Assembly Bill A6919D

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  6919

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                             March 17, 2009
                               ___________

Introduced  by M. of A. ENGLEBRIGHT, SWEENEY, COLTON, EDDINGTON, CASTRO,
  LIFTON, JAFFEE, GUNTHER, RUSSELL, GABRYSZAK -- Multi-Sponsored  by  --
  M. of A. GREENE, WEISENBERG -- read once and referred to the Committee
  on Environmental Conservation

AN  ACT  to  amend  the  environmental  conservation law, in relation to
  enacting the "bisphenol A-free children and babies act"

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.  Short  title. This act shall be known and may be cited as
the "bisphenol A-free children and babies act".
  S 2. Article 37 of the environmental conservation law  is  amended  by
adding a new title 5 to read as follows:
                                 TITLE 5
                               BISPHENOL A
SECTION 37-0501. LEGISLATIVE INTENT.
        37-0503. DEFINITIONS.
        37-0505. TOYS AND CHILD CARE PRODUCTS.
        37-0507. FOOD AND BEVERAGE CONTAINERS.
        37-0509. APPROVAL OF BISPHENOL A ALTERNATIVES.
        37-0511. WAIVERS.
        37-0513. FEES.
        37-0515. PRODUCT LABELING.
        37-0517. PUBLIC EDUCATION AND MANUFACTURER RECOGNITION.
        37-0519. ENFORCEMENT.
S 37-0501. LEGISLATIVE INTENT.
  THE  LEGISLATURE  HEREBY  FINDS  THAT  BISPHENOL  A (BPA), A PRINCIPLE
COMPONENT IN THE PRODUCTION OF POLYCARBONATE  RIGID  PLASTIC  AND  EPOXY
RESINS,  IS  USED IN MANY FOOD AND DRINK PACKAGING APPLICATIONS, AS WELL
AS PRODUCTS INTENDED FOR USE BY YOUNG CHILDREN. THE RESINS ARE  COMMONLY
USED AS LACQUERS TO COAT METAL PRODUCTS, SUCH AS FOOD CANS, BOTTLE TOPS,
JAR LIDS AND INFANT FORMULA CONTAINERS. THE RESINS ARE ALSO USED TO LINE

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD10403-01-9
              

A. 6919                             2

ASEPTIC  PACKAGES SUCH AS JUICE BOXES. THE CHEMICAL BOND BETWEEN BISPHE-
NOL A MOLECULES IS  UNSTABLE  AND  CAN  BE  DISRUPTED  BY  HEAT,  ACIDIC
REACTIONS  AND  OTHER  CONDITIONS  THAT CAN RELEASE BISPHENOL A INTO THE
FOOD OR BEVERAGES WITHIN THE CONTAINERS.
  BISPHENOL  A  IS UBIQUITOUS. ACCORDING TO THE U.S. CENTERS FOR DISEASE
CONTROL, NINETY-FIVE PERCENT OF  AMERICANS  HAVE  DETECTABLE  LEVELS  OF
BISPHENOL A IN THEIR BODIES, AND MOST ARE AT OR ABOVE THE CONCENTRATIONS
KNOWN  TO  CAUSE ADVERSE EFFECTS IN LABORATORY STUDIES. RESEARCH STUDIES
HAVE FOUND THAT BABIES HAVE UP TO ELEVEN TIMES HIGHER LEVELS OF  BISPHE-
NOL  A  IN  THEIR  BODIES THAN DO ADULTS BECAUSE OF GREATER EXPOSURE AND
REDUCED CAPACITY TO METABOLIZE BISPHENOL A.
  BISPHENOL A IS A KNOWN ESTROGEN-MIMICKING ENDOCRINE  DISRUPTOR  CHEMI-
CAL.  ENDOCRINE DISRUPTION HAS BEEN LINKED TO A GREATER NUMBER OF COMMON
AILMENTS, INCLUDING HEART DISEASE, IMMUNE SYSTEM DISRUPTION, BRAIN DETE-
RIORATION,  TYPE-2 DIABETES, CANCER AND OBESITY. RESEARCH HAS SHOWN THAT
BISPHENOL A CAN ALTER THE EXPRESSION  OF  SEVERAL  HUNDRED  GENES,  WITH
EFFECTS VARYING AMONG SPECIFIC TISSUES AND TIMING OF EXPOSURE. PRE-NATAL
AND  NEONATAL  EXPOSURE  TO  BISPHENOL  A HAS BEEN LINKED TO ALTERED DNA
FUNCTION AND GENETIC EXPRESSION, MALE REPRODUCTIVE DISORDERS AND LOWERED
SPERM COUNTS, INSULIN RESISTANCE, EARLY PUBERTY, AND CHANGES IN PROSTATE
AND MAMMARY GLAND DEVELOPMENT, LEADING TO POTENTIAL GREATER SUSCEPTIBIL-
ITY TO BREAST CANCER AND OTHER CANCER LATER IN LIFE.
  IN 2008, THIRTY-EIGHT OF THE WORLD'S  LEADING  SCIENTIFIC  EXPERTS  ON
BISPHENOL A, WHO REVIEWED OVER 700 PUBLISHED STUDIES, RELEASED A CONSEN-
SUS STATEMENT WARNING OF THE ADVERSE HEALTH EFFECTS OF BISPHENOL A EXPO-
SURE,  CONCLUDING  THAT  THE AVERAGE LEVELS OF BISPHENOL A IN PEOPLE ARE
ABOVE THOSE THAT CAUSE HARM IN ANIMALS IN LABORATORY EXPERIMENTS.
  THE STATE OF NEW YORK MUST ACT TO SIGNIFICANTLY REDUCE THE  HARM  FROM
BISPHENOL  A, PARTICULARLY FOR INFANTS AND CHILDREN, THE MOST VULNERABLE
WITHIN OUR POPULATION.
S 37-0503. DEFINITIONS.
  AS USED IN THIS TITLE:
  1. "CHILD CARE PRODUCT" MEANS ALL PRODUCTS DESIGNED OR INTENDED BY THE
MANUFACTURER FOR CHILD CARE, INCLUDING, BUT NOT  LIMITED  TO,  THOSE  TO
HELP WITH SUCKING OR TEETHING, TO FACILITATE SLEEP OR RELAXATION, OR THE
FEEDING OF CHILDREN.
  2.  "TOY"  MEANS ALL PRODUCTS DESIGNED OR INTENDED BY THE MANUFACTURER
TO BE USED BY CHILDREN WHEN THEY PLAY.
S 37-0505. TOYS AND CHILD CARE PRODUCTS.
  1. NO PERSON, FIRM, PARTNERSHIP, ASSOCIATION, LIMITED LIABILITY COMPA-
NY OR CORPORATION SHALL MANUFACTURE, DISTRIBUTE, SELL OR OFFER FOR  SALE
ANY TOY OR CHILD CARE PRODUCT INTENDED FOR USE BY A CHILD THREE YEARS OF
AGE OR YOUNGER CONTAINING BISPHENOL A.
  2.  THE  PROVISIONS  OF  THIS  SECTION  SHALL NOT APPLY TO THE SALE OR
DISTRIBUTION OF TOYS OR  CHILD  CARE  PRODUCTS  RESOLD  OR  OFFERED  FOR
RESALE, OR DISTRIBUTED BY CONSUMERS FOR CONSUMER USE.
S 37-0507. FOOD AND BEVERAGE CONTAINERS.
  NO  PERSON,  FIRM, PARTNERSHIP, ASSOCIATION, LIMITED LIABILITY COMPANY
OR CORPORATION SHALL MANUFACTURE, DISTRIBUTE, SELL OR OFFER FOR SALE:
  1. ANY BOTTLE, CUP OR OTHER CONTAINER THAT CONTAINS  BISPHENOL  A,  IF
SUCH  CONTAINER  IS  DESIGNED  OR INTENDED TO BE FILLED WITH ANY LIQUID,
FOOD OR BEVERAGE PRIMARILY FOR CONSUMPTION FROM THAT CONTAINER BY  CHIL-
DREN FOURTEEN YEARS OF AGE OR YOUNGER;
  2.  ANY JAR, CAN, BOX OR OTHER CONTAINER THAT CONTAINS BISPHENOL A, IF
SUCH CONTAINER IS FILLED WITH ANY LIQUID, FOOD OR BEVERAGE PRIMARILY FOR
CONSUMPTION BY CHILDREN FOURTEEN YEARS OF AGE OR YOUNGER; OR

A. 6919                             3

  3. ANY SPORTS WATER BOTTLE THAT CONTAINS BISPHENOL A.
S 37-0509. APPROVAL OF BISPHENOL A ALTERNATIVES.
  1.  EVERY  MANUFACTURER  OF  A CHILD CARE PRODUCT OR TOY PROHIBITED BY
THIS TITLE SHALL USE THE LEAST TOXIC ALTERNATIVE TO THE BISPHENOL  A  IN
THE  TOY  OR  CHILD  CARE  PRODUCT.  SUCH ALTERNATIVE SHALL NOT BE (A) A
CARCINOGEN RATED BY THE UNITED STATE ENVIRONMENTAL PROTECTION AGENCY  AS
A,  B OR C CARCINOGENS, OR SUBSTANCES LISTED AS KNOWN OR LIKELY CARCINO-
GENS, KNOWN TO BE HUMAN CARCINOGENS, LIKELY TO BE HUMAN  CARCINOGENS  OR
SUGGESTIVE  OF  BEING  HUMAN  CARCINOGENS,  AS DESCRIBED IN THE "LIST OF
CHEMICALS EVALUATED FOR CARCINOGEN POTENTIAL"; OR (B) REPRODUCTIVE TOXI-
CANTS THAT CAUSE BIRTH DEFECTS, REPRODUCTIVE HARM OR DEVELOPMENTAL  HARM
AS IDENTIFIED BY THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY.
  2.  THE  MANUFACTURER SHALL APPLY TO THE DEPARTMENT FOR APPROVAL OF AN
ALTERNATIVE TO BISPHENOL A. THE DEPARTMENT,  IN  CONSULTATION  WITH  THE
POLLUTION  PREVENTION  INSTITUTE  AND THE INTERSTATE CHEMICALS CLEARING-
HOUSE, SHALL REVIEW AVAILABLE SCIENTIFIC EVIDENCE  ON  THE  ALTERNATIVE,
AND  APPROVE  OR  DISAPPROVE  THE  ALTERNATIVE. THE ALTERNATIVE SHALL BE
APPROVED IF IT MEETS THE CONDITIONS ESTABLISHED IN  SUBDIVISION  ONE  OF
THIS SECTION.
S 37-0511. WAIVERS.
  1. WITHIN THREE MONTHS OF THE EFFECTIVE DATE OF THIS TITLE, A MANUFAC-
TURER OF CHILD CARE PRODUCTS OR TOYS, REGULATED BY THIS TITLE, MAY APPLY
TO  THE  DEPARTMENT  FOR A WAIVER FROM THE REQUIREMENTS OF THIS TITLE IF
THE MANUFACTURER CAN DEMONSTRATE THAT THERE ARE  NO  AVAILABLE  ALTERNA-
TIVES  TO  BISPHENOL A, AS SPECIFIED IN SUBDIVISION ONE OR DETERMINED IN
SUBDIVISION TWO OF SECTION 37-0509 OF THIS TITLE, FOR THEIR PRODUCT. THE
WAIVER SHALL BE IN FORCE FOR NO MORE THAN A YEAR, DURING WHICH TIME  THE
MANUFACTURER  MUST  PROMINENTLY  LABEL  THE PRODUCT OR TOY AS CONTAINING
BISPHENOL A, AS SPECIFIED IN SECTION 37-0515 OF THIS  TITLE.  AFTER  THE
ONE-YEAR WAIVER PERIOD, THE MANUFACTURER SHALL AGAIN APPLY FOR A WAIVER.
  2.  IF  AN ALTERNATIVE BECOMES AVAILABLE AT ANY TIME DURING THE PERIOD
OF THE WAIVER, THE MANUFACTURER HAS A PERIOD OF SIX MONTHS IN  WHICH  TO
REPLACE  BISPHENOL  A  WITH SUCH ALTERNATIVE IN THE MANUFACTURE OF THEIR
CHILD CARE PRODUCTS AND TOYS AND TO CHANGE THE PRODUCT LABELING PURSUANT
TO SECTION 37-0515 OF THIS  TITLE.  DURING  THIS  PERIOD  OF  TIME,  ALL
PRODUCTS  CONTAINING  BISPHENOL  A  SHALL EITHER BE SOLD OR REMOVED FROM
COMMERCE BY THE MANUFACTURER.
S 37-0513. FEES.
  1. THE DEPARTMENT SHALL:
  (A) ESTABLISH A FEE FOR ADMINISTRATION OF SUBDIVISION TWO  OF  SECTION
37-0509  OF THIS TITLE FOR A REQUEST BY A MANUFACTURER TO APPROVE ALTER-
NATIVES TO BISPHENOL A; AND
  (B) ESTABLISH A FEE FOR ADMINISTRATION OF SUBDIVISION ONE  OF  SECTION
37-0511  OF THIS TITLE FOR A REQUEST BY A MANUFACTURER FOR A WAIVER FROM
THE REQUIREMENT TO REPLACE BISPHENOL A WITH AN ALTERNATIVE.
  2. ALL REVENUE DERIVED FROM THE FEES IMPOSED PURSUANT TO THIS  SECTION
SHALL  BE  EXPENDED  BY  THE  DEPARTMENT  TO  IMPLEMENT  AND ENFORCE THE
PROVISIONS OF THIS TITLE.
S 37-0515. PRODUCT LABELING.
  1. THE COMMISSIONER SHALL REQUIRE PRODUCT LABELING  OF  PRODUCTS  THAT
HAVE  BEEN  DETERMINED  TO  NOT CONTAIN BISPHENOL A, PURSUANT TO SECTION
37-0509 OF THIS TITLE. THE LABEL ON SUCH PRODUCTS WILL PROMINENTLY STATE
"BISPHENOL A FREE" OR "BPA-FREE" TO INFORM CONSUMERS  THAT  THE  PRODUCT
DOES NOT CONTAIN BISPHENOL A.
  2.  THE  COMMISSIONER  SHALL REQUIRE PRODUCT LABELING OF PRODUCTS THAT
HAVE BEEN GRANTED A WAIVER BECAUSE THEY CONTAIN BISPHENOL A PURSUANT  TO

A. 6919                             4

SECTION  37-0511  OF  THIS TITLE. THE LABEL ON SUCH PRODUCTS WILL PROMI-
NENTLY STATE "WARNING - CONTAINS BISPHENOL A".
S 37-0517. PUBLIC EDUCATION AND MANUFACTURER RECOGNITION.
  1.  THE  COMMISSIONER MAY ESTABLISH PARTNERSHIPS WITH PRODUCT MANUFAC-
TURERS TO ENHANCE THE MARKET FOR PRODUCTS THAT DO NOT CONTAIN  BISPHENOL
A AND REDUCE THE USE OF BISPHENOL A IN PRODUCTS.
  2.  THE  COMMISSIONER  MAY  DEVELOP AN AWARDS PROGRAM TO RECOGNIZE THE
ACCOMPLISHMENTS OF MANUFACTURERS WHICH EXCEED THE REQUIREMENTS  OF  THIS
TITLE AND WHICH EXCEL AT REDUCING OR ELIMINATING BISPHENOL A IN PRODUCTS
AND THE ENVIRONMENT.
S 37-0519. ENFORCEMENT.
  1.  WHENEVER  THERE SHALL BE A VIOLATION OF THIS TITLE, AN APPLICATION
MAY BE MADE BY THE ATTORNEY GENERAL IN THE NAME OF  THE  PEOPLE  OF  THE
STATE OF NEW YORK TO A COURT OR JUSTICE HAVING JURISDICTION BY A SPECIAL
PROCEEDING TO ISSUE AN INJUNCTION TO ENJOIN AND RESTRAIN THE CONTINUANCE
OF  SUCH  VIOLATION;  AND  IF IT SHALL APPEAR TO THE SATISFACTION OF THE
COURT OR JUSTICE THAT THE DEFENDANT HAS, IN FACT, VIOLATED  THIS  TITLE,
AN  INJUNCTION  MAY  BE  ISSUED  BY  SUCH  COURT OR JUSTICE ENJOINING OR
RESTRAINING ANY FURTHER VIOLATION,  WITHOUT  REQUIRING  PROOF  THAT  ANY
PERSON  HAS,  IN  FACT,  BEEN  INJURED  OR  DAMAGED THEREBY. IN ANY SUCH
PROCEEDING, THE COURT MAY MAKE ALLOWANCES TO  THE  ATTORNEY  GENERAL  AS
PROVIDED  IN  PARAGRAPH  SIX  OF SUBDIVISION (A) OF SECTION EIGHTY-THREE
HUNDRED THREE OF THE CIVIL PRACTICE LAW AND RULES, AND  DIRECT  RESTITU-
TION.  WHENEVER THE COURT OR JUSTICE SHALL DETERMINE THAT A VIOLATION OF
THIS TITLE HAS OCCURRED, THE COURT OR JUSTICE MAY IMPOSE A CIVIL PENALTY
OF NOT MORE THAN ONE THOUSAND DOLLARS FOR EACH  VIOLATION,  EXCEPT  THAT
THE COURT OR JUSTICE MAY IMPOSE A PENALTY OF NOT MORE THAN FIVE THOUSAND
DOLLARS  IF THE VIOLATION IS KNOWING AND WILLFUL. IN CONNECTION WITH ANY
SUCH PROPOSED APPLICATION, THE ATTORNEY GENERAL IS  AUTHORIZED  TO  TAKE
PROOF  AND  MAKE  A  DETERMINATION  OF  THE  RELEVANT FACTS AND TO ISSUE
SUBPOENAS IN ACCORDANCE WITH THE CIVIL PRACTICE LAW AND RULES.
  2. BEFORE ANY VIOLATION OF THIS TITLE IS SOUGHT TO  BE  ENJOINED,  THE
ATTORNEY  GENERAL SHALL BE REQUIRED TO GIVE THE PERSON AGAINST WHOM SUCH
PROCEEDING IS CONTEMPLATED NOTICE BY CERTIFIED MAIL AND  AN  OPPORTUNITY
TO SHOW IN WRITING WITHIN FIVE BUSINESS DAYS AFTER RECEIPT OF NOTICE WHY
PROCEEDINGS  SHOULD  NOT  BE  INSTITUTED  AGAINST HIM OR HER, UNLESS THE
ATTORNEY GENERAL SHALL FIND, IN ANY  CASE  IN  WHICH  HE  OR  SHE  SEEKS
PRELIMINARY  RELIEF,  THAT TO GIVE SUCH NOTICE AND OPPORTUNITY IS NOT IN
THE PUBLIC INTEREST.
  S 3. This act shall take effect on the first of January next  succeed-
ing the date on which it shall have become a law, provided that subdivi-
sion  2  of  section  37-0507  of the environmental conservation law, as
added by section two of this act, shall take effect two years after  the
effective date of this act.

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 6919--A

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                             March 17, 2009
                               ___________

Introduced  by M. of A. ENGLEBRIGHT, SWEENEY, COLTON, EDDINGTON, CASTRO,
  LIFTON, JAFFEE, GUNTHER, RUSSELL, GABRYSZAK, MENG,  SCHIMEL,  BRADLEY,
  TITONE,  PERRY -- Multi-Sponsored by -- M. of A. GORDON, GREENE, WEIS-
  ENBERG -- read once and referred to  the  Committee  on  Environmental
  Conservation  -- committee discharged, bill amended, ordered reprinted
  as amended and recommitted to said committee

AN ACT to amend the  environmental  conservation  law,  in  relation  to
  enacting the "bisphenol A-free children and babies act"

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Short title. This act shall be known and may  be  cited  as
the "bisphenol A-free children and babies act".
  S  2.  Article  37 of the environmental conservation law is amended by
adding a new title 5 to read as follows:
                                 TITLE 5
                               BISPHENOL A
SECTION 37-0501. LEGISLATIVE INTENT.
        37-0503. DEFINITIONS.
        37-0505. TOYS AND CHILD CARE PRODUCTS.
        37-0507. FOOD AND BEVERAGE CONTAINERS.
        37-0509. APPROVAL OF BISPHENOL A ALTERNATIVES.
        37-0511. WAIVERS.
        37-0513. FEES.
        37-0515. PRODUCT LABELING.
        37-0517. PUBLIC EDUCATION AND MANUFACTURER RECOGNITION.
        37-0519. ENFORCEMENT.
        37-0521. PREEMPTION.
        37-0523. RULES AND REGULATIONS.
S 37-0501. LEGISLATIVE INTENT.
  THE LEGISLATURE HEREBY FINDS  THAT  BISPHENOL  A  (BPA),  A  PRINCIPAL
COMPONENT  IN  THE  PRODUCTION  OF POLYCARBONATE RIGID PLASTIC AND EPOXY

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD10403-06-9
              

A. 6919--A                          2

RESINS, IS USED IN MANY FOOD AND DRINK PACKAGING APPLICATIONS,  AS  WELL
AS  PRODUCTS INTENDED FOR USE BY YOUNG CHILDREN. THE RESINS ARE COMMONLY
USED AS LACQUERS TO COAT METAL PRODUCTS, SUCH AS FOOD CANS, BOTTLE TOPS,
JAR LIDS AND INFANT FORMULA CONTAINERS. THE RESINS ARE ALSO USED TO LINE
ASEPTIC  PACKAGES SUCH AS JUICE BOXES. THE CHEMICAL BOND BETWEEN BISPHE-
NOL A MOLECULES IS  UNSTABLE  AND  CAN  BE  DISRUPTED  BY  HEAT,  ACIDIC
REACTIONS  AND  OTHER  CONDITIONS  THAT CAN RELEASE BISPHENOL A INTO THE
FOOD OR BEVERAGES WITHIN THE CONTAINERS.
  BISPHENOL A IS UBIQUITOUS. ACCORDING TO THE U.S. CENTERS  FOR  DISEASE
CONTROL,  NINETY-FIVE  PERCENT  OF  AMERICANS  HAVE DETECTABLE LEVELS OF
BISPHENOL A IN THEIR BODIES, AND MOST ARE AT OR ABOVE THE CONCENTRATIONS
KNOWN TO CAUSE ADVERSE EFFECTS IN LABORATORY STUDIES.  RESEARCH  STUDIES
HAVE  FOUND THAT BABIES HAVE UP TO ELEVEN TIMES HIGHER LEVELS OF BISPHE-
NOL A IN THEIR BODIES THAN DO ADULTS BECAUSE  OF  GREATER  EXPOSURE  AND
REDUCED CAPACITY TO METABOLIZE BISPHENOL A.
  BISPHENOL  A  IS A KNOWN ESTROGEN-MIMICKING ENDOCRINE DISRUPTOR CHEMI-
CAL.  ENDOCRINE DISRUPTION HAS BEEN LINKED TO A GREATER NUMBER OF COMMON
AILMENTS, INCLUDING HEART DISEASE, IMMUNE SYSTEM DISRUPTION, BRAIN DETE-
RIORATION, TYPE-2 DIABETES, CANCER AND OBESITY. RESEARCH HAS SHOWN  THAT
BISPHENOL  A  CAN  ALTER  THE  EXPRESSION OF SEVERAL HUNDRED GENES, WITH
EFFECTS VARYING AMONG SPECIFIC TISSUES AND TIMING OF EXPOSURE. PRE-NATAL
AND NEONATAL EXPOSURE TO BISPHENOL A HAS  BEEN  LINKED  TO  ALTERED  DNA
FUNCTION AND GENETIC EXPRESSION, MALE REPRODUCTIVE DISORDERS AND LOWERED
SPERM COUNTS, INSULIN RESISTANCE, EARLY PUBERTY, AND CHANGES IN PROSTATE
AND MAMMARY GLAND DEVELOPMENT, LEADING TO POTENTIAL GREATER SUSCEPTIBIL-
ITY TO BREAST CANCER AND OTHER CANCER LATER IN LIFE.
  IN  2008,  THIRTY-EIGHT  OF  THE WORLD'S LEADING SCIENTIFIC EXPERTS ON
BISPHENOL A, WHO REVIEWED OVER 700 PUBLISHED STUDIES, RELEASED A CONSEN-
SUS STATEMENT WARNING OF THE ADVERSE HEALTH EFFECTS OF BISPHENOL A EXPO-
SURE, CONCLUDING THAT THE AVERAGE LEVELS OF BISPHENOL A  IN  PEOPLE  ARE
ABOVE THOSE THAT CAUSE HARM IN ANIMALS IN LABORATORY EXPERIMENTS.
  THE  STATE  OF NEW YORK MUST ACT TO SIGNIFICANTLY REDUCE THE HARM FROM
BISPHENOL A, PARTICULARLY FOR INFANTS AND CHILDREN, THE MOST  VULNERABLE
WITHIN OUR POPULATION.
S 37-0503. DEFINITIONS.
  AS USED IN THIS TITLE:
  1. "CHILD CARE PRODUCT" MEANS ALL PRODUCTS DESIGNED OR INTENDED BY THE
MANUFACTURER  FOR  CHILD  CARE,  INCLUDING, BUT NOT LIMITED TO, THOSE TO
HELP WITH SUCKING OR TEETHING, TO FACILITATE SLEEP OR RELAXATION, OR THE
FEEDING OF CHILDREN.
  2. "TOY" MEANS ALL PRODUCTS DESIGNED OR INTENDED BY  THE  MANUFACTURER
TO BE USED BY CHILDREN WHEN THEY PLAY.
S 37-0505. TOYS AND CHILD CARE PRODUCTS.
  1. NO PERSON, FIRM, PARTNERSHIP, ASSOCIATION, LIMITED LIABILITY COMPA-
NY  OR CORPORATION SHALL MANUFACTURE, DISTRIBUTE, SELL OR OFFER FOR SALE
ANY TOY OR CHILD CARE PRODUCT INTENDED FOR USE BY A CHILD THREE YEARS OF
AGE OR YOUNGER CONTAINING BISPHENOL A.
  2. THE PROVISIONS OF THIS SECTION SHALL  NOT  APPLY  TO  THE  SALE  OR
DISTRIBUTION  OF  TOYS  OR  CHILD  CARE  PRODUCTS  RESOLD OR OFFERED FOR
RESALE, OR DISTRIBUTED BY CONSUMERS FOR CONSUMER USE.
S 37-0507. FOOD AND BEVERAGE CONTAINERS.
  NO PERSON, FIRM, PARTNERSHIP, ASSOCIATION, LIMITED  LIABILITY  COMPANY
OR CORPORATION SHALL MANUFACTURE, DISTRIBUTE, SELL OR OFFER FOR SALE:
  1.  ANY  BOTTLE,  CUP OR OTHER CONTAINER THAT CONTAINS BISPHENOL A, IF
SUCH CONTAINER IS DESIGNED OR INTENDED TO BE  FILLED  WITH  ANY  LIQUID,

A. 6919--A                          3

FOOD  OR BEVERAGE PRIMARILY FOR CONSUMPTION FROM THAT CONTAINER BY CHIL-
DREN FOURTEEN YEARS OF AGE OR YOUNGER;
  2.  ANY JAR, CAN, BOX OR OTHER CONTAINER THAT CONTAINS BISPHENOL A, IF
SUCH CONTAINER IS FILLED WITH ANY LIQUID, FOOD OR BEVERAGE PRIMARILY FOR
CONSUMPTION BY CHILDREN FOURTEEN YEARS OF AGE OR YOUNGER; OR
  3. ANY SPORTS WATER BOTTLE THAT CONTAINS BISPHENOL A.
S 37-0509. APPROVAL OF BISPHENOL A ALTERNATIVES.
  1. EVERY MANUFACTURER OF A CHILD CARE PRODUCT  OR  TOY  PROHIBITED  BY
THIS  TITLE  SHALL USE THE LEAST TOXIC ALTERNATIVE TO THE BISPHENOL A IN
THE TOY OR CHILD CARE PRODUCT. SUCH  ALTERNATIVE  SHALL  NOT  BE  (A)  A
CARCINOGEN RATED BY THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY AS
A,  B OR C CARCINOGENS, OR SUBSTANCES LISTED AS KNOWN OR LIKELY CARCINO-
GENS, KNOWN TO BE HUMAN CARCINOGENS, LIKELY TO BE HUMAN  CARCINOGENS  OR
SUGGESTIVE  OF  BEING  HUMAN  CARCINOGENS,  AS DESCRIBED IN THE "LIST OF
CHEMICALS EVALUATED FOR CARCINOGEN POTENTIAL"; OR (B) REPRODUCTIVE TOXI-
CANTS THAT CAUSE BIRTH DEFECTS, REPRODUCTIVE HARM OR DEVELOPMENTAL  HARM
AS IDENTIFIED BY THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY.
  2.  THE  MANUFACTURER SHALL APPLY TO THE DEPARTMENT FOR APPROVAL OF AN
ALTERNATIVE TO BISPHENOL A. THE DEPARTMENT,  IN  CONSULTATION  WITH  THE
POLLUTION  PREVENTION  INSTITUTE  AND THE INTERSTATE CHEMICALS CLEARING-
HOUSE, SHALL REVIEW AVAILABLE SCIENTIFIC EVIDENCE  ON  THE  ALTERNATIVE,
AND  APPROVE  OR  DISAPPROVE  THE  ALTERNATIVE. THE ALTERNATIVE SHALL BE
APPROVED IF IT MEETS THE CONDITIONS ESTABLISHED IN  SUBDIVISION  ONE  OF
THIS SECTION.
S 37-0511. WAIVERS.
  1. WITHIN THREE MONTHS OF THE EFFECTIVE DATE OF THIS TITLE, A MANUFAC-
TURER OF CHILD CARE PRODUCTS OR TOYS, REGULATED BY THIS TITLE, MAY APPLY
TO  THE  DEPARTMENT  FOR A WAIVER FROM THE REQUIREMENTS OF THIS TITLE IF
THE MANUFACTURER CAN DEMONSTRATE THAT THERE ARE  NO  AVAILABLE  ALTERNA-
TIVES  TO  BISPHENOL A, AS SPECIFIED IN SUBDIVISION ONE OR DETERMINED IN
SUBDIVISION TWO OF SECTION 37-0509 OF THIS TITLE, FOR THEIR PRODUCT. THE
WAIVER SHALL BE IN FORCE FOR NO MORE THAN A YEAR, DURING WHICH TIME  THE
MANUFACTURER  MUST  PROMINENTLY  LABEL  THE PRODUCT OR TOY AS CONTAINING
BISPHENOL A, AS SPECIFIED IN SECTION 37-0515 OF THIS  TITLE.  AFTER  THE
ONE-YEAR WAIVER PERIOD, THE MANUFACTURER SHALL AGAIN APPLY FOR A WAIVER.
  2.  IF  AN ALTERNATIVE BECOMES AVAILABLE AT ANY TIME DURING THE PERIOD
OF THE WAIVER, THE MANUFACTURER HAS A PERIOD OF SIX MONTHS IN  WHICH  TO
REPLACE  BISPHENOL  A  WITH SUCH ALTERNATIVE IN THE MANUFACTURE OF THEIR
CHILD CARE PRODUCTS AND TOYS AND TO CHANGE THE PRODUCT LABELING PURSUANT
TO SECTION 37-0515 OF THIS  TITLE.  DURING  THIS  PERIOD  OF  TIME,  ALL
PRODUCTS  CONTAINING  BISPHENOL  A  SHALL EITHER BE SOLD OR REMOVED FROM
COMMERCE BY THE MANUFACTURER.
S 37-0513. FEES.
  1. THE DEPARTMENT SHALL:
  (A) ESTABLISH A FEE FOR ADMINISTRATION OF SUBDIVISION TWO  OF  SECTION
37-0509  OF THIS TITLE FOR A REQUEST BY A MANUFACTURER TO APPROVE ALTER-
NATIVES TO BISPHENOL A; AND
  (B) ESTABLISH A FEE FOR ADMINISTRATION OF SUBDIVISION ONE  OF  SECTION
37-0511  OF THIS TITLE FOR A REQUEST BY A MANUFACTURER FOR A WAIVER FROM
THE REQUIREMENT TO REPLACE BISPHENOL A WITH AN ALTERNATIVE.
  2. ALL REVENUE DERIVED FROM THE FEES IMPOSED PURSUANT TO THIS  SECTION
SHALL  BE  EXPENDED  BY  THE  DEPARTMENT  TO  IMPLEMENT  AND ENFORCE THE
PROVISIONS OF THIS TITLE.
S 37-0515. PRODUCT LABELING.
  1. THE COMMISSIONER SHALL REQUIRE PRODUCT LABELING  OF  PRODUCTS  THAT
HAVE  BEEN  DETERMINED  TO  NOT CONTAIN BISPHENOL A, PURSUANT TO SECTION

A. 6919--A                          4

37-0509 OF THIS TITLE. THE LABEL ON SUCH PRODUCTS WILL PROMINENTLY STATE
"BISPHENOL A FREE" OR "BPA-FREE" TO INFORM CONSUMERS  THAT  THE  PRODUCT
DOES NOT CONTAIN BISPHENOL A.
  2.  THE  COMMISSIONER  SHALL REQUIRE PRODUCT LABELING OF PRODUCTS THAT
HAVE BEEN GRANTED A WAIVER BECAUSE THEY CONTAIN BISPHENOL A PURSUANT  TO
SECTION  37-0511  OF  THIS TITLE. THE LABEL ON SUCH PRODUCTS WILL PROMI-
NENTLY STATE "WARNING - CONTAINS BISPHENOL A".
S 37-0517. PUBLIC EDUCATION AND MANUFACTURER RECOGNITION.
  1. THE COMMISSIONER MAY ESTABLISH PARTNERSHIPS WITH  PRODUCT  MANUFAC-
TURERS  TO ENHANCE THE MARKET FOR PRODUCTS THAT DO NOT CONTAIN BISPHENOL
A AND REDUCE THE USE OF BISPHENOL A IN PRODUCTS.
  2. THE COMMISSIONER MAY DEVELOP AN AWARDS  PROGRAM  TO  RECOGNIZE  THE
ACCOMPLISHMENTS  OF  MANUFACTURERS WHICH EXCEED THE REQUIREMENTS OF THIS
TITLE AND WHICH EXCEL AT REDUCING OR ELIMINATING BISPHENOL A IN PRODUCTS
AND THE ENVIRONMENT.
S 37-0519. ENFORCEMENT.
  1. WHENEVER THERE SHALL BE A VIOLATION OF THIS TITLE,  AN  APPLICATION
MAY  BE  MADE  BY  THE ATTORNEY GENERAL IN THE NAME OF THE PEOPLE OF THE
STATE OF NEW YORK TO A COURT OR JUSTICE HAVING JURISDICTION BY A SPECIAL
PROCEEDING TO ISSUE AN INJUNCTION TO ENJOIN AND RESTRAIN THE CONTINUANCE
OF SUCH VIOLATION; AND IF IT SHALL APPEAR TO  THE  SATISFACTION  OF  THE
COURT  OR  JUSTICE THAT THE DEFENDANT HAS, IN FACT, VIOLATED THIS TITLE,
AN INJUNCTION MAY BE ISSUED  BY  SUCH  COURT  OR  JUSTICE  ENJOINING  OR
RESTRAINING  ANY  FURTHER  VIOLATION,  WITHOUT  REQUIRING PROOF THAT ANY
PERSON HAS, IN FACT, BEEN  INJURED  OR  DAMAGED  THEREBY.  IN  ANY  SUCH
PROCEEDING,  THE  COURT  MAY  MAKE ALLOWANCES TO THE ATTORNEY GENERAL AS
PROVIDED IN PARAGRAPH SIX OF SUBDIVISION  (A)  OF  SECTION  EIGHTY-THREE
HUNDRED  THREE  OF THE CIVIL PRACTICE LAW AND RULES, AND DIRECT RESTITU-
TION. WHENEVER THE COURT OR JUSTICE SHALL DETERMINE THAT A VIOLATION  OF
THIS TITLE HAS OCCURRED, THE COURT OR JUSTICE MAY IMPOSE A CIVIL PENALTY
OF  NOT  MORE  THAN ONE THOUSAND DOLLARS FOR EACH VIOLATION, EXCEPT THAT
THE COURT OR JUSTICE MAY IMPOSE A PENALTY OF NOT MORE THAN FIVE THOUSAND
DOLLARS IF THE VIOLATION IS KNOWING AND WILLFUL. IN CONNECTION WITH  ANY
SUCH  PROPOSED  APPLICATION,  THE ATTORNEY GENERAL IS AUTHORIZED TO TAKE
PROOF AND MAKE A DETERMINATION  OF  THE  RELEVANT  FACTS  AND  TO  ISSUE
SUBPOENAS IN ACCORDANCE WITH THE CIVIL PRACTICE LAW AND RULES.
  2.  BEFORE  ANY  VIOLATION OF THIS TITLE IS SOUGHT TO BE ENJOINED, THE
ATTORNEY GENERAL SHALL BE REQUIRED TO GIVE THE PERSON AGAINST WHOM  SUCH
PROCEEDING  IS  CONTEMPLATED NOTICE BY CERTIFIED MAIL AND AN OPPORTUNITY
TO SHOW IN WRITING WITHIN FIVE BUSINESS DAYS AFTER RECEIPT OF NOTICE WHY
PROCEEDINGS SHOULD NOT BE INSTITUTED AGAINST  HIM  OR  HER,  UNLESS  THE
ATTORNEY  GENERAL  SHALL  FIND,  IN  ANY  CASE  IN WHICH HE OR SHE SEEKS
PRELIMINARY RELIEF, THAT TO GIVE SUCH NOTICE AND OPPORTUNITY IS  NOT  IN
THE PUBLIC INTEREST.
S 37-0521. PREEMPTION.
  JURISDICTION  IN ALL MATTERS PERTAINING TO BISPHENOL A WHICH ARE REGU-
LATED PURSUANT TO THE PROVISIONS OF THIS TITLE SHALL  BE  VESTED  EXCLU-
SIVELY IN THE STATE. ANY PROVISION OF ANY LOCAL LAW OR ORDINANCE, OR ANY
RULE OR REGULATION PROMULGATED PURSUANT THERETO, RELATING TO BISPHENOL A
SHALL BE PREEMPTED.
S 37-0523.  RULES AND REGULATIONS.
  THE  DEPARTMENT IS AUTHORIZED TO PROMULGATE SUCH RULES AND REGULATIONS
AS IT SHALL DEEM NECESSARY TO IMPLEMENT THE PROVISIONS OF THIS TITLE.
  S 3. This act shall take effect immediately, except that:

A. 6919--A                          5

  (a) section 37-0505 of the environmental conservation law, as added by
section two of this act, shall take effect one year after this act shall
have become a law;
  (b)  subdivisions  1  and  3  of  section 37-0507 of the environmental
conservation law, as added by section two of this act, shall take effect
on the one hundred eightieth day after this act shall have become a law;
and
  (c) subdivision 2 of section 37-0507 of the environmental conservation
law, as added by section two of this act, shall take  effect  two  years
after this act shall have become a law.

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 6919--B

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                             March 17, 2009
                               ___________

Introduced  by  M.  of  A. ENGLEBRIGHT, SWEENEY, COLTON, CASTRO, LIFTON,
  JAFFEE, GUNTHER, RUSSELL, GABRYSZAK,  MENG,  SCHIMEL,  TITONE,  PERRY,
  SPANO, FIELDS, GALEF, MAISEL, ROSENTHAL, KOON, KAVANAGH -- Multi-Spon-
  sored  by  -- M. of A. BOYLAND, BRENNAN, CONTE, GLICK, GORDON, HOOPER,
  McENENY, REILICH, SALADINO, WEISENBERG -- read once  and  referred  to
  the  Committee  on Environmental Conservation -- committee discharged,
  bill amended, ordered reprinted as amended  and  recommitted  to  said
  committee  --  again  reported  from  said  committee with amendments,
  ordered reprinted as amended and recommitted to said committee

AN ACT to amend the  environmental  conservation  law,  in  relation  to
  enacting the "bisphenol A-free children and babies act"

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1.  Legislative intent.   The legislature  hereby  finds  that
bisphenol A (BPA), a principal component in the production of polycarbo-
nate  rigid  plastic, is used in many products intended for use by young
children.
  According to  the  U.S.  Centers  for  Disease  Control,  ninety-three
percent  of  Americans  have  detectable  levels of bisphenol A in their
bodies.  Research studies have found that babies and toddlers have high-
er levels of bisphenol A in their  bodies  than  do  adults  because  of
greater exposure and reduced capacity to metabolize bisphenol A.
  Bisphenol  A  is a known estrogen-mimicking endocrine disruptor chemi-
cal.  Endocrine disruption has been linked to a greater number of common
ailments, including heart disease, immune system disruption, brain dete-
rioration, type-2 diabetes, cancer and obesity.
  The state of New York must act to significantly reduce the  harm  from
bisphenol  A, particularly for infants and children, the most vulnerable
within our population.
  S 2. Article 37 of the environmental conservation law  is  amended  by
adding a new title 5 to read as follows:

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
A                                                          LBD10403-08-9
              

A. 6919--B                          2

                                 TITLE 5
                               BISPHENOL A
SECTION 37-0501. SHORT TITLE.
        37-0503. DEFINITIONS.
        37-0505. TOYS AND CHILD CARE PRODUCTS.
        37-0507. WAIVERS.
        37-0509. PRODUCT LABELING.
        37-0511. PREEMPTION.
        37-0513. RULES AND REGULATIONS.
S 37-0501. SHORT TITLE.
  THIS  TITLE  SHALL  BE KNOWN AND MAY BE CITED AS THE "BISPHENOL A-FREE
CHILDREN AND BABIES ACT".
S 37-0503. DEFINITIONS.
  AS USED IN THIS TITLE:
  1. "CHILD CARE PRODUCT" MEANS ALL PRODUCTS DESIGNED OR INTENDED BY THE
MANUFACTURER FOR CHILD CARE, INCLUDING, BABY BOTTLES, BABY BOTTLE LINERS
AND CUPS, INCLUDING BUT NOT LIMITED TO SIPPY CUPS, PACIFIERS  AND  OTHER
PRODUCTS TO HELP WITH SUCKING OR TEETHING, TO FACILITATE SLEEP OR RELAX-
ATION, OR THE FEEDING OF CHILDREN.
  2.  "TOY"  MEANS ALL PRODUCTS DESIGNED OR INTENDED BY THE MANUFACTURER
TO BE USED FOR PLAY BY CHILDREN THREE YEARS OF AGE AND YOUNGER.
S 37-0505. TOYS AND CHILD CARE PRODUCTS.
  1. BEGINNING DECEMBER FIRST, TWO THOUSAND TEN, NO PERSON, FIRM,  PART-
NERSHIP,  ASSOCIATION,  LIMITED  LIABILITY  COMPANY OR CORPORATION SHALL
SELL OR OFFER FOR SALE ANY CHILD CARE PRODUCT  INTENDED  FOR  USE  BY  A
CHILD THREE YEARS OF AGE OR YOUNGER CONTAINING BISPHENOL A.
  2.  BEGINNING  DECEMBER  FIRST,  TWO THOUSAND ELEVEN, NO PERSON, FIRM,
PARTNERSHIP, ASSOCIATION, LIMITED LIABILITY COMPANY OR CORPORATION SHALL
SELL OR OFFER FOR SALE ANY TOY CONTAINING BISPHENOL A.
  3. BEGINNING DECEMBER FIRST, TWO THOUSAND  TWELVE,  NO  PERSON,  FIRM,
PARTNERSHIP, ASSOCIATION, LIMITED LIABILITY COMPANY OR CORPORATION SHALL
SELL  OR  OFFER  FOR  SALE ANY LIQUID, FOOD OR BEVERAGE IN A CAN, JAR OR
OTHER CONTAINER CONTAINING BISPHENOL A IF THE LIQUID, FOOD  OR  BEVERAGE
IS DESIGNED OR INTENDED PRIMARILY FOR CONSUMPTION BY INFANTS OR CHILDREN
THREE YEARS OF AGE OR YOUNGER.
  4.  THE  PROVISIONS  OF  THIS  SECTION  SHALL NOT APPLY TO THE SALE OR
DISTRIBUTION OF TOYS OR  CHILD  CARE  PRODUCTS  RESOLD  OR  OFFERED  FOR
RESALE, OR DISTRIBUTED BY CONSUMERS FOR CONSUMER USE.
S 37-0507. WAIVERS.
  A  MANUFACTURER OF LIQUID, FOOD OR BEVERAGE PRODUCTS REGULATED BY THIS
TITLE, MAY APPLY TO THE DEPARTMENT FOR A WAIVER FOR ONE  YEAR  FROM  THE
REQUIREMENTS  OF  THIS  TITLE  IF  THE MANUFACTURER CAN DEMONSTRATE THAT
THERE ARE NO AVAILABLE ALTERNATIVES TO BISPHENOL A.   AFTER SUCH  WAIVER
PERIOD, THE MANUFACTURER MAY AGAIN APPLY FOR A WAIVER.
S 37-0509. PRODUCT LABELING.
  THE  COMMISSIONER  MAY  AUTHORIZE PRODUCT LABELING OF PRODUCTS THAT DO
NOT CONTAIN BISPHENOL A.   THE LABEL ON SUCH  PRODUCTS  MAY  PROMINENTLY
STATE  "BISPHENOL  A  FREE"  OR  "BPA-FREE" TO INFORM CONSUMERS THAT THE
PRODUCT DOES NOT CONTAIN THE CHEMICAL BISPHENOL A.
S 37-0511. PREEMPTION.
  JURISDICTION IN ALL MATTERS PERTAINING TO BISPHENOL A WHICH ARE  REGU-
LATED  PURSUANT  TO  THE PROVISIONS OF THIS TITLE SHALL BE VESTED EXCLU-
SIVELY IN THE STATE. ANY PROVISION OF ANY LOCAL LAW OR ORDINANCE, OR ANY
RULE OR REGULATION PROMULGATED PURSUANT THERETO, RELATING TO BISPHENOL A
SHALL BE PREEMPTED.
S 37-0513. RULES AND REGULATIONS.

A. 6919--B                          3

  THE DEPARTMENT IS AUTHORIZED TO PROMULGATE SUCH RULES AND  REGULATIONS
AS IT SHALL DEEM NECESSARY TO IMPLEMENT THE PROVISIONS OF THIS TITLE.
  S 3. Section 71-3703 of the environmental conservation law, as amended
by chapter 671 of the laws of 1986, is amended to read as follows:
S 71-3703. Enforcement of article 37.
  1.  Any  person who violates any of the provisions of, or who fails to
perform any duty imposed by section 37-0107 or any  rule  or  regulation
promulgated  pursuant hereto, shall be liable for a civil penalty not to
exceed two thousand five hundred dollars for each such violation and  an
additional  penalty  of  not more than five hundred dollars for each day
during which such violation continues, and, in  addition  thereto,  such
person may be enjoined from continuing such violation.
  2.  ANY  PERSON WHO VIOLATES ANY OF THE PROVISIONS OF, OR WHO FAILS TO
PERFORM ANY DUTY IMPOSED BY SECTION 37-0505 OR ANY  RULE  OR  REGULATION
PROMULGATED  PURSUANT HERETO, SHALL BE LIABLE FOR A CIVIL PENALTY NOT TO
EXCEED ONE THOUSAND DOLLARS FOR EACH DAY  DURING  WHICH  SUCH  VIOLATION
CONTINUES,  AND  IN  ADDITION  THERETO, SUCH PERSON MAY BE ENJOINED FROM
CONTINUING SUCH VIOLATION. SUCH PERSON SHALL FOR A SECOND  VIOLATION  BE
LIABLE  TO THE PEOPLE OF THE STATE FOR A CIVIL PENALTY NOT TO EXCEED TWO
THOUSAND FIVE HUNDRED DOLLARS FOR EACH DAY DURING WHICH  SUCH  VIOLATION
CONTINUES.
  S 4. This act shall take effect immediately.

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 6919--C
                                                        Cal. No. 459

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                             March 17, 2009
                               ___________

Introduced  by  M.  of  A. ENGLEBRIGHT, SWEENEY, COLTON, CASTRO, LIFTON,
  JAFFEE, GUNTHER, RUSSELL, GABRYSZAK,  MENG,  SCHIMEL,  TITONE,  PERRY,
  SPANO, FIELDS, GALEF, MAISEL, ROSENTHAL, KOON, KAVANAGH -- Multi-Spon-
  sored  by  --  M. of A.  BALL, BOYLAND, BRENNAN, CONTE, GLICK, GORDON,
  HOOPER, McENENY,  REILICH,  SALADINO,  WEISENBERG  --  read  once  and
  referred  to  the Committee on Environmental Conservation -- committee
  discharged, bill amended, ordered reprinted as amended and recommitted
  to said committee -- again reported from said  committee  with  amend-
  ments,  ordered reprinted as amended and recommitted to said committee
  -- reported from committee, advanced to a third reading,  amended  and
  ordered reprinted, retaining its place on the order of third reading

AN  ACT  to  amend  the  environmental  conservation law, in relation to
  enacting the "bisphenol A-free children and babies act"

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.    Legislative intent.   The legislature hereby finds that
bisphenol A (BPA), a principal component in the production of polycarbo-
nate rigid plastic, is used in many products intended for use  by  young
children.
  According  to  the  U.S.  Centers  for  Disease  Control, ninety-three
percent of Americans have detectable levels  of  bisphenol  A  in  their
bodies.  Research studies have found that babies and toddlers have high-
er  levels  of  bisphenol  A  in  their bodies than do adults because of
greater exposure and reduced capacity to metabolize bisphenol A.
  Bisphenol A is a known estrogen-mimicking endocrine  disruptor  chemi-
cal.  Endocrine disruption has been linked to a greater number of common
ailments, including heart disease, immune system disruption, brain dete-
rioration, type-2 diabetes, cancer and obesity.
  The  state  of New York must act to significantly reduce the harm from
bisphenol A, particularly for infants and children, the most  vulnerable
within our population.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
              

                                                           LBD10403-23-0

A. 6919--C                          2

  S  2.  Article  37 of the environmental conservation law is amended by
adding a new title 5 to read as follows:
                                 TITLE 5
                               BISPHENOL A
SECTION 37-0501. SHORT TITLE.
        37-0503. DEFINITIONS.
        37-0505. TOYS AND CHILD CARE PRODUCTS.
        37-0507. WAIVERS.
        37-0509. PRODUCT LABELING.
        37-0511. PREEMPTION.
        37-0513. RULES AND REGULATIONS.
S 37-0501. SHORT TITLE.
  THIS  TITLE  SHALL  BE KNOWN AND MAY BE CITED AS THE "BISPHENOL A-FREE
CHILDREN AND BABIES ACT".
S 37-0503. DEFINITIONS.
  AS USED IN THIS TITLE:
  1. "CHILD CARE PRODUCT" MEANS ALL PRODUCTS DESIGNED OR INTENDED BY THE
MANUFACTURER FOR CHILD CARE, INCLUDING, BABY BOTTLES, BABY BOTTLE LINERS
AND CUPS, INCLUDING BUT NOT LIMITED TO SIPPY CUPS, PACIFIERS  AND  OTHER
PRODUCTS TO HELP WITH SUCKING OR TEETHING, TO FACILITATE SLEEP OR RELAX-
ATION, OR THE FEEDING OF CHILDREN.
  2.  "TOY"  MEANS ALL PRODUCTS DESIGNED OR INTENDED BY THE MANUFACTURER
TO BE USED FOR PLAY BY CHILDREN THREE YEARS OF AGE AND YOUNGER.
S 37-0505. TOYS AND CHILD CARE PRODUCTS.
  1. BEGINNING JUNE FIRST, TWO THOUSAND ELEVEN, NO PERSON,  FIRM,  PART-
NERSHIP,  ASSOCIATION,  LIMITED  LIABILITY  COMPANY OR CORPORATION SHALL
SELL OR OFFER FOR SALE ANY CHILD CARE PRODUCT  INTENDED  FOR  USE  BY  A
CHILD THREE YEARS OF AGE OR YOUNGER CONTAINING BISPHENOL A.
  2.  BEGINNING  JUNE FIRST, TWO THOUSAND TWELVE, NO PERSON, FIRM, PART-
NERSHIP, ASSOCIATION, LIMITED LIABILITY  COMPANY  OR  CORPORATION  SHALL
SELL OR OFFER FOR SALE ANY TOY CONTAINING BISPHENOL A.
  3. BEGINNING JUNE FIRST, TWO THOUSAND THIRTEEN, NO PERSON, FIRM, PART-
NERSHIP,  ASSOCIATION,  LIMITED  LIABILITY  COMPANY OR CORPORATION SHALL
SELL OR OFFER FOR SALE ANY LIQUID, FOOD OR BEVERAGE IN  A  CAN,  JAR  OR
OTHER  CONTAINER  CONTAINING BISPHENOL A IF THE LIQUID, FOOD OR BEVERAGE
IS DESIGNED OR INTENDED PRIMARILY FOR CONSUMPTION BY INFANTS OR CHILDREN
THREE YEARS OF AGE OR YOUNGER.
  4. THE PROVISIONS OF THIS SECTION SHALL  NOT  APPLY  TO  THE  SALE  OR
DISTRIBUTION  OF  TOYS  OR  CHILD  CARE  PRODUCTS  RESOLD OR OFFERED FOR
RESALE, OR DISTRIBUTED BY CONSUMERS FOR CONSUMER USE.
S 37-0507. WAIVERS.
  A MANUFACTURER OF LIQUID, FOOD OR BEVERAGE PRODUCTS REGULATED BY  THIS
TITLE,  MAY  APPLY  TO THE DEPARTMENT FOR A WAIVER FOR ONE YEAR FROM THE
REQUIREMENTS OF THIS TITLE IF  THE  MANUFACTURER  CAN  DEMONSTRATE  THAT
THERE  ARE  NO AVAILABLE ALTERNATIVES TO BISPHENOL A.  AFTER SUCH WAIVER
PERIOD, THE MANUFACTURER MAY AGAIN APPLY FOR A WAIVER.
S 37-0509. PRODUCT LABELING.
  THE COMMISSIONER MAY AUTHORIZE PRODUCT LABELING OF  PRODUCTS  THAT  DO
NOT  CONTAIN  BISPHENOL  A.   THE LABEL ON SUCH PRODUCTS MAY PROMINENTLY
STATE "BISPHENOL A FREE" OR "BPA-FREE"  TO  INFORM  CONSUMERS  THAT  THE
PRODUCT DOES NOT CONTAIN THE CHEMICAL BISPHENOL A.
S 37-0511. PREEMPTION.
  JURISDICTION  IN ALL MATTERS PERTAINING TO BISPHENOL A WHICH ARE REGU-
LATED PURSUANT TO THE PROVISIONS OF THIS TITLE SHALL  BE  VESTED  EXCLU-
SIVELY IN THE STATE. ANY PROVISION OF ANY LOCAL LAW OR ORDINANCE, OR ANY

A. 6919--C                          3

RULE OR REGULATION PROMULGATED PURSUANT THERETO, RELATING TO BISPHENOL A
SHALL BE PREEMPTED.
S 37-0513. RULES AND REGULATIONS.
  THE  DEPARTMENT IS AUTHORIZED TO PROMULGATE SUCH RULES AND REGULATIONS
AS IT SHALL DEEM NECESSARY TO IMPLEMENT THE PROVISIONS OF THIS TITLE.
  S 3. Section 71-3703 of the environmental conservation law, as amended
by chapter 671 of the laws of 1986, is amended to read as follows:
S 71-3703. Enforcement of article 37.
  1. Any person who violates any of the provisions of, or who  fails  to
perform  any  duty  imposed by section 37-0107 or any rule or regulation
promulgated pursuant hereto, shall be liable for a civil penalty not  to
exceed  two thousand five hundred dollars for each such violation and an
additional penalty of not more than five hundred dollars  for  each  day
during  which  such  violation continues, and, in addition thereto, such
person may be enjoined from continuing such violation.
  2. ANY PERSON WHO VIOLATES ANY OF THE PROVISIONS OF, OR WHO  FAILS  TO
PERFORM  ANY  DUTY  IMPOSED BY SECTION 37-0505 OR ANY RULE OR REGULATION
PROMULGATED PURSUANT HERETO, SHALL BE LIABLE FOR A CIVIL PENALTY NOT  TO
EXCEED  ONE  THOUSAND  DOLLARS  FOR EACH DAY DURING WHICH SUCH VIOLATION
CONTINUES, AND IN ADDITION THERETO, SUCH PERSON  MAY  BE  ENJOINED  FROM
CONTINUING  SUCH  VIOLATION. SUCH PERSON SHALL FOR A SECOND VIOLATION BE
LIABLE TO THE PEOPLE OF THE STATE FOR A CIVIL PENALTY NOT TO EXCEED  TWO
THOUSAND  FIVE  HUNDRED DOLLARS FOR EACH DAY DURING WHICH SUCH VIOLATION
CONTINUES.
  S 4. This act shall take effect immediately.