S04102 Summary:

Add Art 28-F SS495-a - 495-i, Gen Bus L
Protects consumers from toxic chemicals in children's products; defines terms; establishes a list of priority chemicals and chemicals of high concern to children, disclosure of information; makes related changes.
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S04102 Actions:

06/15/2015PRINT NUMBER 4102A
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S04102 Text:

                STATE OF NEW YORK
                               2015-2016 Regular Sessions
                    IN SENATE
                                    February 27, 2015
        Introduced  by  Sens.  BOYLE,  KLEIN, ADDABBO, AMEDORE, AVELLA, BRESLIN,
          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  commit-
        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. Priority chemicals and chemicals of high concern to chil-
     8                   dren.
     9          495-d. Disclosure of information.
    10          495-e. Sales prohibition.
    11          495-f. Applicability.
    12          495-g. Enforcement and implementation.
    13          495-h. Regulations.
    14          495-i. Preemption.
    15    §  495-a.  Legislative  declaration.  It  is  the policy of the state,
    16  consistent with its duty to protect the health, safety, and  welfare  of
    17  its  citizens,  to  reduce  exposure among children and other vulnerable
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.

        S. 4102--A                          2
     1  populations to hazards posed by chemicals. By enactment of this article,
     2  the legislature confers upon the departments of  state  and  health  the
     3  regulatory power to collect information on chemical use and prohibit the
     4  sale of children's products containing certain chemicals.
     5    §  495-b. Definitions. For the purposes of this article, the following
     6  terms shall have the following meanings:
     7    1. "Children's apparel"  means  any  item  of  clothing,  footwear  or
     8  apparel,  including,  but  not  limited  to, accessories that consist of
     9  fabric or related material intended or promoted for  use  in  children's
    10  clothing. Children's apparel does not mean protective equipment designed
    11  to  prevent  injury,  including,  but  not  limited to, bicycle helmets,
    12  athletic supporters, knee pads or elbow pads.
    13    2. "Chemical" means any organic or inorganic substance of a particular
    14  molecular identity, including: (a) any combination  of  such  substances
    15  occurring  in  whole  or  in  part as a result of a chemical reaction or
    16  occurring in nature; and (b) any element or uncombined radical.
    17    3. "Chemicals of high concern to children" means:  (a)  the  following
    18  chemicals:
    19    1,1,2,2-Tetrachloroethane (79-34-5)
    20    1,4-Dioxane (123-91-1)
    21    2,2',3,3',4,4',5,5',6,6'-Decabromodiphenyl ether; BDE-209 (1163-19-5)
    22    2,4-Diaminotoluene (95-80-7)
    23    2-Aminotoluene (95-53-4)
    24    2-Ethylhexanoic Acid (149-57-5)
    25    2-Ethyl-hexyl-4-methoxycinnamate (5466-77-3)
    26    2-Methoxyethanol (109-86-4)
    27    3,3'-Dimethylbenzidine  and Dyes Metabolized to 3,3'-Dimethylbenzidine
    28  (119-93-7)
    29    4-Nonylphenol; 4-NP and its isomer mixtures including  CAS  84852-15-3
    30  and CAS 25154-52-3 (104-40-5)
    31    4-tert-Octylphenol; 1,1,3,3-Tetramethyl-4-butylphenol (140-66-9)
    32    Acetaldehyde (75-07-0)
    33    Acrylonitrile (107-13-1)
    34    Aniline (62-53-3)
    35    Antimony (7440-36-0) & Antimony compounds
    36    Arsenic  (7440-38-2)  &  Arsenic  compounds including arsenic trioxide
    37  (1327-53-3) & dimethyl arsenic (75-60-5)
    38    Asbestos (1332-21-4)
    39    Benzene (71-43-2)
    40    Benzene, pentachloro (608-93-5)
    41    Benzophenone-2 (Bp-2); 2,2',4,4'-Tetrahydroxybenzophenone (131-55-5)
    42    Bisphenol A (80-05-7)
    43    Butyl Benzyl phthalate (BBP) (85-68-7)
    44    Butyl paraben (94-26-8)
    45    Butylated hydroxyanisole; BHA (25013-16-5)
    46    C.I. Solvent Yellow 14 (842-07-9)
    47    Cadmium (7440-43-9) & cadmium compounds
    48    Carbon disulfide (75-15-0)
    49    Cobalt (7440-48-4) & cobalt compounds
    50    Di-2-ethylhexyl phthalate (117-81-7)
    51    Dibutyl phthalate (84-74-2)
    52    Diethyl phthalate (84-66-2)
    53    Diisodecyl phthalate (DIDP) (26761-40-0)
    54    Diisononyl phthalate (DINP) (28553-12-0)
    55    Di-n-Hexyl Phthalate (84-75-3)
    56    Di-n-octyl phthalate (DnOP) (117-84-0)

        S. 4102--A                          3
     1    Estragole (140-67-0)
     2    Ethyl paraben (120-47-8)
     3    Ethylbenzene (100-41-4)
     4    Ethylene glycol (107-21-1)
     5    Ethylene glycol monoethyl ester (110-80-5)
     6    Formaldehyde (50-00-0)
     7    Hexabromocyclododecane (25637-99-4)
     8    Hexachlorobenzene (118-74-1)
     9    Hexachlorobutadiene (87-68-3)
    10    Lead (7439-92-1)
    11    Mercury  (7439-97-6)  &  mercury  compounds  including  methyl mercury
    12  (22967-92-6)
    13    Methyl ethyl ketone (78-93-3)
    14    Methyl paraben (99-76-3)
    15    Methylene chloride (75-09-2)
    16    Molybdenum (7439-98-7) & molybdenum compounds
    17    N-Methylpyrrolidone (872-50-4)
    18    N-Nitrosodimethylamine (62-75-9)
    19    N-Nitrosodiphenylamine (86-30-6)
    20    Octamethylcyclotetrasiloxane (556-67-2)
    21    para-Chloroaniline (106-47-8)
    22    Perchloroethylene (127-18-4)
    23    Perfluorooctanyl sulphonic acid and its salts; PFOS (1763-23-1)
    24    Phenol (108-95-2)
    25    Phenol, 4-octyl- (1806-26-4)
    26    Phthalic Anhydride (85-44-9)
    27    p-Hydroxybenzoic acid (99-96-7)
    28    Propyl paraben (94-13-3)
    29    Styrene (100-42-5)
    30    Tetrabromobisphenol A (79-94-7)
    31    Toluene (108-88-3)
    32    Tris(1,3-dichloro-2-propyl)phosphate (13674-87-8)
    33    Tris(2-chloroethyl) phosphate (115-96-8)
    34    Vinyl chloride (75-01-4); and
    35    (b) all phthalates specified as  permanently  banned  from  children's
    36  toys  and  child  care  articles  pursuant  to  section 108(a) of the US
    37  Consumer Product Safety Improvement Act of 2008.
    38    4. "Child or children" means a person or persons twelve years  of  age
    39  or younger and "children" means persons twelve years of age or younger.
    40    5.  "Children's  product" means a product primarily intended for, made
    41  for, or marketed for use by children, including but not limited to: baby
    42  products; toys; car seats;  children's  cosmetics;  school  supplies;  a
    43  product  designed  or  intended by the manufacturer to help a child with
    44  sucking or teething, to facilitate sleep, relaxation, or the feeding  of
    45  a  child;  children's  novelty  products; children's jewelry; children's
    46  bedding, furniture, and furnishings; and children's apparel.  This  term
    47  shall  not  include:  (a)  batteries;  (b) consumer electronic products,
    48  including, but not limited  to,  personal  computers,  audio  and  video
    49  equipment, calculators, wireless telephones, game consoles, and handheld
    50  devices  incorporating  a  video screen used to access interactive soft-
    51  ware, and their associated peripherals; (c) a  drug,  supplement,  soap,
    52  food  or  beverage or an additive to a food or beverage regulated by the
    53  United States Food and Drug Administration; (d)  a  drug,  biologic,  or
    54  medical  device  regulated  by  the United States Food and Drug Adminis-
    55  tration; or (e) a pesticide product regulated by the United States Envi-

        S. 4102--A                          4
     1  ronmental Protection Agency and registered by the department of environ-
     2  mental conservation.
     3    6.  "Scientific  evidence"  means  published  scientific  research and
     4  analyses obtained from reliable sources, including, but not limited  to,
     5  peer-reviewed  scientific journals, and reports from authoritative publ-
     6  ic-health and environmental organizations.
     7    7. "Component" means a uniquely identifiable or  reasonably  separate,
     8  material  that  is intended to be included as a part of a finished chil-
     9  dren's product. A single chemical is not considered a "component" unless
    10  the entire material is composed of that single chemical.
    11    8. "Contaminant" means a trace amount of any  chemical  incidental  to
    12  manufacturing,  which  serves no intended function in the finished chil-
    13  dren's product. A "contaminant" includes a chemical that  is:  an  unin-
    14  tended  byproduct  of  chemical  reactions during the manufacture of the
    15  children's product; otherwise occurring  in  the  environment;  a  trace
    16  impurity  in  feed-stock;  a  component of incompletely reacted chemical
    17  mixtures; and/or a product of degradation.
    18    9. "Commissioner" means the commissioner of health.
    19    10. "Distributor" means a person  who  sells  children's  products  to
    20  retail establishments.
    21    11.  "Intentionally  added"  means the deliberate use of a chemical in
    22  the formulation of a product or component where its presence is  desired
    23  in  the final product or component to provide a specific characteristic,
    24  appearance or quality.
    25    12. "Manufacturer" means any person who  currently  produces  a  chil-
    26  dren's product or whose brand name is affixed to the children's product.
    27  In  the  case  of a children's product that was imported into the United
    28  States, "manufacturer" means any person who currently produces  a  chil-
    29  dren's product or whose brand name is affixed to the children's product.
    30  In  the  case  of a children's product that was imported into the United
    31  States, "manufacturer" includes the importer or related corporate entity
    32  that is registered in any state or has not contracted the services of an
    33  agent in the United States.
    34    13. "Practical quantification limit" (PQL) is the lowest concentration
    35  that can be reliably measured  within  specified  limits  of  precision,
    36  accuracy,  representativeness,  completeness,  and  comparability during
    37  routine laboratory operating conditions. This value is based  on  scien-
    38  tifically defensible, standard analytical methods. The value for a given
    39  chemical  could  be different depending on the matrix and the analytical
    40  method used. PQLs are to be established by the department  of  state  in
    41  reliance  upon findings made by the department of health after review of
    42  scientific evidence and measurements using standard  analytical  methods
    43  and  in consideration of comparable values established by other authori-
    44  tative bodies, including other states.
    45    14. "Priority chemical" means:
    46    (a) the following chemicals:
    47    Antimony and antimony compounds
    48    Arsenic and arsenic compounds
    49    Asbestos
    50    Benzene (CASRN 71-43-2)
    51    Cadmium and cadmium compounds
    52    Formaldehyde (CASRN 50-00-0)
    53    Lead and lead compounds
    54    Mercury and mercury compounds
    55    Tris (1, 3 Dichloro-2-Propyl) Phosphate (TDCPP, CASRN 13674-87-8)
    56    Phosphate (TCEP, CASRN 115-96-8); and

        S. 4102--A                          5
     1    (b) a chemical adopted  by  the  department,  as  recommended  by  the
     2  department  of health, pursuant to section four hundred ninety-five-c of
     3  this article.
     4    15. "Product category" means the "brick" level of the GS1 global prod-
     5  uct  classification (GPC) standard, which identifies a category incorpo-
     6  rating products (global trade item numbers (GTINs)) that serve a  common
     7  purpose,  are  of a similar form and material, and share the same set of
     8  category attributes.
     9    16. "Retailer"  means  any  person  who  sells  or  leases  children's
    10  products  for-profit  in  the  state to consumers.   Such term shall not
    11  include: (a) someone who purchased or acquired a product  primarily  for
    12  personal  use  and  who  subsequently  resells  the  product; or (b) any
    13  secondhand dealer.
    14    17. "Screening prohibition level" means the concentration of a priori-
    15  ty chemical measured in a children's product component above  which  the
    16  product will be subject to the sales prohibition requirements of section
    17  four hundred ninety-five-e of this article. Whenever the federal govern-
    18  ment  under  the Consumer Product Safety Improvement Act of 2008 (CPSIA)
    19  has a final rule in effect and enforceable with respect to a  children's
    20  product safety standard that applies to the presence of a specific chem-
    21  ical  in  a  children's  product that preempts state action, the federal
    22  consumer product safety standard shall be used for the specific chemical
    23  and product, unless the state obtains an exemption from the US  Consumer
    24  Product Safety Commission.
    25    18. "Secretary" means secretary of state.
    26    § 495-c. Priority chemicals and chemicals of high concern to children.
    27  1.  Publishing of lists. Within one hundred eighty days of the effective
    28  date of this article, the department of state shall post lists of prior-
    29  ity chemicals and chemicals of high concern to children on its website.
    30    2. Periodic review. The department of health may  periodically  review
    31  the  lists  of priority chemicals and chemicals of high concern to chil-
    32  dren and, through regulation, add or remove priority chemicals or chemi-
    33  cals of high concern from such lists in reliance upon findings  made  by
    34  the  department  of  health  after review of scientific evidence, that a
    35  chemical proposed for addition to the list meets paragraphs (a)  or  (b)
    36  of  this  subdivision for chemicals of high concern to children and also
    37  paragraph (c) of this subdivision for priority chemicals.
    38    (a) The commissioner of health has determined  that  an  authoritative
    39  governmental  entity  or accredited research university has demonstrated
    40  that the chemical does one of the following:
    41    (i) harms the normal development of a fetus or child or  causes  other
    42  developmental toxicity in an intact organism;
    43    (ii)  is  linked  to  cancer,  genetic  damage, is an asthmagen, or is
    44  linked to reproductive harm in an intact organism;
    45    (iii) disrupts the endocrine system to cause adverse effects in  chil-
    46  dren;
    47    (iv)  damages  the  nervous system, immune system, or organs or causes
    48  other systemic toxicity in an intact organism; or
    49    (v) is very persistent and very bioaccumulative.
    50    (b) The chemical has been found to  be  present  through  any  of  the
    51  following:
    52    (i)  biomonitoring to be present in human blood, umbilical cord blood,
    53  breast milk, urine, or other bodily tissues or fluids;
    54    (ii) sampling and analysis to be  present  above  in  household  dust,
    55  indoor air, drinking water, or elsewhere in the home environment; or

        S. 4102--A                          6
     1    (iii) monitoring to be present above in fish, wildlife, or the natural
     2  environment.
     3    (c)  There  are  likely exposures to chemicals in children's products.
     4  Evidence of likely exposure may include, but is not limited to, at least
     5  two years of reporting data about a specific chemical under section four
     6  hundred ninety-five-d of this article.
     7    (d) A manufacturer of a product that is subject to the  provisions  of
     8  this  section,  may  apply  to the department of state for waiver of the
     9  requirements, upon proof that there are  no  available  alternatives.  A
    10  manufacturer  of  a  product  prohibited  to be sold or offered for sale
    11  pursuant to this title shall not replace a priority chemical with anoth-
    12  er chemical that has been deemed a human carcinogen by the United States
    13  Environmental Protection Agency, a  developmental  toxin,  an  endocrine
    14  disrupter or a reproductive toxin.
    15    §  495-d.  Disclosure of information.  1. Reporting of chemical occur-
    16  rence. Every manufacturer who offers for sale or  distribution  in  this
    17  state  a children's product shall report to the department of state if a
    18  chemical of high concern to children is intentionally added to  a  chil-
    19  dren's product component at a level above the PQL; or present in a chil-
    20  dren's  product  component produced by the manufacturer as a contaminant
    21  at a concentration above one hundred parts per million.
    22    (a) To be in compliance with this requirement, such  report  shall  be
    23  submitted to the department of state:
    24    (i) within ninety days of the effective date of this article; or
    25    (ii) within ninety days of the addition of a chemical to the chemicals
    26  of  high  concern list pursuant to section four hundred ninety-five-c of
    27  this article.
    28    (b) Format for notice. The secretary of state shall specify the format
    29  for submission of the notice required by this section, provided that the
    30  required format shall be consistent with the format  for  submission  of
    31  notice  in  other  states with requirements substantially similar to the
    32  requirements of this section. Any notice submitted  under  this  section
    33  shall contain the following information:
    34    (i)  the  name  of  the  chemical  used  or  produced and its chemical
    35  abstracts service registry number or accession number;
    36    (ii) a description of the category or categories in  which  it  occurs
    37  containing the chemical;
    38    (iii) the amount of the chemical contained in each unit of the product
    39  or  product component, reported by weight or parts per million in ranges
    40  as follows:
    41    (1) Equal to or more than the PQL but less than 100 ppm (0.01%);
    42    (2) Equal to or more than 100  ppm  (0.01%)  but  less  than  500  ppm
    43  (0.05%);
    44    (3)  Equal  to  or  more  than 500 ppm (0.05%) but less than 1,000 ppm
    45  (0.10%);
    46    (4) Equal to or more than 1,000 ppm (0.10%) but less  than  5,000  ppm
    47  (0.5%); or
    48    (5)  Equal  to  or more than 5,000 ppm (0.5%) but less than 10,000 ppm
    49  (1.0%); or
    50    (6) Equal to or more than 10,000 ppm (1.0%).
    51    (c) The department of state and the department of health  are  author-
    52  ized  to  participate in an interstate chemicals clearinghouse to assist
    53  in carrying out the requirements of  this  article.  The  department  of
    54  state  may also enter into reciprocal data-sharing agreements with other
    55  states in which a manufacturer of children's products is  also  required

        S. 4102--A                          7
     1  to disclose information related to chemicals of high concern to children
     2  in children's products.
     3    2. Waiver of reporting. Upon application by a manufacturer, the secre-
     4  tary  may waive all or part of the reporting requirements under subdivi-
     5  sion one of this section for one or more specified uses  of  a  priority
     6  chemical. In making such determination, the secretary may consider:
     7    (a)  whether  substantially equivalent information is already publicly
     8  available or such information is not needed for  the  purposes  of  this
     9  article;
    10    (b) whether similar waivers have been granted by other states;
    11    (c) whether the specified use or uses are minor in volume;
    12    (d)  whether  the  manufacturer either individually or jointly submits
    13  the information required in a notice under this section to:
    14    (i) a state with which the department of state has entered a  recipro-
    15  cal data-sharing agreement; or
    16    (ii)  a  trade  association, the Interstate Chemicals Clearinghouse, a
    17  federal governmental agency, or other independent third party, who makes
    18  that data available to the department of state on behalf of the manufac-
    19  turer;
    20    (e) whether the information required to be reported in a notice  under
    21  this  section is provided to the department of state in an alternate but
    22  complete format, including reference to information  publicly  available
    23  in other states or by independent third parties; or
    24    (f)  whether the information required to be reported in a notice under
    25  this section is available  on  or  accessible  from  the  department  of
    26  state's website.
    27    3.  Notice  to  retailers.  A  manufacturer  of  a  children's product
    28  containing a chemical of high concern to children  shall  notify,  in  a
    29  form  prescribed  by  the  department of state, retailers that offer the
    30  children's product for sale or distribution in the state of the presence
    31  of such chemical of high concern to children and any  other  information
    32  the departments of state and health deem appropriate.
    33    4. Notice to consumers. The department of state, as deemed appropriate
    34  by  the  secretary,  shall  notify  consumers  about children's products
    35  containing chemicals of high concern and priority chemicals. The notifi-
    36  cation shall be published on the department of state's website in a form
    37  and manner determined by the secretary.
    38    5. Fees. The department of  state  may  promulgate  rules  setting  an
    39  appropriate fee schedule for manufacturers to help defray the department
    40  of state's and department of health's program costs.
    41    6. Certificate of compliance. A manufacturer required to submit notice
    42  under  this  section to the secretary of state may rely on a certificate
    43  of compliance, data,  or  information  from  suppliers  for  determining
    44  reporting obligations. A certificate of compliance provided by a suppli-
    45  er  under this subdivision shall be solely for the purpose of compliance
    46  with the requirements of this article.
    47    § 495-e. Sales prohibition. 1. Effective January first,  two  thousand
    48  eighteen,  no manufacturer, distributor, or retailer shall sell or offer
    49  for sale in this state  a  children's  product  containing  a  component
    50  containing  any  priority  chemical  identified pursuant to section four
    51  hundred ninety-five-c of this article that exceeds the following screen-
    52  ing prohibition levels in total content:
    53    (a) 260 parts per million antimony or  antimony  compounds,  provided,
    54  however,  that  the  department  of health shall establish through regu-
    55  lation and public comment the screening  prohibition  level  for  "chil-

        S. 4102--A                          8
     1  dren's  apparel"  as  defined in subdivision one of section four hundred
     2  ninety-five-b of this article.
     3    (b) 100 parts per million arsenic or arsenic compounds.
     4    (c) 100 parts per million asbestos.
     5    (d) 100 parts per million benzene (CASRN 71-43-2).
     6    (e) 75 parts per million cadmium or cadmium compounds.
     7    (f)  20  parts  per  million  formaldehyde (CASRN 50-00-0) in textiles
     8  intended for use by a child under eighteen months, 75 parts per  million
     9  for  textiles in direct skin contact, 300 parts per million for textiles
    10  not in direct skin contact, and 200 parts per million for any other  use
    11  which  is  not  chemically  bound to any other chemical species or bound
    12  within a matrix. The following emission  standards  use  ASTM  E-1333-96
    13  (2002): for hardwood plywood with a veneer or composite core, 0.05 parts
    14  per  million formaldehyde; for medium-density fiberboard, 0.11 parts per
    15  million formaldehyde; for thin medium density fiberboard, 0.13 parts per
    16  million formaldehyde; for particleboard, 0.09 parts per million  formal-
    17  dehyde.
    18    (g) 100 parts per million lead or lead compounds.
    19    (h) 100 parts per million lead or lead compounds.
    20    (i) 100 parts per million mercury or mercury compounds.
    21    (j)  100  parts  per  million  tris (1, 3 Dichloro-2-Propyl) Phosphate
    22  (TDCPP, CASRN 13674-87-8).
    23    2. Additional priority chemicals. Once the department of state  estab-
    24  lishes  additional priority chemicals under section four hundred ninety-
    25  five-c of this article, the  department  of  state  shall  also  specify
    26  screening prohibition levels for those additional chemicals.
    27    3.  Subdivision  one  of  this section shall not apply to a children's
    28  product solely based on it containing an enclosed  battery  or  enclosed
    29  electronic  components.  The  secretary  may exempt a children's product
    30  from this prohibition if, in  the  secretary's  judgment,  the  lack  of
    31  availability  of  the children's product could pose an unreasonable risk
    32  to public health, safety, or welfare.
    33    4. Effective three years after a chemical is  added  to  the  priority
    34  chemicals  list  pursuant  to section four hundred ninety-five-c of this
    35  article, no manufacturer, distributor,  or  retailer  shall  distribute,
    36  sell, or offer for sale in this state a children's product that contains
    37  such  chemical  above  the  screening  prohibition  level established in
    38  subdivision one of this section.
    39    5. During the period between identification of a chemical as a priori-
    40  ty chemical and prohibition, a children's product containing a  priority
    41  chemical  above  the screening prohibition level established in subdivi-
    42  sion one of this section may not be sold, offered for sale  or  distrib-
    43  uted  for  sale  in  this state unless the manufacturer has provided the
    44  notification required under section four hundred ninety-five-d  of  this
    45  article.  The secretary may exempt a children's product from this prohi-
    46  bition if, in the secretary's judgment in consultation with the  commis-
    47  sioner, the lack of availability of the children's product could pose an
    48  unreasonable risk to public health, safety or welfare.
    49    §  495-f. Applicability. 1. New children's products. The provisions of
    50  this article shall apply to chemicals in  children's  products  sold  or
    51  distributed  as new. It shall not apply to used children's products that
    52  are sold or distributed for free at secondhand stores,  yard  sales,  on
    53  the internet, or donated to charities. Manufacturers are prohibited from
    54  donating,  discount selling, or using any other means available to place
    55  in the marketplace any children's products that are prohibited for  sale

        S. 4102--A                          9
     1  pursuant  to  subdivisions  one  and two of section four hundred ninety-
     2  five-e of this article.
     3    2.  Manufacturing  control. The requirements of this article shall not
     4  apply to a chemical that occurs in a product component only as a contam-
     5  inant if the manufacturer had in place a manufacturing  control  program
     6  and  exercised due diligence to minimize the presence of the contaminant
     7  in the component. Such a manufacturing control program shall consist  of
     8  any  or  all of the following:  monitoring of the level of a CHCC in raw
     9  materials; monitoring of manufacturing process parameters; and/or  moni-
    10  toring  the  level  of  a  CHCC in finished products or components. Upon
    11  request of the department a manufacturer shall submit parameters of such
    12  a program.
    13    3. Inaccessible components. Components that during reasonably foresee-
    14  able use and abuse of the product would not  come  into  direct  contact
    15  with  the  child's skin or mouth will not be subject to the requirements
    16  of sections four hundred ninety-five-d and four hundred ninety-five-e of
    17  this article, except by rule, based on a case-by-case evaluation by  the
    18  department of state.
    19    4.  Industry.  The  requirements  of  this  article shall not apply to
    20  priority chemicals used in or for industry or  manufacturing,  including
    21  chemicals  processed  or otherwise used in or for industrial or manufac-
    22  turing processes and not included in the final product.
    23    5. Transportation. The requirements of this article shall not apply to
    24  motor vehicles or their component parts, watercraft of  their  component
    25  parts,  all  terrain  vehicles  or their component parts, or off-highway
    26  motorcycles or their component parts, except that the  use  of  priority
    27  chemicals in detachable car seats is not exempt.
    28    6.  Combustion.  The  requirements  of this article shall not apply to
    29  priority chemicals generated solely as combustion byproducts or that are
    30  present in combustible fuels.
    31    § 495-g. Enforcement and implementation. 1. Statement  of  compliance.
    32  If  the  department of state suspects that a children's product is being
    33  offered or sold in violation of this article, the  department  of  state
    34  may request the manufacturer of the children's product to provide within
    35  thirty  days  of  receipt  of  a request from the department of state, a
    36  statement of compliance on a form provided by the department  of  state.
    37  The statement of compliance shall:
    38    (a)  attest  that the children's product does not contain the chemical
    39  of high concern to children or priority chemical; or
    40    (b) attest and provide the department of state with documentation that
    41  notification of the presence of a chemical of high concern  to  children
    42  was  provided to the department pursuant to section four hundred ninety-
    43  five-d of this article; or
    44    (c) attest that the manufacturer has notified retailers of  the  pres-
    45  ence  of  chemical  of  high concern to children pursuant to subdivision
    46  three of section four hundred ninety-five-d of this article.
    47    2. Unauthorized sales. The secretary may issue an order directing  the
    48  cessation of the sale or distribution by manufacturers, distributors, or
    49  retailers  of any children's product being distributed, sold, leased, or
    50  otherwise offered for sale in this state that is in  violation  of  this
    51  article.  In the instance of non-compliance with such order, the depart-
    52  ment  of state shall provide the attorney general any information on the
    53  sale, lease, or distribution of prohibited children's products.
    54    3. Enforcement. Where it is determined, following a  hearing,  that  a
    55  person  has  violated one or more provisions of this article, the secre-
    56  tary may assess a civil penalty no greater than  five  thousand  dollars

        S. 4102--A                         10
     1  per  violation.  Upon  the occasion of a second violation, or subsequent
     2  violations of this article, a civil penalty of  no  greater  than  fifty
     3  thousand  dollars  may be assessed. Any proceeding conducted pursuant to
     4  this  subdivision shall be subject to the state administrative procedure
     5  act. The hearing officer shall consider  whether  a  retailer  knowingly
     6  offered such items for sale as a defense to violations of this section.
     7    4.  Violations.  Pursuant to section sixty-three of the executive law,
     8  the attorney general shall enforce violations of this article.
     9    § 495-h. Regulations. The departments of state and  health  may  adopt
    10  such rules and regulations, as well as informal guidance consistent with
    11  other states, deemed necessary to implement the provisions of this arti-
    12  cle.
    13    §  495-i. Preemption. No city, town, county, or other political subdi-
    14  vision of this state shall adopt or continue in  effect  any  ordinance,
    15  rule,  regulation or statute regarding chemicals in children's products.
    16  This section shall not be construed as affecting or limiting the author-
    17  ity of political subdivisions of the state to exercise control over  and
    18  abate  public  nuisances,  pursuant  to  article  thirteen of the public
    19  health law and section five hundred fifty-six of the New York city char-
    20  ter.
    21    § 2. Severability. If any clause, sentence, paragraph, section or part
    22  of this act shall be adjudged by any court of competent jurisdiction  to
    23  be  invalid  and  after  exhaustion  of all further judicial review, the
    24  judgment shall not affect, impair or invalidate the  remainder  thereof,
    25  but  shall  be  confined in its operation to the clause, sentence, para-
    26  graph, section or part of this act directly involved in the  controversy
    27  in which the judgment shall have been rendered.
    28    § 3. This act shall take effect April 1, 2016; provided, however, that
    29  section  495-d  of  the  general business law as added by section one of
    30  this act shall take effect one year after it shall have become a law.
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