Assembly Bill A143A

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                    143
 
                        2021-2022 Regular Sessions
 
                           I N  A S S E M B L Y
 
                                (PREFILED)
 
                              January 6, 2021
                                ___________
 
 Introduced  by  M.  of  A.  GOTTFRIED, ENGLEBRIGHT, L. ROSENTHAL, REYES,
   THIELE, GALEF, DICKENS, STECK -- read once and referred to the Commit-
   tee on Environmental Conservation
 
 AN ACT to amend the environmental conservation law, in relation  to  the
   regulation of ingredients in personal care products
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Legislative findings and intent.  There  are  thousands  of
 chemicals  used in personal care, household cleaning, and other consumer
 products, many of which have  never  been  fully  tested  for  potential
 impacts  on  human  health or the environment. This has led national and
 international organizations to develop lists of  chemicals  of  concern,
 including  the New York State Department of Environmental Conservation's
 Household Cleaning Product Ingredient Disclosure Program (HCPIDP). While
 federal law requires personal care product labels to list certain inten-
 tionally added  ingredients,  information  concerning  potential  health
 effects  is  not  widely  available  and  certain categories of chemical
 ingredients are exempt from labeling requirements. Furthermore, over  40
 countries,  including  countries in the European Union, Japan, Cambodia,
 and Vietnam, have stricter restrictions on chemicals  in  personal  care
 products  than does the United States.  Therefore, the legislature finds
 and declares that federal  disclosure  requirements  are  inadequate  to
 educate  and  protect  consumers, and that it shall be the policy of the
 state to require the  personal  care  product  industry  to  more  fully
 disclose  ingredients and identify ingredients published as chemicals of
 concern on lists identified by the commissioner such as  the  HCPIDP  or
 other national or international lists.
   §  2.  Article  37 of the environmental conservation law is amended by
 adding a new title 10 to read as follows:

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

                                                            LBD00402-01-1

 A. 143                              2
 
                                  TITLE X
                   REGULATION OF PERSONAL CARE PRODUCTS
 SECTION 37-1001. DEFINITIONS.
         37-1003. DISCLOSURE.
         37-1005. PERIODIC REVIEW.
         37-1007. SALES PROHIBITION.
         37-1009. SMALL BUSINESS EXEMPTION.
         37-1011. PENALTIES.
 § 37-1001. DEFINITIONS.
   AS USED IN THIS TITLE, UNLESS THE CONTEXT REQUIRES OTHERWISE:
   1. "CHEMICAL OF CONCERN" SHALL MEAN A CHEMICAL APPEARING ON ANY OF THE
 LISTS  INCLUDED IN THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION DIVISION
 OF MATERIALS MANAGEMENT PROGRAM POLICY ON  HOUSEHOLD  CLEANSING  PRODUCT
 INFORMATION  DISCLOSURE  PUBLISHED  ON JUNE SIXTH, TWO THOUSAND EIGHTEEN
 PURSUANT TO ARTICLE THIRTY-FIVE OF THIS CHAPTER AND 6 NYCRR PART 659, OR
 AS DESIGNATED BY THE COMMISSIONER, IN CONSULTATION WITH THE COMMISSIONER
 OF HEALTH.
   2. "INGREDIENT" SHALL MEAN ALL OF THE FOLLOWING:
   (A) AN INTENTIONALLY ADDED INGREDIENT PRESENT IN  ANY  QUANTITY  IN  A
 PERSONAL CARE PRODUCT;
   (B)  A NONFUNCTIONAL BYPRODUCT OR NONFUNCTIONAL CONTAMINANT PRESENT IN
 A PERSONAL CARE PRODUCT, IN ANY QUANTITY EXCEEDING ONE PART PER  MILLION
 OF  THE  CONTENT OF THE PRODUCT, BY WEIGHT OR OTHER AMOUNT DETERMINED BY
 THE COMMISSIONER;
   (C) A NONFUNCTIONAL BYPRODUCT PRESENT IN A PERSONAL  CARE  PRODUCT  IN
 ANY  QUANTITY  NOT  EXCEEDING ONE PART PER MILLION OF THE CONTENT OF THE
 PRODUCT BY WEIGHT PRESENT AT OR ABOVE THE PRACTICAL QUANTIFICATION LIMIT
 AS DETERMINED BY THE COMMISSIONER, PROVIDED SUCH ELEMENT OR COMPOUND HAS
 BEEN PUBLISHED AS A CHEMICAL OF CONCERN ON ONE OR MORE LISTS  IDENTIFIED
 BY THE COMMISSIONER;
   (D)  A NONFUNCTIONAL CONTAMINANT PRESENT IN A PERSONAL CARE PRODUCT IN
 A QUANTITY DETERMINED BY THE COMMISSIONER AND NOT EXCEEDING ONE PART PER
 MILLION OF THE CONTENT OF THE PRODUCT BY WEIGHT PRESENT AT OR ABOVE  THE
 PRACTICAL  QUANTIFICATION  LIMIT,  PROVIDED SUCH ELEMENT OR COMPOUND HAS
 BEEN PUBLISHED AS A CHEMICAL OF CONCERN ON ONE OR MORE LISTS  IDENTIFIED
 BY THE COMMISSIONER.
   3. "INTENTIONALLY ADDED INGREDIENT" SHALL MEAN ANY ELEMENT OR COMPOUND
 THAT  A MANUFACTURER HAS INTENTIONALLY ADDED TO A PERSONAL CARE PRODUCT,
 AND WHICH HAS A FUNCTIONAL OR TECHNICAL EFFECT IN THE FINISHED  PRODUCT,
 INCLUDING,  BUT  NOT  LIMITED  TO, THE COMPONENTS OF INTENTIONALLY ADDED
 FRAGRANCE,  FLAVORING  AND  COLORANTS,  AND  THE  INTENTIONAL  BREAKDOWN
 PRODUCTS  OF  AN ADDED ELEMENT OR COMPOUND THAT ALSO HAS A FUNCTIONAL OR
 TECHNICAL EFFECT ON THE FINISHED PRODUCT.
   4. "NONFUNCTIONAL BYPRODUCT" SHALL MEAN ANY ELEMENT OR COMPOUND  WHICH
 HAS NO FUNCTIONAL OR TECHNICAL EFFECT IN THE FINISHED PRODUCT WHICH:
   (A)  WAS  INTENTIONALLY  ADDED  DURING THE MANUFACTURING PROCESS FOR A
 PERSONAL CARE PRODUCT AT ANY POINT IN A PRODUCT'S, A RAW  MATERIAL'S  OR
 INGREDIENT'S SUPPLY CHAIN; OR
   (B)  WAS  CREATED  OR  FORMED  DURING  THE MANUFACTURING PROCESS AS AN
 INTENTIONAL OR UNINTENTIONAL CONSEQUENCE OF THE MANUFACTURING PROCESS AT
 ANY POINT IN A PRODUCT'S, A RAW MATERIAL'S, OR  AN  INGREDIENT'S  SUPPLY
 CHAIN.
   NONFUNCTIONAL  BYPRODUCT  SHALL  INCLUDE,  BUT  IS  NOT LIMITED TO, AN
 UNREACTED RAW MATERIAL, A BREAKDOWN PRODUCT OF  AN  INTENTIONALLY  ADDED
 INGREDIENT, OR A BYPRODUCT OF THE MANUFACTURING PROCESS.

 A. 143                              3
 
   5.  "NONFUNCTIONAL  CONTAMINANT"  SHALL  MEAN  ANY ELEMENT OR COMPOUND
 PRESENT IN A PERSONAL CARE PRODUCT AS AN  UNINTENTIONAL  CONSEQUENCE  OF
 MANUFACTURING  WHICH  HAS  NO  FUNCTIONAL  OR  TECHNICAL  EFFECT  IN THE
 FINISHED PRODUCT. NONFUNCTIONAL CONTAMINANTS INCLUDE, BUT ARE NOT LIMIT-
 ED  TO, ELEMENTS OR COMPOUNDS PRESENT IN THE ENVIRONMENT AS CONTAMINANTS
 WHICH  WERE INTRODUCED INTO A PRODUCT, A  RAW  MATERIAL,  OR  A  PRODUCT
 INGREDIENT  AS A RESULT OF THE USE OF AN ENVIRONMENTAL MEDIUM, SUCH AS A
 NATURALLY OCCURRING MINERAL, AIR, SOIL OR WATER,  IN  THE  MANUFACTURING
 PROCESS  AT  ANY  POINT IN A PRODUCT'S, A RAW MATERIAL'S, OR AN INGREDI-
 ENT'S SUPPLY CHAIN.
   6. "MANUFACTURER" SHALL MEAN ANY PERSON, FIRM,  ASSOCIATION,  PARTNER-
 SHIP,  LIMITED    LIABILITY  COMPANY,  OR  CORPORATION  WHICH  PRODUCES,
 PREPARES, FORMULATES, OR COMPOUNDS A   PERSONAL CARE PRODUCT,  OR  WHOSE
 BRAND  NAME  IS  AFFIXED TO SUCH PRODUCT. IN THE CASE OF A PERSONAL CARE
 PRODUCT IMPORTED INTO THE UNITED STATES, "MANUFACTURER" SHALL  MEAN  THE
 IMPORTER OR FIRST DOMESTIC DISTRIBUTOR OF THE PRODUCT IF THE ENTITY THAT
 MANUFACTURES  THE PRODUCT OR WHOSE BRAND  NAME IS AFFIXED TO THE PRODUCT
 DOES NOT HAVE A PRESENCE IN THE UNITED STATES.
   7. "PERSONAL CARE PRODUCT" SHALL MEAN ARTICLES INTENDED TO BE  RUBBED,
 POURED,  SPRINKLED, OR SPRAYED ON, INTRODUCED INTO, OR OTHERWISE APPLIED
 TO THE HUMAN BODY  OR  ANY  PART  THEREOF  FOR  CLEANSING,  BEAUTIFYING,
 PROMOTING  ATTRACTIVENESS,  OR  ALTERING  THE  APPEARANCE,  AND ARTICLES
 INTENDED FOR USE AS A COMPONENT OF ANY SUCH ARTICLES; EXCEPT  THAT  SUCH
 TERM SHALL NOT INCLUDE SOAP.
   8.  "RESTRICTED  SUBSTANCE"  SHALL  MEAN  LEAD,  MERCURY  AND  RELATED
 COMPOUNDS, FORMALDEHYDE, TRICLOSAN, TOLUENE,  PER-  AND  POLYFLUOROALKYL
 SUBSTANCES,  DIBUTYL PHTHALATE, DI(2)EXYLHEXYL PHTHALATE, AND ISOBUTYL-,
 ISOPROPYL-, BUTYL-, AND PROPYL PARABEN.
   9. "SOAP" SHALL MEAN ARTICLES COMPRISED ENTIRELY OF AN ALKALI SALT  OF
 FATTY ACIDS WHERE THE DETERGENT PROPERTIES OF THE ARTICLE ARE DUE TO THE
 ALKALI-FATTY ACID COMPOUNDS, AND THE ARTICLE SHALL BE LABELED, SOLD, AND
 REPRESENTED ONLY AS A SOAP.
 § 37-1003. DISCLOSURE.
   1.  MANUFACTURERS  OF  PERSONAL  CARE  PRODUCTS  DISTRIBUTED,  SOLD OR
 OFFERED FOR SALE IN THIS STATE, WHETHER  AT  RETAIL  OR  WHOLESALE,  FOR
 PERSONAL, PROFESSIONAL OR COMMERCIAL USE, OR DISTRIBUTED FOR PROMOTIONAL
 PURPOSES,  SHALL  FURNISH  TO  THE  COMMISSIONER FOR PUBLIC RECORD, IN A
 MANNER PRESCRIBED BY THE COMMISSIONER THAT IS READILY ACCESSIBLE TO  THE
 PUBLIC  AND  MACHINE  READABLE, SUCH INFORMATION REGARDING SUCH PRODUCTS
 PURSUANT TO RULES AND REGULATIONS PROMULGATED BY THE  COMMISSIONER.  FOR
 EACH  PERSONAL  CARE  PRODUCT, SUCH INFORMATION SHALL INCLUDE, BUT SHALL
 NOT BE LIMITED TO:
   (A) (I) A LIST NAMING EACH INGREDIENT, AS DEFINED IN  SUBDIVISION  TWO
 OF  SECTION 37-1001 OF THIS TITLE, OF THE PRODUCT IN DESCENDING ORDER OF
 PREDOMINANCE BY WEIGHT IN THE PRODUCT, EXCEPT THAT  INGREDIENTS  PRESENT
 AT  A WEIGHT BELOW ONE PERCENT (1%) MAY BE LISTED FOLLOWING OTHER INGRE-
 DIENTS WITHOUT RESPECT TO THE ORDER OF PREDOMINANCE BY WEIGHT;
   (II) SUCH LIST SHALL DISCLOSE THAT THE INGREDIENT IS  PUBLISHED  AS  A
 CHEMICAL OF CONCERN AS IDENTIFIED IN THIS TITLE, INCLUDING SPECIFICATION
 OF WHICH LIST OR LISTS SUCH CHEMICAL OF CONCERN IS ON; AND
   (B)  THE NATURE AND EXTENT OF INVESTIGATIONS AND RESEARCH PERFORMED BY
 OR FOR THE MANUFACTURER CONCERNING THE EFFECTS ON HUMAN HEALTH  AND  THE
 ENVIRONMENT OF SUCH PRODUCT OR SUCH INGREDIENTS.
   2.  SUCH  MANUFACTURERS  SHALL  FURNISH  INFORMATION ON OR BEFORE JULY
 FIRST, TWO THOUSAND TWENTY-TWO AND EVERY TWO YEARS THEREAFTER. IN  ADDI-
 TION,  SUCH  MANUFACTURERS  SHALL  FURNISH SUCH INFORMATION PRIOR TO THE

 A. 143                              4
 
 SALE OF ANY NEW  PERSONAL  CARE  PRODUCT,  WHEN  THE  FORMULATION  OF  A
 CURRENTLY DISCLOSED PRODUCT IS SUBSTANTIALLY OR MATERIALLY CHANGED, WHEN
 ANY LIST OF CHEMICALS OF CONCERN IDENTIFIED BY THE COMMISSIONER PURSUANT
 TO  THIS  ARTICLE  IS  CHANGED  TO  INCLUDE  AN  INGREDIENT PRESENT IN A
 PERSONAL CARE PRODUCT SUBJECT TO THIS ARTICLE, OR AT SUCH OTHER TIMES AS
 MAY BE REQUIRED BY THE COMMISSIONER.
   3. SUCH INFORMATION SHALL BE MADE  AVAILABLE  TO  THE  PUBLIC  BY  THE
 COMMISSIONER,  IN  ACCORDANCE  WITH  THIS SECTION, WITH THE EXCEPTION OF
 THOSE  PORTIONS  WHICH  THE  MANUFACTURER  DETERMINES,  SUBJECT  TO  THE
 APPROVAL  OF  THE  COMMISSIONER, IS RELATED TO A PROPRIETARY PROCESS THE
 DISCLOSURE OF WHICH  WOULD  COMPROMISE  THE  MANUFACTURER'S  COMPETITIVE
 POSITION.  THE  COMMISSIONER SHALL NOT APPROVE ANY EXCEPTIONS UNDER THIS
 SUBDIVISION WITH RESPECT TO ANY INGREDIENT PUBLISHED AS  A  CHEMICAL  OF
 CONCERN ON ONE OR MORE LISTS IDENTIFIED BY THE COMMISSIONER.
   4.  THE  COMMISSIONER MAY DIRECT SUBMISSION OF SUCH INFORMATION TO THE
 INTERSTATE CHEMICALS CLEARINGHOUSE, WHICH MAY MAKE THE REPORTED INFORMA-
 TION AVAILABLE TO THE PUBLIC, SUBJECT  TO  INFORMATION  TO  BE  WITHHELD
 UNDER SUBDIVISION THREE OF THIS SECTION.
 § 37-1005. PERIODIC REVIEW.
   THE  COMMISSIONER,  IN  CONSULTATION  WITH THE COMMISSIONER OF HEALTH,
 SHALL PERIODICALLY REVIEW THE LIST OF  CHEMICALS  OF  CONCERN  AND,  MAY
 THROUGH REGULATION, ADD OR REMOVE CHEMICALS FROM SUCH LIST.
 § 37-1007. SALES PROHIBITION.
   EFFECTIVE THREE YEARS AFTER THIS SECTION TAKES EFFECT, NO PERSON SHALL
 DISTRIBUTE, SELL OR OFFER FOR SALE IN THIS STATE A PERSONAL CARE PRODUCT
 CONTAINING A RESTRICTED SUBSTANCE.
 § 37-1009. SMALL BUSINESS EXEMPTION.
   THE  REQUIREMENTS OF THIS TITLE SHALL NOT APPLY TO PERSONAL CARE PROD-
 UCT MANUFACTURERS THAT EMPLOY FIVE PERSONS OR FEWER, AND  ARE  INDEPEND-
 ENTLY OWNED AND OPERATED.
 § 37-1011. PENALTIES.
   A MANUFACTURER IN VIOLATION OF THIS TITLE IS SUBJECT TO A CIVIL PENAL-
 TY NOT TO EXCEED FIVE THOUSAND DOLLARS FOR EACH VIOLATION IN THE CASE OF
 A  FIRST  OFFENSE.  MANUFACTURERS  WHO  COMMIT SUBSEQUENT VIOLATIONS ARE
 SUBJECT TO A CIVIL PENALTY NOT TO EXCEED TEN THOUSAND DOLLARS  FOR  EACH
 ADDITIONAL OFFENSE.
   § 3. Severability. If any provision of this act, or any application of
 any  provision  of  this act, is held to be invalid, or to violate or be
 inconsistent with any federal law or regulation, that shall  not  affect
 the  validity or effectiveness of any other provision of this act, or of
 any other application of any provision of this act, which can  be  given
 effect  without  that  provision  or  application;  and to that end, the
 provisions and applications of this act are severable.
   § 4. This act shall take effect on the one hundred eightieth day after
 it shall have become a law. Effective immediately, the addition,  amend-
 ment and/or repeal of any rule or regulation necessary for the implemen-
 tation  of  this act on its effective date are authorized to be made and
 completed on or before such effective date.