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
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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.