S T A T E O F N E W Y O R K
________________________________________________________________________
503
2019-2020 Regular Sessions
I N S E N A T E
(PREFILED)
January 9, 2019
___________
Introduced by Sen. KAMINSKY -- read twice and ordered printed, and when
printed to be committed to the Committee on Consumer Protection
AN ACT to amend the general business law, in relation to chemicals of
high concern to children
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
391-u to read as follows:
§ 391-U. CHEMICALS OF HIGH CONCERN TO CHILDREN. 1. DEFINITIONS. FOR
THE PURPOSES OF THIS SECTION, THE FOLLOWING TERMS SHALL HAVE THE FOLLOW-
ING MEANINGS:
(A) "CHILDREN'S APPAREL" MEANS ANY ITEM OF CLOTHING, FOOTWEAR OR
APPAREL, INCLUDING, BUT NOT LIMITED TO, ACCESSORIES THAT CONSIST OF
FABRIC OR RELATED MATERIAL INTENDED OR PROMOTED FOR USE IN CHILDREN'S
CLOTHING. CHILDREN'S APPAREL DOES NOT INCLUDE PROTECTIVE EQUIPMENT
DESIGNED TO PREVENT INJURY INCLUDING, BUT NOT LIMITED TO, BICYCLE
HELMETS, ATHLETIC SUPPORTERS, KNEE PADS OR ELBOW PADS.
(B) "CHEMICAL" MEANS ANY ORGANIC OR INORGANIC SUBSTANCE OF A PARTIC-
ULAR MOLECULAR IDENTITY, INCLUDING: (I) ANY COMBINATION OF SUCH
SUBSTANCES OCCURRING IN WHOLE OR IN PART AS A RESULT OF A CHEMICAL
REACTION OR OCCURRING IN NATURE; AND (II) ANY ELEMENT OR UNCOMBINED
RADICAL.
(C) "CHEMICAL OF HIGH CONCERN TO CHILDREN" MEANS ANY CHEMICAL THAT HAS
BEEN IDENTIFIED BY A STATE, FEDERAL OR INTERNATIONAL GOVERNMENTAL ENTITY
ON THE BASIS OF CREDIBLE SCIENTIFIC EVIDENCE OR RELIABLE INFORMATION AS:
(I) A CARCINOGEN, A REPRODUCTIVE OR DEVELOPMENTAL TOXICANT, NEUROTOXI-
CANT, ENDOCRINE DISRUPTOR OR ASTHMAGEN; (II) PERSISTENT, BIOACCUMULATIVE
AND TOXIC; OR (III) VERY PERSISTENT AND VERY BIOACCUMULATIVE.
(D) "CHILD OR CHILDREN" MEANS A PERSON OR PERSONS TWELVE YEARS OF AGE
OR YOUNGER.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD05553-01-9
S. 503 2
(E) "CHILDREN'S PRODUCT" MEANS A PRODUCT PRIMARILY INTENDED FOR, MADE
FOR OR MARKETED FOR USE BY CHILDREN, INCLUDING BUT NOT LIMITED TO: BABY
PRODUCTS; TOYS; CAR SEATS; CHILDREN'S COSMETICS; SCHOOL SUPPLIES; A
PRODUCT DESIGNED OR INTENDED BY THE MANUFACTURER TO HELP A CHILD WITH
SUCKING OR TEETHING, TO FACILITATE SLEEP, RELAXATION OR THE FEEDING OF A
CHILD; CHILDREN'S NOVELTY PRODUCTS; CHILDREN'S JEWELRY; CHILDREN'S
BEDDING, FURNITURE AND FURNISHINGS; AND CHILDREN'S APPAREL. SUCH TERM
SHALL NOT INCLUDE: (I) BATTERIES; (II) CONSUMER ELECTRONICS; (III) A
SUPPLEMENT, FOOD OR BEVERAGE OR AN ADDITIVE TO A FOOD OR BEVERAGE REGU-
LATED BY THE UNITED STATES FOOD AND DRUG ADMINISTRATION; (IV) A DRUG,
BIOLOGIC OR MEDICAL DEVICE REGULATED BY THE UNITED STATES FOOD AND DRUG
ADMINISTRATION; OR (V) A PESTICIDE PRODUCT REGULATED BY THE UNITED
STATES ENVIRONMENTAL PROTECTION AGENCY AND REGISTERED BY THE DEPARTMENT
OF ENVIRONMENTAL CONSERVATION.
(F) "COMPONENT" MEANS A UNIQUELY IDENTIFIABLE OR REASONABLY SEPARATE
MATERIAL THAT IS INTENDED TO BE INCLUDED AS A PART OF A FINISHED CHIL-
DREN'S PRODUCT. A SINGLE CHEMICAL SHALL NOT BE CONSIDERED A "COMPONENT"
UNLESS THE ENTIRE MATERIAL IS COMPOSED OF THAT SINGLE CHEMICAL.
(G) "DISTRIBUTOR" MEANS A PERSON WHO SELLS CHILDREN'S PRODUCTS TO
RETAIL ESTABLISHMENTS.
(H) "MANUFACTURER" MEANS ANY PERSON WHO MANUFACTURES A CHILDREN'S
PRODUCT OR WHOSE BRAND NAME IS AFFIXED TO THE CHILDREN'S PRODUCT. IN THE
CASE OF A CHILDREN'S PRODUCT THAT IS IMPORTED INTO THE UNITED STATES,
"MANUFACTURER" INCLUDES THE IMPORTER OR FIRST DOMESTIC DISTRIBUTOR OF
THE CHILDREN'S PRODUCT IF THE PERSON WHO MANUFACTURES OR ASSEMBLES THE
CHILDREN'S PRODUCT OR WHOSE BRAND NAME IS AFFIXED TO THE CHILDREN'S
PRODUCT DOES NOT HAVE A PRESENCE IN THE UNITED STATES.
(I) "PRIORITY CHEMICALS FOR DISCLOSURE" MEANS CHEMICALS OF HIGH
CONCERN TO CHILDREN THAT ARE DESIGNATED FOR DISCLOSURE BY THE DEPARTMENT
OF HEALTH, IN CONSULTATION WITH THE DEPARTMENT OF ENVIRONMENTAL CONSER-
VATION.
(J) "RETAILER" MEANS ANY PERSON WHO SELLS OR LEASES CHILDREN'S
PRODUCTS IN THE STATE TO CONSUMERS. SUCH TERM SHALL NOT INCLUDE: (I)
SOMEONE WHO PURCHASED OR ACQUIRED A PRODUCT PRIMARILY FOR PERSONAL USE
AND WHO SUBSEQUENTLY RESELLS THE PRODUCT; OR (II) ANY SECONDHAND DEALER.
2. PUBLISHING LISTS. THE DEPARTMENT OF STATE, DEPARTMENT OF ENVIRON-
MENTAL CONSERVATION AND THE DEPARTMENT OF HEALTH SHALL POST THE LIST OF
CHEMICALS OF HIGH CONCERN TO CHILDREN AND PRIORITY CHEMICALS FOR DISCLO-
SURE ON THEIR WEBSITES.
3. DISCLOSURE OF INFORMATION. REPORTING OF CHEMICAL OCCURRENCE. CHEM-
ICALS OF HIGH CONCERN TO CHILDREN AND PRIORITY CHEMICALS FOR DISCLOSURE
SHALL BE DETERMINED BY THE DEPARTMENT OF HEALTH, IN CONSULTATION WITH
THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION. ONCE THE DEPARTMENT OF
STATE, DEPARTMENT OF HEALTH AND THE DEPARTMENT OF ENVIRONMENTAL CONSER-
VATION PUBLISH THE LIST OF CHEMICALS TO THEIR WEBSITES, EVERY MANUFAC-
TURER WHO SELLS OR DISTRIBUTES A CHILDREN'S PRODUCT IN THIS STATE SHALL
REPORT TO THE DEPARTMENT OF STATE IF ANY OF THE PRIORITY CHEMICALS FOR
DISCLOSURE ARE PRESENT IN A CHILDREN'S PRODUCT. THE LIST OF PRIORITY
CHEMICALS FOR DISCLOSURE, AS DEVELOPED BY THE DEPARTMENT OF HEALTH AND
ENVIRONMENTAL CONSERVATION, SHALL BE REVIEWED BY SUCH DEPARTMENTS ON AN
ONGOING AND REGULAR BASIS AND REPORTED TO THE DEPARTMENT OF STATE.
THE DEPARTMENT OF STATE, IN CONSULTATION WITH THE DEPARTMENT OF ENVI-
RONMENTAL CONSERVATION AND THE DEPARTMENT OF HEALTH, SHALL PROMULGATE
RULES AND REGULATIONS REGARDING THE NOTIFICATION FORMAT THE MANUFACTUR-
ERS MUST COMPLY WITH WHEN DISCLOSING INFORMATION TO CONSUMERS AND THE
DEPARTMENTS.
S. 503 3
THE DEPARTMENT OF STATE, DEPARTMENT OF HEALTH AND THE DEPARTMENT OF
ENVIRONMENTAL CONSERVATION ARE AUTHORIZED TO PARTICIPATE IN AN INTER-
STATE CHEMICALS CLEARINGHOUSE TO ASSIST IN CARRYING OUT THE REQUIREMENTS
OF THIS SECTION. SUCH DEPARTMENTS MAY ALSO ENTER INTO RECIPROCAL DATA-
SHARING AGREEMENTS WITH OTHER STATES IN WHICH A MANUFACTURER OF CHIL-
DREN'S PRODUCTS IS REQUIRED TO DISCLOSE INFORMATION RELATED TO CHEMICALS
OF HIGH CONCERN TO CHILDREN IN CHILDREN'S PRODUCTS.
4. WAIVER OF REPORTING. UPON APPLICATION BY A MANUFACTURER, THE
COMMISSIONER OF HEALTH MAY WAIVE ALL OR PART OF THE DISCLOSURE REQUIRE-
MENTS. IN MAKING SUCH DETERMINATION, SUCH COMMISSIONER MAY CONSIDER:
(A) WHETHER SUBSTANTIALLY EQUIVALENT INFORMATION IS ALREADY PUBLICLY
AVAILABLE OR SUCH INFORMATION IS NOT NEEDED FOR THE PURPOSES OF THIS
ARTICLE;
(B) WHETHER SIMILAR WAIVERS HAVE BEEN GRANTED BY OTHER STATES;
(C) WHETHER THE SPECIFIED USE OR USES ARE MINOR IN VOLUME; OR
(D) WHETHER THE MANUFACTURER EITHER INDIVIDUALLY OR JOINTLY SUBMITS
THE INFORMATION REQUIRED IN A NOTICE UNDER THIS SECTION TO: (I) A STATE
WITH WHICH THE DEPARTMENT OF STATE HAS ENTERED A RECIPROCAL DATA-SHARING
AGREEMENT; OR (II) A TRADE ASSOCIATION, THE INTERSTATE CHEMICALS CLEAR-
INGHOUSE, A FEDERAL GOVERNMENTAL AGENCY, OR OTHER INDEPENDENT THIRD
PARTY, WHO MAKES THAT DATA AVAILABLE TO THE DEPARTMENT OF HEALTH ON
BEHALF OF THE MANUFACTURER.
5. NOTICE TO RETAILERS. A MANUFACTURER OF A CHILDREN'S PRODUCT
CONTAINING A PRIORITY CHEMICAL FOR DISCLOSURE SHALL NOTIFY, IN A FORM
PRESCRIBED BY THE DEPARTMENT OF STATE, RETAILERS THAT OFFER THE CHIL-
DREN'S PRODUCT FOR SALE OR DISTRIBUTION IN THE STATE OF THE PRESENCE OF
SUCH PRIORITY CHEMICAL FOR DISCLOSURE AND ANY OTHER INFORMATION THE
DEPARTMENTS OF STATE AND HEALTH DEEM APPROPRIATE.
6. NOTICE TO CONSUMERS. THE DEPARTMENT OF STATE SHALL NOTIFY CONSUMERS
ABOUT CHILDREN'S PRODUCTS CONTAINING PRIORITY CHEMICALS FOR DISCLOSURE.
THE NOTIFICATION SHALL LINK CHEMICAL DISCLOSURE TO KNOWN AND POTENTIAL
HEALTH IMPACTS, AND SHALL BE PUBLISHED ON THE DEPARTMENT OF HEALTH'S AND
DEPARTMENT OF ENVIRONMENTAL CONSERVATION'S WEBSITES IN A FORM AND MANNER
DETERMINED BY THE COMMISSIONERS OF SUCH DEPARTMENTS.
7. CERTIFICATE OF COMPLIANCE. A MANUFACTURER REQUIRED TO SUBMIT
NOTICE PURSUANT TO THIS SECTION TO THE COMMISSIONERS OF HEALTH AND ENVI-
RONMENTAL CONSERVATION MAY RELY ON A CERTIFICATE OF COMPLIANCE, DATA OR
INFORMATION FROM SUPPLIERS FOR DETERMINING REPORTING OBLIGATIONS. A
CERTIFICATE OF COMPLIANCE PROVIDED BY A SUPPLIER UNDER THIS SUBDIVISION
SHALL BE SOLELY FOR THE PURPOSE OF COMPLIANCE WITH THE REQUIREMENTS OF
THIS SECTION.
8. APPLICABILITY. THE PROVISIONS OF THIS SECTION SHALL APPLY TO CHEM-
ICALS IN CHILDREN'S PRODUCTS SOLD OR DISTRIBUTED AS NEW. IT SHALL NOT
APPLY TO USED CHILDREN'S PRODUCTS THAT ARE SOLD OR DISTRIBUTED FOR FREE
AT SECONDHAND STORES, YARD SALES, ON THE INTERNET OR DONATED TO CHARI-
TIES.
9. TRANSPORTATION. THE REQUIREMENTS OF THIS SECTION SHALL NOT APPLY
TO MOTOR VEHICLES OR THEIR COMPONENT PARTS, WATERCRAFT OR THEIR COMPO-
NENT PARTS, ALL-TERRAIN VEHICLES OR THEIR COMPONENT PARTS, OR OFF-HIGH-
WAY MOTORCYCLES OR THEIR COMPONENT PARTS, EXCEPT THAT THE PRESENCE OF
PRIORITY CHEMICALS FOR DISCLOSURE IN DETACHABLE CAR SEATS SHALL NOT BE
EXEMPT.
10. COMBUSTION. THE REQUIREMENTS OF THIS SECTION SHALL NOT APPLY TO
CHEMICALS GENERATED SOLELY AS COMBUSTION BYPRODUCTS OR THAT ARE PRESENT
IN COMBUSTIBLE FUELS.
S. 503 4
11. INDUSTRY. THE REQUIREMENTS OF THIS SECTION SHALL NOT APPLY TO
PRIORITY CHEMICALS FOR DISCLOSURE USED IN OR FOR INDUSTRY OR MANUFACTUR-
ING, INCLUDING CHEMICALS PROCESSED OR OTHERWISE USED IN OR FOR INDUS-
TRIAL OR MANUFACTURING PROCESSES AND NOT PRESENT IN THE FINAL PRODUCT.
12. STATEMENT OF COMPLIANCE. IF THE DEPARTMENT OF ENVIRONMENTAL
CONSERVATION SUSPECTS THAT A CHILDREN'S PRODUCT IS BEING OFFERED OR SOLD
IN VIOLATION OF THIS SECTION, SUCH DEPARTMENT MAY REQUEST THE MANUFAC-
TURER OF THE CHILDREN'S PRODUCT TO PROVIDE WITHIN THIRTY DAYS OF RECEIPT
OF A REQUEST FROM THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, A STATE-
MENT OF COMPLIANCE ON A FORM PROVIDED BY THE DEPARTMENT OF ENVIRONMENTAL
CONSERVATION. THE STATEMENT OF COMPLIANCE SHALL: (A) ATTEST THAT THE
CHILDREN'S PRODUCT DOES NOT CONTAIN THE PRIORITY CHEMICAL FOR DISCLO-
SURE; OR (B) ATTEST AND PROVIDE THE DEPARTMENT OF STATE WITH DOCUMENTA-
TION THAT NOTIFICATION OF THE PRESENCE OF A PRIORITY CHEMICAL FOR
DISCLOSURE WAS PROVIDED TO THE DEPARTMENT PURSUANT TO THIS SECTION; OR
(C) ATTEST THAT THE MANUFACTURER HAS NOTIFIED RETAILERS OF THE PRESENCE
OF THE PRIORITY CHEMICAL FOR DISCLOSURE PURSUANT TO THIS SECTION.
13. UNAUTHORIZED SALES. THE COMMISSIONER OF ENVIRONMENTAL CONSERVA-
TION MAY ISSUE AN ORDER DIRECTING THE CESSATION OF THE SALE OR DISTRIB-
UTION BY MANUFACTURERS, DISTRIBUTORS OR RETAILERS OF ANY CHILDREN'S
PRODUCT BEING DISTRIBUTED, SOLD, LEASED OR OTHERWISE OFFERED FOR SALE IN
THIS STATE THAT IS IN VIOLATION OF THIS SECTION. IN THE INSTANCE OF
NON-COMPLIANCE WITH SUCH ORDER, THE DEPARTMENT OF ENVIRONMENTAL CONSER-
VATION SHALL PROVIDE THE ATTORNEY GENERAL ANY INFORMATION ON THE SALE,
LEASE, OR DISTRIBUTION OF PROHIBITED CHILDREN'S PRODUCTS.
14. ENFORCEMENT. WHERE IT IS DETERMINED, FOLLOWING A HEARING, THAT A
MANUFACTURER HAS VIOLATED ONE OR MORE PROVISIONS OF THIS SECTION, THE
COMMISSIONER OF ENVIRONMENTAL CONSERVATION MAY ASSESS A CIVIL PENALTY NO
GREATER THAN FIVE THOUSAND DOLLARS PER VIOLATION. UPON THE OCCASION OF A
SECOND VIOLATION, AND SUBSEQUENT VIOLATIONS OF THIS SECTION, A CIVIL
PENALTY OF NO GREATER THAN FIFTY THOUSAND DOLLARS MAY BE ASSESSED.
ANY PROCEEDING CONDUCTED PURSUANT TO THIS SUBDIVISION SHALL BE SUBJECT
TO THE STATE ADMINISTRATIVE PROCEDURE ACT. THE HEARING OFFICER SHALL
CONSIDER WHETHER A RETAILER KNOWINGLY OFFERED SUCH ITEMS FOR SALE AS A
DEFENSE TO VIOLATIONS OF THIS SECTION.
15. REGULATIONS. THE DEPARTMENT OF STATE, DEPARTMENT OF HEALTH AND
THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION MAY ADOPT SUCH RULES AND
REGULATIONS AS SHALL BE NECESSARY TO IMPLEMENT THE PROVISIONS OF THIS
SECTION.
§ 2. Severability. If any clause, sentence, paragraph, section or part
of this act shall be adjudged by any court of competent jurisdiction to
be invalid and after exhaustion of all further judicial review, the
judgment shall not affect, impair or invalidate the remainder thereof,
but shall be confined in its operation to the clause, sentence, para-
graph, section or part of this act directly involved in the controversy
in which the judgment shall have been rendered.
§ 3. This act shall take effect July 1, 2020; provided, however, that
effective immediately, the addition, amendment and/or repeal of any
rules or regulations necessary for the implementation of this act on its
effective date are authorized and directed to be made and completed on
or before such effective date.
