S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   8491
 
                        2021-2022 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             November 17, 2021
                                ___________
 
 Introduced  by  M. of A. ZEBROWSKI, THIELE, SIMON, BUTTENSCHON, DICKENS,
   GOTTFRIED, SEAWRIGHT, STECK, GALEF,  O'DONNELL,  ZINERMAN,  CAHILL  --
   read once and referred to the Committee on Environmental Conservation
 
 AN ACT to amend the environmental conservation law, in relation to phas-
   ing out the sale of products that contain intentionally added PFAS

   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Article 37 of the environmental conservation law is amended
 by adding a new title 4 to read as follows:
                                  TITLE 4
     PRODUCTS CONTAINING PERFLUOROALKYL AND POLYFLUOROALKYL SUBSTANCES
 SECTION 37-0401. DEFINITIONS.
         37-0403. NOTIFICATION.
         37-0405. EXEMPTIONS.
         37-0407. PROHIBITION  ON  SALE  OF  PRODUCTS  CONTAINING  INTEN-
                    TIONALLY ADDED PFAS.
         37-0409. FAILURE TO PROVIDE NOTICE.
         37-0411. VIOLATIONS.
         37-0413. RULES AND REGULATIONS.
 § 37-0401. DEFINITIONS.
   FOR  THE  PURPOSES OF THIS TITLE, THE TERM:  1. "CURRENTLY UNAVOIDABLE
 USE" MEANS A USE OF PFAS THAT THE DEPARTMENT HAS DETERMINED TO BE ESSEN-
 TIAL FOR HEALTH, SAFETY OR THE FUNCTIONING  OF  SOCIETY  AND  FOR  WHICH
 ALTERNATIVES ARE NOT REASONABLY AVAILABLE.
   2.  "INTENTIONALLY  ADDED  CHEMICAL"  SHALL  HAVE  THE SAME MEANING AS
 SUBDIVISION 11 OF SECTION 37-0901 OF THIS ARTICLE.
   3. "MANUFACTURER" MEANS THE PERSON  THAT  MANUFACTURES  A  PRODUCT  OR
 WHOSE  BRAND  NAME  IS  AFFIXED TO THE PRODUCT. IN THE CASE OF A PRODUCT
 IMPORTED INTO THE UNITED STATES, "MANUFACTURER" INCLUDES THE IMPORTER OR
 FIRST DOMESTIC DISTRIBUTOR OF THE PRODUCT IF THE  PERSON  THAT  MANUFAC-
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD13339-02-1
 A. 8491                             2
              

 
 TURED  OR  ASSEMBLED  THE  PRODUCT OR WHOSE BRAND NAME IS AFFIXED TO THE
 PRODUCT DOES NOT HAVE A PRESENCE IN THE UNITED STATES.
   4.  "PERFLUOROALKYL  AND  POLYFLUOROALKYL  SUBSTANCES" OR "PFAS" MEANS
 SUBSTANCES THAT INCLUDE ANY MEMBER OF THE CLASS OF  FLUORINATED  ORGANIC
 CHEMICALS CONTAINING AT LEAST ONE FULLY FLOURISHED CARBON ATOM.
   5. "PRODUCT" MEANS AN ITEM MANUFACTURED, ASSEMBLED, PACKAGED OR OTHER-
 WISE  PREPARED  FOR SALE TO CONSUMERS, INCLUDING ITS PRODUCT COMPONENTS,
 SOLD OR DISTRIBUTED FOR PERSONAL, RESIDENTIAL, COMMERCIAL OR  INDUSTRIAL
 USE, INCLUDING FOR USE IN MAKING OTHER PRODUCTS.
   6.  "PRODUCT  COMPONENT" MEANS AN IDENTIFIABLE COMPONENT OF A PRODUCT,
 REGARDLESS OF WHETHER THE MANUFACTURER OF THE PRODUCT IS THE MANUFACTUR-
 ER OF THE COMPONENT.
   7. "CARPET OR RUG" MEANS A FABRIC MARKETED OR INTENDED TO BE USED AS A
 FLOORING COVERING.
   8. "COOKWARE" MEANS A DURABLE HOUSEWARE ITEM THAT IS USED IN HOMES AND
 RESTAURANTS TO PREPARE, DISPENSE, OR STORE FOOD, FOODSTUFFS OR  BEVERAG-
 ES.    "COOKWARE"  INCLUDES  BUT IS NOT LIMITED TO POTS, PANS, SKILLETS,
 GRILLS, BAKING SHEETS, BAKING MOLDS, TRAYS, BOWLS AND COOKING UTENSILS.
   9. "COSMETIC PRODUCT" SHALL HAVE THE SAME MEANING AS SUBDIVISION 1  OF
 SECTION 37-0117 OF THIS ARTICLE.
   10. "PERSONAL CARE PRODUCT" SHALL HAVE THE SAME MEANING AS SUBDIVISION
 2 OF SECTION 37-0117 OF THIS ARTICLE.
   11.  "FABRIC  TREATMENT" MEANS A SUBSTANCE APPLIED TO A FABRIC TO GIVE
 THE FABRIC ONE OR MORE CHARACTERISTICS  INCLUDING  BUT  NOT  LIMITED  TO
 STAIN OR WATER RESISTANCE.
 § 37-0403. NOTIFICATION.
   A  MANUFACTURER  OF  A  PRODUCT  FOR  SALE  IN THE STATE THAT CONTAINS
 PERFLUOROALKYL AND POLYFLUOROALKYL SUBSTANCES  (PFAS)  AS  INTENTIONALLY
 ADDED CHEMICALS SHALL COMPLY WITH THE REQUIREMENTS OF THIS SECTION.
   1.  BEGINNING  JANUARY FIRST, TWO THOUSAND TWENTY-FOUR, A MANUFACTURER
 OF A PRODUCT FOR SALE IN THE  STATE  THAT  CONTAINS  PERFLUOROALKYL  AND
 POLYFLUOROALKYL SUBSTANCES (PFAS) AS INTENTIONALLY ADDED CHEMICALS SHALL
 SUBMIT TO THE DEPARTMENT A WRITTEN NOTIFICATION THAT INCLUDES:
   (A) A BRIEF DESCRIPTION OF THE PRODUCT;
   (B)  THE PURPOSE FOR WHICH PFAS ARE USED IN THE PRODUCT, INCLUDING ANY
 PRODUCT COMPONENTS;
   (C) THE AMOUNT OF  EACH  OF  THE  PFAS,  IDENTIFIED  BY  ITS  CHEMICAL
 ABSTRACTS  SERVICE REGISTRY NUMBER, IN THE PRODUCT, REPORTED AS AN EXACT
 QUANTITY DETERMINED USING COMMERCIALLY AVAILABLE ANALYTIC METHODS OR  AS
 FALLING  WITHIN  A  RANGE APPROVED FOR REPORTING PURPOSES BY THE DEPART-
 MENT;
   (D) THE NAME AND ADDRESS OF THE MANUFACTURER, AND  THE  NAME,  ADDRESS
 AND PHONE NUMBER OF A CONTACT PERSON FOR THE MANUFACTURER; AND
   (E)  ANY  ADDITIONAL INFORMATION ESTABLISHED BY THE DEPARTMENT BY RULE
 AS NECESSARY TO IMPLEMENT THE REQUIREMENTS OF THIS SECTION.
   2. WITH THE APPROVAL OF THE DEPARTMENT, A MANUFACTURER MAY SUPPLY  THE
 INFORMATION  REQUIRED IN SUBDIVISION 1 OF THIS SECTION FOR A CATEGORY OR
 TYPE OF PRODUCT RATHER THAN FOR EACH INDIVIDUAL PRODUCT.
   3. A MANUFACTURER SHALL UPDATE AND REVISE THE INFORMATION IN THE WRIT-
 TEN NOTIFICATION REQUIRED IN SUBDIVISION  1  OF  THIS  SECTION  WHENEVER
 THERE  IS  SIGNIFICANT CHANGE IN THE INFORMATION OR WHEN REQUESTED TO DO
 SO BY THE DEPARTMENT.
   4. THE DEPARTMENT MAY EXTEND THE DEADLINE FOR SUBMISSION BY A MANUFAC-
 TURER OF THE INFORMATION REQUIRED UNDER THIS SECTION  IF  DEEMED  NECES-
 SARY.
 § 37-0405. EXEMPTIONS.
 A. 8491                             3
 
   THE FOLLOWING ARE EXEMPT FROM THIS SECTION:
   1. A PRODUCT FOR WHICH FEDERAL LAW GOVERNS THE PRESENCE OF PFAS IN THE
 PRODUCT IN A MANNER THAT PREEMPTS STATE AUTHORITY; AND
   2.   ANY   PRODUCT   CONTAINING   PERFLUOROALKYL  AND  POLYFLUOROALKYL
 SUBSTANCES (PFAS) AS  INTENTIONALLY  ADDED  CHEMICALS  WHICH  HAVE  BEEN
 DEEMED BY THE DEPARTMENT AS A CURRENTLY UNAVOIDABLE USE.
 § 37-0407. PROHIBITION  ON  SALE  OF  PRODUCTS  CONTAINING INTENTIONALLY
              ADDED PFAS.
   1. BEGINNING JANUARY FIRST, TWO THOUSAND TWENTY-FIVE, A  PERSON  SHALL
 NOT  DISTRIBUTE, SELL OR OFFER FOR SALE IN THIS STATE ANY CARPET OR RUG,
 COOKWARE, COSMETIC PRODUCT, FABRIC TREATMENT OR  PERSONAL  CARE  PRODUCT
 THAT  CONTAINS  PERFLUOROALKYL  AND POLYFLUOROALKYL SUBSTANCES (PFAS) AS
 INTENTIONALLY ADDED CHEMICALS, UNLESS THE DEPARTMENT HAS DETERMINED THAT
 THE USE OF PFAS IN SUCH PRODUCT IS CURRENTLY AN UNAVOIDABLE USE.
   2. THE DEPARTMENT MAY IDENTIFY PRODUCTS BY CATEGORY OR  USE  THAT  MAY
 NOT  BE  SOLD,  OFFERED  FOR  SALE  OR DISTRIBUTED IN THIS STATE IF THEY
 CONTAIN PERFLUOROALKYL AND POLYFLUOROALKYL SUBSTANCES (PFAS)  AS  INTEN-
 TIONALLY ADDED CHEMICALS IF THE DEPARTMENT DETERMINES THAT SUCH PRODUCTS
 ARE  LIKELY  TO CAUSE CONTAMINATION OF LAND OR WATER RESOURCES AND ARE A
 THREAT TO HUMAN HEALTH OR SAFETY.
   3. BEGINNING JANUARY FIRST, TWO THOUSAND THIRTY, A  PERSON  SHALL  NOT
 DISTRIBUTE,  SELL  OR  OFFER  FOR  SALE  IN  THIS STATE ANY PRODUCT THAT
 CONTAINS PERFLUOROALKYL AND POLYFLUOROALKYL SUBSTANCES (PFAS) AS  INTEN-
 TIONALLY  ADDED  CHEMICALS UNLESS THE DEPARTMENT HAS DETERMINED THAT THE
 USE OF PFAS IS A CURRENTLY UNAVOIDABLE USE.
   4. THE DEPARTMENT SHALL PUBLISH AND MAINTAIN A LIST OF  PRODUCTS  THAT
 ARE  EXEMPT  FROM THE PROHIBITION ON DISTRIBUTION, SALE OR OFFER OF SALE
 AS DETERMINED TO BE A CURRENTLY UNAVOIDABLE USE.
   5. THE PROHIBITION ON DISTRIBUTION, SALE OR  OFFER  OF  SALE  IN  THIS
 SECTION DOES NOT APPLY TO THE SALE OR RESALE OF USED PRODUCTS.
 § 37-0409. FAILURE TO PROVIDE NOTICE.
   1.  (A)  A PERSON SHALL NOT DISTRIBUTE, SELL OR OFFER FOR SALE IN THIS
 STATE  A  PRODUCT  THAT  CONTAINS  PERFLUOROALKYL  AND   POLYFLUOROALKYL
 SUBSTANCES  (PFAS)  AS INTENTIONALLY ADDED CHEMICALS IF THE MANUFACTURER
 HAS FAILED TO COMPLY WITH REQUIREMENTS IN SECTION 37-0403 OF THIS  TITLE
 EXCEPT WHERE SUCH PRODUCT CONTAINING PERFLUOROALKYL  AND POLYFLUOROALKYL
 SUBSTANCES  (PFAS)  AS  INTENTIONALLY  ADDED  CHEMICALS, WHICH HAVE BEEN
 DEEMED BY THE DEPARTMENT AS A CURRENTLY UNAVOIDABLE USE.
   (B) THE PROHIBITION IN THIS SECTION SHALL NOT APPLY TO A  RETAILER  IN
 THE  STATE  UNLESS THE RETAILER DISTRIBUTES, SELLS, OR OFFERS FOR SALE A
 PRODUCT FOR WHICH THE RETAILER HAS RECEIVED NOTIFICATION THAT  THE  SALE
 OF THE PRODUCT IS PROHIBITED.
   2.  IF  THE  DEPARTMENT  HAS REASON TO BELIEVE THAT A PRODUCT CONTAINS
 PERFLUOROALKYL AND POLYFLUOROALKYL SUBSTANCES  (PFAS)  AS  INTENTIONALLY
 ADDED CHEMICALS BEING DISTRIBUTED, SOLD OR OFFERED FOR SALE IN VIOLATION
 OF THIS SECTION, THE DEPARTMENT MAY DIRECT THE MANUFACTURER OF THE PROD-
 UCT TO, WITHIN THIRTY DAYS:
   (A) PROVIDE THE DEPARTMENT WITH A STATEMENT ATTESTING THAT THE PRODUCT
 DOES NOT CONTAIN PERFLUOROALKYL AND POLYFLUOROALKYL SUBSTANCES (PFAS) AS
 INTENTIONALLY ADDED CHEMICALS; OR
   (B)  NOTIFY  PERSONS WHO SELL THAT PRODUCT IN THIS STATE THAT THE SALE
 OF THAT PRODUCT IS PROHIBITED IN THIS STATE AND PROVIDE  THE  DEPARTMENT
 WITH A LIST OF THE NAMES AND ADDRESSES OF THOSE NOTIFIED.
 § 37-0411. VIOLATIONS.
   1.  A  VIOLATION OF ANY OF THE PROVISIONS OF THIS TITLE OR ANY RULE OR
 REGULATION PROMULGATED PURSUANT THERETO SHALL BE PUNISHABLE IN THE  CASE
 A. 8491                             4
 
 OF  A  FIRST  VIOLATION,  BY  A CIVIL PENALTY NOT TO EXCEED TEN THOUSAND
 DOLLARS. IN THE CASE OF A SECOND AND ANY FURTHER VIOLATION, THE  LIABIL-
 ITY  SHALL  BE  FOR  A  CIVIL PENALTY NOT TO EXCEED TWENTY-FIVE THOUSAND
 DOLLARS FOR EACH VIOLATION.
   2. NO MANUFACTURER, DISTRIBUTOR OR RETAILER OF A PRODUCT SHALL BE HELD
 IN  VIOLATION  OF  THIS TITLE WHO CAN SHOW THAT HE OR SHE RELIED IN GOOD
 FAITH ON THE WRITTEN ASSURANCE OF THE MANUFACTURER OF SUCH COVERED PROD-
 UCT THAT SUCH PRODUCT MET THE REQUIREMENTS OF THIS TITLE.  SUCH  WRITTEN
 ASSURANCE  SHALL  TAKE  THE  FORM OF A CERTIFICATE OF COMPLIANCE STATING
 THAT A PRODUCT IS IN COMPLIANCE WITH THE  REQUIREMENTS  OF  THIS  TITLE,
 PROVIDED  HOWEVER,  WHERE  COMPLIANCE IS ACHIEVED BECAUSE THE PRODUCT IS
 EXEMPT PURSUANT TO SECTION 37-0405 OF THIS TITLE, THE CERTIFICATE  SHALL
 STATE  THE  SPECIFIC BASIS UPON WHICH THE PRODUCT IS EXEMPT. THE CERTIF-
 ICATE OF COMPLIANCE SHALL BE SIGNED BY AN  AUTHORIZED  OFFICIAL  OF  THE
 MANUFACTURING OR DISTRIBUTING COMPANY.
 § 37-0413. RULES AND REGULATIONS.
   THE  COMMISSIONER  SHALL  HAVE THE POWER TO ADOPT SUCH RULES AND REGU-
 LATIONS TO PROVIDE FOR THE EFFECTIVE APPLICATION AND ENFORCEMENT OF THIS
 TITLE AS DEEMED NECESSARY.
   § 2. This act shall take effect immediately.