S07507 Summary:

Add Art 37 Title 9 §§37-0901 - 37-0915, En Con L
Relates to regulation of toxic chemicals in children's products; establishes the interstate chemical clearinghouse.
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S07507 Text:

                STATE OF NEW YORK
                    IN SENATE
                                       May 5, 2016
        Introduced  by  Sen.  AVELLA -- read twice and ordered printed, and when
          printed to be committed to the Committee on Environmental Conservation
        AN ACT to amend the environmental conservation law, in relation to regu-
          lation of toxic chemicals in children's products
          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:

     1    Section 1. Article 37 of the environmental conservation law is amended
     2  by adding a new title 9 to read as follows:
     3                                  TITLE IX
     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
    19  to prevent injury, including,  but  not  limited  to,  bicycle  helmets,
    20  athletic supporters, knee pads or elbow pads.
    21    2.  "Chemical" means a substance with a distinct molecular composition
    22  or a group of structurally related substances and includes the breakdown
    23  products of the substance or substances that form through decomposition,
    24  degradation or metabolism.
    25    3. "Chemicals of high concern" means:
    26    (a) 1,1,2,2-Tetrachloroethane (CAS 79-34-5)
    27    (a-1) 1,2-Dibromoethane (CAS 106-93-4)
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.

        S. 7507                             2
     1    (a-2) 1,1,3,3-Tetramethyl-4-butylphenol; 4-tert-octylphenol (CAS  140-
     2  66-9)
     3    (a-3) (1,1,3,3 - Tetramethylbutyl) Phenol; Octylphenol (CAS
     4  27193-28-8)
     5    (a-4) 1,3-Butadiene (CAS 106-99-0)
     6    (b) 1,4-Dioxane (CAS 123-91-1)
     7    (c)  2,2',3,3',4,4',5,5',6,6'-Decabromodiphenyl  ether;  BDE-209  (CAS
     8  1163-19-5)
     9    (d) 2,4-Diaminotoluene (CAS 95-80-7)
    10    (d-1) 2,4-Dihydroxybenzophenone; resbenzophenone (CAS 131-56-6)
    11    (e) 2-Aminotoluene (CAS 95-53-4)
    12    (f) 2-Ethylhexanoic acid (CAS 149-57-5)
    13    (g) 2-Ethyl-hexyl-4-methoxycinnamate (CAS 5466-77-3)
    14    (g-1) 2-Napthylamine (CAS 91-59-8)
    15    (h) 2-Methoxyethanol (CAS 109-86-4)
    16    (i)     3,3'-Dimethylbenzidine     and     dyes     metabolized     to
    17  3,3'-Dimethylbenzidine (CAS 119-93-7)
    18    (i-1) 4-Hydroxybiphenol (CAS 92-69-3)
    19    (j)   4-Nonylphenol;  4-NP  and  its  isomer  mixtures  including  CAS
    20  84852-15-3 and CAS 25154-52-3 (CAS 104-40-5)
    21    (j-1) 4,4-methylenebis(2-chloroaniline) (CAS 101-14-4)
    22    (k)   4-Tert-octylphenol;    1,1,3,3-Tetramethyl-4-butylphenol    (CAS
    23  140-66-9)
    24    (l) Acetaldehyde (CAS 75-07-0)
    25    (m) Acrylonitrile (CAS 107-13-1)
    26    (n) Aniline(CAS 62-53-3)
    27    (o) Antimony & antimony compounds (CAS 7440-36-0)
    28    (p)  Arsenic  &  arsenic  compounds  (CAS 7440-38-2) including arsenic
    29  trioxide & dimethyl arsenic (CAS 75-60-5)
    30    (q) Asbestos (CAS 1332-21-4)
    31    (r) Benzene (CAS 71-43-2)
    32    (s) Benzene, pentachloro (CAS 608-93-5)
    33    (s-1) Benzidine and its salts (CAS 92-87-5)
    34    (t)  Benzophenone-2  (BP-2);  2,2',4,4'-tetrahydroxybenzophenone  (CAS
    35  131-55-5)
    36    (u) Bisphenol A (CAS 80-05-7)
    37    (v) Butyl benzyl phthalate (BBP) (CAS 85-68-7)
    38    (w) Butyl paraben (CAS 94-28-6)
    39    (x) Butylated Hydroxyanisole; (BHA) (CAS 25013-16-5)
    40    (y) C.I. solvent yellow 14 (CAS 842-07-9)
    41    (z) Cadmium & cadmium compounds (CAS 7440-43-9)
    42    (aa) Carbon disulfide (CAS 75-15-0)
    43    (bb) Cobalt & cobalt compounds (CAS 7440-48-4)
    44    (cc) Di-2-ethylhexyl phthalate (CAS 117-81-7)
    45    (dd) Dibutyl phthalate (CAS 84-74-2)
    46    (dd-1) Dicyclohexyl phthalate (DCHP) (CAS 84-61-7)
    47    (ee) Diethyl phthalate (CAS 84-66-2)
    48    (ff) Diisodecyl phthalate (DIDP) (CAS 26761-40-0)
    49    (gg) Diisononyl phthalate (DINP) (CAS 28553-12-0)
    50    (hh) Di-n-hexyl phthalate (CAS 84-75-3)
    51    (ii) Di-n-octyl phthalate (DNOP) (CAS 117-84-0)
    52    (ii-1) Epichlorohydrin (CAS 106-98-9)
    53    (jj) Estragole (CAS 140-67-0)
    54    (kk) Ethyl paraben (CAS 120-47-8)
    55    (ll) Ethylbenzene (CAS 100-41-4)
    56    (mm) Ethylene glycol (CAS 107-21-1)

        S. 7507                             3
     1    (nn) Ethylene glycol monoethyl ester (CAS 110-80-5)
     2    (oo) Formaldehyde (CAS 50-0-0)
     3    (pp) Hexabromocyclododecane (HBCD) (CAS 25637-99-4)
     4    (qq) Hexachlorobenzene (CAS 118-74-1)
     5    (rr) Hexachlorobutadiene (CAS 87-68-3)
     6    (ss) Lead & lead compounds (CAs 7439-92-1)
     7    (tt)  Mercury  &  mercury  compounds  (CAS 7439-97-6) including methyl
     8  mercury (CAS 22967-92-6)
     9    (uu) Methyl ethyl ketone (CAS 78-93-3)
    10    (vv) Methyl paraben (CAS 99-76-3)
    11    (ww) Methylene chloride (CAS 75-09-2)
    12    (ww-1) Methyl tert-butyl ether (MTBE) (CAS 1634-04-4)
    13    (xx) Molybdenum & molybdenum compounds (CAS 7439-98-7)
    14    (xx-1) Mono-n-butylphthalate (CAS 131-70-4)
    15    (yy) N-methylpyrrolidone (CAS 872-50-4)
    16    (yy-1) Nickel and nickel compounds (CAS N/A)
    17    (zz) N-nitrosodimethylamine (CAS 62-75-9)
    18    (aaa) N-nitrosodiphenylamine (CAS 86-30-6)
    19    (bbb) Octamethylcyclotetrasiloxane (CAS 556-67-2)
    20    (ccc) Para-chloroaniline (CAS 106-47-3)
    21    (ddd) Perchloroethylene (CAS 127-18-4)
    22    (eee) Perfluorooctanyl sulphonic acid and its salts (PFOS) (CAS  1763-
    23  23-1)
    24    (fff) Phenol (CAS 108-95-2)
    25    (ggg) Phenol, 4-octyl- (CAS 1806-26-4)
    26    (hhh) Phthalic anhydride (CAS 85-44-9)
    27    (iii) P-hydroxybenzoic acid (CAS 99-96-7)
    28    (jjj) Propyl paraben (CAS 94-13-3)
    29    (jjj-1)  Silica,  crystalline  (in  the form of quartz or cristabolite
    30  dust) (CAS 14808-60-7)
    31    (kkk) Styrene (CAS 100-42-5)
    32    (lll) Tetrabromobisphenol A (CAS 79-94-7)
    33    (mmm) Toluene (CAS 108-88-3)
    34    (nnn) Tris(1,3-dichloro-2-propyl) phosphate (CAS 13674-87-3)
    35    (ooo) Tris(2-chloroethyl) phosphate (CAS 115-96-8)
    36    (ppp) Vinyl chloride (CAS 75-01-4)
    37    4. "Children" means a person or persons aged twelve and under.
    38    5. "Children's product" means a product primarily intended  for,  made
    39  for  or  marketed  for use by children, such as baby products, toys, car
    40  seats, school supplies, personal care products, a  product  designed  or
    41  intended  by  the manufacturer to help a child with sucking or teething,
    42  to facilitate sleep, relaxation, or the feeding of a  child,  and  chil-
    43  dren's  novelty products, children's jewelry, children's bedding, furni-
    44  ture, furnishings, and apparel.  "Children's product" does  not  include
    45  (a)  batteries;  or  (b)  consumer electronic products including but not
    46  limited to personal computers, audio and video  equipment,  calculators,
    47  wireless  phones,  game  consoles,  and handheld devices incorporating a
    48  video screen, used to access interactive software and  their  associated
    49  peripherals;  or  (c)  a  food  or  beverage or an additive to a food or
    50  beverage regulated by the United States Food and Drug Administration; or
    51  (d) a tobacco product; or (e) a pesticide regulated by the United States
    52  Environmental Protection Agency.   "Children's product"  also  does  not
    53  include  a  drug,  biologic  or  medical  device regulated by the United
    54  States Food and Drug Administration.
    55    6. "Contaminant" means trace amounts of chemicals that are  incidental
    56  to  the  manufacturing  that  serve  no intended function in the product

        S. 7507                             4
     1  component, including, but not  limited  to,  unintended  by-products  of
     2  chemical  reactions  during  the  manufacture  of the product component,
     3  trace impurities in feed-stock, incompletely reacted  chemical  mixtures
     4  and degradation products.
     5    7.  "Distributor"  means  a  person  who  sells children's products to
     6  retail establishments on a wholesale basis.
     7    8. "Intentionally added" means the deliberate use in  the  formulation
     8  of  a  product or subpart where its continued presence is desired in the
     9  final product or subpart to provide a specific  characteristic,  appear-
    10  ance or quality.
    11    9.  "Manufacturer" means any person who currently manufactures a chil-
    12  dren's product or whose brand name is affixed to the children's product.
    13  In the case of a children's product that was imported  into  the  United
    14  States, "manufacturer" includes the importer or first domestic distribu-
    15  tor  of  the children's product if the person who currently manufactures
    16  or assembles the children's product or whose brand name  is  affixed  to
    17  the children's product does not have a presence in the United States.
    18    10.  "Practical  quantification limit" means the lowest level that can
    19  be reliable achieved within specified limits of precision  and  accuracy
    20  during routine laboratory operating conditions.
    21    11.    "Product  category"  means  the "brick" level of the GS1 global
    22  product classification (GPC) standard, which  identifies  products  that
    23  serve  a  common  purpose, are of a similar form and material, and share
    24  the same set of category attributes.
    25    12. "Priority chemical" means (a) the following chemicals:
    26    CASRN13674-87-8   Tris (1, 3 dichloro-2-propyl) phosphate
    27    CASRN71-43-2      Benzene
    28    CASRN7439-92-1    lead and compounds (inorganic)
    29    CASRN7439-97-6    Mercury and mercury compounds, including methyl
    30                      mercury (CASRN 22967-92-6)
    31    CASRN7440-36-0    Antimony and antimony compounds
    32    CASRN50-00-0      Formaldehyde
    33    CASRN1332-21-4    Asbestos
    34    CASRN7440-38-2    Arsenic and arsenic compounds including arsenic
    35                      trioxide (CASRN 1327-53-3)
    36                      and dimethyl arsenic (CASRN 75-60-5)
    37    CASRN7440-43-9    Cadmium
    38    CASRN7440-48-4    Cobalt and cobalt compounds and
    39    (b) a chemical adopted by the department pursuant to  section  37-0903
    40  of this title.
    41    13.  "Toy" means a product designed or intended by the manufacturer to
    42  be used by children at play.
    43  § 37-0903. Priority chemicals and chemicals of high concern.
    44    1. Publishing of lists. Within one hundred eighty days of  the  effec-
    45  tive  date  of  this  title, the department shall post lists of priority
    46  chemicals and chemicals of high concern on the department's website.
    47    2. Periodic review. (a)  The  department,  in  consultation  with  the
    48  department of health, may periodically review the list of priority chem-
    49  icals and, through regulation, add or remove priority chemicals or chem-
    50  icals of high concern from such lists.
    51    (b) The department, in consultation with the department of health, may
    52  identify  a  chemical  as  a  priority chemical if, upon such review, it
    53  determines that a chemical of high concern is present  in  a  children's
    54  product and meets any of the following criteria:
    55    (i)  The  chemical or its metabolites have been found through biomoni-
    56  toring to be present in humans;

        S. 7507                             5
     1    (ii) The chemical has been found through sampling and analysis  to  be
     2  present  in  household  dust, indoor air, drinking water or elsewhere in
     3  the home environment;
     4    (iii)  The chemical has been found through monitoring to be present in
     5  fish, wildlife or the natural environment; or
     6    (iv) The sale or use of the chemical or a children's product  contain-
     7  ing  the  chemical has been banned in another state or states within the
     8  United States because of the health effects of such chemical.
     9    (c) The department, in consultation with the department of health, may
    10  remove a chemical from the list of priority chemicals if,  upon  review,
    11  it  determines  on  the  basis of credible scientific evidence that such
    12  chemical no longer meets the criteria for listing under paragraph (b) of
    13  this subdivision.
    14    (d) The department, in consultation  with  the  department  of  health
    15  shall identify a chemical as a chemical of high concern if, upon review,
    16  it  determines that the chemical has been identified by a state, federal
    17  or international governmental entity on the basis of credible scientific
    18  evidence as:
    19    (i) A carcinogen, reproductive or developmental  toxicant,  neurotoxi-
    20  cant, asthmagen, or endocrine disruptor;
    21    (ii) Persistent, bioaccumulative and toxic; or
    22    (iii) Very persistent and very bioaccumulative.
    23  § 37-0905. Disclosure of information on priority chemicals.
    24    1.  Reporting  of  chemical  use.  No later than twelve months after a
    25  priority chemical appears on the  list  published  pursuant  to  section
    26  37-0903  of this title, every manufacturer who offers a children's prod-
    27  uct for sale or distribution in this  state  that  contains  a  priority
    28  chemical  shall report such chemical use to the department, at practical
    29  quantification limits (PQLS). The department may collaborate with  other
    30  states  and  an  interstate  chemicals  clearinghouse in developing such
    31  form.
    32    (a) This report must at a  minimum  identify  the  children's  product
    33  category, the priority chemical or chemicals contained in the children's
    34  product category, and the intended purpose of the chemicals in the chil-
    35  dren's  product category.   The department may also require reporting of
    36  the following information:
    37    (i) the potential for harm to human health and  the  environment  from
    38  specific uses of the priority chemical;
    39    (ii)  the amount of such chemical in each unit of the children's prod-
    40  uct category, expressed in a range.  When the chemical is used  in  more
    41  than  one  product within a product category, the highest amount must be
    42  reported;
    43    (iii) information on the likelihood that the chemical will be released
    44  from the children's product category to the environment during the prod-
    45  uct category's life cycle and the extent to which users of  the  product
    46  category are likely to be exposed to the chemical; or
    47    (iv) information on the extent to which the chemical is present in the
    48  environment or human body.
    49    (b)  The  department is authorized to direct submission of such report
    50  to the interstate chemicals clearinghouse.
    51    2. Waiver of  reporting.  Upon  application  by  a  manufacturer,  the
    52  commissioner  may  waive all or part of the reporting requirements under
    53  subdivision one of this section for one or  more  specified  uses  of  a
    54  priority  chemical.  In  making such determination, the commissioner may
    55  consider: (a) if substantially equivalent information is already public-
    56  ly available or that the information is not needed for the  purposes  of

        S. 7507                             6
     1  this  chapter,  (b)  similar  waivers  granted  by other states, and (c)
     2  whether the specified use or uses are minor in volume.
     3    3.  Notice.  (a)  A  manufacturer of a children's product containing a
     4  priority chemical shall notify persons that offer the children's product
     5  for sale or distribution in the state,  in  a  form  prescribed  by  the
     6  department,  of the presence of such priority chemical, and provide such
     7  persons with information regarding the toxicity of such chemical.
     8    (b) All retailers in this state offering for sale children's  products
     9  containing priority chemicals shall conspicuously post notice to consum-
    10  ers identifying such products and the priority chemicals they contain.
    11    (c)  The  department  shall notify consumers about children's products
    12  containing chemicals of high concern and priority chemicals. The notifi-
    13  cation shall be published on the department's website.
    14    4. Fees. The manufacturer shall pay a fee upon submission of a  report
    15  of  chemical use pursuant to subdivision one of this section or a waiver
    16  request pursuant to subdivision two of this section to cover the depart-
    17  ment's reasonable costs in  the  amount  of  five  hundred  dollars  per
    18  reported product category.
    19  § 37-0907. Sales prohibition.
    20    1.  Effective  January  first,  two thousand nineteen, no person shall
    21  distribute, sell or offer for sale in this state  a  children's  product
    22  containing  tris  (1,  3 dichloro-2-propyl) phosphate, benzene, lead and
    23  compounds (inorganic), mercury and mercury  compounds  including  methyl
    24  mercury, antimony and antimony compounds, formaldehyde, asbestos, arsen-
    25  ic  and arsenic compounds including arsenic trioxide and dimethyl arsen-
    26  ic, cadmium, and cobalt and cobalt compounds.  This provision shall  not
    27  apply to a children's product solely based on its containing an enclosed
    28  battery or enclosed electronic components. The commissioner may exempt a
    29  children's product from this prohibition if, in the commissioner's judg-
    30  ment,  the  lack of availability of the children's product could pose an
    31  unreasonable risk to public health, safety or welfare.
    32    2. Effective three years after being added to the  priority  chemicals
    33  list,  no person shall distribute, sell, or offer for sale in this state
    34  a children's product that contains a  chemical  added  to  the  priority
    35  chemicals list pursuant to section 37-0903 of this title.
    36  § 37-0909. Applicability.
    37    1.  New  children's products. The provisions of this title shall apply
    38  to chemicals in children's products sold or distributed as new and  does
    39  not  apply  to used children's products that are sold or distributed for
    40  free at secondhand stores, yard sales, on the  internet  or  donated  to
    41  charities.
    42    2. Industry. The requirements of this title shall not apply to priori-
    43  ty  chemicals used in or for industry or manufacturing, including chemi-
    44  cals processed or otherwise used in or for industrial  or  manufacturing
    45  processes and not included in the final product.
    46    3.  Transportation.  The requirements of this title shall not apply to
    47  motor vehicles or their component parts, watercraft or  their  component
    48  parts,  all  terrain  vehicles  or their component parts, or off-highway
    49  motorcycles or their component parts, except that the  use  of  priority
    50  chemicals in detachable car seats is not exempt.
    51    4.  Combustion.  The  requirements  of  this  title shall not apply to
    52  priority chemicals generated solely as combustion  by-products  or  that
    53  are present in combustible fuels.
    54    5. Exceptions. The requirements of this title shall not apply to chil-
    55  dren's  product  makers that employ five persons or fewer, and are inde-
    56  pendently owned and operated.

        S. 7507                             7

     1    6. Retailers. A retailer is exempt from the requirements of this title
     2  unless that retailer knowingly sells a children's product  containing  a
     3  priority  chemical after the effective date of its prohibition for which
     4  that retailer has received notification pursuant to subdivision three of
     5  section 37-0905 of this title.
     6  § 37-0911. Enforcement and implementation.
     7    1. Failure to provide notice. A children's product containing a prior-
     8  ity  chemical  may not be sold, offered for sale or distributed for sale
     9  in this state unless the  manufacturer  has  provided  the  notification
    10  required  under  section  37-0905  of this title by the date required in
    11  such section. The commissioner may exempt a children's product from this
    12  prohibition if, in the commissioner's judgment, the lack of availability
    13  of the children's product could pose  an  unreasonable  risk  to  public
    14  health, safety or welfare.
    15    2.  Statement  of  compliance.  If there are grounds to suspect that a
    16  children's product is being offered for sale in violation of this title,
    17  the department may request the manufacturer of the children's product to
    18  provide a statement of compliance on a form provided by the  department,
    19  within  ten days of receipt of a request from the department. The state-
    20  ment of compliance shall:
    21    (a) attest that the children's product does not contain  the  priority
    22  chemical; or
    23    (b)  attest and provide the department with documentation that notifi-
    24  cation of the presence of the priority chemical has been provided to the
    25  department or provide notice as required  by  section  37-0905  of  this
    26  title; or
    27    (c)  attest  that  the  manufacturer has notified persons who sell the
    28  product in this state that the sale of the children's product is prohib-
    29  ited.
    30  § 37-0913. Interstate chemical clearinghouse.
    31    1. The department is authorized to participate in an interstate chemi-
    32  cals clearinghouse to assist in carrying out the  requirements  of  this
    33  title.  The department shall work in collaboration with other states and
    34  an interstate chemicals clearinghouse for the purpose of, including  but
    35  not limited to:
    36    (a)  collection  and  dissemination  of information regarding chemical
    37  hazards;
    38    (b) collection and dissemination of information regarding the  use  of
    39  chemicals in children's products;
    40    (c) assessment of alternatives to chemicals and their use in products;
    41  and
    42    (d) public education.
    43    2.  Such clearinghouse is authorized to maintain information on behalf
    44  of the state of New York, including, but  not  limited  to,  information
    45  regarding  chemicals contained in children's products disclosed pursuant
    46  to section 37-0905 of this title.
    47  § 37-0915. Regulations.
    48    The department may adopt any rules and regulations it deems  necessary
    49  to implement the provisions of this title.
    50    § 2. This act shall take effect on the one hundred twentieth day after
    51  it  shall  have  become  a law. Effective immediately, the department of
    52  environmental conservation is authorized to implement  rules  and  regu-
    53  lations for the timely implementation of this act on its effective date.
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