S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   5855
 
                        2023-2024 Regular Sessions
 
                             I N  S E N A T E
 
                              March 20, 2023
                                ___________
 
 Introduced  by  Sen.  PARKER -- 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, and as renumbered by chapter 432 of the
 laws of 1974, the section heading and subdivisions 1 and 4 as amended by
 chapter 358 of the laws of 1989, 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;
   (2) from propulsion of the article or any part or accessory thereof;
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD07444-01-3
 S. 5855                             2
              

 
   (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
 to show in writing within five business days after receipt of notice why
 S. 5855                             3
 
 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.