Assembly Bill A10089B

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

                                  10089

                          I N  A S S E M B L Y

                              March 3, 2010
                               ___________

Introduced  by M. of A. SWEENEY -- read once and referred to the Commit-
  tee 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:

  Section 1. Article 37 of the environmental conservation law is amended
by adding a new title V to read as follows:
                                 TITLE V
                 TOXIC CHEMICALS IN CHILDREN'S PRODUCTS
SECTION 37-0501. DEFINITIONS.
        37-0503. IDENTIFICATION OF CHEMICALS OF HIGH CONCERN.
        37-0505. IDENTIFICATION OF PRIORITY CHEMICALS.
        37-0507. DISCLOSURE OF INFORMATION ON PRIORITY CHEMICALS.
        37-0509. SALES PROHIBITION; RULES; SAFER ALTERNATIVES TO PRIORI-
                   TY CHEMICALS.
        37-0511. APPLICABILITY.
        37-0513. EDUCATION AND ASSISTANCE.
        37-0515. ENFORCEMENT AND IMPLEMENTATION.
S 37-0501. DEFINITIONS.
  AS  USED  IN  THIS  TITLE, UNLESS THE CONTEXT OTHERWISE INDICATES, THE
FOLLOWING TERMS HAVE THE FOLLOWING MEANINGS.
  1. ALTERNATIVE. "ALTERNATIVE" MEANS  A  SUBSTITUTE  PROCESS,  PRODUCT,
MATERIAL, CHEMICAL, STRATEGY OR COMBINATION OF THESE THAT SERVES A FUNC-
TIONALLY EQUIVALENT PURPOSE TO A CHEMICAL IN A CHILDREN'S PRODUCT.
  2.  CHEMICAL.  "CHEMICAL"  MEANS A SUBSTANCE WITH A DISTINCT MOLECULAR
COMPOSITION OR A GROUP OF STRUCTURALLY RELATED SUBSTANCES  AND  INCLUDES
THE  BREAKDOWN PRODUCTS OF THE SUBSTANCE OR SUBSTANCES THAT FORM THROUGH
DECOMPOSITION, DEGRADATION OR METABOLISM.
  3. CHEMICAL OF HIGH CONCERN. "CHEMICAL OF HIGH CONCERN" MEANS A CHEMI-
CAL IDENTIFIED BY THE DEPARTMENT PURSUANT TO  SECTION  37-0503  OF  THIS
TITLE.
  4. CHEMICAL OF LOW CONCERN. "CHEMICAL OF LOW CONCERN" MEANS A CHEMICAL
FOR  WHICH  ADEQUATE  TOXICITY  AND  ENVIRONMENTAL DATA ARE AVAILABLE TO

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

                                                           LBD16104-01-0

A. 10089                            2

DETERMINE THAT IT IS NOT A CHEMICAL  OF  HIGH  CONCERN,  A  CHEMICAL  OF
MODERATE CONCERN OR A CHEMICAL OF UNKNOWN CONCERN.
  5.  CHEMICAL OF MODERATE CONCERN. "CHEMICAL OF MODERATE CONCERN" MEANS
A CHEMICAL IDENTIFIED BY AN AUTHORITATIVE  GOVERNMENTAL  ENTITY  ON  THE
BASIS  OF  CREDIBLE SCIENTIFIC EVIDENCE AS BEING SUSPECTED OF CAUSING AN
ADVERSE HEALTH OR ENVIRONMENTAL EFFECT  LISTED  IN  SUBDIVISION  ONE  OF
SECTION 37-0503 OF THIS TITLE.
  6.  CHEMICAL OF UNKNOWN CONCERN. "CHEMICAL OF UNKNOWN CONCERN" MEANS A
CHEMICAL FOR WHICH INSUFFICIENT DATA ARE AVAILABLE TO CLASSIFY IT  AS  A
CHEMICAL  OF  HIGH CONCERN, A CHEMICAL OF MODERATE CONCERN OR A CHEMICAL
OF LOW CONCERN.
  7. CHILDREN. "CHILDREN" MEANS PERSON OR PERSONS AGED TWELVE AND UNDER.
  8. CHILDREN'S PRODUCT. "CHILDREN'S PRODUCT" MEANS A  CONSUMER  PRODUCT
INTENDED  FOR  USE  BY CHILDREN, SUCH AS BABY PRODUCTS, TOYS, CAR SEATS,
PERSONAL CARE PRODUCTS AND CLOTHING, AND ANY CONSUMER PRODUCT CONTAINING
A CHEMICAL OF HIGH CONCERN THAT WHEN USED OR  DISPOSED  OF  WILL  LIKELY
RESULT IN A CHILD OR A PREGNANT WOMAN BEING EXPOSED TO THAT CHEMICAL.
  9.  CONSUMER PRODUCT. "CONSUMER PRODUCT" MEANS ANY ITEM SOLD FOR RESI-
DENTIAL OR COMMERCIAL USE, INCLUDING ANY COMPONENT PARTS AND  PACKAGING.
"CONSUMER PRODUCT" DOES NOT INCLUDE A FOOD OR BEVERAGE OR AN ADDITIVE TO
A  FOOD  OR  BEVERAGE  REGULATED  BY  THE FEDERAL FOOD AND DRUG ADMINIS-
TRATION, A TOBACCO PRODUCT OR PAPER OR FOREST PRODUCTS  OR  A  PESTICIDE
REGULATED  BY  THE  FEDERAL  ENVIRONMENTAL  PROTECTION AGENCY. "CONSUMER
PRODUCT" ALSO DOES NOT INCLUDE A  DRUG  OR  BIOLOGIC  REGULATED  BY  THE
FEDERAL  FOOD  AND  DRUG  ADMINISTRATION  OR  THE PACKAGING OF A DRUG OR
BIOLOGIC REGULATED BY THE FEDERAL FOOD AND DRUG  ADMINISTRATION  IF  THE
PACKAGING IS REGULATED BY THE FEDERAL FOOD AND DRUG ADMINISTRATION.
  10.  DISTRIBUTOR.  "DISTRIBUTOR"  MEANS  A  PERSON  WHO SELLS CONSUMER
PRODUCTS TO RETAIL ESTABLISHMENTS ON A WHOLESALE BASIS.
  11. MANUFACTURER. "MANUFACTURER" MEANS ANY PERSON WHO CURRENTLY  MANU-
FACTURES  A FINAL CONSUMER PRODUCT OR WHOSE BRAND NAME IS AFFIXED TO THE
CONSUMER PRODUCT. IN THE CASE OF A CONSUMER PRODUCT  THAT  WAS  IMPORTED
INTO  THE  UNITED  STATES, "MANUFACTURER" INCLUDES THE IMPORTER OR FIRST
DOMESTIC DISTRIBUTOR OF THE CONSUMER PRODUCT IF THE PERSON WHO CURRENTLY
MANUFACTURES OR ASSEMBLES THE CONSUMER PRODUCT OR WHOSE  BRAND  NAME  IS
AFFIXED  TO  THE CONSUMER PRODUCT DOES NOT HAVE A PRESENCE IN THE UNITED
STATES.
  12. PRIORITY CHEMICAL. "PRIORITY CHEMICAL" MEANS A CHEMICAL IDENTIFIED
AS SUCH BY THE COMMISSIONER  PURSUANT  TO  SUBDIVISION  ONE  OF  SECTION
37-0505 OF THIS TITLE.
  13.  SAFER ALTERNATIVE. "SAFER ALTERNATIVE" MEANS AN ALTERNATIVE THAT,
WHEN COMPARED TO A PRIORITY CHEMICAL THAT IT COULD REPLACE, WOULD REDUCE
THE POTENTIAL FOR HARM TO HUMAN HEALTH OR THE ENVIRONMENT  OR  THAT  HAS
NOT  BEEN  SHOWN TO POSE THE SAME OR GREATER POTENTIAL FOR HARM TO HUMAN
HEALTH OR THE ENVIRONMENT AS THAT PRIORITY CHEMICAL.
S 37-0503. IDENTIFICATION OF CHEMICALS OF HIGH CONCERN.
  1. CRITERIA. WITHIN ONE YEAR OF THE EFFECTIVE DATE OF THIS  TITLE  THE
DEPARTMENT, IN CONCURRENCE WITH THE DEPARTMENT OF HEALTH SHALL PUBLISH A
LIST  OF  CHEMICALS  OF  HIGH CONCERN. A CHEMICAL MAY BE INCLUDED ON THE
LIST ONLY IF IT HAS BEEN IDENTIFIED  BY  AN  AUTHORITATIVE  GOVERNMENTAL
ENTITY ON THE BASIS OF CREDIBLE SCIENTIFIC EVIDENCE AS BEING KNOWN AS:
  (A)  A  CARCINOGEN,  A  REPRODUCTIVE  OR  DEVELOPMENTAL TOXICANT OR AN
ENDOCRINE DISRUPTOR;
  (B) PERSISTENT, BIOACCUMULATIVE AND TOXIC; OR
  (C) VERY PERSISTENT AND VERY BIOACCUMULATIVE.

A. 10089                            3

  2. REVISIONS. THE DEPARTMENT MAY PERIODICALLY REVIEW  AND  REVISE  THE
LIST  OF  CHEMICALS OF HIGH CONCERN NO LESS THAN ONCE EVERY THREE YEARS.
THE DEPARTMENT SHALL ADD CHEMICALS TO THE LIST IF, IN  THE  JUDGMENT  OF
THE DEPARTMENT OF HEALTH, THE CHEMICAL MEETS ONE OR MORE OF THE CRITERIA
IN  SUBDIVISION  ONE  OF THIS SECTION.  IN THE EVENT THAT A NEW DETERMI-
NATION IS MADE BY A GOVERNMENTAL ENTITY THAT A CHEMICAL MEETS  THE  HIGH
CONCERN  CRITERIA,  NOTHING  HEREIN  SHALL  PREVENT  THE DEPARTMENT FROM
ACTING TO ADD SUCH CHEMICALS OUTSIDE OF  THE  PERIODIC  REVIEW  PROCESS.
THE  DEPARTMENT MAY REMOVE A CHEMICAL FROM THE LIST OF CHEMICALS OF HIGH
CONCERN BASED ON EVIDENCE THAT THE CHEMICAL IS NOT PRESENT  IN  A  CHIL-
DREN'S  PRODUCT OR OTHERWISE WOULD NOT BE SUBJECT TO THE REQUIREMENTS OF
THIS TITLE.
S 37-0505. IDENTIFICATION OF PRIORITY CHEMICALS.
  1. DESIGNATION. THE COMMISSIONER MAY  DESIGNATE  A  CHEMICAL  OF  HIGH
CONCERN AS A PRIORITY CHEMICAL IF THE COMMISSIONER FINDS, IN CONCURRENCE
WITH THE DEPARTMENT OF HEALTH:
  (A)  THE  CHEMICAL OR ITS METABOLITES HAVE BEEN FOUND THROUGH BIOMONI-
TORING TO BE PRESENT IN HUMANS, INCLUDING HUMAN  BLOOD,  UMBILICAL  CORD
BLOOD, BREAST MILK, URINE OR OTHER BODILY TISSUES OR FLUIDS;
  (B)  THE  CHEMICAL  HAS BEEN FOUND THROUGH SAMPLING AND ANALYSIS TO BE
PRESENT IN HOUSEHOLD DUST, INDOOR AIR, DRINKING WATER  OR  ELSEWHERE  IN
THE HOME ENVIRONMENT;
  (C)  THE  CHEMICAL  HAS BEEN FOUND THROUGH MONITORING TO BE PRESENT IN
FISH, WILDLIFE OR THE NATURAL ENVIRONMENT;
  (D) THE CHEMICAL IS PRESENT IN A CONSUMER PRODUCT USED OR  PRESENT  IN
THE HOME, SCHOOL, OR CHILDCARE CENTER;
  (E) THE CHEMICAL HAS BEEN IDENTIFIED AS A HIGH PRODUCTION VOLUME CHEM-
ICAL BY THE FEDERAL ENVIRONMENTAL PROTECTION AGENCY; OR
  (F) THE SALE OR USE OF THE CHEMICAL OR A PRODUCT CONTAINING THE CHEMI-
CAL HAS BEEN BANNED IN ANOTHER STATE OR STATES WITHIN THE UNITED STATES.
  THE COMMISSIONER SHALL DESIGNATE AT LEAST TWO PRIORITY CHEMICALS WITH-
IN THREE MONTHS OF THE EFFECTIVE DATE OF THIS TITLE.
  2.  UPDATES.  THE  COMMISSIONER  SHALL REVIEW THE LIST OF CHEMICALS OF
HIGH CONCERN AT LEAST ONCE EVERY THREE YEARS  AND  MAY  DESIGNATE  ADDI-
TIONAL  PRIORITY  CHEMICALS IF THE COMMISSIONER FINDS THAT THE CHEMICALS
MEET ONE OF THE CRITERIA LISTED IN SUBDIVISION ONE OF THIS SECTION.
  3. REGULATIONS. THE COMMISSIONER SHALL ADOPT RULES AND REGULATIONS  TO
IMPLEMENT THE PROVISIONS OF THIS SECTION.
S 37-0507. DISCLOSURE OF INFORMATION ON PRIORITY CHEMICALS.
  1.  REPORTING  OF CHEMICAL USE. NOT LATER THAN ONE HUNDRED EIGHTY DAYS
AFTER A PRIORITY CHEMICAL IS IDENTIFIED PURSUANT TO SECTION  37-0505  OF
THIS  TITLE,  A  PERSON  WHO IS A MANUFACTURER OR DISTRIBUTOR OF A CHIL-
DREN'S PRODUCT FOR SALE OR DISTRIBUTION IN THIS STATE  THAT  CONTAINS  A
PRIORITY  CHEMICAL  SHALL NOTIFY THE DEPARTMENT IN WRITING UNLESS WAIVED
BY THE COMMISSIONER PURSUANT TO THIS SECTION OR EXEMPT FROM  THIS  TITLE
PURSUANT  TO  SECTION  37-0511  OF  THIS TITLE. THIS WRITTEN NOTICE MUST
IDENTIFY THE CHILDREN'S PRODUCT, THE NUMBER OF UNITS SOLD OR DISTRIBUTED
FOR SALE IN THE STATE OR NATIONALLY, THE PRIORITY CHEMICAL OR  CHEMICALS
CONTAINED  IN  THE  CHILDREN'S  PRODUCT, THE AMOUNT OF SUCH CHEMICALS IN
EACH UNIT OF CHILDREN'S PRODUCT AND THE INTENDED PURPOSE OF  THE  CHEMI-
CALS IN THE CHILDREN'S PRODUCT.
  2.  SUPPLEMENTAL  INFORMATION.  THE  MANUFACTURER  OR DISTRIBUTOR OF A
CHILDREN'S PRODUCT THAT CONTAINS A PRIORITY CHEMICAL SHALL  PROVIDE  THE
FOLLOWING ADDITIONAL INFORMATION IF REQUESTED BY THE DEPARTMENT:
  (A)  INFORMATION  ON THE LIKELIHOOD THAT THE CHEMICAL WILL BE RELEASED
FROM THE CHILDREN'S PRODUCT TO THE  ENVIRONMENT  DURING  THE  CHILDREN'S

A. 10089                            4

PRODUCT'S  LIFE  CYCLE  AND  THE EXTENT TO WHICH USERS OF THE CHILDREN'S
PRODUCT ARE LIKELY TO BE EXPOSED TO THE CHEMICAL;
  (B)  INFORMATION ON THE EXTENT TO WHICH THE CHEMICAL IS PRESENT IN THE
ENVIRONMENT OR HUMAN BODY; AND
  (C) AN ASSESSMENT OF THE AVAILABILITY, COST, FEASIBILITY AND  PERFORM-
ANCE,  INCLUDING POTENTIAL FOR HARM TO HUMAN HEALTH AND THE ENVIRONMENT,
OF ALTERNATIVES TO THE PRIORITY CHEMICAL AND  THE  REASON  THE  PRIORITY
CHEMICAL IS USED IN THE MANUFACTURE OF THE CHILDREN'S PRODUCT IN LIEU OF
IDENTIFIED  ALTERNATIVES.  IF AN ASSESSMENT ACCEPTABLE TO THE DEPARTMENT
IS NOT SUBMITTED IN A TIMELY MANNER, THE DEPARTMENT MAY ASSESS A FEE  ON
THE  MANUFACTURER  OR DISTRIBUTOR TO COVER THE COSTS TO PREPARE AN INDE-
PENDENT REPORT ON THE AVAILABILITY OF SAFER ALTERNATIVES BY A CONTRACTOR
OF THE DEPARTMENT'S CHOICE.
  THE MANUFACTURER OR DISTRIBUTOR OF A CHILDREN'S PRODUCT THAT  CONTAINS
A PRIORITY CHEMICAL MAY PROVIDE ADDITIONAL INFORMATION TO THE DEPARTMENT
REGARDING  THE  POTENTIAL  FOR  HARM TO HUMAN HEALTH AND THE ENVIRONMENT
FROM SPECIFIC USES OF THE PRIORITY CHEMICAL.
  3. WAIVER OF REPORTING; FEE; EXTENSION OF DEADLINE.  THE  COMMISSIONER
MAY  WAIVE ALL OR PART OF THE NOTIFICATION REQUIREMENT UNDER SUBDIVISION
ONE OF THIS SECTION FOR ONE OR MORE SPECIFIED USES OF A PRIORITY  CHEMI-
CAL IF THE COMMISSIONER DETERMINES THAT; SUBSTANTIALLY EQUIVALENT INFOR-
MATION  IS ALREADY PUBLICLY AVAILABLE, INCLUDING INFORMATION PROVIDED AS
PART OF PROGRAMS IN OTHER STATES; THAT THE INFORMATION IS NOT NEEDED FOR
THE PURPOSES OF THIS TITLE OR THAT THE SPECIFIED USE OR USES  ARE  MINOR
IN  VOLUME.  THE DEPARTMENT MAY ASSESS A FEE PAYABLE BY THE MANUFACTURER
OR DISTRIBUTOR UPON SUBMISSION OF THE NOTIFICATION TO COVER THE  DEPART-
MENT'S  REASONABLE  COSTS  IN  MANAGING  THE  INFORMATION COLLECTED. THE
DEPARTMENT MAY EXTEND THE DEADLINE FOR  SUBMISSION  OF  THE  INFORMATION
REQUIRED UNDER SUBDIVISION ONE OF THIS SECTION FOR ONE OR MORE SPECIFIED
USES  OF  A  PRIORITY  CHEMICAL IN A CHILDREN'S PRODUCT IF IT DETERMINES
THAT MORE TIME IS NEEDED BY THE MANUFACTURER OR  DISTRIBUTOR  TO  COMPLY
WITH  THE  SUBMISSION REQUIREMENT OR IF THE INFORMATION IS NOT NEEDED AT
THAT TIME.
  4. RULEMAKING TO DETERMINE FEES. IF  THE  DEPARTMENT  ASSESSES  A  FEE
PURSUANT  TO  SUBDIVISION  TWO  OR  THREE OF THIS SECTION THE DEPARTMENT
SHALL DETERMINE THE APPROPRIATE FEE FOLLOWING THE ADOPTION OF RULES  AND
REGULATIONS.
S 37-0509. SALES  PROHIBITION;  RULES;  SAFER  ALTERNATIVES  TO PRIORITY
             CHEMICALS.
  1. AUTHORITY. THE DEPARTMENT SHALL ADOPT RULES PROHIBITING  THE  MANU-
FACTURE,  SALE  OR  DISTRIBUTION  IN  THIS STATE OF A CHILDREN'S PRODUCT
CONTAINING A PRIORITY CHEMICAL IF THE DEPARTMENT FINDS, AFTER  CONSIDER-
ATION OF INFORMATION FILED UNDER SECTION 37-0507 OF THIS TITLE AND OTHER
RELEVANT INFORMATION SUBMITTED TO OR OBTAINED BY THE DEPARTMENT, INCLUD-
ING INFORMATION PROVIDED AS PART OF PROGRAMS IN OTHER STATES, THAT:
  (A)  DISTRIBUTION  OF  THE  CHILDREN'S  PRODUCT DIRECTLY OR INDIRECTLY
EXPOSES CHILDREN TO THE PRIORITY CHEMICAL; AND
  (B) ONE OR MORE SAFER ALTERNATIVES TO THE PRIORITY CHEMICAL ARE AVAIL-
ABLE AT A COMPARABLE COST AND PERFORMANCE.
  IF THERE ARE SEVERAL AVAILABLE SAFER ALTERNATIVES TO A PRIORITY CHEMI-
CAL WITH DISTINGUISHABLE RELATIVE TOXICITIES, THE DEPARTMENT MAY PROHIB-
IT THE SALE OR DISTRIBUTION OF CHILDREN'S PRODUCTS THAT DO  NOT  CONTAIN
THE SAFER ALTERNATIVE THAT IS LEAST TOXIC TO HUMAN HEALTH OR LEAST HARM-
FUL TO THE ENVIRONMENT.

A. 10089                            5

  A REGULATION ESTABLISHED PURSUANT TO THIS SUBDIVISION MUST SPECIFY THE
EFFECTIVE  DATE  OF THE PROHIBITION, WHICH MAY NOT BE SOONER THAN TWELVE
MONTHS AFTER NOTICE OF THE PROPOSED RULE IS PUBLISHED.
  2. ALTERNATIVES ASSESSMENT; PRESUMPTIONS. FOR THE PURPOSE OF DETERMIN-
ING  WHETHER  A  SAFER  ALTERNATIVE  IS AVAILABLE UNDER PARAGRAPH (B) OF
SUBDIVISION ONE OF THIS SECTION, THE DEPARTMENT MAY, IN THE  ABSENCE  OF
PERSUASIVE EVIDENCE TO THE CONTRARY:
  (A) PRESUME THAT AN ALTERNATIVE IS A SAFER ALTERNATIVE IF THE ALTERNA-
TIVE IS NOT A CHEMICAL OF HIGH CONCERN;
  (B)  PRESUME  THAT A SAFER ALTERNATIVE IS AVAILABLE IF THE SALE OF THE
CHILDREN'S PRODUCT CONTAINING THE PRIORITY CHEMICAL HAS BEEN  BANNED  BY
ANOTHER STATE OR STATES WITHIN THE UNITED STATES;
  (C)  PRESUME  THAT  A SAFER ALTERNATIVE IS AVAILABLE IF THE CHILDREN'S
PRODUCT CONTAINING THE PRIORITY CHEMICAL IS AN  ITEM  OF  APPAREL  OR  A
NOVELTY;
  (D)  PRESUME  THAT A SAFER ALTERNATIVE IS AVAILABLE IF THE ALTERNATIVE
IS SOLD IN THE UNITED STATES; AND
  (E) PRESUME THAT IF A CHEMICAL APPEARS ON THE STATE'S LIST  OF  CHEMI-
CALS  OF  HIGH  CONCERN  THAT  IT IS NOT ELIGIBLE FOR CONSIDERATION AS A
SAFER ALTERNATIVE.
  3. IMPLEMENTATION. NO LATER THAN ONE HUNDRED EIGHTY DAYS PRIOR TO  THE
EFFECTIVE  DATE  OF  A PROHIBITION ADOPTED UNDER SUBDIVISION ONE OF THIS
SECTION, THE MANUFACTURER OR DISTRIBUTOR OF A  CHILDREN'S  PRODUCT  THAT
CONTAINS THE PRIORITY CHEMICAL AND THAT IS SUBJECT TO THE PROHIBITION AT
THE  TIME OF ADOPTION SHALL FILE A COMPLIANCE PLAN WITH THE COMMISSIONER
OR SEEK A WAIVER UNDER SUBDIVISION FIVE OF THIS  SECTION.  A  COMPLIANCE
PLAN MUST:
  (A)  IDENTIFY THE CHILDREN'S PRODUCT THAT CONTAINS THE PRIORITY CHEMI-
CAL;
  (B) SPECIFY WHETHER COMPLIANCE WILL BE ACHIEVED BY  DISCONTINUING  THE
SALE  OF  THE CHILDREN'S PRODUCT IN THE STATE OR BY SUBSTITUTING A SAFER
ALTERNATIVE IN THE PRODUCT; AND
  (C) IF COMPLIANCE IS ACHIEVED BY SUBSTITUTION OF A  SAFER  ALTERNATIVE
IN  THE  PRODUCT,  IDENTIFY  THE SAFER ALTERNATIVE AND THE TIMETABLE FOR
SUBSTITUTION.
  4. RESPONSIBILITY. A MANUFACTURER OR DISTRIBUTOR OF A CHILDREN'S PROD-
UCT CONTAINING A PRIORITY CHEMICAL SHALL NOTIFY PERSONS THAT  OFFER  THE
PRODUCT  FOR  SALE  OR  DISTRIBUTION IN THE STATE OF THE REQUIREMENTS OF
THIS TITLE.
  5. WAIVER FOR SPECIFIC USES. THE  MANUFACTURER  OR  DISTRIBUTOR  OF  A
CHILDREN'S PRODUCT THAT CONTAINS A PRIORITY CHEMICAL AND THAT IS SUBJECT
TO A PROHIBITION ADOPTED PURSUANT TO SUBDIVISION ONE OF THIS SECTION MAY
APPLY  TO THE COMMISSIONER FOR A WAIVER FOR ONE OR MORE SPECIFIC USES OF
THE PRIORITY CHEMICAL. THE WAIVER APPLICATION MUST, AT A MINIMUM:
  (A) IDENTIFY THE SPECIFIC CHILDREN'S PRODUCT USE OR USES FOR WHICH THE
WAIVER IS SOUGHT;
  (B) IDENTIFY THE  ALTERNATIVES  CONSIDERED  FOR  SUBSTITUTION  OF  THE
PRIORITY CHEMICAL;
  (C) EXPLAIN THE BASIS FOR CONCLUDING THAT THE USE OF AN ALTERNATIVE IS
NOT FEASIBLE; AND
  (D) IDENTIFY THE STEPS THAT HAVE AND WILL BE TAKEN TO MINIMIZE THE USE
OF THE PRIORITY CHEMICAL.
  THE  COMMISSIONER  MAY  GRANT A WAIVER WITH OR WITHOUT CONDITIONS UPON
FINDING THAT THERE IS A NEED FOR THE CHILDREN'S  PRODUCT  IN  WHICH  THE
PRIORITY  CHEMICAL  IS USED AND THERE ARE NO TECHNICALLY OR ECONOMICALLY
FEASIBLE ALTERNATIVES FOR THE USE OF THE PRIORITY CHEMICAL IN THE  CHIL-

A. 10089                            6

DREN'S  PRODUCT.  WAIVERS  MAY BE GRANTED FOR A TERM NOT TO EXCEED THREE
YEARS AND MAY BE RENEWED FOR ONE OR  MORE  ADDITIONAL  THREE-YEAR  TERMS
UPON  WRITTEN APPLICATION DEMONSTRATING THAT TECHNICALLY OR ECONOMICALLY
FEASIBLE ALTERNATIVES REMAIN UNAVAILABLE. THE COMMISSIONER SHALL DENY OR
GRANT  WAIVER  REQUESTS  WITHIN  SIXTY DAYS AFTER RECEIPT OF A COMPLETED
WAIVER APPLICATION.
S 37-0511. APPLICABILITY.
  1. NEW PRODUCTS. THE PROVISIONS OF THIS TITLE SHALL APPLY TO CHEMICALS
IN PRODUCTS SOLD OR DISTRIBUTED AS  NEW  AND  DOES  NOT  APPLY  TO  USED
PRODUCTS  THAT  ARE  SOLD  OR DISTRIBUTED FOR FREE AT SECONDHAND STORES,
YARD SALES, ON THE INTERNET OR DONATED TO CHARITIES.
  2. INDUSTRY. THE REQUIREMENTS OF THIS TITLE SHALL NOT APPLY TO PRIORI-
TY CHEMICALS USED IN OR FOR INDUSTRY OR MANUFACTURING, INCLUDING  CHEMI-
CALS  PROCESSED  OR OTHERWISE USED IN OR FOR INDUSTRIAL OR MANUFACTURING
PROCESSES.
  3. TRANSPORTATION. THE REQUIREMENTS OF THIS TITLE SHALL NOT  APPLY  TO
MOTOR  VEHICLES  OR THEIR COMPONENT PARTS, OR WATERCRAFT OR THEIR COMPO-
NENT PARTS, EXCEPT THAT THE USE OF PRIORITY CHEMICALS IN DETACHABLE  CAR
SEATS IS NOT EXEMPT.
  4.  COMBUSTION.  THE  REQUIREMENTS  OF  THIS  TITLE SHALL NOT APPLY TO
PRIORITY CHEMICALS GENERATED SOLELY AS COMBUSTION  BY-PRODUCTS  OR  THAT
ARE PRESENT IN COMBUSTIBLE FUELS.
  5. RETAILERS. A RETAILER IS EXEMPT FROM THE REQUIREMENTS OF THIS TITLE
UNLESS  THAT  RETAILER KNOWINGLY SELLS A CHILDREN'S PRODUCT CONTAINING A
PRIORITY CHEMICAL AFTER THE EFFECTIVE DATE OF ITS PROHIBITION FOR  WHICH
THAT  RETAILER  HAS  RECEIVED  PRIOR  NOTIFICATION  FROM A MANUFACTURER,
DISTRIBUTOR OR THE STATE.
S 37-0513. EDUCATION AND ASSISTANCE.
  WITHIN ONE HUNDRED EIGHTY DAYS AFTER THE EFFECTIVE DATE OF THIS  TITLE
THE  DEPARTMENT  SHALL  DEVELOP  A  WEBSITE ACCESSIBLE BY THE PUBLIC, TO
EDUCATE AND ASSIST CONSUMERS AND  RETAILERS  IN  IDENTIFYING  CHILDREN'S
PRODUCTS THAT MAY CONTAIN PRIORITY CHEMICALS.
S 37-0515. ENFORCEMENT AND IMPLEMENTATION.
  1. FAILURE TO PROVIDE NOTICE. A CHILDREN'S PRODUCT CONTAINING A PRIOR-
ITY  CHEMICAL  MAY NOT BE SOLD, OFFERED FOR SALE OR DISTRIBUTED FOR SALE
IN THIS STATE IF THE MANUFACTURER OR DISTRIBUTOR HAS FAILED  TO  PROVIDE
INFORMATION  REQUIRED  UNDER  SECTION  37-0509 OF THIS TITLE BY THE DATE
REQUIRED IN THAT SECTION. THE COMMISSIONER MAY EXEMPT A CHILDREN'S PROD-
UCT FROM THIS PROHIBITION IF, IN THE COMMISSIONER'S JUDGMENT,  THE  LACK
OF  AVAILABILITY  OF  THE  CHILDREN'S PRODUCT COULD POSE AN UNREASONABLE
RISK TO PUBLIC HEALTH, SAFETY OR WELFARE.
  2. CERTIFICATE OF COMPLIANCE. IF THERE ARE GROUNDS TO SUSPECT  THAT  A
CHILDREN'S PRODUCT IS BEING OFFERED FOR SALE IN VIOLATION OF THIS TITLE,
THE  DEPARTMENT MAY REQUEST THE MANUFACTURER OR DISTRIBUTOR OF THE PROD-
UCT TO PROVIDE A CERTIFICATE OF COMPLIANCE WITH THE PROVISIONS  OF  THIS
TITLE.  WITHIN  TEN DAYS OF RECEIPT OF A REQUEST UNDER THIS SECTION, THE
MANUFACTURER OR DISTRIBUTOR SHALL:
  (A) PROVIDE THE DEPARTMENT WITH THE  CERTIFICATE  ATTESTING  THAT  THE
CHILDREN'S PRODUCT DOES NOT CONTAIN THE PRIORITY CHEMICAL; OR
  (B) NOTIFY PERSONS WHO SELL THE PRODUCT IN THIS STATE THAT THE SALE OF
THE  CHILDREN'S  PRODUCT IS PROHIBITED AND PROVIDE THE DEPARTMENT WITH A
LIST OF THE NAMES AND ADDRESSES OF THOSE NOTIFIED.
  S 2. Within six months of the effective date of this act  the  depart-
ment  of environmental conservation, in consultation with the department
of health, shall identify an initial list of chemicals of  high  concern
in  accordance with title 5 of article 37 of the environmental conserva-

A. 10089                            7

tion law. In developing the list, the departments may consider  but  are
not limited to considering:
  1. Chemicals identified as "Group 1 carcinogens" or "Group 2A carcino-
gens"  by  the  World  Health  Organization,  International  Agency  for
Research on Cancer;
  2. Chemicals identified as  "known  to  be  a  human  carcinogen"  and
"reasonably  anticipated  to  be a human carcinogen" by the Secretary of
the United States Department of Health and Human  Services  pursuant  to
the Public Health Service Act, 42 United States Code, Section 241(b)(4),
as amended;
  3.  Chemicals identified as "Group A carcinogens" or "Group B carcino-
gens" by the United States Environmental Protection Agency;
  4. Chemicals identified as reproductive or developmental toxicants by:
  (a) The  United  States  Department  of  Health  and  Human  Services,
National Toxicology Program, Center for the Evaluation of Risks to Human
Reproduction; and
  (b) The California Environmental Protection Agency, Office of Environ-
mental  Health  Hazard  Assessment pursuant to the California Health and
Safety Code, Safe Drinking Water and  Toxic  Enforcement  Act  of  1986,
Chapter 6.6, Section 25249.8;
  5.  Chemicals  identified  as  known  or  likely  endocrine disruptors
through screening or testing  conducted  in  accordance  with  protocols
developed  by the United States Environmental Protection Agency pursuant
to the federal Food, Drug and  Cosmetic  Act,  21  United  States  Code,
346a(p),  as  amended by the federal Food Quality Protection Act (Public
Law 104-170) or the federal Safe Drinking Water Act,  42  United  States
Code, Section 300j-17;
  6. Chemicals listed on the basis of endocrine-disrupting properties in
Annex  XIV, List of Substances Subject to Authorisation, Regulation (EC)
No 1907/2006 of the European  Parliament  concerning  the  Registration,
Evaluation, Authorisation and Restriction of Chemicals;
  7. Persistent, bioaccumulative and toxic chemicals identified by other
states or the environmental protection agency; and
  8.  A  very  persistent, very bioaccumulative chemical listed in Annex
XIV, List of Substances Subject to  Authorisation,  Regulation  (EC)  No
1907/2006 of the European Parliament concerning the Registration, Evalu-
ation, Authorisation and Restriction of Chemicals.
  S 3. This act shall take effect on the one hundred twentieth day after
it shall have become a law.

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

                                10089--A

                          I N  A S S E M B L Y

                              March 3, 2010
                               ___________

Introduced  by  M.  of  A.  SWEENEY, WEISENBERG, SPANO, STIRPE, BOYLAND,
  MILLMAN,  GUNTHER,  JAFFEE,  DINOWITZ,  CHRISTENSEN,  TITONE,  GIBSON,
  BARRON,  CASTRO,  FIELDS,  SKARTADOS,  TITUS,  KOON, ROSENTHAL, ENGLE-
  BRIGHT, SCHIMEL, HYER-SPENCER, MAYERSOHN, KELLNER, ZEBROWSKI,  COLTON,
  O'DONNELL,  ORTIZ,  LIFTON,  BENJAMIN, KAVANAGH, HOOPER -- Multi-Spon-
  sored by -- M. of A. CAHILL, CARROZZA, COOK, CRESPO, DESTITO,  GABRYS-
  ZAK, GALEF, GLICK, GORDON, JACOBS, JOHN, LUPARDO, MAGEE, MARKEY, McEN-
  ENY, M. MILLER, PEOPLES-STOKES, PHEFFER, REILLY, THIELE, TOWNS -- read
  once  and  referred  to the Committee on Environmental Conservation --
  reported and referred to the Committee on Ways and Means --  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:

  Section 1. Article 37 of the environmental conservation law is amended
by adding a new title 5 to read as follows:
                                 TITLE V
                 TOXIC CHEMICALS IN CHILDREN'S PRODUCTS
SECTION 37-0501. DEFINITIONS.
        37-0503. CHEMICALS OF HIGH CONCERN.
        37-0505. PRIORITY CHEMICALS.
        37-0507. DISCLOSURE OF INFORMATION ON PRIORITY CHEMICALS.
        37-0509. SALES PROHIBITION.
        37-0511. APPLICABILITY.
        37-0513. ENFORCEMENT AND IMPLEMENTATION.
        37-0515. INTERSTATE CHEMICAL CLEARINGHOUSE.
        37-0517. REGULATIONS.
S 37-0501. DEFINITIONS.
  AS USED IN THIS TITLE, UNLESS THE  CONTEXT  OTHERWISE  INDICATES,  THE
FOLLOWING TERMS HAVE THE FOLLOWING MEANINGS.
  1.  "CHILDREN'S  APPAREL"  MEANS ANY ITEM OF CLOTHING THAT CONSISTS OF
FABRIC OR RELATED MATERIAL INTENDED OR PROMOTED FOR  USE  IN  CHILDREN'S

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

                                                           LBD16104-12-0

A. 10089--A                         2

CLOTHING. CHILDREN'S APPAREL DOES NOT MEAN PROTECTIVE EQUIPMENT DESIGNED
TO  PREVENT  INJURY,  INCLUDING,  BUT  NOT  LIMITED TO, BICYCLE HELMETS,
ATHLETIC SUPPORTERS, KNEE PADS OR ELBOW PADS.
  2.  "CHEMICAL" MEANS A SUBSTANCE WITH A DISTINCT MOLECULAR COMPOSITION
OR A GROUP OF STRUCTURALLY RELATED SUBSTANCES AND INCLUDES THE BREAKDOWN
PRODUCTS OF THE SUBSTANCE OR SUBSTANCES THAT FORM THROUGH DECOMPOSITION,
DEGRADATION OR METABOLISM.
  3. "CHEMICAL OF HIGH CONCERN" MEANS A CHEMICAL INCLUDED IN THE LIST OF
"CHEMICALS OF HIGH CONCERN" PUBLISHED IN JUNE 2009 PURSUANT  TO  CHAPTER
16-D OF TITLE 38 OF THE MAINE REVISED STATUTES ANNOTATED.
  4. "CHILDREN" MEANS A PERSON OR PERSONS AGED TWELVE AND UNDER.
  5.  "CHILDREN'S PRODUCT" MEANS A PRODUCT INTENDED FOR USE BY CHILDREN,
INCLUDING EXTERNAL COMPONENT PARTS AND PACKAGING, SUCH AS BABY PRODUCTS,
TOYS, CAR SEATS, PERSONAL CARE PRODUCTS, A PRODUCT DESIGNED OR  INTENDED
BY THE MANUFACTURER TO HELP A CHILD WITH SUCKING OR TEETHING, TO FACILI-
TATE  SLEEP,  RELAXATION,  OR  THE  FEEDING OF A CHILD, JEWELRY, NOVELTY
PRODUCTS, BEDDING, FURNITURE, CHILDREN'S APPAREL,  AND  THE  HOUSING  OF
CONSUMER ELECTRONIC PRODUCTS.  "CHILDREN'S PRODUCT" DOES NOT INCLUDE (A)
BATTERIES;  OR (B) CONSUMER ELECTRONIC PRODUCTS ENCLOSED WITHIN A SECURE
HOUSING, INCLUDING BUT NOT LIMITED  TO  PERSONAL  COMPUTERS,  AUDIO  AND
VIDEO  EQUIPMENT,  CALCULATORS,  WIRELESS  PHONES,  GAME  CONSOLES,  AND
HANDHELD DEVICES INCORPORATING A VIDEO SCREEN, USED TO  ACCESS  INTERAC-
TIVE  SOFTWARE  AND THEIR ASSOCIATED PERIPHERALS, EXCEPT FOR SAID SECURE
HOUSING; OR (C) A FOOD OR BEVERAGE OR AN ADDITIVE TO A FOOD OR  BEVERAGE
REGULATED  BY  THE  UNITED STATES FOOD AND DRUG ADMINISTRATION; OR (D) A
TOBACCO PRODUCT OR PAPER OR FOREST PRODUCT; OR (E) A PESTICIDE REGULATED
BY THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY.  CHILDREN'S  PROD-
UCT  ALSO  DOES  NOT  INCLUDE A DRUG OR BIOLOGIC REGULATED BY THE UNITED
STATES FOOD AND DRUG ADMINISTRATION OR THE PACKAGING  OF  SUCH  DRUG  OR
BIOLOGIC  IF  SUCH  PACKAGING IS REGULATED BY THE UNITED STATES FOOD AND
DRUG ADMINISTRATION.
  6. "DISTRIBUTOR" MEANS A  PERSON  WHO  SELLS  CHILDREN'S  PRODUCTS  TO
RETAIL ESTABLISHMENTS ON A WHOLESALE BASIS.
  7.  "INTENTIONALLY  ADDED" MEANS THE DELIBERATE USE IN THE FORMULATION
OF A PRODUCT OR SUBPART WHERE ITS CONTINUED PRESENCE IS DESIRED  IN  THE
FINAL  PRODUCT  OR SUBPART TO PROVIDE A SPECIFIC CHARACTERISTIC, APPEAR-
ANCE OR QUALITY.
  8. "MANUFACTURER" MEANS ANY PERSON WHO CURRENTLY MANUFACTURES A  FINAL
CHILDREN'S  PRODUCT  OR  WHOSE  BRAND  NAME IS AFFIXED TO THE CHILDREN'S
PRODUCT. IN THE CASE OF A CHILDREN'S PRODUCT THAT WAS IMPORTED INTO  THE
UNITED  STATES,  "MANUFACTURER"  INCLUDES THE IMPORTER OR FIRST DOMESTIC
DISTRIBUTOR OF THE CHILDREN'S PRODUCT IF THE PERSON WHO CURRENTLY  MANU-
FACTURES  OR  ASSEMBLES  THE  CHILDREN'S  PRODUCT OR WHOSE BRAND NAME IS
AFFIXED TO THE CHILDREN'S PRODUCT DOES NOT HAVE A PRESENCE IN THE UNITED
STATES.
  9. "NOVELTY PRODUCT" MEANS A PRODUCT INTENDED MAINLY FOR  PERSONAL  OR
HOUSEHOLD  ENJOYMENT OR ADORNMENT. NOVELTY PRODUCTS INCLUDE, BUT ARE NOT
LIMITED TO, ITEMS INTENDED FOR USE AS PRACTICAL JOKES, FIGURINES, ADORN-
MENTS, TOYS, GAMES, CARDS, ORNAMENTS, YARD STATUES AND FIGURES, CANDLES,
JEWELRY, HOLIDAY DECORATIONS, OR SIMILAR PRODUCTS.
  10. "PRIORITY CHEMICAL" MEANS A CHEMICAL  ADOPTED  BY  THE  DEPARTMENT
PURSUANT  TO  SUBDIVISION  ONE  OF  SECTION 37-0505 OF THIS TITLE.   THE
PRIORITY LIST OF CHEMICALS SHALL CONTAIN THE FOLLOWING CHEMICALS:
  CASRN115-96-8     TRIS (2-CHLOROETHYL) PHOSPHATE
  CASRN71-43-2      BENZENE
  CASRN7439-92-1    LEAD AND COMPOUNDS (INORGANIC)

A. 10089--A                         3

  CASRN7439-97-6    MERCURY AND MERCURY COMPOUNDS, INCLUDING METHYL
                    MERCURY (CASRN 22967-92-6)
  CASRN7439-98-7    MOLYBDENUM AND MOLYBDENUM COMPOUNDS
  CASRN7440-36-0    ANTIMONY AND ANTIMONY COMPOUNDS
  CASRN7440-38-2    ARSENIC AND ARSENIC COMPOUNDS INCLUDING ARSENIC
                    TRIOXIDE (CASRN 1327-53-3)
                    AND DIMETHYL ARSENIC (CASRN 75-60-5)
  CASRN7440-41-7    BERYLLIUM AND BERYLLIUM COMPOUNDS
  CASRN7440-43-9    CADMIUM
  CASRN7440-48-4    COBALT AND COBALT COMPOUNDS
  11.  "TOY" MEANS A PRODUCT DESIGNED OR INTENDED BY THE MANUFACTURER TO
BE USED BY A CHILD AT PLAY.
S 37-0503. CHEMICALS OF HIGH CONCERN.
  1. PUBLISHING OF LIST. WITHIN ONE HUNDRED EIGHTY DAYS OF THE EFFECTIVE
DATE OF THIS TITLE, THE DEPARTMENT SHALL ENSURE THAT A WEBSITE  ACCESSI-
BLE  TO  THE  PUBLIC  IS  ESTABLISHED  WHICH LISTS ALL CHEMICALS OF HIGH
CONCERN.
  2. PERIODIC REVIEW. (A) WITH RESOURCES MADE  AVAILABLE  THEREFOR,  THE
DEPARTMENT,  IN  CONSULTATION WITH THE DEPARTMENT OF HEALTH, MAY PERIOD-
ICALLY REVIEW THE LIST OF CHEMICALS OF HIGH CONCERN AND,  THROUGH  REGU-
LATION, IDENTIFY ADDITIONAL CHEMICALS OF HIGH CONCERN, OR REMOVE A CHEM-
ICAL  FROM  THE LIST OF CHEMICALS OF HIGH CONCERN BASED ON EVIDENCE THAT
THE CHEMICAL DOES NOT MEET THE CRITERIA OF THIS SUBDIVISION,  INCLUDING,
BUT  NOT  LIMITED TO, PESTICIDES AND CONTROLLED SUBSTANCES. IN THE EVENT
THAT A NEW DETERMINATION IS MADE BY A STATE,  FEDERAL  OR  INTERNATIONAL
GOVERNMENTAL  ENTITY  THAT  A  CHEMICAL MEETS THE HIGH CONCERN CRITERIA,
NOTHING HEREIN SHALL PREVENT THE DEPARTMENT  FROM  ACTING  TO  ADD  SUCH
CHEMICALS OUTSIDE OF THE PERIODIC REVIEW PROCESS.
  (B)  THE  DEPARTMENT SHALL, UPON THIS REVIEW, IDENTIFY A CHEMICAL AS A
CHEMICAL OF HIGH CONCERN IF IT DETERMINES THAT  THE  CHEMICAL  HAS  BEEN
IDENTIFIED  BY AN AUTHORITATIVE GOVERNMENT ENTITY ON THE BASIS OF CREDI-
BLE SCIENTIFIC EVIDENCE AS:
  (I) A CARCINOGEN, A  REPRODUCTIVE  OR  DEVELOPMENTAL  TOXICANT  OR  AN
ENDOCRINE DISRUPTOR;
  (II) PERSISTENT, BIOACCUMULATIVE AND TOXIC; OR
  (III) VERY PERSISTENT AND VERY BIOACCUMULATIVE.
  (C)  IN  MAKING SUCH DETERMINATION, THE DEPARTMENT MAY CONSIDER BUT IS
NOT LIMITED TO CONSIDERING:
  (I) CHEMICALS IDENTIFIED AS "GROUP 1 CARCINOGENS" OR "GROUP 2A  CARCI-
NOGENS"  BY  THE  WORLD  HEALTH  ORGANIZATION,  INTERNATIONAL AGENCY FOR
RESEARCH ON CANCER;
  (II) CHEMICALS IDENTIFIED AS "KNOWN TO  BE  A  HUMAN  CARCINOGEN"  AND
"REASONABLY  ANTICIPATED  TO  BE A HUMAN CARCINOGEN" BY THE SECRETARY OF
THE UNITED STATES DEPARTMENT OF HEALTH AND HUMAN  SERVICES  PURSUANT  TO
THE PUBLIC HEALTH SERVICE ACT, 42 UNITED STATES CODE, SECTION 241(B)(4),
AS AMENDED;
  (III) CHEMICALS IDENTIFIED AS "GROUP A CARCINOGENS" OR "GROUP B CARCI-
NOGENS" BY THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY;
  (IV)  CHEMICALS  IDENTIFIED AS REPRODUCTIVE OR DEVELOPMENTAL TOXICANTS
BY:
  (A) THE  UNITED  STATES  DEPARTMENT  OF  HEALTH  AND  HUMAN  SERVICES,
NATIONAL TOXICOLOGY PROGRAM, CENTER FOR THE EVALUATION OF RISKS TO HUMAN
REPRODUCTION; AND
  (B) THE CALIFORNIA ENVIRONMENTAL PROTECTION AGENCY, OFFICE OF ENVIRON-
MENTAL  HEALTH  HAZARD  ASSESSMENT PURSUANT TO THE CALIFORNIA HEALTH AND

A. 10089--A                         4

SAFETY CODE, SAFE DRINKING WATER AND  TOXIC  ENFORCEMENT  ACT  OF  1986,
CHAPTER 6.6, SECTION 25249.8;
  (V) CHEMICALS IDENTIFIED AS A CHEMICAL OF HIGH CONCERN FOR CHILDREN OR
A  HIGH  PRIORITY  CHEMICAL OF HIGH CONCERN FOR CHILDREN BY THE STATE OF
WASHINGTON DEPARTMENT OF ECOLOGY, PURSUANT  TO  CHAPTER  70.240  OF  THE
REVISED CODE OF WASHINGTON;
  (VI) CHEMICALS OF HIGH CONCERN AS SUCH CHEMICALS ARE IDENTIFIED BY THE
STATE  OF MAINE'S DEPARTMENT OF ENVIRONMENTAL CONSERVATION AND APPEARING
ON SUCH DEPARTMENT'S LIST OF CHEMICALS OF HIGH CONCERN;
  (VII) CHEMICALS IDENTIFIED AS KNOWN  OR  LIKELY  ENDOCRINE  DISRUPTORS
THROUGH  SCREENING  OR  TESTING  CONDUCTED  IN ACCORDANCE WITH PROTOCOLS
DEVELOPED BY THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY  PURSUANT
TO THE UNITED STATES FOOD, DRUG AND COSMETIC ACT, 21 UNITED STATES CODE,
346A(P),  AS  AMENDED BY THE FEDERAL FOOD QUALITY PROTECTION ACT (PUBLIC
LAW 104-170) OR THE FEDERAL SAFE DRINKING WATER ACT,  42  UNITED  STATES
CODE, SECTION 300J-17;
  (VIII)  CHEMICALS  LISTED ON THE BASIS OF ENDOCRINE-DISRUPTING PROPER-
TIES IN ANNEX XIV, LIST OF SUBSTANCES SUBJECT  TO  AUTHORISATION,  REGU-
LATION  (EC)  NO  1907/2006  OF  THE  EUROPEAN PARLIAMENT CONCERNING THE
REGISTRATION, EVALUATION, AUTHORISATION AND RESTRICTION OF CHEMICALS;
  (IX) PERSISTENT, BIOACCUMULATIVE AND  TOXIC  CHEMICALS  IDENTIFIED  BY
OTHER STATES OR THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY;
  (X)  A  VERY PERSISTENT, VERY BIOACCUMULATIVE CHEMICAL LISTED IN ANNEX
XIV, LIST OF SUBSTANCES SUBJECT TO  AUTHORISATION,  REGULATION  (EC)  NO
1907/2006 OF THE EUROPEAN PARLIAMENT CONCERNING THE REGISTRATION, EVALU-
ATION, AUTHORIZATION AND RESTRICTION OF CHEMICALS; AND
  (XI) A PERSISTENT BIOACCUMULATIVE TOXIC CHEMICAL AS DEFINED IN CHAPTER
173-333 OF THE STATE OF WASHINGTON ADMINISTRATIVE CODE.
S 37-0505. PRIORITY CHEMICALS.
  1. PUBLISHING OF LIST. WITHIN ONE HUNDRED EIGHTY DAYS OF THE EFFECTIVE
DATE  OF THIS TITLE, THE DEPARTMENT SHALL ENSURE THAT A WEBSITE ACCESSI-
BLE TO THE PUBLIC IS ESTABLISHED WHICH LISTS ALL PRIORITY CHEMICALS.
  2. PERIODIC REVIEW. (A) WITH RESOURCES MADE  AVAILABLE  THEREFOR,  THE
DEPARTMENT,  IN  CONSULTATION WITH THE DEPARTMENT OF HEALTH, MAY PERIOD-
ICALLY REVIEW THE LIST OF PRIORITY CHEMICALS  AND,  THROUGH  REGULATION,
IDENTIFY  ADDITIONAL  PRIORITY  CHEMICALS  OR REMOVE A CHEMICAL FROM THE
LIST OF PRIORITY CHEMICALS BASED ON EVIDENCE THAT THE  CHEMICAL  IS  NOT
PRESENT  IN  A  CHILDREN'S PRODUCT OR OTHERWISE SHOULD NOT BE SUBJECT TO
THE REQUIREMENTS OF THIS TITLE.  IN THE EVENT THAT A  NEW  DETERMINATION
IS  MADE BY A STATE, FEDERAL OR INTERNATIONAL GOVERNMENTAL ENTITY THAT A
CHEMICAL MEETS THE PRIORITY  CHEMICAL  CRITERIA,  NOTHING  HEREIN  SHALL
PREVENT  THE DEPARTMENT FROM ACTING TO ADD SUCH CHEMICALS OUTSIDE OF THE
PERIODIC REVIEW PROCESS.
  (B) THE DEPARTMENT MAY IDENTIFY A CHEMICAL AS A PRIORITY CHEMICAL  IF,
UPON  SUCH  REVIEW,  IT DETERMINES THAT A CHEMICAL OF HIGH CONCERN MEETS
ANY OF THE FOLLOWING CRITERIA:
  (I) THE CHEMICAL OR ITS METABOLITES HAVE BEEN FOUND  THROUGH  BIOMONI-
TORING  TO  BE  PRESENT IN HUMANS, INCLUDING HUMAN BLOOD, UMBILICAL CORD
BLOOD, BREAST MILK, URINE OR OTHER BODILY TISSUES OR FLUIDS;
  (II) THE CHEMICAL HAS BEEN FOUND THROUGH SAMPLING AND ANALYSIS  TO  BE
PRESENT  IN  HOUSEHOLD  DUST, INDOOR AIR, DRINKING WATER OR ELSEWHERE IN
THE HOME ENVIRONMENT;
  (III) THE CHEMICAL HAS BEEN FOUND THROUGH MONITORING TO BE PRESENT  IN
FISH, WILDLIFE OR THE NATURAL ENVIRONMENT;
  (IV)  THE  CHEMICAL IS PRESENT IN A CHILDREN'S PRODUCT USED OR PRESENT
IN THE HOME, SCHOOL, OR CHILDCARE CENTER;

A. 10089--A                         5

  (V) THE CHEMICAL HAS BEEN IDENTIFIED AS A HIGH PRODUCTION VOLUME CHEM-
ICAL BY THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY; OR
  (VI) THE SALE OR USE OF THE CHEMICAL OR A PRODUCT CONTAINING THE CHEM-
ICAL HAS BEEN BANNED IN ANOTHER STATE OR STATES WITHIN THE UNITED STATES
BECAUSE OF THE HEALTH EFFECTS OF SUCH CHEMICAL.
  (C)  IF  A  CHEMICAL  IS REMOVED FROM THE LISTING OF CHEMICALS OF HIGH
CONCERN, IT SHALL ALSO BE UNDESIGNATED AS A PRIORITY CHEMICAL.
S 37-0507. DISCLOSURE OF INFORMATION ON PRIORITY CHEMICALS.
  1. REPORTING OF CHEMICAL USE. NO LATER  THAN  TWELVE  MONTHS  AFTER  A
PRIORITY  CHEMICAL  IS  LISTED ON THE LIST PUBLISHED PURSUANT TO SECTION
37-0505 OF THIS TITLE, EVERY MANUFACTURER WHO OFFERS A CHILDREN'S  PROD-
UCT  FOR  SALE  OR  DISTRIBUTION  IN  THIS STATE THAT CONTAINS AN INTEN-
TIONALLY ADDED PRIORITY CHEMICAL SHALL NOTIFY THE DEPARTMENT IN  A  FORM
PRESCRIBED  BY  THE  DEPARTMENT,  DEVELOPED  IN COLLABORATION WITH OTHER
STATES AND AN INTERSTATE CHEMICALS CLEARINGHOUSE AS PROVIDED IN  SECTION
37-0515 OF THIS TITLE.
  (A) THIS NOTICE MUST AT A MINIMUM IDENTIFY THE CHILDREN'S PRODUCT, THE
PRIORITY  CHEMICAL OR CHEMICALS CONTAINED IN THE CHILDREN'S PRODUCT, AND
THE INTENDED PURPOSE OF THE CHEMICALS IN THE CHILDREN'S  PRODUCT.    ALL
INFORMATION  SUBMITTED  PURSUANT TO THIS SUBDIVISION SHALL BE SUBJECT TO
DISCLOSURE TO THE PUBLIC.   CONSISTENT  WITH  NOTIFICATION  REQUIRED  BY
OTHER STATES, THE DEPARTMENT MAY ALSO REQUIRE REPORTING OF THE FOLLOWING
INFORMATION:
  (I)  THE  POTENTIAL  FOR HARM TO HUMAN HEALTH AND THE ENVIRONMENT FROM
SPECIFIC USES OF THE PRIORITY CHEMICAL;
  (II) THE AMOUNT OF SUCH CHEMICAL IN EACH UNIT OF THE CHILDREN'S  PROD-
UCT, EXPRESSED IN A RANGE;
  (III) INFORMATION ON THE LIKELIHOOD THAT THE CHEMICAL WILL BE RELEASED
FROM THE CHILDREN'S PRODUCT TO THE ENVIRONMENT DURING THE PRODUCT'S LIFE
CYCLE  AND  THE  EXTENT  TO  WHICH USERS OF THE PRODUCT ARE LIKELY TO BE
EXPOSED TO THE CHEMICAL;
  (IV) INFORMATION ON THE EXTENT TO WHICH THE CHEMICAL IS PRESENT IN THE
ENVIRONMENT OR HUMAN BODY.
  (B) IN LIEU OF PROVIDING THIS NOTICE TO THE DEPARTMENT, THE DEPARTMENT
IS AUTHORIZED TO DIRECT SUBMISSION OF  SUCH  NOTICE  TO  THE  INTERSTATE
CHEMICALS CLEARINGHOUSE PURSUANT TO SECTION 37-0515 OF THIS TITLE.
  2.  ASSESSMENT OF ALTERNATIVE CHEMICALS.  IN ADDITION, CONSISTENT WITH
OTHER STATES, THE DEPARTMENT MAY REQUIRE THAT THE  MANUFACTURER  PROVIDE
AN  ASSESSMENT  OF  THE AVAILABILITY, COST, FEASIBILITY AND PERFORMANCE,
INCLUDING POTENTIAL FOR HARM TO HUMAN HEALTH  AND  THE  ENVIRONMENT,  OF
ALTERNATIVES TO THE PRIORITY CHEMICAL AND THE REASON THE PRIORITY CHEMI-
CAL  IS  USED  IN  THE MANUFACTURER OF THE CHILDREN'S PRODUCT IN LIEU OF
IDENTIFIED ALTERNATIVES. THE  DEPARTMENT  SHALL  HOLD  CONFIDENTIAL  ANY
INFORMATION DISCLOSED PURSUANT TO THIS SUBDIVISION CONCERNING THE CHEMI-
CAL  OR CONSUMER PRODUCT THAT IF MADE PUBLIC, WOULD DIVULGE CONFIDENTIAL
BUSINESS INFORMATION, METHODS OR PROCESSES  ENTITLED  TO  PROTECTION  AS
TRADE  SECRETS,  EXCEPT  THAT  SUCH  INFORMATION MAY BE DISCLOSED TO ANY
OFFICERS, EMPLOYEES OR AUTHORIZED REPRESENTATIVES OF THE STATE CONCERNED
WITH CARRYING OUT THE PROVISIONS OF THIS TITLE.
  3. WAIVER OF  REPORTING.  UPON  APPLICATION  BY  A  MANUFACTURER,  THE
COMMISSIONER MAY WAIVE ALL OR PART OF THE NOTIFICATION REQUIREMENT UNDER
SUBDIVISION  ONE  OF  THIS  SECTION  FOR ONE OR MORE SPECIFIED USES OF A
PRIORITY CHEMICAL. IN MAKING SUCH DETERMINATION,  THE  COMMISSIONER  MAY
CONSIDER:  (A)  SIMILAR WAIVERS GRANTED BY OTHER STATES, AND (B) WHETHER
THE SPECIFIED USE OR USES ARE MINOR IN VOLUME.

A. 10089--A                         6

  4. NOTICE TO RETAILERS. A MANUFACTURER OR DISTRIBUTOR OF A  CHILDREN'S
PRODUCT  CONTAINING  A PRIORITY CHEMICAL SHALL NOTIFY PERSONS THAT OFFER
THE CHILDREN'S' PRODUCT FOR SALE OR DISTRIBUTION IN  THE  STATE  OF  THE
PRESENCE OF SUCH PRIORITY CHEMICAL, AND PROVIDE SUCH PERSONS WITH INFOR-
MATION REGARDING THE TOXICITY OF SUCH CHEMICAL.
  5.  FEES.  THE  MANUFACTURER  OR  DISTRIBUTOR  SHALL  PAY  A  FEE UPON
SUBMISSION OF A REPORT OF CHEMICAL USE OR A WAIVER REQUEST TO COVER  THE
DEPARTMENT'S  REASONABLE  COSTS IN MANAGING THE INFORMATION COLLECTED OR
IN MAKING A WAIVER DETERMINATION, IN THE AMOUNT OF SIX  HUNDRED  DOLLARS
PER CHEMICAL.
S 37-0509. SALES PROHIBITION.
  UPON TWO YEARS AFTER THE EFFECTIVE DATE OF THIS TITLE, NO PERSON SHALL
DISTRIBUTE,  SELL  OR OFFER FOR SALE IN THIS STATE AN ITEM OF CHILDREN'S
APPAREL OR A CHILDREN'S NOVELTY PRODUCT CONTAINING A PRIORITY  CHEMICAL.
THIS PROVISION SHALL NOT APPLY TO AN ITEM OF CHILDREN'S APPAREL OR CHIL-
DREN'S  NOVELTY  SOLELY  BASED  ON ITS CONTAINING AN ENCLOSED BATTERY OR
ENCLOSED ELECTRONIC COMPONENTS.
S 37-0511. APPLICABILITY.
  1. NEW CHILDREN'S PRODUCTS. THE PROVISIONS OF THIS TITLE  SHALL  APPLY
TO  CHEMICALS IN CHILDREN'S PRODUCTS SOLD OR DISTRIBUTED AS NEW AND DOES
NOT APPLY TO USED CHILDREN'S PRODUCTS THAT ARE SOLD OR  DISTRIBUTED  FOR
FREE  AT  SECONDHAND  STORES,  YARD SALES, ON THE INTERNET OR DONATED TO
CHARITIES.
  2. INDUSTRY. THE REQUIREMENTS OF THIS TITLE SHALL NOT APPLY TO PRIORI-
TY CHEMICALS USED IN OR FOR INDUSTRY OR MANUFACTURING, INCLUDING  CHEMI-
CALS  PROCESSED  OR OTHERWISE USED IN OR FOR INDUSTRIAL OR MANUFACTURING
PROCESSES AND NOT INCLUDED IN THE FINAL PRODUCT.
  3. TRANSPORTATION. THE REQUIREMENTS OF THIS TITLE SHALL NOT  APPLY  TO
MOTOR  VEHICLES  OR THEIR COMPONENT PARTS, WATERCRAFT OR THEIR COMPONENT
PARTS, ALL TERRAIN VEHICLES OR THEIR  COMPONENT  PARTS,  OR  OFF-HIGHWAY
MOTORCYCLES  OR  THEIR  COMPONENT PARTS, EXCEPT THAT THE USE OF PRIORITY
CHEMICALS IN DETACHABLE CAR SEATS IS NOT EXEMPT.
  4. COMBUSTION. THE REQUIREMENTS OF  THIS  TITLE  SHALL  NOT  APPLY  TO
PRIORITY  CHEMICALS  GENERATED  SOLELY AS COMBUSTION BY-PRODUCTS OR THAT
ARE PRESENT IN COMBUSTIBLE FUELS.
  5. RETAILERS. A RETAILER IS EXEMPT FROM THE REQUIREMENTS OF THIS TITLE
UNLESS THAT RETAILER KNOWINGLY SELLS A CHILDREN'S PRODUCT  CONTAINING  A
PRIORITY  CHEMICAL AFTER THE EFFECTIVE DATE OF ITS PROHIBITION FOR WHICH
THAT RETAILER HAS  RECEIVED  PRIOR  NOTIFICATION  FROM  A  MANUFACTURER,
DISTRIBUTOR OR THE STATE.
S 37-0513.  ENFORCEMENT AND IMPLEMENTATION.
  1. FAILURE TO PROVIDE NOTICE. A CHILDREN'S PRODUCT CONTAINING A PRIOR-
ITY  CHEMICAL  MAY NOT BE SOLD, OFFERED FOR SALE OR DISTRIBUTED FOR SALE
IN THIS STATE IF THE MANUFACTURER OR DISTRIBUTOR HAS FAILED  TO  PROVIDE
THE  NOTIFICATION  REQUIRED  UNDER  SECTION 37-0507 OF THIS TITLE BY THE
DATE REQUIRED IN SUCH SECTION. THE COMMISSIONER MAY EXEMPT A  CHILDREN'S
PRODUCT  FROM  THIS  PROHIBITION IF, IN THE COMMISSIONER'S JUDGMENT, THE
LACK OF AVAILABILITY OF THE CHILDREN'S PRODUCT COULD POSE  AN  UNREASON-
ABLE RISK TO PUBLIC HEALTH, SAFETY OR WELFARE.
  2.  CERTIFICATE  OF COMPLIANCE. IF THERE ARE GROUNDS TO SUSPECT THAT A
CHILDREN'S PRODUCT IS BEING OFFERED FOR SALE IN VIOLATION OF THIS TITLE,
THE DEPARTMENT MAY REQUEST THE MANUFACTURER OR DISTRIBUTOR OF THE  CHIL-
DREN'S   PRODUCT  TO  PROVIDE  A  CERTIFICATE  OF  COMPLIANCE  WITH  THE
PROVISIONS OF THIS TITLE, WITHIN TEN DAYS OF RECEIPT OF A  REQUEST  FROM
THE DEPARTMENT. THE CERTIFICATE OF COMPLIANCE SHALL:

A. 10089--A                         7

  (A)  ATTEST  THAT THE CHILDREN'S PRODUCT DOES NOT CONTAIN THE PRIORITY
CHEMICAL; OR
  (B)  ATTEST AND PROVIDE THE DEPARTMENT WITH DOCUMENTATION THAT NOTIFI-
CATION OF THE PRESENCE OF THE PRIORITY CHEMICAL HAS BEEN PROVIDED TO THE
DEPARTMENT OR PROVIDE NOTICE AS REQUIRED  BY  SECTION  37-0507  OF  THIS
TITLE; OR
  (C)  ATTEST  THAT  THE  MANUFACTURER HAS NOTIFIED PERSONS WHO SELL THE
PRODUCT IN THIS STATE THAT THE SALE OF THE CHILDREN'S PRODUCT IS PROHIB-
ITED.
S 37-0515. INTERSTATE CHEMICAL CLEARINGHOUSE.
  1. THE DEPARTMENT IS AUTHORIZED TO PARTICIPATE IN AN INTERSTATE CHEMI-
CALS CLEARINGHOUSE TO ASSIST IN CARRYING OUT THE  REQUIREMENTS  OF  THIS
TITLE.  THE DEPARTMENT SHALL WORK IN COLLABORATION WITH OTHER STATES AND
AN INTERSTATE CHEMICALS CLEARINGHOUSE FOR THE PURPOSE OF, INCLUDING  BUT
NOT LIMITED TO:
  (A)  COLLECTION  AND  DISSEMINATION  OF INFORMATION REGARDING CHEMICAL
HAZARDS;
  (B) COLLECTION AND DISSEMINATION OF INFORMATION REGARDING THE  USE  OF
CHEMICALS IN CHILDREN'S PRODUCTS;
  (C) ASSESSMENT OF ALTERNATIVES TO CHEMICALS AND THEIR USE IN PRODUCTS;
AND
  (D) PUBLIC EDUCATION.
  2.  THE  CLEARINGHOUSE IS AUTHORIZED TO MAINTAIN INFORMATION ON BEHALF
OF THE STATE OF NEW YORK, INCLUDING, BUT  NOT  LIMITED  TO,  INFORMATION
REGARDING  CHEMICALS CONTAINED IN CHILDREN'S PRODUCTS DISCLOSED PURSUANT
TO SECTION 37-0507 OF THIS TITLE.
S 37-0517. REGULATIONS.
  THE DEPARTMENT MAY ADOPT ANY RULES AND REGULATIONS IT DEEMS  NECESSARY
TO IMPLEMENT THE PROVISIONS OF THIS TITLE.
  S 2. This act shall take effect on the one hundred twentieth day after
it shall have become a law.