Bill Text: NY A06151 | 2019-2020 | General Assembly | Introduced

Bill Title: Provides for the regulation by the departments of state, health and environmental conservation of chemicals of high concern to children.

Spectrum: Partisan Bill (Democrat 70-3)

Status: (Introduced) 2019-02-28 - referred to consumer affairs and protection [A06151 Detail]

Download: New_York-2019-A06151-Introduced.html

                STATE OF NEW YORK
                               2019-2020 Regular Sessions
                   IN ASSEMBLY
                                    February 28, 2019
        Introduced  by  M.  of A. ORTIZ, FAHY, JAFFEE, GOTTFRIED, NIOU, LUPARDO,
          HUNTER, WOERNER, STERN, OTIS, ZEBROWSKI, BARRETT -- Multi-Sponsored by
          NOLAN, SIMON, STECK, WRIGHT -- read once and referred to the Committee
          on Consumer Affairs and Protection
        AN  ACT  to  amend the general business law, in relation to chemicals of
          high concern to children
          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
     1    Section 1. The general business law is amended by adding a new section
     2  391-u to read as follows:
     3    §  391-u.  Chemicals of high concern to children. 1.  Definitions. For
     4  the purposes of this section, the following terms shall have the follow-
     5  ing meanings:
     6    (a) "Children's apparel" means  any  item  of  clothing,  footwear  or
     7  apparel,  including,  but  not  limited  to, accessories that consist of
     8  fabric or related material intended or promoted for  use  in  children's
     9  clothing.  Children's  apparel  does  not  include  protective equipment
    10  designed to prevent  injury  including,  but  not  limited  to,  bicycle
    11  helmets, athletic supporters, knee pads or elbow pads.
    12    (b)  "Chemical"  means any organic or inorganic substance of a partic-
    13  ular  molecular  identity,  including:  (i)  any  combination  of   such
    14  substances  occurring  in  whole  or  in  part as a result of a chemical
    15  reaction or occurring in nature; and  (ii)  any  element  or  uncombined
    16  radical.
    17    (c) "Chemical of high concern to children" means any chemical that has
    18  been identified by a state, federal or international governmental entity
    19  on the basis of credible scientific evidence or reliable information as:
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.

        A. 6151                             2
     1  (i)  a  carcinogen, a reproductive or developmental toxicant, neurotoxi-
     2  cant, endocrine disruptor or asthmagen; (ii) persistent, bioaccumulative
     3  and toxic; or (iii) very persistent and very bioaccumulative.
     4    (d)  "Child or children" means a person or persons twelve years of age
     5  or younger.
     6    (e) "Children's product" means a product primarily intended for,  made
     7  for  or marketed for use by children, including but not limited to: baby
     8  products; toys; car seats;  children's  cosmetics;  school  supplies;  a
     9  product  designed  or  intended by the manufacturer to help a child with
    10  sucking or teething, to facilitate sleep, relaxation or the feeding of a
    11  child;  children's  novelty  products;  children's  jewelry;  children's
    12  bedding,  furniture  and  furnishings; and children's apparel. Such term
    13  shall not include: (i) batteries; (ii)  consumer  electronics;  (iii)  a
    14  supplement,  food or beverage or an additive to a food or beverage regu-
    15  lated by the United States Food and Drug Administration;  (iv)  a  drug,
    16  biologic  or medical device regulated by the United States Food and Drug
    17  Administration; or (v) a  pesticide  product  regulated  by  the  United
    18  States  Environmental Protection Agency and registered by the department
    19  of environmental conservation.
    20    (f) "Component" means a uniquely identifiable or  reasonably  separate
    21  material  that  is intended to be included as a part of a finished chil-
    22  dren's product. A single chemical shall not be considered a  "component"
    23  unless the entire material is composed of that single chemical.
    24    (g)  "Distributor"  means  a  person  who sells children's products to
    25  retail establishments.
    26    (h) "Manufacturer" means any  person  who  manufactures  a  children's
    27  product or whose brand name is affixed to the children's product. In the
    28  case  of  a  children's product that is imported into the United States,
    29  "manufacturer" includes the importer or first  domestic  distributor  of
    30  the  children's  product if the person who manufactures or assembles the
    31  children's product or whose brand name  is  affixed  to  the  children's
    32  product does not have a presence in the United States.
    33    (i)  "Priority  chemicals  for  disclosure"  means  chemicals  of high
    34  concern to children that are designated for disclosure by the department
    35  of health, in consultation with the department of environmental  conser-
    36  vation.
    37    (j)  "Retailer"  means  any  person  who  sells  or  leases children's
    38  products in the state to consumers.  Such term shall  not  include:  (i)
    39  someone  who  purchased or acquired a product primarily for personal use
    40  and who subsequently resells the product; or (ii) any secondhand dealer.
    41    2. Publishing lists. The department of state, department  of  environ-
    42  mental  conservation and the department of health shall post the list of
    43  chemicals of high concern to children and priority chemicals for disclo-
    44  sure on their websites.
    45    3. Disclosure of information. Reporting of chemical occurrence.  Chem-
    46  icals of high concern to children and priority chemicals for  disclosure
    47  shall  be  determined  by the department of health, in consultation with
    48  the department of environmental conservation.   Once the  department  of
    49  state,  department of health and the department of environmental conser-
    50  vation publish the list of chemicals to their websites,  every  manufac-
    51  turer  who sells or distributes a children's product in this state shall
    52  report to the department of state if any of the priority  chemicals  for
    53  disclosure  are  present  in a children's product.  The list of priority
    54  chemicals for disclosure, as developed by the department of  health  and
    55  environmental  conservation, shall be reviewed by such departments on an
    56  ongoing and regular basis and reported to the department of state.

        A. 6151                             3
     1    The department of state, in consultation with the department of  envi-
     2  ronmental  conservation  and  the department of health, shall promulgate
     3  rules and regulations regarding the notification format the  manufactur-
     4  ers  must  comply  with when disclosing information to consumers and the
     5  departments.
     6    The  department  of  state, department of health and the department of
     7  environmental conservation are authorized to participate  in  an  inter-
     8  state chemicals clearinghouse to assist in carrying out the requirements
     9  of  this  section. Such departments may also enter into reciprocal data-
    10  sharing agreements with other states in which a  manufacturer  of  chil-
    11  dren's products is required to disclose information related to chemicals
    12  of high concern to children in children's products.
    13    4.  Waiver  of  reporting.  Upon  application  by  a manufacturer, the
    14  commissioner of health may waive all or part of the disclosure  require-
    15  ments. In making such determination, such commissioner may consider:
    16    (a)  whether  substantially equivalent information is already publicly
    17  available or such information is not needed for  the  purposes  of  this
    18  article;
    19    (b) whether similar waivers have been granted by other states;
    20    (c) whether the specified use or uses are minor in volume; or
    21    (d)  whether  the  manufacturer either individually or jointly submits
    22  the information required in a notice under this section to: (i) a  state
    23  with which the department of state has entered a reciprocal data-sharing
    24  agreement;  or (ii) a trade association, the Interstate Chemicals Clear-
    25  inghouse, a federal governmental  agency,  or  other  independent  third
    26  party,  who  makes  that  data  available to the department of health on
    27  behalf of the manufacturer.
    28    5. Notice  to  retailers.  A  manufacturer  of  a  children's  product
    29  containing  a  priority  chemical for disclosure shall notify, in a form
    30  prescribed by the department of state, retailers that  offer  the  chil-
    31  dren's  product for sale or distribution in the state of the presence of
    32  such priority chemical for disclosure  and  any  other  information  the
    33  departments of state and health deem appropriate.
    34    6. Notice to consumers. The department of state shall notify consumers
    35  about  children's products containing priority chemicals for disclosure.
    36  The notification shall link chemical disclosure to known  and  potential
    37  health impacts, and shall be published on the department of health's and
    38  department of environmental conservation's websites in a form and manner
    39  determined by the commissioners of such departments.
    40    7.    Certificate  of  compliance.  A  manufacturer required to submit
    41  notice pursuant to this section to the commissioners of health and envi-
    42  ronmental conservation may rely on a certificate of compliance, data  or
    43  information  from  suppliers  for  determining  reporting obligations. A
    44  certificate of compliance provided by a supplier under this  subdivision
    45  shall  be  solely for the purpose of compliance with the requirements of
    46  this section.
    47    8.  Applicability. The provisions of this section shall apply to chem-
    48  icals in children's products sold or distributed as new.  It  shall  not
    49  apply  to used children's products that are sold or distributed for free
    50  at secondhand stores, yard sales, on the internet or donated  to  chari-
    51  ties.
    52    9.    Transportation. The requirements of this section shall not apply
    53  to motor vehicles or their component parts, watercraft or  their  compo-
    54  nent  parts, all-terrain vehicles or their component parts, or off-high-
    55  way motorcycles or their component parts, except that  the  presence  of

        A. 6151                             4
     1  priority  chemicals  for disclosure in detachable car seats shall not be
     2  exempt.
     3    10.    Combustion. The requirements of this section shall not apply to
     4  chemicals generated solely as combustion byproducts or that are  present
     5  in combustible fuels.
     6    11.    Industry.  The  requirements of this section shall not apply to
     7  priority chemicals for disclosure used in or for industry or manufactur-
     8  ing, including chemicals processed or otherwise used in  or  for  indus-
     9  trial or manufacturing processes and not present in the final product.
    10    12.    Statement  of  compliance.  If  the department of environmental
    11  conservation suspects that a children's product is being offered or sold
    12  in violation of this section, such department may request  the  manufac-
    13  turer of the children's product to provide within thirty days of receipt
    14  of a request from the department of environmental conservation, a state-
    15  ment of compliance on a form provided by the department of environmental
    16  conservation.  The  statement  of  compliance shall: (a) attest that the
    17  children's product does not contain the priority  chemical  for  disclo-
    18  sure;  or (b) attest and provide the department of state with documenta-
    19  tion that notification of  the  presence  of  a  priority  chemical  for
    20  disclosure  was  provided to the department pursuant to this section; or
    21  (c) attest that the manufacturer has notified retailers of the  presence
    22  of the priority chemical for disclosure pursuant to this section.
    23    13.    Unauthorized sales. The commissioner of environmental conserva-
    24  tion may issue an order directing the cessation of the sale or  distrib-
    25  ution  by  manufacturers,  distributors  or  retailers of any children's
    26  product being distributed, sold, leased or otherwise offered for sale in
    27  this state that is in violation of this  section.  In  the  instance  of
    28  non-compliance  with such order, the department of environmental conser-
    29  vation shall provide the attorney general any information on  the  sale,
    30  lease, or distribution of prohibited children's products.
    31    14.   Enforcement. Where it is determined, following a hearing, that a
    32  manufacturer has violated one or more provisions of  this  section,  the
    33  commissioner of environmental conservation may assess a civil penalty no
    34  greater than five thousand dollars per violation. Upon the occasion of a
    35  second  violation,  and  subsequent  violations of this section, a civil
    36  penalty of no greater than fifty thousand dollars may be assessed.
    37    Any proceeding conducted pursuant to this subdivision shall be subject
    38  to the state administrative procedure act.  The  hearing  officer  shall
    39  consider  whether  a retailer knowingly offered such items for sale as a
    40  defense to violations of this section.
    41    15.  Regulations. The department of state, department  of  health  and
    42  the  department  of  environmental conservation may adopt such rules and
    43  regulations as shall be necessary to implement the  provisions  of  this
    44  section.
    45    § 2. Severability. If any clause, sentence, paragraph, section or part
    46  of  this act shall be adjudged by any court of competent jurisdiction to
    47  be invalid and after exhaustion of  all  further  judicial  review,  the
    48  judgment  shall  not affect, impair or invalidate the remainder thereof,
    49  but shall be confined in its operation to the  clause,  sentence,  para-
    50  graph,  section or part of this act directly involved in the controversy
    51  in which the judgment shall have been rendered.
    52    § 3. This act shall take effect July 1, 2020.  Effective  immediately,
    53  the addition, amendment and/or repeal of any rules or regulations neces-
    54  sary  for  the  implementation  of  this  act  on its effective date are
    55  authorized and directed to be made  and  completed  on  or  before  such
    56  effective date.