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

                                   494

                       2015-2016 Regular Sessions

                          I N  A S S E M B L Y

                               (PREFILED)

                             January 7, 2015
                               ___________

Introduced by M. of A. ENGLEBRIGHT, CAHILL, GALEF, COLTON, ORTIZ, JAFFEE
  --  Multi-Sponsored by -- M. of A. GOTTFRIED, GUNTHER -- 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.
              

                                                           LBD06071-01-5

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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 OR HER that any person, firm, corporation or association  or
agent or employee thereof has violated any provision of this section, he
OR SHE 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 knowing-
ly  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  OR  HER,  unless  the
attorney  general  shall  find,  in  any  case  in which he OR SHE 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.