Conservation -- committee
discharged, bill amended, ordered reprinted as amended and recommitted
to said committee -- reported favorably from said committee, ordered
to first report, amended on first report, ordered to a second report
and ordered reprinted, retaining its place in the order of second
report
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. Consumer notice.
7 37-0905. Reporting on the use of chemicals.
8 37-0907. Sales prohibition.
9 37-0909. Applicability.
10 37-0911. Enforcement and implementation.
11 37-0913. Regulations.
12 § 37-0901. Definitions.
13 As used in this title, unless the context otherwise indicates, the
14 following terms have the following meanings.
15 1. "Children's apparel" means any item of clothing that consists of
16 fabric or related material intended or promoted for use in children's
17 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.
LBD05551-08-9
S. 501--B 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 concern" means:
8 (a) 1,1,2,2-Tetrachloroethane (CAS 79-34-5)
9 (a-1) 1,2-Dibromoethane (CAS 106-93-4)
10 (a-2) 1,1,3,3-Tetramethyl-4-butylphenol; 4-tert-octylphenol (CAS 140-
11 66-9)
12 (a-3) (1,1,3,3 - Tetramethylbutyl) Phenol; Octylphenol (CAS
13 27193-28-8)
14 (a-4) 1,3-Butadiene (CAS 106-99-0)
15 (b) 1,4-Dioxane (CAS 123-91-1)
16 (c) 2,2',3,3',4,4',5,5',6,6'-Decabromodiphenyl ether; BDE-209 (CAS
17 1163-19-5)
18 (d) 2,4-Diaminotoluene (CAS 95-80-7)
19 (d-1) 2,4-Dihydroxybenzophenone; resbenzophenone (CAS 131-56-6)
20 (e) 2-Aminotoluene (CAS 95-53-4)
21 (f) 2-Ethylhexanoic acid (CAS 149-57-5)
22 (f-1) 2-Ethyl-hexyl-2, 3, 4, 5 tetrabromobenzoate (TBB) (CAS
23 183658-27-7)
24 (g) 2-Ethyl-hexyl-4-methoxycinnamate (CAS 5466-77-3)
25 (g-1) 2-Napthylamine (CAS 91-59-8)
26 (h) 2-Methoxyethanol (CAS 109-86-4)
27 (i) 3,3'-Dimethylbenzidine and dyes metabolized to
28 3,3'-Dimethylbenzidine (CAS 119-93-7)
29 (i-1) 4-Hydroxybiphenol (CAS 92-69-3)
30 (j) 4-Nonylphenol; 4-NP and its isomer mixtures including CAS
31 84852-15-3 and CAS 25154-52-3 (CAS 104-40-5)
32 (j-1) 4,4-methylenebis(2-chloroaniline) (CAS 101-14-4)
33 (k) 4-Tert-octylphenol; 1,1,3,3-Tetramethyl-4-butylphenol (CAS
34 140-66-9)
35 (l) Acetaldehyde (CAS 75-07-0)
36 (m) Acrylonitrile (CAS 107-13-1)
37 (n) Aniline (CAS 62-53-3)
38 (o) Antimony & antimony compounds (CAS 7440-36-0)
39 (p) Arsenic & arsenic compounds (CAS 7440-38-2) including arsenic
40 trioxide & dimethyl arsenic (CAS 75-60-5)
41 (q) Asbestos (CAS 1332-21-4)
42 (r) Benzene (CAS 71-43-2)
43 (s) Benzene, pentachloro (CAS 608-93-5)
44 (s-1) Benzidine and its salts (CAS 92-87-5)
45 (t) Benzophenone-2 (BP-2); 2,2',4,4'-tetrahydroxybenzophenone (CAS
46 131-55-5)
47 (t-1) Bis(2-ethylhexyl) tetrabromophtalate (TBPH) (CAS 26040-51-7)
48 (t-2) Bis(chloromethyl) propane-1-3-diyltetrakis-(2-chloroethyl)
49 bis(phosphate)(V6)(CAS 38051-10-4)
50 (u) Bisphenol A (CAS 80-05-7)
51 (u-1) Bisphenol F (CAS 620-92-8)
52 (u-2) Bisphenol S (CAS 80-09-1)
53 (v) Butyl benzyl phthalate (BBP) (CAS 85-68-7)
54 (w) Butyl paraben (CAS 94-28-6)
55 (x) Butylated Hydroxyanisole; (BHA) (CAS 25013-16-5)
56 (y) C.I. solvent yellow 14 (CAS 842-07-9)
S. 501--B 4
1 (kkk) Styrene (CAS 100-42-5)
2 (lll) Tetrabromobisphenol A (CAS 79-94-7)
3 (lll-1) Tetrachloroethene (CAS 127-18-4)
4 (mmm) Toluene (CAS 108-88-3)
5 (mmm-1) Tricresyl phosphate (TCP) (CAS 1330-78-5)
6 (mmm-2) Tri-n-butyl phosphate (TNBP) (CAS 126-73-8)
7 (mmm-3) Triphenyl phosphate (TPP) (CAS 115-86-6)
8 (nnn) Tris(1,3-dichloro-2-propyl) phosphate (CAS 13674-87-3)
9 (nnn-1) Tris(1-chloro-2-propyl) phosphate (TCPP) (CAS 13674-84-5)
10 (ooo) Tris(2-chloroethyl) phosphate (CAS 115-96-8)
11 (ooo-1) Tris(2,3-dibromopropylphosphate) (CAS 126-72-7)
12 (ppp) Vinyl chloride (CAS 75-01-4)
13 4. "Children" means a person or persons aged twelve and under.
14 5. "Children's product" means a product primarily intended for, made
15 for or marketed for use by children, such as baby products, toys, car
16 seats, school supplies, personal care products, a product designed or
17 intended by the manufacturer to help a child with sucking or teething,
18 to facilitate sleep, relaxation, or the feeding of a child, and chil-
19 dren's novelty products, children's jewelry, children's bedding, furni-
20 ture, furnishings, and apparel. "Children's product" does not include
21 (a) batteries; or (b) consumer electronic products including but not
22 limited to personal computers, audio and video equipment, calculators,
23 wireless phones, game consoles, and handheld devices incorporating a
24 video screen, used to access interactive software and their associated
25 peripherals; or (c) a food or beverage or an additive to a food or
26 beverage regulated by the United States Food and Drug Administration.
27 "Children's product" also does not include a drug, biologic or medical
28 device regulated by the United States Food and Drug Administration.
29 6. "Distributor" means a person who sells children's products to
30 retail establishments on a wholesale basis.
31 7. "Manufacturer" means any person who currently manufactures a chil-
32 dren's product or whose brand name is affixed to the children's product.
33 In the case of a children's product that was imported into the United
34 States, "manufacturer" includes the importer or first domestic distribu-
35 tor of the children's product if the person who currently manufactures
36 or assembles the children's product or whose brand name is affixed to
37 the children's product does not have a presence in the United States.
38 8. "Practical quantification limit" means the lowest level that can be
39 reliably achieved within specified limits of precision and accuracy
40 during routine laboratory operating conditions.
41 9. "Dangerous chemical" means (a) the following chemicals:
42 CASRN13674-87-8Tris (1, 3 dichloro-2-propyl) phosphate
43 CASRN71-43-2Benzene
44 CASRN7439-92-1lead and compounds (inorganic)
45 CASRN7439-97-6Mercury and mercury compounds, including methyl
46 mercury (CASRN 22967-92-6)
47 CASRN50-00-0Formaldehyde
48 CASRN1332-21-4Asbestos
49 CASRN7440-38-2Arsenic and arsenic compounds including arsenic
50 trioxide (CASRN 1327-53-3)
51 and dimethyl arsenic (CASRN 75-60-5)
52 CASRN7440-43-9Cadmium
53 CASRN AssortedOrganohalogen flame retardants
54 (b) a chemical adopted by the department pursuant to section 37-0903
55 of this title.
S. 501--B 5
1 10. "Toy" means a product designed or intended by the manufacturer to
2 be used by children at play.
3 § 37-0903. Consumer notice.
4 1. Publishing of lists. Within one hundred eighty days of the effec-
5 tive date of this title, the department shall post lists of dangerous
6 chemicals and chemicals of concern on the department's website.
7 2. Periodic review. (a) The department, in consultation with the
8 department of health, shall periodically review the list of dangerous
9 chemicals and, may through regulation, add or remove dangerous chemicals
10 or chemicals of concern from such lists.
11 (b) The department, in consultation with the department of health, may
12 identify a chemical as a dangerous chemical if, upon such review, it is
13 present in a children's product and meets any of the following criteria:
14 (i) The chemical or its metabolites have been found through biomoni-
15 toring to be present in humans;
16 (ii) The chemical has been found through sampling and analysis to be
17 present in household dust, indoor air, drinking water or elsewhere in
18 the home environment;
19 (iii) The chemical has been found through monitoring to be present in
20 fish, wildlife or the natural environment; or
21 (iv) The sale or use of the chemical or a children's product contain-
22 ing the chemical has been banned in another state or states within the
23 United States because of the health effects of such chemical.
24 (c) The department, in consultation with the department of health, may
25 remove a chemical from the list of dangerous chemicals if, upon review,
26 it determines on the basis of credible scientific evidence that such
27 chemical no longer meets the criteria for listing under paragraph (b) of
28 this subdivision.
29 (d) The department, in consultation with the department of health
30 shall identify a chemical as a chemical of concern if, upon review, it
31 determines that the chemical has been identified by a state, federal or
32 international governmental entity on the basis of credible scientific
33 evidence as:
34 (i) A carcinogen, reproductive or developmental toxicant, neurotoxi-
35 cant, asthmagen, or endocrine disruptor;
36 (ii) Persistent, bioaccumulative and toxic; or
37 (iii) Very persistent and very bioaccumulative.
38 § 37-0905. Reporting on the use of chemicals.
39 1. Reporting of chemical use. No later than twelve months after a
40 dangerous chemical appears on the list published pursuant to section
41 37-0903 of this title, every manufacturer who offers a children's prod-
42 uct for sale or distribution in this state that contains a dangerous
43 chemical or chemical of concern shall report such chemical use at prac-
44 tical quantification limits to the department.
45 (a) This report must at a minimum identify the children's product, the
46 dangerous chemical or chemicals of concern contained in the children's
47 product and the intended purpose of such chemicals. The department may
48 also require reporting of the following information:
49 (i) the amount of such chemical in the children's product; or
50 (ii) information on the likelihood that the chemical will be released
51 from the children's product to the environment during the product's life
52 cycle and the extent to which users of the product are likely to be
53 exposed to the chemical.
54 (b) The department is authorized to direct submission of such report
55 to the interstate chemicals clearinghouse.
S. 501--B 6
1 2. Waiver of reporting. Upon application by a manufacturer, the
2 commissioner may waive all or part of the reporting requirements under
3 subdivision one of this section for one or more specified uses of a
4 dangerous chemical. In making such determination, the commissioner may
5 consider: (a) if substantially equivalent information is already public-
6 ly available or that the information is not needed for the purposes of
7 this chapter, (b) similar waivers granted by other states, and (c)
8 whether the specified use or uses are minor in volume.
9 3. Notice. (a) A manufacturer of a children's product containing a
10 dangerous chemical shall notify persons that offer the children's prod-
11 uct for sale or distribution in the state, in a form prescribed by the
12 department, of the presence of such dangerous chemical, and provide such
13 persons with information regarding the toxicity of such chemical.
14 (b) The department shall notify consumers about children's products
15 containing chemicals of concern and dangerous chemicals. The notifica-
16 tion shall be published on the department's website.
17 4. Fees. The manufacturer shall pay a fee upon submission of a report
18 of chemical use pursuant to subdivision one of this section or a waiver
19 request pursuant to subdivision two of this section to cover the depart-
20 ment's reasonable costs in the administration and enforcement of this
21 title. Exclusive of fines and penalties, the state shall only recover
22 its actual cost of administration and enforcement.
23 § 37-0907. Sales prohibition.
24 1. Effective January first, two thousand twenty-three, no person shall
25 distribute, sell or offer for sale in this state a children's product
26 containing tris (1, 3 dichloro-2-propyl) phosphate, benzene, formaldeh-
27 yde (other than in textiles), asbestos, and organohalogen flame retar-
28 dents. This provision shall not apply: (a) to a children's product
29 solely based on its containing an enclosed battery or enclosed electron-
30 ic components and (b) where state regulation of children's products is
31 preempted by federal law. The commissioner may exempt a children's
32 product from this prohibition if, in the commissioner's judgment, the
33 lack of availability of the children's product could pose an unreason-
34 able risk to public health, safety or welfare.
35 2. Effective three years after being added to the dangerous chemicals
36 list, no person shall distribute, sell, or offer for sale in this state
37 a children's product that contains a chemical added to the dangerous
38 chemicals list pursuant to section 37-0903 of this title. This provision
39 shall not apply: (a) to a children's product solely based on its
40 containing an enclosed battery or enclosed electronic components and (b)
41 where state regulation of children's products is preempted by federal
42 law. The commissioner may exempt a children's product from this prohi-
43 bition if, in the commissioner's judgment, the lack of availability of
44 the children's product could pose an unreasonable risk to public health,
45 safety or welfare.
46 § 37-0909. Applicability.
47 1. New children's products. The provisions of this title shall apply
48 to chemicals in children's products sold or distributed as new and does
49 not apply to used children's products that are sold or distributed for
50 free at secondhand stores, yard sales, on the internet or donated to
51 charities.
52 2. Industry. The requirements of this title shall not apply to priori-
53 ty chemicals used in or for industry or manufacturing, including chemi-
54 cals processed or otherwise used in or for industrial or manufacturing
55 processes and not included in the final product.
S. 501--B 7
1 3. Transportation. The requirements of this title shall not apply to
2 motor vehicles or their component parts, watercraft or their component
3 parts, all terrain vehicles or their component parts, or off-highway
4 motorcycles or their component parts, except that the use of dangerous
5 chemicals in detachable car seats is not exempt.
6 4. Combustion. The requirements of this title shall not apply to
7 dangerous chemicals generated solely as combustion by-products or that
8 are present in combustible fuels.
9 5. Exceptions. The requirements of this title shall not apply to chil-
10 dren's product makers that employ five persons or fewer, and are inde-
11 pendently owned and operated.
12 6. Retailers. A retailer is exempt from the requirements of this title
13 unless that retailer knowingly sells a children's product containing a
14 dangerous chemical after the effective date of its prohibition for which
15 that retailer has received notification pursuant to subdivision three of
16 section 37-0905 of this title.
17 § 37-0911. Enforcement and implementation.
18 1. Failure to provide notice. A children's product containing a
19 dangerous chemical may not be sold, offered for sale or distributed for
20 sale in this state unless the manufacturer has provided the notification
21 required under section 37-0905 of this title by the date required in
22 such section. The commissioner may exempt a children's product from this
23 prohibition if, in the commissioner's judgment, the lack of availability
24 of the children's product could pose an unreasonable risk to public
25 health, safety or welfare.
26 2. Statement of compliance. If there are grounds to suspect that a
27 children's product is being offered for sale in violation of this title,
28 the department may request the manufacturer of the children's product to
29 provide a statement of compliance on a form provided by the department,
30 within ten days of receipt of a request from the department. The state-
31 ment of compliance shall:
32 (a) attest that the children's product does not contain the dangerous
33 chemical; or
34 (b) attest and provide the department with documentation that notifi-
35 cation of the presence of the dangerous chemical has been provided to
36 the department or provide notice as required by section 37-0905 of this
37 title; or
38 (c) attest that the manufacturer has notified persons who sell the
39 product in this state that the sale of the children's product is prohib-
40 ited.
41 § 37-0913. Regulations.
42 The department may adopt any rules and regulations it deems necessary
43 to implement the provisions of this title.
44 § 2. Severability. If any clause, sentence, paragraph, section or part
45 of this act shall be adjudged by any court of competent jurisdiction to
46 be invalid and after exhaustion of all further judicial review, the
47 judgment shall not affect, impair or invalidate the remainder thereof,
48 but shall be confined in its operation to the clause, sentence, para-
49 graph, section or part of this act directly involved in the controversy
50 in which the judgment shall have been rendered.
51 § 3. This act shall take effect March 1, 2020. Effective immediately,
52 the department of environmental conservation is authorized to implement
53 rules and regulations for the timely implementation of this act on its
54 effective date.
