S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   2710
 
                        2017-2018 Regular Sessions
 
                             I N  S E N A T E
 
                             January 17, 2017
                                ___________
 
 Introduced  by  Sens.  PARKER, AVELLA -- 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 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:
   §  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:
   (1) from fracture, fragmentation or disassembly of the article;
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD03071-01-7

 S. 2710                             2
 
   (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
 proceeding  is  contemplated notice by certified mail and an opportunity

 S. 2710                             3
 
 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.
   § 2. This act shall take effect immediately.