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NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A5612A SPONSOR: Englebright (MS)
TITLE OF BILL: An act to amend the environmental conservation law, in relation to regu- lation of toxic chemicals in children's products   PURPOSE OR GENERAL IDEA OF BILL: The purpose of this bill is to provide greater regulation of children's products.   SUMMARY OF SPECIFIC PROVISIONS: This bill would: *define "children's product" as "a product primarily intended for, made for or marketed for use by children, such as baby products, toys, car seats, school supplies, personal care products, a product designed or intended by the manufacturer to help a child with sucking or teething, to facilitate sleep, relaxation, or the feeding of a child, novelty products, children's jewelry, bedding, furniture, furnishings, and chil- dren's apparel;" *require the Department of Environmental Conservation (DEC) to post lists of priority chemicals and chemicals of high concern on the DEC's website within 180 days; *allow DEC, in consultation with the Department of Health, to review periodically the chemical lists and identify or remove chemicals by regulation based on scientific evidence; *require manufacturers of children's products that contains intentional- ly-added priority chemicals to report to DEC the following information: *the identification of the product, *the name of the priority chemical, and *the intended purpose of the chemicals *authorize DEC to waive all or part of the reporting requirements for one or more specified uses of a priority chemical; *require a manufacturer or distributor of a children's product contain- ing a priority chemical to notify retailers of the presence of such priority chemical, and provide information regarding the toxicity of such chemical; *require the manufacturer to pay a fee of $500 for reported chemical use reports and/or waiver requests; *prohibit the sale, effective January 2019, of a children's product containing a priority chemical; and, *authorize DEC to participate in an interstate chemical clearing house.   JUSTIFICATION: Currently, New York prohibits the use of dangerous chemicals on a chemi- cal by chemical basis. This approach is especially problematic for chil- dren's products since children are often more vulnerable to smaller amounts of chemicals. Several other states, including Washington, Cali- fornia, 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 chem- ical alternatives in children's products.   PRIOR LEGISLATIVE HISTORY: 2015: A.5612 (Englebright) - Passed the Assembly. 2013-14: A.6328 (Sweeney) - Passed the Assembly. 2012: A.3141-A (Sweeney) - Passed the Assembly   FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS: Minimal implications. The State already funds the Interstate Chemical Clearinghouse.   EFFECTIVE DATE: This act shall take effect on the 120th day after it shall have become law.
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STATE OF NEW YORK ________________________________________________________________________ 5612--A Cal. No. 217 2015-2016 Regular Sessions IN ASSEMBLY March 2, 2015 ___________ Introduced by M. of A. ENGLEBRIGHT, GOTTFRIED, COLTON, PEOPLES-STOKES, LUPARDO, KAVANAGH, SCHIMEL, TITONE, CRESPO, FAHY, KAMINSKY, GALEF, ROSENTHAL, ARROYO, COOK, ORTIZ, SIMON, STIRPE, MOSLEY, LIFTON, SKOUF- IS, OTIS, JAFFEE, ABINANTI, WALKER, STECK, SIMOTAS, SEAWRIGHT, BARRON, PAULIN, BRAUNSTEIN, DINOWITZ, LINARES -- Multi-Sponsored by -- M. of A. BUCHWALD, CYMBROWITZ, HOOPER, KEARNS, MAGEE, McDONOUGH, PERRY, 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- ing 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 EXPLANATION--Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD09354-16-6A. 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; orA. 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, informationA. 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.