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.