New York State Regulates Toxic Chemicals in Children’s Products

On February 7, 2020, the governor of the US state of New York signed into law A6296A (companion bill S501-B) to require manufacturers (which include importers or first domestic distributors) of children’s products containing certain chemicals to disclose information on their use at practical quantification limits (PQLs). 

The signed bill, ‘An Act to amend the Environmental Conservation Law, in relation to regulation of toxic chemicals in children’s products’ (the Act), adds Title IX ‘Toxic Chemicals in Children’s Products’ to Article 37 of the Environmental Conservation Law. This legislation was signed pursuant to a chapter agreement, which will, among other things, establish a children’s product safety council and reorganize the regulatory framework for the New York State Department of Environmental Conservation (NYSDEC) to designate chemicals of concern (CoC) and high-priority chemicals (HPC). The Act will become effective on March 1, 2020

The original law as drafted contains provisions relating to, inter alia, an initial list of 103 entries for CoC and an initial list of 9 entries for ‘dangerous chemicals’ (DCs)’, directing the NYDEC to publish lists of COC and DC on its website by August 28, 2020 (within 180 days of March 1, 2020) – these are to be reviewed periodically, reporting requirements for children’s products containing a DC or COC at practical quantification limit (PQL) levels within 12 months after a DC has been added to the list and fee requirements, and waivers for reporting. Additionally, children’s products containing specific DC will be prohibited from January 1, 2023.

On February 10, 2020, the NYS legislature introduced amended bill A9765 (companion bill S7735) to amend the environmental conservation law in relation to regulation of toxic chemicals in children’s products. The amended bill contains important revisions to the original law. These include:

• Definition for ‘children’s product’ – a consumer product primarily intended for, made for or marketed for use by children aged 12 and under, such as apparel, baby products, bedding, car seats, furnishings, furniture, jewelry, novelty products, personal care products, school supplies, toys, and childcare articles to help a child with sucking or teething, to facilitate sleep, relaxation, or the feeding of a child
• Deleting the initial list of 103 entries for COC and references to DC
• Directing the NYDEC to consider at a minimum the 77 entries listed in the bill for promulgating a list of CoC within two years of the effective date – the list will be reviewed periodically
• Designating 1) asbestos, 2) arsenic and arsenic compounds, including arsenic trioxide and dimethyl arsenic, 3) benzene, 4) cadmium (except toy coatings), 5) mercury and mercury compounds, including methyl mercury, 6) organohalogen flame retardants in upholstered bedding or furniture, and 7) tris(1,3-dichloro-2-propyl) phosphate (TDCPP) as HPC – the list will be reviewed periodically
• Reporting requirements for children’s products containing a CoC or HPC at or above PQL within 12 months after these chemicals have been identified – an alternative threshold for the reporting of trace contaminants may be established
• Prohibiting children’s products containing asbestos, benzene or TDCPP which is intentionally added from January 1, 2023 – this does not apply to a) children’s products solely based on their containing an enclosed battery or enclosed electronic components, b) where state regulation on children’s products is preempted by federal law, c) where the presence of the chemical is as a trace contaminant, or d) the component of a children’s product is inaccessible
• Establishing a children’s product safety council to advise NYDEC on HPC – the council to provide the first list of recommended HPC to the NYDEC no later than one year from the initial meeting of the council and then to update the list annually thereafter
• Requiring manufacturers of children’s products containing an HPC to notify persons that offer the children’s product for sale or distribution that the product contains the chemical, and to provide information on its toxicity
• Directing the NYDEC to post information on children’s products containing CoC or HPC on its website 

According to amended bill A9765, this Act will become effective on the same date (March 1, 2020) and in the same manner as chapter 756 of the laws of 2019 amending the environmental conservation law relating to regulation of toxic chemicals in children’s products, as proposed in legislative bills A6296A/S501B, takes effect.

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