Assembly Bill A460

                                BILL NUMBER:A460

TITLE OF BILL:  An act to amend the general business law, in relation to
prohibiting  the sale of certain items which are subject to a government
or manufacturer recall

SUMMARY OF PROVISIONS:  The bill would add a new Section  390-d  to  the
General  Business Law (GEL) to hold retailers and wholesale distributors
criminally liable.  Liability will attach where a distributor  knowingly
or  intentionally sells or makes available to the public any toy or play
equipment that has been subject to a manufacturer or government  ordered
recall,  due  to  a  condition that poses a health or safety threat to a
consumer.   The sale must take place at  least  thirty  days  after  the
retailer or wholesale distributor has notice of such a recall.

The bill would make sale of a recalled toy a class A misdemeanor punish-
able  by  a fine of between one and five thousand dollars per infraction
and a maximum of one year in  prison.  The  Attorney  General  would  be
granted the authority to enforce this law.

REASONS  FOR  SUPPORT:    This proposed legislation is designed to deter
retail and wholesale distributors from continuing to sell recalled  toys
to  the public that threaten the health or safety of children. Under the
current state of the law, other than the possibility  of  private  civil
litigation, there are no adverse consequences that attach to a distribu-
tor  who  intentionally  sells  recalled  toys that are dangerous to the
              

public.  Standing alone, however, the threat  of  civil  litigation  has
failed to encourage sufficient compliance with government or manufactur-
er ordered recalls.

For instance, according to a recent report by the New York State Consum-
er  Protection  Board, stores in New York continue to sell recalled toys
with unsafe levels of lead. In connection with this  report,  inspectors
visited 2,800 stores and documented 620 recalled toys still on shelves.

In  New  York  State,  approximately 5,000 children a year are diagnosed
with lead poisoning. Exposure to lead in children and unborn babies  can
cause  brain damage, nervous system dysfunction, behavioral and learning
disability, slowed growth, hearing problems and headaches.  As this  one
health  threat  indicates,  the  adverse  consequences  of the continued
availability of recalled toys can be substantial.

In order to balance consumer protection  with  market  sensitivity,  the
bill  imposes  criminal liability on toy distributors under specifically
tailored circumstances. First, there exists  an  intentionally  require-
ment.  The retailer or wholesaler must knowingly or intentionally sell a
recalled toy that is dangerous. Second, there is a  notice  requirement.
The  distributor  must have actual or constructive notice of the recall.
Third, the bill imposes a temporal requirement, since criminal liability
only attaches thirty days after notice of a recall is provided.

There are a substantial number of toys sold in New York State  that  are
manufactured   in   foreign   countries,   where  safety  standards  and
protections may not be as rigid. Given this reality,  it  is  imperative
that  government protects the consumer to the fullest extent possible by
enacting  legislation  that deters dangerous toys from being made avail-
able on the market. This bill substantially advances that objective.

PRIOR LEGISLATIVE HISTORY: New bill.