NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A6296A
TITLE OF BILL: An act to amend the environmental conservation law, in
relation to regulation of toxic chemicals in children's products
PURPOSE OR GENERAL IDEA OF BILL:
The purpose of this bill is to protect children's health.
SUMMARY OF PROVISIONS:
*defines children as "a person or persons aged twelve and under;"
*defines children's product as "a product primarily intended for, made
for or marketed for use by children, such as baby products, toys, car
seats, personal care products, a product designed or intended by the
manufacturer to help a child with teething, to facilitate sleep, relaxa-
tion, or the feeding of a child, novelty products, bedding, furniture,
furnishings, and children's apparel;"
*requires the Department of Environmental Conservation (DEC) to post
lists of dangerous chemicals and chemicals of concern on the Depart-
ment's website within 180 days of the effective date of this title;
*allows DEC, in consultation with the Department of Health to period-
ically review the list of dangerous chemicals and chemicals of concern
to identify or remove dangerous chemicals or chemicals of concern based
on credible scientific evidence;
*permits designation of a "dangerous chemical" if such chemical is:
o found to be present in humans;
o found to be present in household dust, indoor air, or drinking water;
o found to be present in fish, wildlife or the natural environment;
o found to be present in a consumer product or present in the home,
school or children's day care center;
o banned for sale in another state
* requires Manufacturers that sell a children's product that contains a
dangerous chemical or chemical of concern, to report to the department,
in a form prescribed by the department, the following information:
o the identification of the product,
o the name of the dangerous chemicals or chemicals of concern included,
and, o the intended purpose of the chemicals
*requires manufacturer of children's products containing a dangerous
chemical to notify persons that offer the children's products for sale
or distribution in the state, of the presence of such chemical, and
provide such persons with information regarding the toxicity of such
*requires DEC to notify consumers about children's products containing
chemicals of concern and dangerous chemicals;
*requires the manufacturer to pay a fee upon the submission. of chemical
use reports or waiver requests sufficient to cover DEC's reasonable
costs in administration and enforcement; and,
*prohibits the sale, effective January 1, 2023, of children's products
containing certain dangerous chemicals including organohalogen flame
retardants, tris, and asbestos.
Currently, New York identifies or prohibits the use of dangerous chemi-
cals on a chemical by chemical basis. This approach is especially prob-
lematic for children's products since children are often more vulnerable
to smaller amounts of chemicals. Several other states, including Wash-
ington, California, and Maine have adopted more comprehensive chemical
policies. This legislation is modeled after those states and is intended
to prevent the use of dangerous chemicals and ensure the use of safer
chemical alternatives in children's products.
PRIOR LEGISLATIVE HISTORY:
A.8266 of 2017-18 - Reported to 3rd Reading Calendar
A.5612-A of 2015-16 - Passed Assembly
A.6328 of 2013-14 - Passed Assembly
A.3141-A of 2012 - Passed Assembly
A.10089-B - Ways and Means
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:
This act shall take effect March 1, 2020.
STATE OF NEW YORK
2019-2020 Regular Sessions
March 4, 2019
Introduced by M. of A. ENGLEBRIGHT, GOTTFRIED, DINOWITZ, D'URSO, FERNAN-
DEZ, CARROLL, GRIFFIN, QUART, COLTON, L. ROSENTHAL, OTIS, GALEF,
ORTIZ, STERN, THIELE, JAFFEE, ROMEO -- Multi-Sponsored by -- M. of A.
WRIGHT -- read once and referred to the Committee on Environmental
Conservation -- reported and referred to the Committee on Codes --
committee discharged, bill amended, ordered reprinted as amended and
recommitted to said committee
AN ACT to amend the environmental conservation law, in relation to regu-
lation of toxic chemicals in children's products
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Article 37 of the environmental conservation law is amended
2 by adding a new title 9 to read as follows:
3 TITLE IX
4 TOXIC CHEMICALS IN CHILDREN'S PRODUCTS
5 Section 37-0901. Definitions.
6 37-0903. Consumer notice.
7 37-0905. Reporting on the use of chemicals.
8 37-0907. Sales prohibition.
9 37-0909. Applicability.
10 37-0911. Enforcement and implementation.
11 37-0913. Regulations.
12 § 37-0901. Definitions.
13 As used in this title, unless the context otherwise indicates, the
14 following terms have the following meanings.
15 1. "Children's apparel" means any item of clothing that consists of
16 fabric or related material intended or promoted for use in children's
17 clothing. Children's apparel does not mean protective equipment designed
18 to prevent injury, including, but not limited to, bicycle helmets,
19 athletic supporters, knee pads or elbow pads.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
 is old law to be omitted.
A. 6296--A 2
1 2. "Chemical" means a substance with a distinct molecular composition
2 or a group of structurally related substances and includes the breakdown
3 products of the substance or substances that form through decomposition,
4 degradation or metabolism.
5 3. "Chemicals of concern" means:
6 (a) 1,1,2,2-Tetrachloroethane (CAS 79-34-5)
7 (a-1) 1,2-Dibromoethane (CAS 106-93-4)
8 (a-2) 1,1,3,3-Tetramethyl-4-butylphenol; 4-tert-octylphenol (CAS 140-
10 (a-3) (1,1,3,3 - Tetramethylbutyl) Phenol; Octylphenol (CAS
12 (a-4) 1,3-Butadiene (CAS 106-99-0)
13 (b) 1,4-Dioxane (CAS 123-91-1)
14 (c) 2,2',3,3',4,4',5,5',6,6'-Decabromodiphenyl ether; BDE-209 (CAS
16 (d) 2,4-Diaminotoluene (CAS 95-80-7)
17 (d-1) 2,4-Dihydroxybenzophenone; resbenzophenone (CAS 131-56-6)
18 (e) 2-Aminotoluene (CAS 95-53-4)
19 (f) 2-Ethylhexanoic acid (CAS 149-57-5)
20 (f-1) 2-Ethyl-hexyl-2, 3, 4, 5 tetrabromobenzoate (TBB) (CAS
22 (g) 2-Ethyl-hexyl-4-methoxycinnamate (CAS 5466-77-3)
23 (g-1) 2-Napthylamine (CAS 91-59-8)
24 (h) 2-Methoxyethanol (CAS 109-86-4)
25 (i) 3,3'-Dimethylbenzidine and dyes metabolized to
26 3,3'-Dimethylbenzidine (CAS 119-93-7)
27 (i-1) 4-Hydroxybiphenol (CAS 92-69-3)
28 (j) 4-Nonylphenol; 4-NP and its isomer mixtures including CAS
29 84852-15-3 and CAS 25154-52-3 (CAS 104-40-5)
30 (j-1) 4,4-methylenebis(2-chloroaniline) (CAS 101-14-4)
31 (k) 4-Tert-octylphenol; 1,1,3,3-Tetramethyl-4-butylphenol (CAS
33 (l) Acetaldehyde (CAS 75-07-0)
34 (m) Acrylonitrile (CAS 107-13-1)
35 (n) Aniline (CAS 62-53-3)
36 (o) Antimony & antimony compounds (CAS 7440-36-0)
37 (p) Arsenic & arsenic compounds (CAS 7440-38-2) including arsenic
38 trioxide & dimethyl arsenic (CAS 75-60-5)
39 (q) Asbestos (CAS 1332-21-4)
40 (r) Benzene (CAS 71-43-2)
41 (s) Benzene, pentachloro (CAS 608-93-5)
42 (s-1) Benzidine and its salts (CAS 92-87-5)
43 (t) Benzophenone-2 (BP-2); 2,2',4,4'-tetrahydroxybenzophenone (CAS
45 (t-1) Bis(2-ethylhexyl) tetrabromophtalate (TBPH) (CAS 26040-51-7)
46 (t-2) Bis(chloromethyl) propane-1-3-diyltetrakis-(2-chloroethyl)
47 bis(phosphate)(V6)(CAS 38051-10-4)
48 (u) Bisphenol A (CAS 80-05-7)
49 (u-1) Bisphenol F (CAS 620-92-8)
50 (u-2) Bisphenol S (CAS 80-09-1)
51 (v) Butyl benzyl phthalate (BBP) (CAS 85-68-7)
52 (w) Butyl paraben (CAS 94-28-6)
53 (x) Butylated Hydroxyanisole; (BHA) (CAS 25013-16-5)
54 (y) C.I. solvent yellow 14 (CAS 842-07-9)
55 (z) Cadmium & cadmium compounds (CAS 7440-43-9)
56 (aa) Carbon disulfide (CAS 75-15-0)
A. 6296--A 4
1 (lll-1) Tetrachloroethene (CAS 127-18-4)
2 (mmm) Toluene (CAS 108-88-3)
3 (mmm-1) Tricresyl phosphate (TCP) (CAS 1330-78-5)
4 (mmm-2) Tri-n-butyl phosphate (TNBP) (CAS 126-73-8)
5 (mmm-3) Triphenyl phosphate (TPP) (CAS 115-86-6)
6 (nnn) Tris(1,3-dichloro-2-propyl) phosphate (CAS 13674-87-3)
7 (nnn-1) Tris(1-chloro-2-propyl) phosphate (TCPP) (CAS 13674-84-5)
8 (ooo) Tris(2-chloroethyl) phosphate (CAS 115-96-8)
9 (ooo-1) Tris(2,3-dibromopropylphosphate) (CAS 126-72-7)
10 (ppp) Vinyl chloride (CAS 75-01-4)
11 4. "Children" means a person or persons aged twelve and under.
12 5. "Children's product" means a product primarily intended for, made
13 for or marketed for use by children, such as baby products, toys, car
14 seats, school supplies, personal care products, a product designed or
15 intended by the manufacturer to help a child with sucking or teething,
16 to facilitate sleep, relaxation, or the feeding of a child, and chil-
17 dren's novelty products, children's jewelry, children's bedding, furni-
18 ture, furnishings, and apparel. "Children's product" does not include
19 (a) batteries; or (b) consumer electronic products including but not
20 limited to personal computers, audio and video equipment, calculators,
21 wireless phones, game consoles, and handheld devices incorporating a
22 video screen, used to access interactive software and their associated
23 peripherals; or (c) a food or beverage or an additive to a food or
24 beverage regulated by the United States Food and Drug Administration.
25 "Children's product" also does not include a drug, biologic or medical
26 device regulated by the United States Food and Drug Administration.
27 6. "Distributor" means a person who sells children's products to
28 retail establishments on a wholesale basis.
29 7. "Manufacturer" means any person who currently manufactures a chil-
30 dren's product or whose brand name is affixed to the children's product.
31 In the case of a children's product that was imported into the United
32 States, "manufacturer" includes the importer or first domestic distribu-
33 tor of the children's product if the person who currently manufactures
34 or assembles the children's product or whose brand name is affixed to
35 the children's product does not have a presence in the United States.
36 8. "Practical quantification limit" means the lowest level that can be
37 reliably achieved within specified limits of precision and accuracy
38 during routine laboratory operating conditions.
39 9. "Dangerous chemical" means (a) the following chemicals:
40 CASRN13674-87-8Tris (1, 3 dichloro-2-propyl) phosphate
42 CASRN7439-92-1lead and compounds (inorganic)
43 CASRN7439-97-6Mercury and mercury compounds, including methyl
44 mercury (CASRN 22967-92-6)
47 CASRN7440-38-2Arsenic and arsenic compounds including arsenic
48 trioxide (CASRN 1327-53-3)
49 and dimethyl arsenic (CASRN 75-60-5)
51 CASRN AssortedOrganohalogen flame retardants
52 (b) a chemical adopted by the department pursuant to section 37-0903
53 of this title.
54 10. "Toy" means a product designed or intended by the manufacturer to
55 be used by children at play.
56 § 37-0903. Consumer notice.
A. 6296--A 5
1 1. Publishing of lists. Within one hundred eighty days of the effec-
2 tive date of this title, the department shall post lists of dangerous
3 chemicals and chemicals of concern on the department's website.
4 2. Periodic review. (a) The department, in consultation with the
5 department of health, shall periodically review the list of dangerous
6 chemicals and, may through regulation, add or remove dangerous chemicals
7 or chemicals of concern from such lists.
8 (b) The department, in consultation with the department of health, may
9 identify a chemical as a dangerous chemical if, upon such review, it is
10 present in a children's product and meets any of the following criteria:
11 (i) The chemical or its metabolites have been found through biomoni-
12 toring to be present in humans;
13 (ii) The chemical has been found through sampling and analysis to be
14 present in household dust, indoor air, drinking water or elsewhere in
15 the home environment;
16 (iii) The chemical has been found through monitoring to be present in
17 fish, wildlife or the natural environment; or
18 (iv) The sale or use of the chemical or a children's product contain-
19 ing the chemical has been banned in another state or states within the
20 United States because of the health effects of such chemical.
21 (c) The department, in consultation with the department of health, may
22 remove a chemical from the list of dangerous chemicals if, upon review,
23 it determines on the basis of credible scientific evidence that such
24 chemical no longer meets the criteria for listing under paragraph (b) of
25 this subdivision.
26 (d) The department, in consultation with the department of health
27 shall identify a chemical as a chemical of concern if, upon review, it
28 determines that the chemical has been identified by a state, federal or
29 international governmental entity on the basis of credible scientific
30 evidence as:
31 (i) A carcinogen, reproductive or developmental toxicant, neurotoxi-
32 cant, asthmagen, or endocrine disruptor;
33 (ii) Persistent, bioaccumulative and toxic; or
34 (iii) Very persistent and very bioaccumulative.
35 § 37-0905. Reporting on the use of chemicals.
36 1. Reporting of chemical use. No later than twelve months after a
37 dangerous chemical appears on the list published pursuant to section
38 37-0903 of this title, every manufacturer who offers a children's prod-
39 uct for sale or distribution in this state that contains a dangerous
40 chemical or chemical of concern shall report such chemical use at prac-
41 tical quantification limits to the department.
42 (a) This report must at a minimum identify the children's product, the
43 dangerous chemical or chemicals of concern contained in the children's
44 product and the intended purpose of such chemicals. The department may
45 also require reporting of the following information:
46 (i) the amount of such chemical in the children's product; or
47 (ii) information on the likelihood that the chemical will be released
48 from the children's product to the environment during the product's life
49 cycle and the extent to which users of the product are likely to be
50 exposed to the chemical.
51 (b) The department is authorized to direct submission of such report
52 to the interstate chemicals clearinghouse.
53 2. Waiver of reporting. Upon application by a manufacturer, the
54 commissioner may waive all or part of the reporting requirements under
55 subdivision one of this section for one or more specified uses of a
56 dangerous chemical. In making such determination, the commissioner may
A. 6296--A 6
1 consider: (a) if substantially equivalent information is already public-
2 ly available or that the information is not needed for the purposes of
3 this chapter, (b) similar waivers granted by other states, and (c)
4 whether the specified use or uses are minor in volume.
5 3. Notice. (a) A manufacturer of a children's product containing a
6 dangerous chemical shall notify persons that offer the children's prod-
7 uct for sale or distribution in the state, in a form prescribed by the
8 department, of the presence of such dangerous chemical, and provide such
9 persons with information regarding the toxicity of such chemical.
10 (b) The department shall notify consumers about children's products
11 containing chemicals of concern and dangerous chemicals. The notifica-
12 tion shall be published on the department's website.
13 4. Fees. The manufacturer shall pay a fee upon submission of a report
14 of chemical use pursuant to subdivision one of this section or a waiver
15 request pursuant to subdivision two of this section to cover the depart-
16 ment's reasonable costs in the administration and enforcement of this
17 title. Exclusive of fines and penalties, the state shall only recover
18 its actual cost of administration and enforcement.
19 § 37-0907. Sales prohibition.
20 1. Effective January first, two thousand twenty-three, 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, formaldeh-
23 yde (other than in textiles), asbestos, and organohalogen flame retar-
24 dents. This provision shall not apply: (a) to a children's product
25 solely based on its containing an enclosed battery or enclosed electron-
26 ic components and (b) where state regulation of children's products is
27 preempted by federal law. The commissioner may exempt a children's
28 product from this prohibition if, in the commissioner's judgment, the
29 lack of availability of the children's product could pose an unreason-
30 able risk to public health, safety or welfare.
31 2. Effective three years after being added to the dangerous chemicals
32 list, no person shall distribute, sell, or offer for sale in this state
33 a children's product that contains a chemical added to the dangerous
34 chemicals list pursuant to section 37-0903 of this title. This provision
35 shall not apply: (a) to a children's product solely based on its
36 containing an enclosed battery or enclosed electronic components and (b)
37 where state regulation of children's products is preempted by federal
38 law. The commissioner may exempt a children's product from this prohi-
39 bition if, in the commissioner's judgment, the lack of availability of
40 the children's product could pose an unreasonable risk to public health,
41 safety or welfare.
42 § 37-0909. Applicability.
43 1. New children's products. The provisions of this title shall apply
44 to chemicals in children's products sold or distributed as new and does
45 not apply to used children's products that are sold or distributed for
46 free at secondhand stores, yard sales, on the internet or donated to
48 2. Industry. The requirements of this title shall not apply to priori-
49 ty chemicals used in or for industry or manufacturing, including chemi-
50 cals processed or otherwise used in or for industrial or manufacturing
51 processes and not included in the final product.
52 3. Transportation. The requirements of this title shall not apply to
53 motor vehicles or their component parts, watercraft or their component
54 parts, all terrain vehicles or their component parts, or off-highway
55 motorcycles or their component parts, except that the use of dangerous
56 chemicals in detachable car seats is not exempt.
A. 6296--A 7
1 4. Combustion. The requirements of this title shall not apply to
2 dangerous chemicals generated solely as combustion by-products or that
3 are present in combustible fuels.
4 5. Exceptions. The requirements of this title shall not apply to chil-
5 dren's product makers that employ five persons or fewer, and are inde-
6 pendently owned and operated.
7 6. Retailers. A retailer is exempt from the requirements of this title
8 unless that retailer knowingly sells a children's product containing a
9 dangerous chemical after the effective date of its prohibition for which
10 that retailer has received notification pursuant to subdivision three of
11 section 37-0905 of this title.
12 § 37-0911. Enforcement and implementation.
13 1. Failure to provide notice. A children's product containing a
14 dangerous chemical may not be sold, offered for sale or distributed for
15 sale in this state unless the manufacturer has provided the notification
16 required under section 37-0905 of this title by the date required in
17 such section. The commissioner may exempt a children's product from this
18 prohibition if, in the commissioner's judgment, the lack of availability
19 of the children's product could pose an unreasonable risk to public
20 health, safety or welfare.
21 2. Statement of compliance. If there are grounds to suspect that a
22 children's product is being offered for sale in violation of this title,
23 the department may request the manufacturer of the children's product to
24 provide a statement of compliance on a form provided by the department,
25 within ten days of receipt of a request from the department. The state-
26 ment of compliance shall:
27 (a) attest that the children's product does not contain the dangerous
28 chemical; or
29 (b) attest and provide the department with documentation that notifi-
30 cation of the presence of the dangerous chemical has been provided to
31 the department or provide notice as required by section 37-0905 of this
32 title; or
33 (c) attest that the manufacturer has notified persons who sell the
34 product in this state that the sale of the children's product is prohib-
36 § 37-0913. Regulations.
37 The department may adopt any rules and regulations it deems necessary
38 to implement the provisions of this title.
39 § 2. Severability. If any clause, sentence, paragraph, section or part
40 of this act shall be adjudged by any court of competent jurisdiction to
41 be invalid and after exhaustion of all further judicial review, the
42 judgment shall not affect, impair or invalidate the remainder thereof,
43 but shall be confined in its operation to the clause, sentence, para-
44 graph, section or part of this act directly involved in the controversy
45 in which the judgment shall have been rendered.
46 § 3. This act shall take effect March 1, 2020. Effective immediately,
47 the department of environmental conservation is authorized to implement
48 rules and regulations for the timely implementation of this act on its
49 effective date.