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

                                  3678

                       2011-2012 Regular Sessions

                          I N  A S S E M B L Y

                            January 26, 2011
                               ___________

Introduced  by  M.  of  A.  GABRYSZAK,  PHEFFER, SPANO, GIBSON, MILLMAN,
  PERRY, COOK, GALEF, COLTON, CASTRO, ARROYO -- Multi-Sponsored by -- M.
  of A. BOYLAND, BURLING, CALHOUN, HOOPER, MARKEY, MAYERSOHN, McDONOUGH,
  MENG, ROBINSON, SALADINO, TITONE, TOBACCO -- read once and referred to
  the Committee on Environmental Conservation

AN ACT to amend the  environmental  conservation  law,  in  relation  to
  cadmium 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 VII to read as follows:
                                TITLE VII
              PROHIBITION ON CADMIUM IN CHILDREN'S PRODUCTS
SECTION 37-0701. DEFINITIONS.
        37-0703. PROHIBITIONS.
        37-0705. EXEMPTIONS.
        37-0707. CERTIFICATE OF COMPLIANCE.
        37-0709. VIOLATIONS.
        37-0711. PUBLIC ACCESS.
        37-0713. REPORTS.
        37-0715. RULES AND REGULATIONS.
S 37-0701. DEFINITIONS.
  FOR THE PURPOSES OF THIS TITLE, THE TERM:
  1. "DISTRIBUTOR" SHALL MEAN ANY PERSON, FIRM, ASSOCIATION, PARTNERSHIP
OR CORPORATION WHO TAKES TITLE TO OR POSSESSION OF  GOODS  OR  PURCHASES
FOR RESALE OR PROMOTIONAL PURPOSES.
  2.  "DISTRIBUTION"  SHALL  MEAN  THE  PRACTICE  OF  TAKING TITLE TO OR
POSSESSION OF CHILDREN'S PRODUCTS FOR PROMOTIONAL  PURPOSES  OR  RESALE.
PERSONS  INVOLVED SOLELY IN DELIVERING CHILDREN'S PRODUCTS OR COMPONENTS
OF CHILDREN'S PRODUCTS ON BEHALF OF THIRD  PARTIES  ARE  NOT  CONSIDERED
DISTRIBUTORS.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD00771-01-1
              

A. 3678                             2

  3.  "INCIDENTAL  PRESENCE"  SHALL  MEAN  THE PRESENCE OF CADMIUM AS AN
UNINTENDED OR UNDESIRED INGREDIENT OF A PRODUCT.
  4. "INTENTIONAL INTRODUCTION" OR "INTENTIONALLY INTRODUCED" SHALL MEAN
THE  ACT  OF  DELIBERATELY UTILIZING CADMIUM IN THE FORMATION OF A CHIL-
DREN'S PRODUCT WHERE ITS CONTINUED PRESENCE  IS  DESIRED  IN  THE  FINAL
PRODUCT  TO  PROVIDE  A  SPECIFIC CHARACTERISTIC, APPEARANCE OR QUALITY.
THE USE OF CADMIUM AS A  PROCESSING  AGENT  OR  INTERMEDIATE  TO  IMPART
CERTAIN CHEMICAL OR PHYSICAL CHANGES DURING MANUFACTURING, WHEREUPON THE
INCIDENTAL  RETENTION OF A RESIDUE OF ANY SUCH METAL IN THE FINAL COMPO-
NENT OF A CHILDREN'S PRODUCT IS NEITHER DESIRED NOR DELIBERATE,  IS  NOT
CONSIDERED INTENTIONAL INTRODUCTION FOR THE PURPOSES OF THIS TITLE WHERE
THE  FINAL CHILDREN'S PRODUCT IS IN COMPLIANCE WITH SUBDIVISION THREE OF
SECTION 37-0705 OF THIS TITLE. THE USE OF  RECYCLED  MATERIALS  AS  FEED
STOCK  FOR  THE  MANUFACTURE OF A NEW COMPONENT OF A CHILDREN'S PRODUCT,
WHERE SOME PORTION OF THE RECYCLED   MATERIALS MAY  CONTAIN  AMOUNTS  OF
CADMIUM,  IS NOT CONSIDERED INTENTIONAL INTRODUCTION FOR THE PURPOSES OF
THIS TITLE WHERE THE NEW CHILDREN'S PRODUCT IS IN COMPLIANCE WITH SUBDI-
VISION THREE OF SECTION 37-0705 OF THIS TITLE.
  5. "MANUFACTURER" SHALL MEAN ANY PERSON, FIRM,  ASSOCIATION,  PARTNER-
SHIP OR CORPORATION, WHO PRODUCES COMPONENTS OF CHILDREN'S PRODUCTS.
  6.  "MANUFACTURING"  SHALL  MEAN  PHYSICAL OR CHEMICAL MODIFICATION OF
MATERIALS TO PRODUCE COMPONENTS OF CHILDREN'S PRODUCTS.
  7. "CHILDREN'S PRODUCT" SHALL MEAN A TOY, CHILDREN'S JEWELRY OR ANOTH-
ER ARTICLE, OTHER THAN CLOTHING, PRIMARILY INTENDED FOR USE BY  A  CHILD
UNDER  TWELVE  YEARS OF AGE. THE FOLLOWING SHALL BE CONSIDERED IN DETER-
MINING IF THE TOY OR ARTICLE IS INTENDED FOR A CHILD UNDER TWELVE  YEARS
OF AGE:
  (A)  A  STATEMENT BY A MANUFACTURER ABOUT THE INTENDED USE OF SUCH TOY
OR ARTICLE, INCLUDING A LABEL ON SUCH TOY OR ARTICLE;
  (B) THE CONTEXT AND MANNER OF THE ADVERTISING, PROMOTION, AND  MARKET-
ING ASSOCIATED WITH THE TOY OR ARTICLE; AND
  (C)  WHETHER THE TOY OR ARTICLE IS COMMONLY RECOGNIZED BY CONSUMERS AS
BEING INTENDED FOR USE BY A CHILD UNDER TWELVE YEARS OF AGE.
  8. "CHILDREN'S JEWELRY" SHALL MEAN JEWELRY THAT IS MADE FOR,  MARKETED
FOR USE BY, OR MARKETED TO CHILDREN UNDER THE AGE OF TWELVE. "CHILDREN'S
JEWELRY" INCLUDES JEWELRY THAT MEETS ANY OF THE FOLLOWING CONDITIONS:
  (A)  IS REPRESENTED IN ITS PACKAGING, DISPLAY OR ADVERTISING AS APPRO-
PRIATE FOR USE BY CHILDREN UNDER THE AGE OF TWELVE;
  (B) IS SOLD IN CONJUNCTION WITH, ATTACHED  TO,  OR  PACKAGED  TOGETHER
WITH OTHER PRODUCTS THAT ARE PACKAGED, DISPLAYED OR ADVERTISED AS APPRO-
PRIATE FOR USE BY CHILDREN;
  (C) IS SIZED FOR CHILDREN AND NOT INTENDED FOR USE BY ADULTS; OR
  (D) IS SOLD IN ANY OF THE FOLLOWING:
  (I) A VENDING MACHINE;
  (II)  RETAIL  STORE,  CATALOGUE  OR ONLINE WEB SITE, IN WHICH A PERSON
EXCLUSIVELY OFFERS FOR SALE PRODUCTS THAT  ARE  PACKAGED,  DISPLAYED  OR
ADVERTISED AS APPROPRIATE FOR USE BY CHILDREN; OR
  (III)  A  DISCRETE  PORTION OF A RETAIL STORE, CATALOGUE OR ONLINE WEB
SITE, IN WHICH A PERSON OFFERS FOR  SALE  PRODUCTS  THAT  ARE  PACKAGED,
DISPLAYED OR ADVERTISED AS APPROPRIATE FOR USE BY CHILDREN.
  9.  "PURCHASER"  SHALL MEAN ANY PERSON, FIRM, ASSOCIATION, PARTNERSHIP
OR CORPORATION, WHO PURCHASES ANY CHILDREN'S PRODUCTS OR  COMPONENTS  OF
CHILDREN'S  PRODUCTS. THIS TERM SHALL NOT MEAN ANY RETAIL STORE OR INDI-
VIDUAL MAKING RETAIL PURCHASES.
  10. "SUPPLIER" SHALL MEAN ANY PERSON, FIRM,  ASSOCIATION,  PARTNERSHIP
OR  CORPORATION,  WHO  SELLS,  OFFERS FOR SALE OR OFFERS FOR PROMOTIONAL

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PURPOSES COMPONENTS OF CHILDREN'S PRODUCTS FOR USE BY ANY OTHER  PERSON,
FIRM, ASSOCIATION, PARTNERSHIP OR CORPORATION TO PACK PRODUCTS.
S 37-0703. PROHIBITIONS.
  NO  CHILDREN'S  PRODUCTS  SHALL  BE  SOLD,  OR OFFERED FOR SALE OR FOR
PROMOTIONAL PURPOSES BY A MANUFACTURER, DISTRIBUTOR  OR  SUPPLIER  WHICH
INCLUDES,  IN  THE CHILDREN'S PRODUCT ITSELF, OR IN ANY COMPONENT OF THE
CHILDREN'S PRODUCT, INKS, DYES, PIGMENTS, ADHESIVES, STABILIZERS OR  ANY
OTHER ADDITIVES, ANY CADMIUM, WHICH HAS BEEN INTENTIONALLY INTRODUCED AS
AN ELEMENT DURING MANUFACTURING OR DISTRIBUTION.
S 37-0705. EXEMPTIONS.
  ALL CHILDREN'S PRODUCTS AND COMPONENTS OF CHILDREN'S PRODUCTS SHALL BE
SUBJECT TO THIS TITLE EXCEPT THE FOLLOWING:
  1.  THOSE  CHILDREN'S  PRODUCTS  OR  COMPONENTS OF CHILDREN'S PRODUCTS
WHICH HAVE BEEN DELIVERED TO A  DISTRIBUTOR,  SUPPLIER  OR  MANUFACTURER
PRIOR  TO JANUARY FIRST, TWO THOUSAND TWELVE; OR THOSE PACKAGES OR PACK-
AGING COMPONENTS WITH A CODE INDICATING DATE OF MANUFACTURE PRIOR TO TWO
THOUSAND TWELVE;
  2. THOSE CHILDREN'S PRODUCTS OR COMPONENTS OF CHILDREN'S  PRODUCTS  TO
WHICH  CADMIUM HAS BEEN ADDED IN THE MANUFACTURING, FORMING, PRINTING OR
DISTRIBUTION PROCESS IN ORDER TO COMPLY WITH HEALTH OR  SAFETY  REQUIRE-
MENTS  OF  FEDERAL LAW OR FOR WHICH THERE IS NO PRACTICABLE ALTERNATIVE,
AS DETERMINED BY THE COMMISSIONER, PROVIDED THAT THE MANUFACTURER  OF  A
CHILDREN'S PRODUCT OR COMPONENT OF CHILDREN'S PRODUCTS MUST PETITION THE
DEPARTMENT  FOR  ANY  EXEMPTION  FROM THE PROVISIONS OF THIS TITLE FOR A
PARTICULAR CHILDREN'S PRODUCT OR COMPONENT OF CHILDREN'S PRODUCTS  BASED
ON  THE  CRITERIA  OF  THIS  SUBDIVISION;  AND PROVIDED FURTHER THAT THE
DEPARTMENT MAY GRANT AN EXEMPTION FOR UP TO TWO YEARS  IF  WARRANTED  BY
THE CIRCUMSTANCES; AND PROVIDED FURTHER THAT SUCH AN EXEMPTION MAY, UPON
REAPPLICATION  FOR  EXEMPTION  AND MEETING THE CRITERIA OF THIS SUBDIVI-
SION, BE RENEWED AT TWO-YEAR INTERVALS; OR
  3. CHILDREN'S PRODUCTS OR COMPONENTS OF CHILDREN'S PRODUCTS THAT WOULD
NOT POSSESS CADMIUM BUT FOR THE ADDITION OF RECYCLED MATERIALS; PROVIDED
THAT THE EXEMPTION FOR THIS SUBDIVISION:
  (A) SHALL NOT APPLY TO CHILDREN'S PRODUCTS OR COMPONENTS OF CHILDREN'S
PRODUCTS THAT POSSESS CADMIUM AT A CONCENTRATION LEVEL THAT EXCEEDS .004
PERCENT BY WEIGHT (FORTY PARTS PER MILLION);
  (B) SHALL NOT APPLY TO ANY CADMIUM  THAT  HAS  BEEN  RECOVERED  AND/OR
SEPARATED  FROM OTHER MATERIALS FOR USE AS A METAL OR METALLIC COMPOUND;
AND
  (C) SHALL EXPIRE ON JANUARY FIRST, TWO THOUSAND FIFTEEN.
S 37-0707. CERTIFICATE OF COMPLIANCE.
  ANY MANUFACTURER, DISTRIBUTOR OR SUPPLIER MUST FURNISH TO ANY PURCHAS-
ER OF A CHILDREN'S PRODUCT  OR  COMPONENT  OF  A  CHILDREN'S  PRODUCT  A
CERTIFICATE OF COMPLIANCE STATING THAT A CHILDREN'S PRODUCT OR COMPONENT
OF  A  CHILDREN'S PRODUCT IS IN COMPLIANCE WITH THE REQUIREMENTS OF THIS
TITLE. EXCEPT WHERE AN EXEMPTION IS PROVIDED IN SECTION 37-0705 OF  THIS
TITLE  THE  CERTIFICATE  SHALL  STATE  THE SPECIFIC BASIS UPON WHICH THE
EXEMPTION IS CLAIMED. THE CERTIFICATE  OF COMPLIANCE SHALL BE SIGNED  BY
AN AUTHORIZED OFFICIAL OF THE MANUFACTURER, DISTRIBUTOR OR SUPPLIER. THE
PURCHASER SHALL RETAIN THE CERTIFICATE OF COMPLIANCE FOR AS LONG AS SUCH
PURCHASER IS USING  THE CHILDREN'S PRODUCTS OR COMPONENT OF A CHILDREN'S
PRODUCT.  A  COPY OF THE CERTIFICATE OF COMPLIANCE SHALL BE KEPT ON FILE
BY THE MANUFACTURER, DISTRIBUTOR OR SUPPLIER FOR EACH CHILDREN'S PRODUCT
OR COMPONENT OF A CHILDREN'S PRODUCT. IF A MANUFACTURER, DISTRIBUTOR  OR
SUPPLIER  REFORMULATES OR CREATES A NEW CHILDREN'S  PRODUCT OR COMPONENT
OF A CHILDREN'S PRODUCT, IT SHALL FURNISH TO THE PURCHASER AN AMENDED OR

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NEW CERTIFICATE OF COMPLIANCE FOR THE  REFORMULATED  OR  NEW  CHILDREN'S
PRODUCT  OR  COMPONENT  OF A CHILDREN'S PRODUCT. CERTIFICATES OF COMPLI-
ANCE, OR COPIES THEREOF, SHALL BE FURNISHED TO THE DEPARTMENT  UPON  ITS
REQUEST  AND TO MEMBERS OF THE PUBLIC IN ACCORDANCE WITH SECTION 37-0711
OF THIS TITLE.
S 37-0709. VIOLATIONS.
  1. A VIOLATION OF ANY OF THE PROVISIONS OF THIS TITLE OR ANY  RULE  OR
REGULATION  PROMULGATED PURSUANT THERETO SHALL BE PUNISHABLE IN THE CASE
OF A FIRST VIOLATION, BY A CIVIL PENALTY  NOT  TO  EXCEED  TEN  THOUSAND
DOLLARS.  IN THE CASE OF A SECOND AND ANY FURTHER VIOLATION, THE LIABIL-
ITY SHALL BE FOR A CIVIL PENALTY  NOT  TO  EXCEED  TWENTY-FIVE  THOUSAND
DOLLARS FOR EACH VIOLATION.
  2. NO MANUFACTURER, DISTRIBUTOR OR SUPPLIER OF A PRODUCT SHALL BE HELD
IN VIOLATION OF THIS TITLE WHO CAN SHOW THAT, IN THE PURCHASE OF A PACK-
AGE  OR PACKAGING COMPONENT, IT RELIED IN GOOD FAITH ON A CERTIFICATE OF
COMPLIANCE MEETING THE REQUIREMENTS OF SECTION 37-0707 OF THIS TITLE.
S 37-0711. PUBLIC ACCESS.
  1. ANY MEMBER OF THE PUBLIC MAY REQUEST ANY CERTIFICATE OF  COMPLIANCE
FROM  THE  MANUFACTURER, DISTRIBUTOR OR SUPPLIER OF A CHILDREN'S PRODUCT
OR COMPONENT OF A CHILDREN'S PRODUCT. SUCH REQUEST SHALL BE:
  (A) IN WRITING; AND
  (B) SPECIFIC AS TO THE CHILDREN'S PRODUCT OR COMPONENT OF A CHILDREN'S
PRODUCT FOR WHICH INFORMATION IS REQUESTED.
  2. THE MANUFACTURER, DISTRIBUTOR OR  SUPPLIER  MUST  RESPOND  TO  SUCH
REQUEST WITHIN SIXTY DAYS OF RECEIPT OF THE REQUEST.
S 37-0713. REPORTS.
  THE  DEPARTMENT  SHALL  INCLUDE  A REPORT ON THE EFFECTIVENESS OF THIS
TITLE AS PART OF ITS ANNUAL SOLID WASTE MANAGEMENT PLAN AS  REQUIRED  BY
SECTION 27-0103 OF THIS CHAPTER.
S 37-0715. RULES AND REGULATIONS.
  THE  COMMISSIONER  SHALL  HAVE THE POWER TO ADOPT SUCH RULES AND REGU-
LATIONS TO PROVIDE FOR THE EFFECTIVE APPLICATION AND ENFORCEMENT OF THIS
TITLE.
  S 2. This act shall take effect on the ninetieth day  after  it  shall
have become a law.