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A05612 Summary:

COSPNSRGottfried, Colton, Peoples-Stokes, Lupardo, Kavanagh, Schimel, Titone, Crespo, Fahy, Galef, Rosenthal, Arroyo, Cook, Ortiz, Simon, Stirpe, Mosley, Lifton, Skoufis, Otis, Jaffee, Abinanti, Walker, Steck, Simotas, Seawright, Barron, Paulin, Braunstein, Dinowitz, Linares, Santabarbara, Rodriguez, Hunter, Sepulveda
MLTSPNSRBuchwald, Cymbrowitz, Hooper, Kearns, Magee, McDonough, Perry, Solages, Thiele, Weinstein
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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A05612 Text:

                STATE OF NEW YORK
                                                                Cal. No. 217
                               2015-2016 Regular Sessions
                   IN ASSEMBLY
                                      March 2, 2015
          PAULIN, BRAUNSTEIN, DINOWITZ, LINARES -- Multi-Sponsored by --  M.  of
          SOLAGES, THIELE, WEINSTEIN -- read once and referred to the  Committee
          on  Environmental Conservation -- advanced to a third reading, amended
          and ordered reprinted, retaining its place on the order of third read-
        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

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.

        A. 5612--A                          2
     1  clothing. Children's apparel does not mean protective equipment designed
     2  to prevent injury, including,  but  not  limited  to,  bicycle  helmets,
     3  athletic supporters, knee pads or elbow pads.
     4    2.  "Chemical" means a substance with a distinct molecular composition
     5  or a group of structurally related substances and includes the breakdown
     6  products of the substance or substances that form through decomposition,
     7  degradation or metabolism.
     8    3. "Chemicals of high concern" means:
     9    (a) 1,1,2,2-Tetrachloroethane (CAS 79-34-5)
    10    (a-1) 1,2-Dibromoethane (CAS 106-93-4)
    11    (a-2) 1,1,3,3-Tetramethyl-4-butylphenol; 4-tert-octylphenol (CAS  140-
    12  66-9)
    13    (a-3) (1,1,3,3 - Tetramethylbutyl) Phenol; Octylphenol (CAS
    14  27193-28-8)
    15    (a-4) 1,3-Butadiene (CAS 106-99-0)
    16    (b) 1,4-Dioxane (CAS 123-91-1)
    17    (c)  2,2',3,3',4,4',5,5',6,6'-Decabromodiphenyl  ether;  BDE-209  (CAS
    18  1163-19-5)
    19    (d) 2,4-Diaminotoluene (CAS 95-80-7)
    20    (d-1) 2,4-Dihydroxybenzophenone; resbenzophenone (CAS 131-56-6)
    21    (e) 2-Aminotoluene (CAS 95-53-4)
    22    (f) 2-Ethylhexanoic acid (CAS 149-57-5)
    23    (g) 2-Ethyl-hexyl-4-methoxycinnamate (CAS 5466-77-3)
    24    (g-1) 2-Napthylamine (CAS 91-59-8)
    25    (h) 2-Methoxyethanol (CAS 109-86-4)
    26    (i)     3,3'-Dimethylbenzidine     and     dyes     metabolized     to
    27  3,3'-Dimethylbenzidine (CAS 119-93-7)
    28    (i-1) 4-Hydroxybiphenol (CAS 92-69-3)
    29    (j)   4-Nonylphenol;  4-NP  and  its  isomer  mixtures  including  CAS
    30  84852-15-3 and CAS 25154-52-3 (CAS 104-40-5)
    31    (j-1) 4,4-methylenebis(2-chloroaniline) (CAS 101-14-4)
    32    (k)   4-Tert-octylphenol;    1,1,3,3-Tetramethyl-4-butylphenol    (CAS
    33  140-66-9)
    34    (l) Acetaldehyde (CAS 75-07-0)
    35    (m) Acrylonitrile (CAS 107-13-1)
    36    (n) Aniline(CAS 62-53-3)
    37    (o) Antimony & antimony compounds (CAS 7440-36-0)
    38    (p)  Arsenic  &  arsenic  compounds  (CAS 7440-38-2) including arsenic
    39  trioxide & dimethyl arsenic (CAS 75-60-5)
    40    (q) Asbestos (CAS 1332-21-4)
    41    (r) Benzene (CAS 71-43-2)
    42    (s) Benzene, pentachloro (CAS 608-93-5)
    43    (s-1) Benzidine and its salts (CAS 92-87-5)
    44    (t)  Benzophenone-2  (BP-2);  2,2',4,4'-tetrahydroxybenzophenone  (CAS
    45  131-55-5)
    46    (u) Bisphenol A (CAS 80-05-7)
    47    (v) Butyl benzyl phthalate (BBP) (CAS 85-68-7)
    48    (w) Butyl paraben (CAS 94-28-6)
    49    (x) Butylated Hydroxyanisole; (BHA) (CAS 25013-16-5)
    50    (y) C.I. solvent yellow 14 (CAS 842-07-9)
    51    (z) Cadmium & cadmium compounds (CAS 7440-43-9)
    52    (aa) Carbon disulfide (CAS 75-15-0)
    53    (bb) Cobalt & cobalt compounds (CAS 7440-48-4)
    54    (cc) Di-2-ethylhexyl phthalate (CAS 117-81-7)
    55    (dd) Dibutyl phthalate (CAS 84-74-2)
    56    (dd-1) Dicyclohexyl phthalate (DCHP) (CAS 84-61-7)

        A. 5612--A                          3
     1    (ee) Diethyl phthalate (CAS 84-66-2)
     2    (ff) Diisodecyl phthalate (DIDP) (CAS 26761-40-0)
     3    (gg) Diisononyl phthalate (DINP) (CAS 28553-12-0)
     4    (hh) Di-n-hexyl phthalate (CAS 84-75-3)
     5    (ii) Di-n-octyl phthalate (DNOP) (CAS 117-84-0)
     6    (ii-1) Epichlorohydrin (CAS 106-98-9)
     7    (jj) Estragole (CAS 140-67-0)
     8    (kk) Ethyl paraben (CAS 120-47-8)
     9    (ll) Ethylbenzene (CAS 100-41-4)
    10    (mm) Ethylene glycol (CAS 107-21-1)
    11    (nn) Ethylene glycol monoethyl ester (CAS 110-80-5)
    12    (oo) Formaldehyde (CAS 50-0-0)
    13    (pp) Hexabromocyclododecane (HBCD) (CAS 25637-99-4)
    14    (qq) Hexachlorobenzene (CAS 118-74-1)
    15    (rr) Hexachlorobutadiene (CAS 87-68-3)
    16    (ss) Lead & lead compounds (CAs 7439-92-1)
    17    (tt)  Mercury  &  mercury  compounds  (CAS 7439-97-6) including methyl
    18  mercury (CAS 22967-92-6)
    19    (uu) Methyl ethyl ketone (CAS 78-93-3)
    20    (vv) Methyl paraben (CAS 99-76-3)
    21    (ww) Methylene chloride (CAS 75-09-2)
    22    (ww-1) Methyl tert-butyl ether (MTBE) (CAS 1634-04-4)
    23    (xx) Molybdenum & molybdenum compounds (CAS 7439-98-7)
    24    (xx-1) Mono-n-butylphthalate (CAS 131-70-4)
    25    (yy) N-methylpyrrolidone (CAS 872-50-4)
    26    (yy-1) Nickel and nickel compounds (CAS N/A)
    27    (zz) N-nitrosodimethylamine (CAS 62-75-9)
    28    (aaa) N-nitrosodiphenylamine (CAS 86-30-6)
    29    (bbb) Octamethylcyclotetrasiloxane (CAS 556-67-2)
    30    (ccc) Para-chloroaniline (CAS 106-47-3)
    31    (ddd) Perchloroethylene (CAS 127-18-4)
    32    (eee) Perfluorooctanyl sulphonic acid and its salts (PFOS) (CAS  1763-
    33  23-1)
    34    (fff) Phenol (CAS 108-95-2)
    35    (ggg) Phenol, 4-octyl- (CAS 1806-26-4)
    36    (hhh) Phthalic anhydride (CAS 85-44-9)
    37    (iii) P-hydroxybenzoic acid (CAS 99-96-7)
    38    (jjj) Propyl paraben (CAS 94-13-3)
    39    (jjj-1)  Silica,  crystalline  (in  the form of quartz or cristabolite
    40  dust) (CAS 14808-60-7)
    41    (kkk) Styrene (CAS 100-42-5)
    42    (lll) Tetrabromobisphenol A (CAS 79-94-7)
    43    (mmm) Toluene (CAS 108-88-3)
    44    (nnn) Tris(1,3-dichloro-2-propyl) phosphate (CAS 13674-87-3)
    45    (ooo) Tris(2-chloroethyl) phosphate (CAS 115-96-8)
    46    (ppp) Vinyl chloride (CAS 75-01-4)
    47    4. "Children" means a person or persons aged twelve and under.
    48    5. "Children's product" means a product primarily intended  for,  made
    49  for  or  marketed  for use by children, such as baby products, toys, car
    50  seats, school supplies, personal care products, a  product  designed  or
    51  intended  by  the manufacturer to help a child with sucking or teething,
    52  to facilitate sleep, relaxation, or the feeding of a  child,  and  chil-
    53  dren's  novelty products, children's jewelry, children's bedding, furni-
    54  ture, furnishings, and apparel.  "Children's product" does  not  include
    55  (a)  batteries;  or  (b)  consumer electronic products including but not
    56  limited to personal computers, audio and video  equipment,  calculators,

        A. 5612--A                          4
     1  wireless  phones,  game  consoles,  and handheld devices incorporating a
     2  video screen, used to access interactive software and  their  associated
     3  peripherals;  or  (c)  a  food  or  beverage or an additive to a food or
     4  beverage regulated by the United States Food and Drug Administration; or
     5  (d) a tobacco product; or (e) a pesticide regulated by the United States
     6  Environmental  Protection  Agency.    "Children's product" also does not
     7  include a drug, biologic or  medical  device  regulated  by  the  United
     8  States Food and Drug Administration.
     9    6.  "Contaminant" means trace amounts of chemicals that are incidental
    10  to the manufacturing that serve no  intended  function  in  the  product
    11  component,  including,  but  not  limited  to, unintended by-products of
    12  chemical reactions during the  manufacture  of  the  product  component,
    13  trace  impurities  in feed-stock, incompletely reacted chemical mixtures
    14  and degradation products.
    15    7. "Distributor" means a  person  who  sells  children's  products  to
    16  retail establishments on a wholesale basis.
    17    8.  "Intentionally  added" means the deliberate use in the formulation
    18  of a product or subpart where its continued presence is desired  in  the
    19  final  product  or subpart to provide a specific characteristic, appear-
    20  ance or quality.
    21    9. "Manufacturer" means any person who currently manufactures a  chil-
    22  dren's product or whose brand name is affixed to the children's product.
    23  In  the  case  of a children's product that was imported into the United
    24  States, "manufacturer" includes the importer or first domestic distribu-
    25  tor of the children's product if the person who  currently  manufactures
    26  or  assembles  the  children's product or whose brand name is affixed to
    27  the children's product does not have a presence in the United States.
    28    10. "Practical quantification limit" means the lowest level  that  can
    29  be  reliable  achieved within specified limits of precision and accuracy
    30  during routine laboratory operating conditions.
    31    11.  "Product category" means the "brick"  level  of  the  GS1  global
    32  product  classification  (GPC)  standard, which identifies products that
    33  serve a common purpose, are of a similar form and  material,  and  share
    34  the same set of category attributes.
    35    12. "Priority chemical" means (a) the following chemicals:
    36    CASRN13674-87-8   Tris (1, 3 dichloro-2-propyl) phosphate
    37    CASRN71-43-2      Benzene
    38    CASRN7439-92-1    lead and compounds (inorganic)
    39    CASRN7439-97-6    Mercury and mercury compounds, including methyl
    40                      mercury (CASRN 22967-92-6)
    41    CASRN7440-36-0    Antimony and antimony compounds
    42    CASRN50-00-0      Formaldehyde
    43    CASRN1332-21-4    Asbestos
    44    CASRN7440-38-2    Arsenic and arsenic compounds including arsenic
    45                      trioxide (CASRN 1327-53-3)
    46                      and dimethyl arsenic (CASRN 75-60-5)
    47    CASRN7440-43-9    Cadmium
    48    CASRN7440-48-4    Cobalt and cobalt compounds and
    49    (b)  a  chemical adopted by the department pursuant to section 37-0903
    50  of this title.
    51    13. "Toy" means a product designed or intended by the manufacturer  to
    52  be used by children at play.
    53  § 37-0903. Priority chemicals and chemicals of high concern.
    54    1.  Publishing  of lists. Within one hundred eighty days of the effec-
    55  tive date of this title, the department shall  post  lists  of  priority
    56  chemicals and chemicals of high concern on the department's website.

        A. 5612--A                          5
     1    2.  Periodic  review.  (a)  The  department,  in consultation with the
     2  department of health, may periodically review the list of priority chem-
     3  icals and, through regulation, add or remove priority chemicals or chem-
     4  icals of high concern from such lists.
     5    (b) The department, in consultation with the department of health, may
     6  identify  a  chemical  as  a  priority chemical if, upon such review, it
     7  determines that a chemical of high concern is present  in  a  children's
     8  product and meets any of the following criteria:
     9    (i)  The  chemical or its metabolites have been found through biomoni-
    10  toring to be present in humans;
    11    (ii) The chemical has been found through sampling and analysis  to  be
    12  present  in  household  dust, indoor air, drinking water or elsewhere in
    13  the home environment;
    14    (iii) The chemical has been found through monitoring to be present  in
    15  fish, wildlife or the natural environment; or
    16    (iv)  The sale or use of the chemical or a children's product contain-
    17  ing the chemical has been banned in another state or states  within  the
    18  United States because of the health effects of such chemical.
    19    (c) The department, in consultation with the department of health, may
    20  remove  a  chemical from the list of priority chemicals if, upon review,
    21  it determines on the basis of credible  scientific  evidence  that  such
    22  chemical no longer meets the criteria for listing under paragraph (b) of
    23  this subdivision.
    24    (d)  The  department,  in  consultation  with the department of health
    25  shall identify a chemical as a chemical of high concern if, upon review,
    26  it determines that the chemical has been identified by a state,  federal
    27  or international governmental entity on the basis of credible scientific
    28  evidence as:
    29    (i)  A  carcinogen, reproductive or developmental toxicant, neurotoxi-
    30  cant, asthmagen, or endocrine disruptor;
    31    (ii) Persistent, bioaccumulative and toxic; or
    32    (iii) Very persistent and very bioaccumulative.
    33  § 37-0905. Disclosure of information on priority chemicals.
    34    1. Reporting of chemical use. No later  than  twelve  months  after  a
    35  priority  chemical  appears  on  the  list published pursuant to section
    36  37-0903 of this title, every manufacturer who offers a children's  prod-
    37  uct  for  sale  or  distribution  in this state that contains a priority
    38  chemical shall report such chemical use to the department, at  practical
    39  quantification  limits (PQLS). The department may collaborate with other
    40  states and an interstate  chemicals  clearinghouse  in  developing  such
    41  form.
    42    (a)  This  report  must  at  a minimum identify the children's product
    43  category, the priority chemical or chemicals contained in the children's
    44  product category, and the intended purpose of the chemicals in the chil-
    45  dren's product category.  The department may also require  reporting  of
    46  the following information:
    47    (i)  the  potential  for harm to human health and the environment from
    48  specific uses of the priority chemical;
    49    (ii) the amount of such chemical in each unit of the children's  prod-
    50  uct  category,  expressed in a range.  When the chemical is used in more
    51  than one product within a product category, the highest amount  must  be
    52  reported;
    53    (iii) information on the likelihood that the chemical will be released
    54  from the children's product category to the environment during the prod-
    55  uct  category's  life cycle and the extent to which users of the product
    56  category are likely to be exposed to the chemical; or

        A. 5612--A                          6
     1    (iv) information on the extent to which the chemical is present in the
     2  environment or human body.
     3    (b)  The  department is authorized to direct submission of such report
     4  to the interstate chemicals clearinghouse.
     5    2. Waiver of  reporting.  Upon  application  by  a  manufacturer,  the
     6  commissioner  may  waive all or part of the reporting requirements under
     7  subdivision one of this section for one or  more  specified  uses  of  a
     8  priority  chemical.  In  making such determination, the commissioner may
     9  consider: (a) if substantially equivalent information is already public-
    10  ly available or that the information is not needed for the  purposes  of
    11  this  chapter,  (b)  similar  waivers  granted  by other states, and (c)
    12  whether the specified use or uses are minor in volume.
    13    3. Notice. (a) A manufacturer of a  children's  product  containing  a
    14  priority chemical shall notify persons that offer the children's product
    15  for  sale  or  distribution  in  the  state, in a form prescribed by the
    16  department, of the presence of such priority chemical, and provide  such
    17  persons with information regarding the toxicity of such chemical.
    18    (b)  All retailers in this state offering for sale children's products
    19  containing priority chemicals shall conspicuously post notice to consum-
    20  ers identifying such products and the priority chemicals they contain.
    21    (c) The department shall notify consumers  about  children's  products
    22  containing chemicals of high concern and priority chemicals. The notifi-
    23  cation shall be published on the department's website.
    24    4.  Fees. The manufacturer shall pay a fee upon submission of a report
    25  of chemical use pursuant to subdivision one of this section or a  waiver
    26  request pursuant to subdivision two of this section to cover the depart-
    27  ment's  reasonable  costs  in  the  amount  of  five hundred dollars per
    28  reported product category.
    29  § 37-0907. Sales prohibition.
    30    1. Effective January first, two thousand  nineteen,  no  person  shall
    31  distribute,  sell  or  offer for sale in this state a children's product
    32  containing tris (1, 3 dichloro-2-propyl) phosphate,  benzene,  lead  and
    33  compounds  (inorganic),  mercury  and mercury compounds including methyl
    34  mercury, antimony and antimony compounds, formaldehyde, asbestos, arsen-
    35  ic and arsenic compounds including arsenic trioxide and dimethyl  arsen-
    36  ic,  cadmium, and cobalt and cobalt compounds.  This provision shall not
    37  apply to a children's product solely based on its containing an enclosed
    38  battery or enclosed electronic components. The commissioner may exempt a
    39  children's product from this prohibition if, in the commissioner's judg-
    40  ment, the lack of availability of the children's product could  pose  an
    41  unreasonable risk to public health, safety or welfare.
    42    2.  Effective  three years after being added to the priority chemicals
    43  list, no person shall distribute, sell, or offer for sale in this  state
    44  a  children's  product  that  contains  a chemical added to the priority
    45  chemicals list pursuant to section 37-0903 of this title.
    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.

        A. 5612--A                          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 priority
     5  chemicals in detachable car seats is not exempt.
     6    4.  Combustion.  The  requirements  of  this  title shall not apply to
     7  priority 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  priority  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 prior-
    19  ity chemical may not be sold, offered for sale or distributed  for  sale
    20  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 priority
    33  chemical; or
    34    (b) attest and provide the department with documentation that  notifi-
    35  cation of the presence of the priority chemical has been provided to the
    36  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. Interstate chemical clearinghouse.
    42    1. The department is authorized to participate in an interstate chemi-
    43  cals  clearinghouse  to  assist in carrying out the requirements of this
    44  title. The department shall work in collaboration with other states  and
    45  an  interstate chemicals clearinghouse for the purpose of, including but
    46  not limited to:
    47    (a) collection and dissemination  of  information  regarding  chemical
    48  hazards;
    49    (b)  collection  and dissemination of information regarding the use of
    50  chemicals in children's products;
    51    (c) assessment of alternatives to chemicals and their use in products;
    52  and
    53    (d) public education.
    54    2. Such clearinghouse is authorized to maintain information on  behalf
    55  of  the  state  of  New York, including, but not limited to, information

        A. 5612--A                          8
     1  regarding chemicals contained in children's products disclosed  pursuant
     2  to section 37-0905 of this title.
     3  § 37-0915. Regulations.
     4    The  department may adopt any rules and regulations it deems necessary
     5  to implement the provisions of this title.
     6    § 2. This act shall take effect on the one hundred twentieth day after
     7  it shall have become a law. Effective  immediately,  the  department  of
     8  environmental  conservation  is  authorized to implement rules and regu-
     9  lations for the timely implementation of this act on its effective date.
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