STATE OF NEW YORK
________________________________________________________________________
4614--A
2013-2014 Regular Sessions
IN SENATE
April 15, 2013
___________
Introduced by Sens. BOYLE, ADDABBO, AVELLA, BALL, BRESLIN, CARLUCCI,
DIAZ, DILAN, ESPAILLAT, GIANARIS, GIPSON, GOLDEN, HASSELL-THOMPSON,
HOYLMAN, KENNEDY, KLEIN, KRUEGER, LANZA, LATIMER, LAVALLE, MARTINS,
MONTGOMERY, O'BRIEN, PARKER, PERALTA, PERKINS, RIVERA, ROBACH, SAMP-
SON, SANDERS, SAVINO, SERRANO, SQUADRON, STAVISKY, STEWART-COUSINS,
TKACZYK, VALESKY, YOUNG -- read twice and ordered printed, and when
printed to be committed to the Committee on Environmental Conservation
-- recommitted to the Committee on Environmental Conservation in
accordance with Senate Rule 6, sec. 8 -- committee discharged and said
bill committed to the Committee on Finance -- 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. 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.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD04204-04-4
S. 4614--A 2
1 1. "Children's apparel" means any item of clothing that consists of
2 fabric or related material intended or promoted for use in children's
3 clothing. Children's apparel does not mean protective equipment designed
4 to prevent injury, including, but not limited to, bicycle helmets,
5 athletic supporters, knee pads or elbow pads.
6 2. "Chemical" means a substance with a distinct molecular composition
7 or a group of structurally related substances and includes the breakdown
8 products of the substance or substances that form through decomposition,
9 degradation or metabolism.
10 3. "Chemicals of high concern" means: (a) chemicals included in the
11 list of "chemicals of high concern" published in two thousand nine
12 pursuant to chapter sixteen-D of title 38 of the Maine revised statutes
13 annotated; or (b) a chemical adopted by the department pursuant to
14 section 37-0903 of this title.
15 4. "Children" means a person or persons aged twelve and under.
16 5. "Children's product" means a product primarily intended for, made
17 for or marketed for use by children, such as baby products, toys, car
18 seats, personal care products, a product designed or intended by the
19 manufacturer to help a child with sucking or teething, to facilitate
20 sleep, relaxation, or the feeding of a child, and children's bedding,
21 furniture, furnishings, and apparel. "Children's product" does not
22 include (a) batteries; or (b) consumer electronic products including but
23 not limited to personal computers, audio and video equipment, calcula-
24 tors, wireless phones, game consoles, and handheld devices incorporating
25 a video screen, used to access interactive software and their associated
26 peripherals; or (c) a food or beverage or an additive to a food or
27 beverage regulated by the United States Food and Drug Administration; or
28 (d) a tobacco product or paper or forest product; or (e) a pesticide
29 regulated by the United States Environmental Protection Agency. Chil-
30 dren's product also does not include a drug, biologic or medical device
31 regulated by the United States Food and Drug Administration.
32 6. "Distributor" means a person who sells children's products to
33 retail establishments on a wholesale basis.
34 7. "Intentionally added" means the deliberate use in the formulation
35 of a product or subpart where its continued presence is desired in the
36 final product or subpart to provide a specific characteristic, appear-
37 ance or quality.
38 8. "Manufacturer" means any person who currently manufactures a chil-
39 dren's product or whose brand name is affixed to the children's product.
40 In the case of a children's product that was imported into the United
41 States, "manufacturer" includes the importer or first domestic distribu-
42 tor of the children's product if the person who currently manufactures
43 or assembles the children's product or whose brand name is affixed to
44 the children's product does not have a presence in the United States.
45 9. "Product category" means the "brick" level of the GS1 global prod-
46 uct classification (GPC) standard, which identifies products that serve
47 a common purpose, are of a similar form and material, and share the same
48 set of category attributes.
49 10. "Priority chemical" means (a) the following chemicals:
50 CASRN13674-87-8Tris (1, 3 dichloro-2-propyl) phosphate
51 CASRN71-43-2Benzene
52 CASRN7439-92-1lead and compounds (inorganic)
53 CASRN7439-97-6Mercury and mercury compounds, including methyl
54 mercury (CASRN 22967-92-6)
55 CASRN7439-98-7Molybdenum and molybdenum compounds
56 CASRN7440-36-0Antimony and antimony compounds
S. 4614--A 3
1 CASRN7440-38-2Arsenic and arsenic compounds including arsenic
2 trioxide (CASRN 1327-53-3)
3 and dimethyl arsenic (CASRN 75-60-5)
4 CASRN7440-43-9Cadmium
5 CASRN7440-48-4Cobalt and cobalt compounds and
6 (b) a chemical adopted by the department pursuant to section 37-0903
7 of this title.
8 11. "Toy" means a product designed or intended by the manufacturer to
9 be used by children at play.
10 § 37-0903. Priority chemicals and chemicals of high concern.
11 1. Publishing of lists. Within one hundred eighty days of the effec-
12 tive date of this title, the department shall post lists of priority
13 chemicals and chemicals of high concern on the department's website.
14 2. Periodic review. (a) The department, in consultation with the
15 department of health, may periodically review the list of priority chem-
16 icals and, through regulation, add or remove priority chemicals or chem-
17 icals of high concern from such lists. Such review will not take place
18 more frequently than every three years, and not more than ten chemicals
19 may be added per review period.
20 (b) The department, in consultation with the department of health, may
21 identify a chemical as a priority chemical if, upon such review, it
22 determines that a chemical of high concern is present in a children's
23 product and meets any of the following criteria:
24 (i) The chemical or its metabolites have been found through biomoni-
25 toring to be present in humans;
26 (ii) The chemical has been found through sampling and analysis to be
27 present in household dust, indoor air, drinking water or elsewhere in
28 the home environment;
29 (iii) The chemical has been found through monitoring to be present in
30 fish, wildlife or the natural environment; or
31 (iv) The sale or use of the chemical or a children's product contain-
32 ing the chemical has been banned in another state or states within the
33 United States because of the health effects of such chemical.
34 (c) If a chemical is removed from the listing of chemicals of high
35 concern, it shall also be undesignated as a priority chemical.
36 (d) The department, in consultation with the department of health
37 shall identify a chemical as a chemical of high concern if, upon review,
38 it determines that the chemical has been identified by a state, federal
39 or international governmental entity on the basis of credible scientific
40 evidence as:
41 (i) A carcinogen, a reproductive or developmental toxicant or an
42 endocrine disruptor;
43 (ii) Persistent, bioaccumulative and toxic; or
44 (iii) Very persistent and very bioaccumulative.
45 § 37-0905. Disclosure of information on priority chemicals.
46 1. Reporting of chemical use. No later than twelve months after a
47 priority chemical appears on the list published pursuant to section
48 37-0903 of this title, every manufacturer who offers a children's prod-
49 uct for sale or distribution in this state that contains an inten-
50 tionally added priority chemical shall report such chemical use to the
51 department. The department may collaborate with other states and an
52 interstate chemicals clearinghouse in developing such form.
53 (a) This report must at a minimum identify the children's product
54 category, the priority chemical or chemicals contained in the children's
55 product category, and the intended purpose of the chemicals in the chil-
S. 4614--A 4
1 dren's product category. The department may also require reporting of
2 the following information:
3 (i) the potential for harm to human health and the environment from
4 specific uses of the priority chemical;
5 (ii) the amount of such chemical in each unit of the children's prod-
6 uct category, expressed in a range. When the chemical is used in more
7 than one product within a product category, the highest amount must be
8 reported;
9 (iii) information on the likelihood that the chemical will be released
10 from the children's product category to the environment during the prod-
11 uct category's life cycle and the extent to which users of the product
12 category are likely to be exposed to the chemical; or
13 (iv) information on the extent to which the chemical is present in the
14 environment or human body.
15 (b) The department is authorized to direct submission of such report
16 to the interstate chemicals clearinghouse.
17 2. Waiver of reporting. Upon application by a manufacturer, the
18 commissioner may waive all or part of the reporting requirements under
19 subdivision one of this section for one or more specified uses of a
20 priority chemical. In making such determination, the commissioner may
21 consider: (a) if substantially equivalent information is already public-
22 ly available or that the information is not needed for the purposes of
23 this chapter, (b) similar waivers granted by other states, and (c)
24 whether the specified use or uses are minor in volume.
25 3. Notice to retailers. A manufacturer of a children's product
26 containing a priority chemical shall notify persons that offer the chil-
27 dren's product for sale or distribution in the state, in a form
28 prescribed by the department, of the presence of such priority chemical,
29 and provide such persons with information regarding the toxicity of such
30 chemical.
31 4. Fees. The manufacturer shall pay a fee upon submission of a report
32 of chemical use pursuant to subdivision one of this section or a waiver
33 request pursuant to subdivision two of this section to cover the depart-
34 ment's reasonable costs in the amount of three hundred dollars per
35 reported product category.
36 § 37-0907. Sales prohibition.
37 Effective January 1, 2018, no person shall distribute, sell or offer
38 for sale in this state a children's product containing tris (1, 3
39 dichloro-2-propyl) phosphate, benzene, lead and compounds (inorganic),
40 mercury and mercury compounds including methyl mercury, antimony and
41 antimony compounds, arsenic and arsenic compounds including arsenic
42 trioxide and dimethyl arsenic, cadmium, and cobalt and cobalt compounds.
43 This provision shall not apply to a children's product solely based on
44 its containing an enclosed battery or enclosed electronic components.
45 The commissioner may exempt a children's product from this prohibition
46 if, in the commissioner's judgment, the lack of availability of the
47 children's product could pose an unreasonable risk to public health,
48 safety or welfare.
49 § 37-0909. Applicability.
50 1. New children's products. The provisions of this title shall apply
51 to chemicals in children's products sold or distributed as new and does
52 not apply to used children's products that are sold or distributed for
53 free at secondhand stores, yard sales, on the internet or donated to
54 charities.
55 2. Industry. The requirements of this title shall not apply to priori-
56 ty chemicals used in or for industry or manufacturing, including chemi-
S. 4614--A 5
1 cals processed or otherwise used in or for industrial or manufacturing
2 processes and not included in the final product.
3 3. Transportation. The requirements of this title shall not apply to
4 motor vehicles or their component parts, watercraft or their component
5 parts, all terrain vehicles or their component parts, or off-highway
6 motorcycles or their component parts, except that the use of priority
7 chemicals in detachable car seats is not exempt.
8 4. Combustion. The requirements of this title shall not apply to
9 priority chemicals generated solely as combustion by-products or that
10 are present in combustible fuels.
11 5. Exceptions. The requirements of this title shall not apply to chil-
12 dren's product makers that employ five persons or fewer, are resident in
13 this state, independently owned and operated, and not dominant in their
14 field.
15 6. Retailers. A retailer is exempt from the requirements of this title
16 unless that retailer knowingly sells a children's product containing a
17 priority chemical after the effective date of its prohibition for which
18 that retailer has received notification pursuant to subdivision three of
19 section 37-0905 of this title.
20 § 37-0911. Enforcement and implementation.
21 1. Failure to provide notice. A children's product containing a prior-
22 ity chemical may not be sold, offered for sale or distributed for sale
23 in this state unless the manufacturer has provided the notification
24 required under section 37-0905 of this title by the date required in
25 such section. The commissioner may exempt a children's product from this
26 prohibition if, in the commissioner's judgment, the lack of availability
27 of the children's product could pose an unreasonable risk to public
28 health, safety or welfare.
29 2. Statement of compliance. If there are grounds to suspect that a
30 children's product is being offered for sale in violation of this title,
31 the department may request the manufacturer of the children's product to
32 provide a statement of compliance on a form provided by the department,
33 within ten days of receipt of a request from the department. The state-
34 ment of compliance shall:
35 (a) attest that the children's product does not contain the priority
36 chemical; or
37 (b) attest and provide the department with documentation that notifi-
38 cation of the presence of the priority chemical has been provided to the
39 department or provide notice as required by section 37-0905 of this
40 title; or
41 (c) attest that the manufacturer has notified persons who sell the
42 product in this state that the sale of the children's product is prohib-
43 ited.
44 § 37-0913. Interstate chemical clearinghouse.
45 1. The department is authorized to participate in an interstate chemi-
46 cals clearinghouse to assist in carrying out the requirements of this
47 title. The department shall work in collaboration with other states and
48 an interstate chemicals clearinghouse for the purpose of, including but
49 not limited to:
50 (a) collection and dissemination of information regarding chemical
51 hazards;
52 (b) collection and dissemination of information regarding the use of
53 chemicals in children's products;
54 (c) assessment of alternatives to chemicals and their use in products;
55 and
56 (d) public education.
S. 4614--A 6
1 2. Such clearinghouse is authorized to maintain information on behalf
2 of the state of New York, including, but not limited to, information
3 regarding chemicals contained in children's products disclosed pursuant
4 to section 37-0905 of this title.
5 § 37-0915. Regulations.
6 The department may adopt any rules and regulations it deems necessary
7 to implement the provisions of this title.
8 § 2. This act shall take effect on the one hundred twentieth day after
9 it shall have become a law. Effective immediately, the department of
10 environmental conservation is authorized to implement rules and regu-
11 lations for the timely implementation of this act on its effective date.
