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

                                  7434

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                              April 6, 2009
                               ___________

Introduced by M. of A. FIELDS -- read once and referred to the Committee
  on Consumer Affairs and Protection

AN  ACT  to amend the general business law, in relation to the decibelic
  level of toys

  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
392-j to read as follows:
  S  392-J.  LIMIT  ON  DECIBELIC  LEVEL  OF  TOYS. 1. WHEN USED IN THIS
SECTION:
  (A) "TOY" SHALL MEAN ALL PRODUCTS DESIGNED OR INTENDED BY THE MANUFAC-
TURER TO BE USED BY CHILDREN WHEN THEY PLAY. SUCH TERM SHALL NOT INCLUDE
TOY PISTOL CAPS.
  (B) "TOY PISTOL CAPS" SHALL MEAN SMALL CHARGES OF EXPLOSIVES CONTAINED
IN A CUP OR CONFINED BETWEEN TWO SHEETS OF PAPER DESIGNED FOR USE  IN  A
TOY PISTOL.
  2.  (A)  NO  PERSON,  FIRM,  CORPORATION,  OR OTHER LEGAL ENTITY WHICH
MANUFACTURERS OR ASSEMBLES TOYS SHALL MANUFACTURE, ASSEMBLE, SELL, OFFER
TO SELL, OR DISTRIBUTE IN THIS STATE A TOY THAT  MAKES  OR  EMITS  NOISE
EXCEEDING ONE HUNDRED DECIBELS MEASURED AT THE DISTANCE THAT THE PRODUCT
ORDINARILY WOULD BE FROM THE EAR OF THE CHILD USING IT.
  (B) NO PERSON, FIRM, CORPORATION, OR OTHER LEGAL ENTITY WHICH MANUFAC-
TURERS  OR  ASSEMBLES TOY PISTOL CAPS SHALL MANUFACTURE, ASSEMBLE, SELL,
OFFER TO SELL, OR DISTRIBUTE IN THIS STATE A TOY PISTOL CAP  THAT  MAKES
OR  EMITS  NOISE  EXCEEDING ONE HUNDRED FIFTY-THREE DECIBELS MEASURED AT
THE DISTANCE THAT THE PRODUCT ORDINARILY WOULD BE FROM THE  EAR  OF  THE
CHILD USING IT.
  (C)  NO PERSON, FIRM, CORPORATION OR OTHER LEGAL ENTITY WHICH IS REGU-
LARLY ENGAGED IN THE BUSINESS OF SELLING, OFFERING FOR SALE, OR DISTRIB-
UTING TOYS OR TOY PISTOL CAPS AT RETAIL FOR CONSUMER  USE,  SHALL  SELL,

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD10813-01-9

              

A. 7434                             2

OFFER  TO  SELL,  OR  DISTRIBUTE IN THIS STATE SUCH PRODUCTS UNLESS SUCH
PRODUCTS CONFORM TO THE REQUIREMENTS SET FORTH IN THIS SUBDIVISION.
  3.  NOTHING  IN  THIS  SECTION  SHALL  BE  CONSTRUED  TO SUPERSEDE ANY
PROVISION OF SECTION THREE HUNDRED  NINETY-SIX-K  OF  THIS  ARTICLE,  AS
ADDED  BY  CHAPTER  SEVEN  HUNDRED  FIFTY-FOUR  OF  THE LAWS OF NINETEEN
HUNDRED SEVENTY-THREE.
  4. (A) WHENEVER THERE SHALL BE A VIOLATION OF THIS SECTION, 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,  AND  UPON NOTICE TO THE
DEFENDANT OF NOT LESS THAN FIVE DAYS, TO ENJOIN AND RESTRAIN THE CONTIN-
UANCE OF SUCH VIOLATION; AND IF IT SHALL APPEAR TO THE  SATISFACTION  OF
THE  COURT  OR  JUSTICE  THAT  THE DEFENDANT HAS, IN FACT, VIOLATED THIS
SECTION, 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. WHENEVER THE COURT
SHALL DETERMINE THAT A VIOLATION OF THIS SECTION HAS OCCURRED, THE COURT
MAY  IMPOSE  A  CIVIL  PENALTY OF NOT MORE THAN FIVE HUNDRED DOLLARS FOR
EACH VIOLATION. 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) NO PERSON, FIRM, CORPORATION OR OTHER LEGAL ENTITY WHICH IS  REGU-
LARLY  ENGAGED IN THE BUSINESS OF MANUFACTURING, ASSEMBLING, SELLING, OR
OFFERING FOR SALE TOYS OR TOY  PISTOL  CAPS  SHALL  BE  DEEMED  TO  HAVE
VIOLATED  THE  PROVISIONS  OF THIS SECTION, IF SUCH PERSON, FIRM, CORPO-
RATION OR OTHER LEGAL ENTITY SHOWS BY A PREPONDERANCE OF  EVIDENCE  THAT
THE  VIOLATION  WAS  NOT INTENTIONAL AND RESULTED FROM A BONA FIDE ERROR
MADE NOTWITHSTANDING THE MAINTENANCE OF PROCEDURES REASONABLY ADOPTED TO
AVOID ANY SUCH ERROR.
  5. THE CONSUMER PROTECTION BOARD, IN CONSULTATION WITH THE  DEPARTMENT
OF  HEALTH,  SHALL  PROMULGATE  RULES  AND REGULATIONS TO EFFECTUATE THE
PURPOSES OF THIS SECTION. SUCH RULES AND REGULATIONS SHALL INCLUDE TEST-
ING METHODS FOR MANUFACTURERS TO USE IN  ENSURING  THAT  THEIR  PRODUCTS
MEET THE REQUIREMENTS OF THIS SECTION.
  6. THIS SECTION SHALL NOT APPLY TO THE SALE OF TOYS OR TOY PISTOL CAPS
SOLD OR OFFERED FOR SALE BY CONSUMERS FOR CONSUMER USE.
  S  2.  This act shall take effect on the first of July next succeeding
the date on which it shall have become a law;  provided,  however,  that
effective immediately, the addition, amendment and/or repeal of any rule
or regulation necessary for the implementation of this act on its effec-
tive  date  are  authorized  and directed to be made and completed on or
before such effective date.