S T A T E O F N E W Y O R K
________________________________________________________________________
4602
2009-2010 Regular Sessions
I N A S S E M B L Y
February 5, 2009
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Introduced by M. of A. ENGLEBRIGHT -- read once and referred to the
Committee on Consumer Affairs and Protection
AN ACT to amend the general business law, in relation to prohibiting the
manufacture, distribution and sale of toys and child care products,
containing bisphenol-A, which are intended for use by or upon a child
under the age of fourteen years
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. The general business law is amended by adding a new section
397-b to read as follows:
S 397-B. TOYS AND CHILD CARE PRODUCTS; BISPHENOL-A. 1. THE LEGISLA-
TURE HEREBY FINDS THAT BISPHENOL-A, AN ESTROGEN-MIMICKING ENDOCRINE
DISRUPTER CHEMICAL, IS USED IN THE PRODUCTION OF EPOXY RESINS AND POLY-
CARBONATE PLASTICS, AND IS THE MAIN INGREDIENT IN HARD POLYCARBONATE
PLASTICS. THESE PLASTICS ARE USED IN MANY FOOD AND DRINK PACKAGING
APPLICATIONS, AND THE RESINS ARE COMMONLY USED AS LACQUERS TO COAT METAL
PRODUCTS SUCH AS FOOD CANS, BOTTLE TOPS AND WATER SUPPLY PIPES. BISPHE-
NOL-A HAS BEEN SHOWN TO HAVE HORMONE DISRUPTING EFFECTS, AND IS ALSO
USED IN MANY PRODUCTS INTENDED FOR USE BY YOUNG CHILDREN INCLUDING TOYS,
PACIFIERS, BABY BOTTLES AND TEETHERS.
2. WHEN USED IN THIS SECTION, THE FOLLOWING DEFINITIONS SHALL APPLY:
(A) "TOY" SHALL MEAN ALL PRODUCTS DESIGNED OR INTENDED BY THE MANUFAC-
TURER TO BE USED BY CHILDREN WHEN THEY PLAY; AND
(B) "CHILD CARE ARTICLE" SHALL MEAN ALL PRODUCTS DESIGNED OR INTENDED
BY THE MANUFACTURER FOR CHILD CARE, INCLUDING BUT NOT LIMITED TO THOSE
TO HELP CHILDREN WITH SUCKING OR TEETHING TO FACILITATE SLEEP, RELAXA-
TION OR THE FEEDING OF CHILDREN.
3. 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 UNDER FOURTEEN
YEARS OF AGE CONTAINING BISPHENOL-A.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD06399-01-9
A. 4602 2
4. EVERY MANUFACTURER OF A PRODUCT OR TOY PROHIBITED BY THIS SECTION
SHALL USE THE LEAST TOXIC ALTERNATIVE TO THE BISPHENOL-A IN THE TOY OR
PRODUCT. SUCH ALTERNATIVE SHALL NOT BE (I) A CARCINOGEN RATED BY THE
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY AS A, B OR C CARCINOGENS,
OR SUBSTANCES LISTED AS KNOWN OR LIKELY CARCINOGENS, 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 CARCI-
NOGEN POTENTIAL"; OR (II) REPRODUCTIVE TOXICANTS THAT CAUSE BIRTH
DEFECTS, REPRODUCTIVE HARM OR DEVELOPMENTAL HARM AS IDENTIFIED BY THE
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY.
5. THIS SECTION SHALL NOT APPLY TO THE SALE OR DISTRIBUTION OF TOYS OR
CHILD CARE ARTICLES SOLD OR OFFERED FOR SALE, OR DISTRIBUTED BY CONSUM-
ERS FOR CONSUMER USE.
6. (A) WHENEVER THERE SHALL BE A VIOLATION OF THIS ARTICLE, AN APPLI-
CATION 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 VIOLATIONS; AND IF IT SHALL APPEAR TO THE SATISFAC-
TION OF THE COURT OR JUSTICE THAT THE DEFENDANT HAS, IN FACT, VIOLATED
THIS ARTICLE, AN INJUNCTION MAY BE ISSUED BY SUCH COURT OR JUSTICE
ENJOINING AND 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 SHALL DETERMINE THAT A VIOLATION OF THIS ARTI-
CLE HAS OCCURRED THE COURT MAY IMPOSE A CIVIL PENALTY OF NOT MORE THAN
ONE THOUSAND DOLLARS FOR EACH VIOLATION, EXCEPT THAT THE COURT MAY
IMPOSE A CIVIL 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.
(B) BEFORE ANY VIOLATION OF THIS ARTICLE 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, UNLESS THE ATTORNEY
GENERAL SHALL FIND, IN ANY CASE IN WHICH HE SEEKS PRELIMINARY RELIEF,
THAT TO GIVE SUCH NOTICE AND OPPORTUNITY IS NOT IN THE PUBLIC INTEREST.
S 2. This act shall take effect on the first of January next succeed-
ing the date on which it shall have become a law.