S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   5363
 
                        2023-2024 Regular Sessions
 
                           I N  A S S E M B L Y
 
                               March 7, 2023
                                ___________
 
 Introduced  by  M.  of  A.  GALLAGHER  --  read once and referred to the
   Committee on Environmental Conservation
 
 AN ACT to amend the  environmental  conservation  law,  in  relation  to
   prohibiting the sale and distribution of anti-fogging sprays and wipes
   containing perfluoroalkyl and polyfluoroalkyl substances

   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 11 to read as follows:
                                  TITLE 11
               PERFLUOROALKYL AND POLYFLUOROALKYL SUBSTANCES
 
 SECTION 37-1101. DEFINITIONS.
         37-1103. APPLICABILITY.
         37-1105. PROHIBITION ON THE SALE AND DISTRIBUTION  OF  ANTI-FOG-
                    GING  SPRAYS  AND WIPES CONTAINING PERFLUOROALKYL AND
                    POLYFLUOROALKYL SUBSTANCES.
         37-1107. PRODUCT LABELING.
         37-1109. PREEMPTION.
         37-1111. RULES AND REGULATIONS.
         37-11113. VIOLATIONS.
 § 37-1101. DEFINITIONS.
   AS USED IN THIS TITLE:
   1. "ANTI-FOGGING SPRAYS AND WIPES"  MEANS  ANY  PRODUCT,  INCLUDING  A
 SPRAY,  CLOTH,  WIPE  OR  OTHER  MATERIAL,  THAT  IS INTENDED TO PREVENT
 CONDENSATION ON EYEGLASSES.
   2. "DISTRIBUTOR" MEANS A PERSON,  FIRM,  ASSOCIATION,  PARTNERSHIP  OR
 CORPORATION,  WHO  OR  WHICH  IMPORTS  OR CAUSES TO BE IMPORTED INTO THE
 STATE, ANY PRODUCT CONTAINING PFAS SUBSTANCES.
   3. "INTENTIONALLY ADDED CHEMICAL"  SHALL  HAVE  THE  SAME  MEANING  AS
 SUBDIVISION ELEVEN OF SECTION 37-0901 OF THIS ARTICLE.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD04073-01-3
              

 A. 5363                             2
 
   4.  "MANUFACTURER"  MEANS  A PERSON, FIRM, ASSOCIATION, PARTNERSHIP OR
 CORPORATION, WHO OR WHICH MAKES PRODUCTS CONTAINING PFAS SUBSTANCES.
   5.   "PERFLUOROALKYL   AND   POLYFLUOROALKYL   SUBSTANCES"   OR  "PFAS
 SUBSTANCES" MEANS A CLASS OF FLUORINATED ORGANIC CHEMICALS CONTAINING AT
 LEAST ONE FULLY FLUORINATED CARBON ATOM.
   6. "PERSON" MEANS A NATURAL PERSON, CORPORATION, COMPANY, PARTNERSHIP,
 TRUST OR ASSOCIATION.
 § 37-1103. APPLICABILITY.
   THE PROVISIONS OF THIS TITLE SHALL APPLY TO  THE  DISTRIBUTION,  SALE,
 OFFER FOR SALE OR OFFER FOR DISTRIBUTION OF PRODUCTS CONTAINING PERFLUO-
 ROALKYL AND POLYFLUOROALKYL SUBSTANCES ON OR AFTER THE EFFECTIVE DATE OF
 THIS TITLE.
 § 37-1105. PROHIBITION  ON  THE  SALE  AND  DISTRIBUTION OF ANTI-FOGGING
              SPRAYS AND WIPES CONTAINING PERFLUOROALKYL AND  POLYFLUORO-
              ALKYL SUBSTANCES.
   NO PERSON SHALL DISTRIBUTE, SELL, OFFER FOR SALE OR OFFER FOR DISTRIB-
 UTION  IN THIS STATE ANTI-FOGGING SPRAYS AND WIPES CONTAINING PERFLUORO-
 ALKYL AND POLYFLUOROALKYL SUBSTANCES AS INTENTIONALLY ADDED CHEMICALS.
 § 37-1107. PRODUCT LABELING.
   THE COMMISSIONER MAY AUTHORIZE PRODUCT LABELING OF  PRODUCTS  THAT  DO
 NOT  CONTAIN  PERFLUOROALKYL  AND  POLYFLUOROALKYL  SUBSTANCES REGULATED
 PURSUANT TO THE PROVISIONS OF THIS TITLE. THE LABEL ON SUCH PRODUCTS MAY
 PROMINENTLY   STATE   "PERFLUOROALKYL   AND   POLYFLUOROALKYL-FREE"   OR
 "PFAS-FREE"  TO  INFORM  CONSUMERS  THAT  THE  PRODUCT  DOES NOT CONTAIN
 PERFLUOROALKYL AND POLYFLUOROALKYL SUBSTANCES.
 § 37-1109. PREEMPTION.
   TO THE EXTENT NOT INCONSISTENT WITH FEDERAL LAW, JURISDICTION  IN  ALL
 MATTERS PERTAINING TO PRODUCTS CONTAINING PERFLUOROALKYL AND POLYFLUORO-
 ALKYL  SUBSTANCES WHICH ARE REGULATED PURSUANT TO THE PROVISIONS OF THIS
 TITLE SHALL BE VESTED EXCLUSIVELY IN THE STATE.
 § 37-1111. RULES AND REGULATIONS.
   THE COMMISSIONER SHALL HAVE THE POWER TO ADOPT RULES  AND  REGULATIONS
 TO PROVIDE FOR THE EFFECTIVE APPLICATION AND ENFORCEMENT OF THIS TITLE.
 § 37-1113. VIOLATIONS.
   1.  A  VIOLATION OF ANY OF THE PROVISIONS OF THIS TITLE OR OF ANY RULE
 OR REGULATION PROMULGATED PURSUANT THERETO SHALL BE  PUNISHABLE  IN  THE
 CASE 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  PERSON SHALL BE HELD IN VIOLATION OF THIS TITLE IF SUCH PERSON
 CAN SHOW THAT, IN THE PURCHASE OF  A  PRODUCT  FROM  A  MANUFACTURER  OR
 DISTRIBUTOR,  SUCH  PERSON RELIED IN GOOD FAITH ON THE WRITTEN ASSURANCE
 OF THE MANUFACTURER OR DISTRIBUTOR OF SUCH PRODUCT THAT SUCH PRODUCT MET
 THE REQUIREMENTS OF THIS TITLE. SUCH WRITTEN ASSURANCE SHALL  TAKE  SUCH
 FORM AS SHALL BE PRESCRIBED BY THE DEPARTMENT BY REGULATION.
   §  2. Severability. If any clause, sentence, paragraph, subdivision or
 section of this act shall be adjudged by any court of  competent  juris-
 diction to be invalid, such judgment shall not affect, impair, or inval-
 idate  the  remainder thereof, but shall be confined in its operation to
 the clause, sentence, paragraph, subdivision, section  or  part  thereof
 directly  involved  in the controversy in which such judgment shall have
 been rendered. It is hereby declared to be the intent of the legislature
 that this act would have been enacted even if  such  invalid  provisions
 had not been included herein.
 A. 5363                             3
 
   §  3.  This  act  shall take effect December 31, 2023. Effective imme-
 diately, the addition, amendment and/or repeal of any rule or regulation
 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.

                             
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  5363--B
 
                        2023-2024 Regular Sessions
 
                           I N  A S S E M B L Y
 
                               March 7, 2023
                                ___________
 
 Introduced  by  M. of A. GALLAGHER, FAHY, THIELE, STERN, GONZALEZ-ROJAS,
   JACOBSON, LEVENBERG, SIMON, SIMONE, L. ROSENTHAL, COLTON, REYES, SHIM-
   SKY, RAGA, CLARK, SEAWRIGHT, FORREST -- read once and referred to  the
   Committee  on Environmental Conservation -- committee discharged, bill
   amended, ordered reprinted as amended and recommitted to said  commit-
   tee  --  recommitted to the Committee on Environmental Conservation in
   accordance with Assembly Rule 3, sec. 2 -- committee discharged,  bill
   amended,  ordered reprinted as amended and recommitted to said commit-
   tee
 
 AN ACT to amend the  environmental  conservation  law,  in  relation  to
   prohibiting  the sale and distribution of anti-fogging sprays or wipes
   containing perfluoroalkyl and polyfluoroalkyl substances
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1.  The environmental conservation law is amended by adding a
 new section 37-0123 to read as follows:
 § 37-0123. PROHIBITIONS AGAINST THE SALE OF ANTI-FOGGING SPRAYS OR WIPES
              CONTAINING PERFLUOROALKYL AND POLYFLUOROALKYL SUBSTANCES.
   1. FOR  THE  PURPOSES OF THIS SECTION, THE FOLLOWING TERMS SHALL  HAVE
 THE FOLLOWING MEANINGS:
   (A)  "ANTI-FOGGING  SPRAYS  OR  WIPES"  MEANS ANY PRODUCT, INCLUDING A
 SPRAY, CLOTH, WIPE OR  OTHER  MATERIAL,  THAT  IS  INTENDED  TO  PREVENT
 CONDENSATION ON EYEGLASSES.
   (B)  "INTENTIONALLY ADDED CHEMICAL" MEANS A CHEMICAL IN A PRODUCT THAT
 SERVES AN INTENDED FUNCTION OR TECHNICAL EFFECT IN THE PRODUCT OR  PROD-
 UCT  COMPONENT,  INCLUDING THE PFAS WITHIN INTENTIONALLY ADDED CHEMICALS
 AND PFAS THAT ARE INTENTIONAL BREAKDOWN PRODUCTS OF  AN  ADDED  CHEMICAL
 THAT  ALSO HAVE A FUNCTIONAL OR TECHNICAL EFFECT IN THE PRODUCT OR PROD-
 UCT COMPONENT.
   (C) "MANUFACTURER" MEANS A PERSON, FIRM, ASSOCIATION,  PARTNERSHIP  OR
 CORPORATION:
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD04073-12-4
              

 A. 5363--B                          2
 
   (I)  THAT  MAKES OR WHOSE BRAND NAME IS AFFIXED TO ANTI-FOGGING SPRAYS
 OR WIPES; OR
   (II)  IN  THE  CASE OF ANTI-FOGGING SPRAYS OR WIPES THAT WERE IMPORTED
 INTO THE UNITED STATES,  "MANUFACTURER"  MEANS  THE  IMPORTER  OR  FIRST
 DOMESTIC  DISTRIBUTOR  OF SUCH ANTI-FOGGING SPRAYS OR WIPES IF NO PERSON
 WHO IS A MANUFACTURER WITHIN THE MEANING OF  SUBPARAGRAPH  (I)  OF  THIS
 PARAGRAPH HAS A PRESENCE IN THE UNITED STATES.
   (D)   "PERFLUOROALKYL   AND   POLYFLUOROALKYL   SUBSTANCES"  OR  "PFAS
 SUBSTANCES" MEANS A CLASS OF FLUORINATED ORGANIC CHEMICALS CONTAINING AT
 LEAST ONE FULLY FLUORINATED CARBON ATOM.
   2. NO PERSON SHALL SELL OR OFFER FOR SALE IN THIS  STATE  ANTI-FOGGING
 SPRAYS OR WIPES CONTAINING PERFLUOROALKYL AND POLYFLUOROALKYL SUBSTANCES
 AS INTENTIONALLY ADDED CHEMICALS.
   3.  NO PERSON THAT SELLS OR OFFERS FOR SALE ANY ANTI-FOGGING SPRAYS OR
 WIPES SHALL BE HELD IN VIOLATION OF THIS TITLE IF  THEY  CAN  SHOW  THAT
 THEY  RELIED  IN GOOD FAITH ON THE WRITTEN ASSURANCE OF THE MANUFACTURER
 OF SUCH PRODUCT THAT SUCH PRODUCT MET THE REQUIREMENTS OF THIS  SECTION.
 SUCH  WRITTEN  ASSURANCE SHALL TAKE THE FORM OF A CERTIFICATE OF COMPLI-
 ANCE STATING THAT  SUCH PRODUCT IS IN COMPLIANCE WITH  THE  REQUIREMENTS
 OF  THIS  SECTION.  THE  CERTIFICATE OF COMPLIANCE SHALL BE SIGNED BY AN
 AUTHORIZED OFFICIAL OF THE MANUFACTURER.
   4. IN ADDITION TO ANY  OTHER  APPLICABLE  PENALTIES,  IT  SHALL  BE  A
 VIOLATION  OF  THIS  SECTION  TO  PROVIDE A CERTIFICATE OF COMPLIANCE AS
 CONTEMPLATED BY SUBDIVISION THREE OF THIS SECTION  WHEN  THE  APPLICABLE
 ANTI-FOGGING  SPRAYS  OR  WIPES  DO  NOT SATISFY THE PROHIBITIONS ON THE
 PRESENCE OF PERFLUOROALKYL AND POLYFLUOROALKYL SUBSTANCES SET  FORTH  IN
 SUBDIVISION TWO OF THIS SECTION.
   §  2. Section 71-3703 of the environmental conservation law is amended
 by adding a new subdivision 7 to read as follows:
   7. ANY PERSON WHO VIOLATES ANY OF THE PROVISIONS OF, OR WHO  FAILS  TO
 PERFORM  ANY DUTY IMPOSED BY SECTION 37-0123 OF THIS CHAPTER OR ANY RULE
 OR REGULATION PROMULGATED PURSUANT THERETO, SHALL BE LIABLE FOR A  CIVIL
 PENALTY  NOT  TO  EXCEED  ONE THOUSAND DOLLARS FOR EACH DAY DURING WHICH
 SUCH VIOLATION CONTINUES, AND IN ADDITION THERETO, SUCH  PERSON  MAY  BE
 ENJOINED  FROM CONTINUING SUCH VIOLATION. SUCH PERSON SHALL FOR A SECOND
 VIOLATION BE LIABLE TO THE PEOPLE OF THE STATE FOR A CIVIL  PENALTY  NOT
 TO  EXCEED  TWO  THOUSAND FIVE HUNDRED DOLLARS FOR EACH DAY DURING WHICH
 SUCH VIOLATION CONTINUES.
   § 3. This act shall take effect December  31,  2025.  Effective  imme-
 diately, the addition, amendment and/or repeal of any rule or regulation
 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.