STATE OF NEW YORK
________________________________________________________________________
6328
2013-2014 Regular Sessions
IN ASSEMBLY
March 25, 2013
___________
Introduced by M. of A. SWEENEY, GOTTFRIED, ENGLEBRIGHT, WEISENBERG,
ORTIZ, DINOWITZ, COLTON, CYMBROWITZ, O'DONNELL, PEOPLES-STOKES,
JAFFEE, KAVANAGH, SCHIMEL, TITONE, ZEBROWSKI, ABINANTI, HOOPER, MILL-
MAN, PAULIN, KELLNER, TITUS, SCARBOROUGH, ROSENTHAL, CASTRO, GIBSON,
ROBERTS, BOYLAND -- Multi-Sponsored by -- M. of A. CAHILL, COOK,
CRESPO, GABRYSZAK, GALEF, GLICK, HEVESI, JACOBS, MAGEE, MARKEY, MILL-
ER, PERRY, THIELE -- read once and referred to the Committee on Envi-
ronmental 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
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD04204-03-3
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1 to prevent injury, including, but not limited to, bicycle helmets,
2 athletic supporters, knee pads or elbow pads.
3 2. "Chemical" means a substance with a distinct molecular composition
4 or a group of structurally related substances and includes the breakdown
5 products of the substance or substances that form through decomposition,
6 degradation or metabolism.
7 3. "Chemicals of high concern" means: (a) chemicals included in the
8 list of "chemicals of high concern" published in two thousand nine
9 pursuant to chapter sixteen-D of title 38 of the Maine revised statutes
10 annotated; or (b) a chemical adopted by the department pursuant to
11 section 37-0903 of this title.
12 4. "Children" means a person or persons aged twelve and under.
13 5. "Children's product" means a product primarily intended for, made
14 for or marketed for use by children, such as baby products, toys, car
15 seats, personal care products, a product designed or intended by the
16 manufacturer to help a child with sucking or teething, to facilitate
17 sleep, relaxation, or the feeding of a child, novelty products, bedding,
18 furniture, furnishings, and children's apparel. "Children's product"
19 does not include (a) batteries; or (b) consumer electronic products
20 including but not limited to personal computers, audio and video equip-
21 ment, calculators, wireless phones, game consoles, and handheld devices
22 incorporating a video screen, used to access interactive software and
23 their associated peripherals; or (c) a food or beverage or an additive
24 to a food or beverage regulated by the United States Food and Drug
25 Administration; or (d) a tobacco product or paper or forest product; or
26 (e) a pesticide regulated by the United States Environmental Protection
27 Agency. Children's product also does not include a drug, biologic or
28 medical device regulated by the United States Food and Drug Adminis-
29 tration.
30 6. "Distributor" means a person who sells children's products to
31 retail establishments on a wholesale basis.
32 7. "Intentionally added" means the deliberate use in the formulation
33 of a product or subpart where its continued presence is desired in the
34 final product or subpart to provide a specific characteristic, appear-
35 ance or quality.
36 8. "Manufacturer" means any person who currently manufactures a chil-
37 dren's product or whose brand name is affixed to the children's product.
38 In the case of a children's product that was imported into the United
39 States, "manufacturer" includes the importer or first domestic distribu-
40 tor of the children's product if the person who currently manufactures
41 or assembles the children's product or whose brand name is affixed to
42 the children's product does not have a presence in the United States.
43 9. "Novelty product" means a product intended mainly for personal or
44 household enjoyment or adornment. Novelty products include, but are not
45 limited to, items intended for use as practical jokes, figurines, adorn-
46 ments, toys, games, cards, ornaments, yard statues and figures, candles,
47 jewelry, holiday decorations, or similar products.
48 10. "Priority chemical" means (a) the following chemicals:
49 CASRN13674-87-8Tris (1, 3 dichloro-2-propyl) phosphate
50 CASRN71-43-2Benzene
51 CASRN7439-92-1lead and compounds (inorganic)
52 CASRN7439-97-6Mercury and mercury compounds, including methyl
53 mercury (CASRN 22967-92-6)
54 CASRN7439-98-7Molybdenum and molybdenum compounds
55 CASRN7440-36-0Antimony and antimony compounds
56 CASRN7440-38-2Arsenic and arsenic compounds including arsenic
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1 trioxide (CASRN 1327-53-3)
2 and dimethyl arsenic (CASRN 75-60-5)
3 CASRN7440-43-9Cadmium
4 CASRN7440-48-4Cobalt and cobalt compounds and
5 (b) a chemical adopted by the department pursuant to section 37-0903
6 of this title.
7 11. "Toy" means a product designed or intended by the manufacturer to
8 be used by a child at play.
9 § 37-0903. Priority chemicals and chemicals of high concern.
10 1. Publishing of list. Within one hundred eighty days of the effective
11 date of this title, the department shall post lists of priority chemi-
12 cals and chemicals of high concern on the department's website.
13 2. Periodic review. (a) The department, in consultation with the
14 department of health, may periodically review the list of priority chem-
15 icals and, through regulation, identify additional priority chemicals or
16 chemicals of high concern or remove a chemical from such lists based on
17 evidence that the chemical is not present in a children's product or
18 otherwise should not be subject to the requirements of this title.
19 Nothing herein shall prevent the department from acting to add such
20 chemicals outside of the periodic review process.
21 (b) The department, in consultation with the department of health, may
22 identify a chemical as a priority chemical if, upon such review, it
23 determines that a chemical of high concern meets any of the following
24 criteria:
25 (i) The chemical or its metabolites have been found through biomoni-
26 toring to be present in humans, including human blood, umbilical cord
27 blood, breast milk, urine or other bodily tissues or fluids;
28 (ii) The chemical has been found through sampling and analysis to be
29 present in household dust, indoor air, drinking water or elsewhere in
30 the home environment;
31 (iii) The chemical has been found through monitoring to be present in
32 fish, wildlife or the natural environment;
33 (iv) The chemical is present in a children's product used or present
34 in the home, school, or childcare center; or
35 (v) The sale or use of the chemical or a product containing the chemi-
36 cal has been banned in another state or states within the United States
37 because of the health effects of such chemical.
38 (c) If a chemical is removed from the listing of chemicals of high
39 concern, it shall also be undesignated as a priority chemical.
40 (d) The department, in consultation with the department of health
41 shall identify a chemical as a chemical of high concern if, upon review,
42 it determines that the chemical has been identified by a state, federal
43 or international governmental entity on the basis of credible scientific
44 evidence as:
45 (i) A carcinogen, a reproductive or developmental toxicant or an
46 endocrine disruptor;
47 (ii) Persistent, bioaccumulative and toxic; or
48 (iii) Very persistent and very bioaccumulative.
49 (e) In making such determination, the department may consider but is
50 not limited to considering:
51 (i) chemicals identified as "Group 1 carcinogens" or "Group 2A carci-
52 nogens" by the World Health Organization, International Agency for
53 Research on Cancer;
54 (ii) chemicals identified as "known to be a human carcinogen" and
55 "reasonably anticipated to be a human carcinogen" by the Secretary of
56 the United States Department of Health and Human Services pursuant to
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1 the Public Health Service Act, 42 United States Code, Section 241(b)(4),
2 as amended;
3 (iii) chemicals identified as "Group A carcinogens" or "Group B carci-
4 nogens" by the United States Environmental Protection Agency;
5 (iv) chemicals identified as reproductive or developmental toxicants
6 by:
7 (A) the United States Department of Health and Human Services,
8 National Toxicology Program, Center for the Evaluation of Risks to Human
9 Reproduction; and
10 (B) the California Environmental Protection Agency, Office of Environ-
11 mental Health Hazard Assessment pursuant to the California Health and
12 Safety Code, Safe Drinking Water and Toxic Enforcement Act of 1986,
13 Chapter 6.6, Section 25249.8;
14 (v) chemicals identified as a chemical of high concern for children or
15 a high priority chemical of high concern for children or as a persistent
16 bioaccumulative toxic chemical by the state of Washington department of
17 ecology, pursuant to chapter 70.240 of the revised code of Washington or
18 chapter 173-333 of the state of Washington administrative code;
19 (vi) chemicals of high concern as such chemicals are identified by the
20 state of Maine's department of environmental conservation and appearing
21 on such department's list of chemicals of high concern;
22 (vii) chemicals identified as known or likely endocrine disruptors
23 through screening or testing conducted in accordance with protocols
24 developed by the United States Environmental Protection Agency pursuant
25 to the United States Food, Drug and Cosmetic Act, 21 United States Code,
26 346a(p), as amended by the federal Food Quality Protection Act (Public
27 Law 104-170) or the federal Safe Drinking Water Act, 42 United States
28 Code, Section 300j-17;
29 (viii) chemicals listed on the basis of endocrine-disrupting proper-
30 ties in Annex XIV, List of Substances Subject to Authorisation, Regu-
31 lation (EC) No 1907/2006 of the European Parliament concerning the
32 Registration, Evaluation, Authorisation and Restriction of Chemicals;
33 (ix) persistent, bioaccumulative and toxic chemicals identified by
34 other states or the United States Environmental Protection Agency; and
35 (x) a very persistent, very bioaccumulative chemical listed in Annex
36 XIV, List of Substances Subject to Authorisation, Regulation (EC) No
37 1907/2006 of the European Parliament concerning the Registration, Evalu-
38 ation, Authorisation and Restriction of Chemicals.
39 § 37-0905. Disclosure of information on priority chemicals.
40 1. Reporting of chemical use. No later than twelve months after a
41 priority chemical is listed on the list published pursuant to section
42 37-0903 of this title, every manufacturer who offers a children's prod-
43 uct for sale or distribution in this state that contains an inten-
44 tionally added priority chemical shall report such chemical use to the
45 department. The department may collaborate with other states and an
46 interstate chemicals clearinghouse in developing such form.
47 (a) This report must at a minimum identify the children's product, the
48 priority chemical or chemicals contained in the children's product, and
49 the intended purpose of the chemicals in the children's product. The
50 department may also require reporting of the following information:
51 (i) the potential for harm to human health and the environment from
52 specific uses of the priority chemical;
53 (ii) the amount of such chemical in each unit of the children's prod-
54 uct, expressed in a range;
55 (iii) information on the likelihood that the chemical will be released
56 from the children's product to the environment during the product's life
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1 cycle and the extent to which users of the product are likely to be
2 exposed to the chemical; or
3 (iv) information on the extent to which the chemical is present in the
4 environment or human body.
5 (b) The department is authorized to direct submission of a copy of
6 such report to the interstate chemicals clearinghouse.
7 2. Waiver of reporting. Upon application by a manufacturer, the
8 commissioner may waive all or part of the reporting requirements under
9 subdivision one of this section for one or more specified uses of a
10 priority chemical. In making such determination, the commissioner may
11 consider: (a) if substantially equivalent information is already public-
12 ly available or that the information is not needed for the purposes of
13 this chapter, (b) similar waivers granted by other states, and (c)
14 whether the specified use or uses are minor in volume.
15 3. Notice to retailers. A manufacturer of a children's product
16 containing a priority chemical shall notify persons that offer the chil-
17 dren's product for sale or distribution in the state, in a form
18 prescribed by the department, of the presence of such priority chemical,
19 and provide such persons with information regarding the toxicity of such
20 chemical.
21 4. Fees. The manufacturer shall pay a fee upon submission of a report
22 of chemical use pursuant to subdivision one of this section or a waiver
23 request pursuant to subdivision two of this section to cover the depart-
24 ment's reasonable costs in the amount of six hundred dollars per chemi-
25 cal.
26 § 37-0907. Sales prohibition.
27 Effective January 1, 2018, no person shall distribute, sell or offer
28 for sale in this state a children's product containing a priority chemi-
29 cal that has been listed for at least one year. This provision shall
30 not apply to a children's product solely based on its containing an
31 enclosed battery or enclosed electronic components. The commissioner may
32 exempt a children's product from this prohibition if, in the commission-
33 er's judgment, the lack of availability of the children's product could
34 pose an unreasonable risk to public health, safety or welfare.
35 § 37-0909. Applicability.
36 1. New children's products. The provisions of this title shall apply
37 to chemicals in children's products sold or distributed as new and does
38 not apply to used children's products that are sold or distributed for
39 free at secondhand stores, yard sales, on the internet or donated to
40 charities.
41 2. Industry. The requirements of this title shall not apply to priori-
42 ty chemicals used in or for industry or manufacturing, including chemi-
43 cals processed or otherwise used in or for industrial or manufacturing
44 processes and not included in the final product.
45 3. Transportation. The requirements of this title shall not apply to
46 motor vehicles or their component parts, watercraft or their component
47 parts, all terrain vehicles or their component parts, or off-highway
48 motorcycles or their component parts, except that the use of priority
49 chemicals in detachable car seats is not exempt.
50 4. Combustion. The requirements of this title shall not apply to
51 priority chemicals generated solely as combustion by-products or that
52 are present in combustible fuels.
53 5. Retailers. A retailer is exempt from the requirements of this title
54 unless that retailer knowingly sells a children's product containing a
55 priority chemical after the effective date of its prohibition for which
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1 that retailer has received notification pursuant to subdivision three of
2 section 37-0905 of this title.
3 § 37-0911. Enforcement and implementation.
4 1. Failure to provide notice. A children's product containing a prior-
5 ity chemical may not be sold, offered for sale or distributed for sale
6 in this state unless the manufacturer has provided the notification
7 required under section 37-0905 of this title by the date required in
8 such section. The commissioner may exempt a children's product from this
9 prohibition if, in the commissioner's judgment, the lack of availability
10 of the children's product could pose an unreasonable risk to public
11 health, safety or welfare.
12 2. Statement of compliance. If there are grounds to suspect that a
13 children's product is being offered for sale in violation of this title,
14 the department may request the manufacturer of the children's product to
15 provide a statement of compliance on a form provided by the department,
16 within ten days of receipt of a request from the department. The state-
17 ment of compliance shall:
18 (a) attest that the children's product does not contain the priority
19 chemical; or
20 (b) attest and provide the department with documentation that notifi-
21 cation of the presence of the priority chemical has been provided to the
22 department or provide notice as required by section 37-0905 of this
23 title; or
24 (c) attest that the manufacturer has notified persons who sell the
25 product in this state that the sale of the children's product is prohib-
26 ited.
27 § 37-0913. Interstate chemical clearinghouse.
28 1. The department is authorized to participate in an interstate chemi-
29 cals clearinghouse to assist in carrying out the requirements of this
30 title. The department shall work in collaboration with other states and
31 an interstate chemicals clearinghouse for the purpose of, including but
32 not limited to:
33 (a) collection and dissemination of information regarding chemical
34 hazards;
35 (b) collection and dissemination of information regarding the use of
36 chemicals in children's products;
37 (c) assessment of alternatives to chemicals and their use in products;
38 and
39 (d) public education.
40 2. Such clearinghouse is authorized to maintain information on behalf
41 of the state of New York, including, but not limited to, information
42 regarding chemicals contained in children's products disclosed pursuant
43 to section 37-0905 of this title.
44 § 37-0915. Regulations.
45 The department may adopt any rules and regulations it deems necessary
46 to implement the provisions of this title.
47 § 2. This act shall take effect on the one hundred twentieth day after
48 it shall have become a law. Effective immediately, the department of
49 environmental conservation is authorized to implement rules and regu-
50 lations for the timely implementation of this act on its effective date.
