STATE OF NEW YORK
________________________________________________________________________
7507
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
4 TOXIC CHEMICALS IN CHILDREN'S PRODUCTS
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.
LBD09354-17-6
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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
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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 CASRN13674-87-8Tris (1, 3 dichloro-2-propyl) phosphate
27 CASRN71-43-2Benzene
28 CASRN7439-92-1lead and compounds (inorganic)
29 CASRN7439-97-6Mercury and mercury compounds, including methyl
30 mercury (CASRN 22967-92-6)
31 CASRN7440-36-0Antimony and antimony compounds
32 CASRN50-00-0Formaldehyde
33 CASRN1332-21-4Asbestos
34 CASRN7440-38-2Arsenic and arsenic compounds including arsenic
35 trioxide (CASRN 1327-53-3)
36 and dimethyl arsenic (CASRN 75-60-5)
37 CASRN7440-43-9Cadmium
38 CASRN7440-48-4Cobalt 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;
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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
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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.
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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.
