STATE OF NEW YORK
________________________________________________________________________
2199
2019-2020 Regular Sessions
IN SENATE
January 23, 2019
___________
Introduced by Sens. BAILEY, ADDABBO, BRESLIN, GIANARIS, HOYLMAN, KENNE-
DY, KRUEGER, MONTGOMERY, PARKER, SERRANO, STAVISKY, STEWART-COUSINS --
read twice and ordered printed, and when printed to be committed to
the Committee on Environmental 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. Chemicals of high concern.
7 37-0905. Priority chemicals.
8 37-0907. Disclosure of information on priority chemicals.
9 37-0909. Sales prohibition.
10 37-0911. Applicability.
11 37-0913. Enforcement and implementation.
12 37-0915. Interstate chemical clearinghouse.
13 37-0917. Regulations.
14 § 37-0901. Definitions.
15 As used in this title, unless the context otherwise indicates, the
16 following terms have the following meanings.
17 1. "Children's apparel" means any item of clothing that consists of
18 fabric or related material intended or promoted for use in children's
19 clothing. Children's apparel does not mean protective equipment designed
20 to prevent injury, including, but not limited to, bicycle helmets,
21 athletic supporters, knee pads or elbow pads.
22 2. "Chemical" means a substance with a distinct molecular composition
23 or a group of structurally related substances and includes the breakdown
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD05571-01-9
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1 products of the substance or substances that form through decomposition,
2 degradation or metabolism.
3 3. "Chemical of high concern" means a chemical included in the list of
4 "Chemicals of High Concern" published in June 2009 pursuant to chapter
5 16-D of title 38 of the Maine revised statutes annotated.
6 4. "Children" means a person or persons aged twelve and under.
7 5. "Children's product" means a product primarily intended for, made
8 for or marketed for use by children, including baby products, toys, car
9 seats, personal care products, a product designed or intended by the
10 manufacturer to help a child with sucking or teething, to facilitate
11 sleep, relaxation, or the feeding of a child, novelty products, bedding,
12 furniture, furnishings, and children's apparel. "Children's product"
13 does not include (a) batteries; or (b) consumer electronic products
14 including but not limited to personal computers, audio and video equip-
15 ment, calculators, wireless phones, game consoles, and handheld devices
16 incorporating a video screen, used to access interactive software and
17 their associated peripherals; or (c) a food or beverage or an additive
18 to a food or beverage regulated by the United States Food and Drug
19 Administration; or (d) a tobacco product or paper or forest product; or
20 (e) a pesticide regulated by the United States Environmental Protection
21 Agency. "Children's product" also does not include a drug, biologic or
22 medical device regulated by the United States Food and Drug Adminis-
23 tration.
24 6. "Distributor" means a person who sells children's products to
25 retail establishments on a wholesale basis.
26 7. "Intentionally added" means the deliberate use in the formulation
27 of a product or subpart where its continued presence is desired in the
28 final product or subpart to provide a specific characteristic, appear-
29 ance or quality.
30 8. "Manufacturer" means any person who currently manufactures a final
31 children's product or whose brand name is affixed to the children's
32 product. In the case of a children's product that was imported into the
33 United States, "manufacturer" includes the importer or first domestic
34 distributor of the children's product if the person who currently manu-
35 factures or assembles the children's product or whose brand name is
36 affixed to the children's product does not have a presence in the United
37 States.
38 9. "Novelty product" means a product intended mainly for personal or
39 household enjoyment or adornment. Novelty products include, but are not
40 limited to, items intended for use as practical jokes, figurines, adorn-
41 ments, toys, games, cards, ornaments, yard statues and figures, candles,
42 jewelry, holiday decorations, or similar products.
43 10. "Priority chemical" means (a) the following chemicals:
44 CASRN115-96-8 Tris (2-chloroethyl) phosphate
45 CASRN71-43-2 Benzene
46 CASRN7439-92-1 Lead and compounds (inorganic)
47 CASRN7439-97-6 Mercury and mercury compounds, including methyl
48 mercury (CASRN 22967-92-6)
49 CASRN7439-98-7 Molybdenum and molybdenum compounds
50 CASRN7440-36-0 Antimony and antimony compounds
51 CASRN7440-38-2 Arsenic and arsenic compounds including arsenic
52 trioxide (CASRN 1327-53-3)
53 and dimethyl arsenic (CASRN 75-60-5)
54 CASRN7440-43-9 Cadmium
55 CASRN7440-48-4 Cobalt and cobalt compounds and
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1 (b) a chemical adopted by the department pursuant to section 37-0905
2 of this title.
3 11. "Toy" means a product designed or intended by the manufacturer to
4 be used by a child at play.
5 § 37-0903. Chemicals of high concern.
6 1. Publishing of list. Within one hundred eighty days of the effective
7 date of this title, the department shall ensure that a website accessi-
8 ble to the public is established that lists all chemicals of high
9 concern.
10 2. Periodic review. (a) The department, in consultation with the
11 department of health, may periodically review the list of chemicals of
12 high concern and, through regulation, identify additional chemicals of
13 high concern, or remove a chemical from the list of chemicals of high
14 concern based on evidence that the chemical does not meet the criteria
15 of this subdivision. In the event that a new determination is made by a
16 state, federal or international governmental entity that a chemical
17 meets the high concern criteria, nothing herein shall prevent the
18 department from acting to add such chemicals outside of the periodic
19 review process.
20 (b) The department shall, upon this review, identify a chemical as a
21 chemical of high concern if it determines that the chemical has been
22 identified by a state, federal or international governmental entity on
23 the basis of credible scientific evidence as:
24 (i) A carcinogen, a reproductive or developmental toxicant or an
25 endocrine disruptor;
26 (ii) Persistent, bioaccumulative and toxic; or
27 (iii) Very persistent and very bioaccumulative.
28 (c) In making such determination, the department may consider but is
29 not limited to considering:
30 (i) chemicals identified as "Group 1 carcinogens" or "Group 2A carci-
31 nogens" by the World Health Organization, International Agency for
32 Research on Cancer;
33 (ii) chemicals identified as "known to be a human carcinogen" and
34 "reasonably anticipated to be a human carcinogen" by the Secretary of
35 the United States Department of Health and Human Services pursuant to
36 the Public Health Service Act, 42 United States Code, Section 241(b)(4),
37 as amended;
38 (iii) chemicals identified as "Group A carcinogens" or "Group B carci-
39 nogens" by the United States Environmental Protection Agency;
40 (iv) chemicals identified as reproductive or developmental toxicants
41 by:
42 (A) the United States Department of Health and Human Services,
43 National Toxicology Program, Center for the Evaluation of Risks to Human
44 Reproduction; and
45 (B) the California Environmental Protection Agency, Office of Environ-
46 mental Health Hazard Assessment pursuant to the California Health and
47 Safety Code, Safe Drinking Water and Toxic Enforcement Act of 1986,
48 Chapter 6.6, Section 25249.8;
49 (v) chemicals identified as a chemical of high concern for children or
50 a high priority chemical of high concern for children or as a persistent
51 bioaccumulative toxic chemical by the state of Washington Department of
52 Ecology, pursuant to chapter 70.240 of the revised code of Washington or
53 chapter 173-333 of the state of Washington administrative code;
54 (vi) chemicals of high concern as such chemicals are identified by the
55 state of Maine's Department of Environmental Conservation and appearing
56 on such department's list of chemicals of high concern;
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1 (vii) chemicals identified as known or likely endocrine disruptors
2 through screening or testing conducted in accordance with protocols
3 developed by the United States Environmental Protection Agency pursuant
4 to the United States Food, Drug and Cosmetic Act, 21 United States Code,
5 346a(p), as amended by the federal Food Quality Protection Act (Public
6 Law 104-170) or the federal Safe Drinking Water Act, 42 United States
7 Code, Section 300j-17;
8 (viii) chemicals listed on the basis of endocrine-disrupting proper-
9 ties in Annex XIV, List of Substances Subject to Authorisation, Regu-
10 lation (EC) No 1907/2006 of the European Parliament concerning the
11 Registration, Evaluation, Authorisation and Restriction of Chemicals;
12 (ix) persistent, bioaccumulative and toxic chemicals identified by
13 other states or the United States Environmental Protection Agency; and
14 (x) a very persistent, very bioaccumulative chemical listed in Annex
15 XIV, List of Substances Subject to Authorisation, Regulation (EC) No
16 1907/2006 of the European Parliament concerning the Registration, Evalu-
17 ation, Authorisation and Restriction of Chemicals.
18 § 37-0905. Priority chemicals.
19 1. Publishing of list. Within one hundred eighty days of the effective
20 date of this title, the department shall ensure that a website accessi-
21 ble to the public is established that lists all priority chemicals.
22 2. Periodic review. (a) The department, in consultation with the
23 department of health, may periodically review the list of priority chem-
24 icals and, through regulation, identify additional priority chemicals or
25 remove a chemical from the list of priority chemicals based on evidence
26 that the chemical is not present in a children's product or otherwise
27 should not be subject to the requirements of this title. In the event
28 that a new determination is made by a state, federal or international
29 governmental entity that a chemical meets the priority chemical crite-
30 ria, nothing herein shall prevent the department from acting to add such
31 chemicals outside of the periodic review process.
32 (b) The department, in consultation with the department of health, may
33 identify a chemical as a priority chemical if, upon such review, it
34 determines that a chemical of high concern meets any of the following
35 criteria:
36 (i) The chemical or its metabolites have been found through biomoni-
37 toring to be present in humans, including human blood, umbilical cord
38 blood, breast milk, urine or other bodily tissues or fluids;
39 (ii) The chemical has been found through sampling and analysis to be
40 present in household dust, indoor air, drinking water or elsewhere in
41 the home environment;
42 (iii) The chemical has been found through monitoring to be present in
43 fish, wildlife or the natural environment;
44 (iv) The chemical is present in a children's product used or present
45 in the home, school, or childcare center; or
46 (v) The sale or use of the chemical or a product containing the chemi-
47 cal has been banned in another state or states within the United States
48 because of the health effects of such chemical.
49 (c) If a chemical is removed from the listing of chemicals of high
50 concern, it shall also be undesignated as a priority chemical.
51 § 37-0907. Disclosure of information on priority chemicals.
52 1. Reporting of chemical use. No later than twelve months after a
53 priority chemical is listed on the list published pursuant to section
54 37-0905 of this title, every manufacturer who offers a children's prod-
55 uct for sale or distribution in this state that contains an inten-
56 tionally added priority chemical shall report such chemical use to the
S. 2199 5
1 department in a form prescribed by the department. The department may
2 collaborate with other states and an interstate chemicals clearinghouse
3 in developing such form.
4 (a) This report must at a minimum identify the children's product, the
5 priority chemical or chemicals contained in the children's product, and
6 the intended purpose of the chemicals in the children's product. The
7 department may also require reporting of the following information:
8 (i) the potential for harm to human health and the environment from
9 specific uses of the priority chemical;
10 (ii) the amount of such chemical in each unit of the children's prod-
11 uct, expressed in a range;
12 (iii) information on the likelihood that the chemical will be released
13 from the children's product to the environment during the product's life
14 cycle and the extent to which users of the product are likely to be
15 exposed to the chemical; or
16 (iv) information on the extent to which the chemical is present in the
17 environment or human body.
18 (b) The department is authorized to direct submission of a copy of
19 such report to the interstate chemicals clearinghouse.
20 2. Waiver of reporting. Upon application by a manufacturer, the
21 commissioner may waive all or part of the reporting requirements under
22 subdivision one of this section for one or more specified uses of a
23 priority chemical. In making such determination, the commissioner may
24 consider: (a) if substantially equivalent information is already public-
25 ly available or that the information is not needed for the purposes of
26 this chapter, (b) similar waivers granted by other states, and (c)
27 whether the specified use or uses are minor in volume.
28 3. Notice to retailers. A manufacturer or distributor of a children's
29 product containing a priority chemical shall notify persons that offer
30 the children's product for sale or distribution in the state, in a form
31 prescribed by the department, of the presence of such priority chemical,
32 and provide such persons with information regarding the toxicity of such
33 chemical.
34 4. Fees. The manufacturer or distributor shall pay a fee upon
35 submission of a report of chemical use pursuant to subdivision one of
36 this section or a waiver request pursuant to subdivision two of this
37 section to cover the department's reasonable costs in the amount of six
38 hundred dollars per chemical.
39 § 37-0909. Sales prohibition.
40 Effective January first, two thousand twenty-four, no person shall
41 distribute, sell or offer for sale in this state a children's product
42 containing a priority chemical that has been listed for at least one
43 year. This provision shall not apply to a children's product solely
44 based on its containing an enclosed battery or enclosed electronic
45 components. The commissioner may exempt a children's product from this
46 prohibition if, in the commissioner's judgment, the lack of availability
47 of the children's product could pose an unreasonable risk to public
48 health, safety or welfare.
49 § 37-0911. 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. 2199 6
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. Retailers. A retailer is exempt from the requirements of this title
12 unless that retailer knowingly sells a children's product containing a
13 priority chemical after the effective date of its prohibition for which
14 that retailer has received prior notification from a manufacturer,
15 distributor or the state.
16 § 37-0913. Enforcement and implementation.
17 1. Failure to provide notice. A children's product containing a prior-
18 ity chemical may not be sold, offered for sale or distributed for sale
19 in this state unless the manufacturer or distributor has provided the
20 notification required under section 37-0907 of this title by the date
21 required in such section. The commissioner may exempt a children's prod-
22 uct from this prohibition if, in the commissioner's judgment, the lack
23 of availability of the children's product could pose an unreasonable
24 risk to public health, safety or welfare.
25 2. Statement of compliance. If there are grounds to suspect that a
26 children's product is being offered for sale in violation of this title,
27 the department may request the manufacturer or distributor of the chil-
28 dren's product to provide a statement of compliance on a form provided
29 by the department, within ten days of receipt of a request from the
30 department. The statement of compliance shall:
31 (a) attest that the children's product does not contain the priority
32 chemical; or
33 (b) attest and provide the department with documentation that notifi-
34 cation of the presence of the priority chemical has been provided to the
35 department or provide notice as required by section 37-0907 of this
36 title; or
37 (c) attest that the manufacturer has notified persons who sell the
38 product in this state that the sale of the children's product is prohib-
39 ited.
40 § 37-0915. Interstate chemical clearinghouse.
41 1. The department is authorized to participate in an interstate chemi-
42 cals clearinghouse to assist in carrying out the requirements of this
43 title. The department shall work in collaboration with other states and
44 an interstate chemicals clearinghouse for the purpose of, including but
45 not limited to:
46 (a) collection and dissemination of information regarding chemical
47 hazards;
48 (b) collection and dissemination of information regarding the use of
49 chemicals in children's products;
50 (c) assessment of alternatives to chemicals and their use in products;
51 and
52 (d) public education.
53 2. Such clearinghouse is authorized to maintain information on behalf
54 of the state of New York, including, but not limited to, information
55 regarding chemicals contained in children's products disclosed pursuant
56 to section 37-0907 of this title.
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1 § 37-0917. Regulations.
2 The department may adopt any rules and regulations it deems necessary
3 to implement the provisions of this title.
4 § 2. This act shall take effect on the one hundred twentieth day after
5 it shall have become a law. Effective immediately, the department of
6 environmental conservation is authorized to implement rules and regu-
7 lations for the timely implementation of this act on its effective date.