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

                                  5711

                       2011-2012 Regular Sessions

                          I N  A S S E M B L Y

                            February 25, 2011
                               ___________

Introduced  by  M.  of  A.  ENGLEBRIGHT, CAHILL, MILLMAN, GALEF, BARRON,
  COLTON, GABRYSZAK, ORTIZ, WEISENBERG, JAFFEE -- Multi-Sponsored by  --
  M.  of A. GIBSON, GOTTFRIED, GUNTHER, JACOBS, McENENY, PHEFFER -- read
  once and referred to the Committee on Consumer Affairs and Protection

AN ACT to amend the general business law, in relation to hazardous  toys
  and other articles intended for use by children

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Section 396-k of the general  business  law,  as  added  by
chapter  754 of the laws of 1973, the section heading and subdivisions 1
and 4 as amended by chapter 358 of the laws of 1989 and such section  as
renumbered  by  chapter  432  of the laws of 1974, is amended to read as
follows:
  S 396-k. Hazardous toys and other articles intended primarily for  use
by  children;  prohibition  and  enforcement. 1. No person, firm, corpo-
ration, association or agent or employee thereof shall import,  manufac-
ture,  sell, hold for sale or distribute a toy or other article intended
for use by a child which presents an electrical, mechanical  or  thermal
hazard  OR  THAT IS CONTAMINATED WITH ANY TOXIC SUBSTANCE. The following
definitions are applicable to this section:
  (a) "Child" means any person less than fourteen years of age;
  (b) A toy or other article presents an electrical hazard if, in normal
use or when subjected to reasonably foreseeable  damage  or  abuse,  its
design or manufacture may cause personal injury or illness by electrical
shock or electrocution;
  (B-1)  "TOY" MEANS AN ARTICLE OR ITEM DESIGNED AND MADE FOR THE AMUSE-
MENT OF A CHILD OR FOR HIS OR HER USE IN PLAY;
  (c) A toy or other article presents a mechanical hazard if, in  normal
use  or  when  subjected  to reasonably foreseeable damage or abuse, its
design or manufacture presents an unreasonable risk of  personal  injury
or illness:

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD08284-01-1
              

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  (1) from fracture, fragmentation or disassembly of the article;
  (2) from propulsion of the article or any part or accessory thereof;
  (3)  from  points  or  other protrusions, surfaces, edges, openings or
closures;
  (4) from moving parts;
  (5) from lack or insufficiency of controls to reduce or stop motion;
  (6) as a result of self-adhering characteristics of the article;
  (7) because the article or any part or accessory thereof may be  aspi-
rated or ingested;
  (8) because of instability; OR
  (9)  [from stuffing material which is not free of dangerous or harmful
substances; or
  (10)] because of any other aspect of the article's design or  manufac-
ture.
  (d) A toy or other article presents a thermal hazard if, in normal use
or  when subjected to reasonably foreseeable damage or abuse, its design
or manufacture presents an  unreasonable  risk  to  personal  injury  or
illness because of heat as from heated parts, substances or surfaces[.];
AND
  (E)  A  TOY IS CONTAMINATED WITH A TOXIC SUBSTANCE IF IT IS ANY OF THE
FOLLOWING:
  (1) IS COATED WITH PAINTS AND LACQUERS CONTAINING COMPOUNDS OF LEAD OF
WHICH THE LEAD CONTENT (CALCULATED AS PB) IS IN EXCESS OF THAT PERMITTED
BY FEDERAL REGULATIONS CONTAINED IN SECTION 1500.17 OF TITLE 16  OF  THE
CODE  OF  FEDERAL  REGULATIONS ADOPTED PURSUANT TO THE FEDERAL HAZARDOUS
SUBSTANCES ACT, CHAPTER 30 (COMMENCING WITH SECTION 1261) OF TITLE 15 OF
THE UNITED STATES CODE,  OR  SOLUBLE  COMPOUNDS  OF  ANTIMONY,  ARSENIC,
CADMIUM,  MERCURY,  SELENIUM  OR  BARIUM,  INTRODUCED AS SUCH. COMPOUNDS
SHALL BE CONSIDERED SOLUBLE IF QUANTITIES IN EXCESS OF 0.1  PERCENT  ARE
DISSOLVED  BY  5 PERCENT HYDROCHLORIC ACID AFTER STIRRING FOR 10 MINUTES
AT ROOM TEMPERATURE;
  (2) CONSISTS IN WHOLE OR IN PART OF A DISEASED, CONTAMINATED,  FILTHY,
PUTRID OR DECOMPOSED SUBSTANCE;
  (3) HAS BEEN PRODUCED, PREPARED, PACKED, SHIPPED, OR HELD UNDER UNSAN-
ITARY  OR  OTHER CONDITIONS WHEREBY IT MAY HAVE BECOME CONTAMINATED WITH
FILTH OR HAZARDOUS MATERIALS OR OTHERWISE RENDERED INJURIOUS TO HEALTH;
  (4) IS STUFFED, PADDED OR LINED WITH MATERIALS THAT ARE TOXIC OR  THAT
WOULD OTHERWISE BE HAZARDOUS IF INGESTED, INHALED, OR CONTACTED; OR
  (5)  IS A STUFFED, PADDED OR LINED TOY THAT IS NOT SECURELY WRAPPED OR
PACKAGED.
  2. Whenever the attorney general shall believe from evidence satisfac-
tory to him that any person, firm, corporation or association  or  agent
or  employee  thereof has violated any provision of this section, he may
bring an action in the supreme court of the state  of  New  York  for  a
judgment  enjoining  the  continuance  of such violation and for a civil
penalty of not more than one thousand dollars for each violation, except
that the court may impose a civil penalty of not more than four thousand
dollars if the violation is knowing and willful. If it shall  appear  to
the satisfaction of the court or justice that the defendant has violated
any  provision  of  this  section,  no  proof shall be required that any
person has been injured thereby nor  that  the  defendant  knowingly  or
intentionally violated such provision. In such action preliminary relief
may  be  granted under article sixty-three of the civil practice law and
rules.
  3. Before any violation of this section is sought to be enjoined,  the
attorney  general shall be required to give the person against whom such

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proceeding is contemplated notice by certified mail and  an  opportunity
to show in writing within five business days after receipt of notice why
proceedings  should  not  be instituted against him, unless the attorney
general  shall  find,  in any case in which he seeks preliminary relief,
that to give such notice and opportunity is not in the public interest.
  4. In any such action it shall be a complete defense that the  toy  or
other  article  sought to be enjoined either complies with, or is exempt
under, the federal "Child Protection and Toy Safety  Act  of  1969",  as
amended,  or  the  federal "Consumer Product Safety Act", as amended, or
any regulation or exemption promulgated under either act  or  any  other
applicable federal law. In the case of children's [sleepware] SLEEPWEAR,
it  shall  be  a complete defense that the article sought to be enjoined
complies with any enforcement policy formally issued by a federal agency
having enforcement authority with respect thereto.
  5. In connection with any  such  proposed  application,  the  attorney
general  is  authorized  to  take  proof, issue subpoenas and administer
oaths in the manner provided in the civil practice law and rules.
  6. If any provisions of this  [chapter]  SECTION  or  the  application
thereof  to  any  person or circumstances is held unconstitutional, such
invalidity shall not affect other provisions  or  applications  of  this
[chapter]  SECTION  which  can  be  given  effect  without  the  invalid
provision or application, and to this end the provisions of this  [chap-
ter] SECTION are severable.
  S 2. This act shall take effect immediately.