New York State Assembly Passes Proposition 65-Like Law for Children’s Products
On May 4, 2016, the New York State Assembly passed Assembly Bill A5612A, which would regulate priority chemicals and chemicals of concern in children’s products. The bill, modeled after similar programs in Washington, Maine and California, has been referred to the New York Senate’s Environmental Conservation Committee for evaluation. With its notification requirements, the bill creates Proposition 65-like obligations on manufacturers, importers and retailers of children’s products.
The bill applies only to children’s products, defined as products primarily intended for, made for, or marketed for use by children aged twelve and under, including children’s apparel. The term does not include batteries, consumer electronic products, foods or beverages, pesticides, or drugs and medical devices regulated by the Food and Drug Administration. Although the bill also exempts motor vehicles, car seats are not exempt. In addition, the law would apply to new, not used, children’s products.
Duty to Report and to Notify Consumers
Manufacturers (or importers) of children’s products containing a “priority chemical” (described further below) above the practical quantitation limit would be required to submit a report to the New York Department of Environmental Conservation (DEC) identifying the children’s product, the priority chemical in the product, and the intended use of the chemical. The DEC may also require information about the potential for harm to human health and the environment resulting from this use, the amount of the priority chemical in the product, or information about the release of the chemical from the product into the environment. Curiously, although the bill contains a definition of “contaminant,” there is no substantive provision relating to contaminants (such as an exemption for priority chemicals that are contaminants).
Significantly, the manufacturer (or importer) would be required to notify entities in the product’s New York state’s distribution chain, including New York retailers, of the presence of the priority chemical in the product and information regarding the toxicity of the chemical. Retailers receiving such notification would be required to “conspicuously post notice to consumers identifying such product and the priority chemicals they contain.” The DEC also would post similar information on its website.
Beginning in 2019, the sale of children’s products containing specified chemicals, including the flame retardant TDCPP, benzene and certain heavy metals, would be banned. In addition, three years after a chemical is added to the priority chemicals list, the sale of children’s products containing a priority chemical would be banned.
Chemicals of High Concern and Priority Chemicals
The bill establishes a list of over 60 “chemicals of high concern,” including certain flame retardants, heavy metals like lead and cadmium, bisphenol A and certain phthalates. The DEC is authorized to review and update this list. In language reminiscent of the Proposition 65 authoritative bodies listing mechanism, the bill requires DEC to add a chemical to the list if the chemical has been identified by a state , federal or international government entity, based on credible scientific information, as:
- A carcinogen, reproductive/developmental toxicant, neurotoxicant or asthmagen;
- Persistent, bioaccumulative and toxic (PBT); or
- Very persistent and very bioaccumulative.
The bill further authorizes DEC to identify “priority chemicals” from the chemical of high concern list, if the chemical of high concern meets one or more of the following criteria:
- The chemical or its metabolites have been found in humans through biomonitoring;
- The chemical has been found in household dust, indoor air, drinking water or elsewhere in the home environment;
- The chemical has been found in fish, wildlife or the environment; or
- The sale or use of the chemical or a children’s product containing it has been banned in another state due to its health effects.
The bill requires the DEC to publish the list of chemicals of high concern and the list of priority chemicals within 180 days of the effective date of the law.