New York Adopts Broad-Ranging Chemical Safety Legislation
18 February 2020
New York Governor Andrew Cuomo on 7 February signed legislation into law that will require manufacturers of children’s products to disclose chemicals of special concern to children and eliminate various hazardous chemicals from their products.
Specifically, the Child Safe Products Act bans effective from 1 January 2023 the distribution, sale and offer for sale state-wide of children’s products containing tris (1, 3 dichloro-2-propyl) phosphate, benzene, formaldehyde (other than in textiles), asbestos and organohalogen flame retardants. This provision will not apply (i) to a children's product solely based on its containing an enclosed battery or enclosed electronic components and (ii) where state regulation of children's products is pre-empted by federal law. The New York Department of Environmental Conservation may exempt a children's product from this prohibition if the lack of availability of the children's product could pose an unreasonable risk to public health, safety or welfare.
The term “children’s product” refers to a product primarily intended for, made for, or marketed for use by children under the age of 12, such as baby products, toys, car seats, school supplies, personal care products, a product designed or intended by the manufacturer to help a child with sucking or teething, to facilitate sleep, relaxation or the feeding of a child, and children's novelty products, jewellery, bedding, furniture, furnishings and apparel. Excluded from this definition are (i) batteries; (ii) consumer electronic products including personal computers, audio and video equipment, calculators, wireless phones, game consoles, and handheld devices incorporating a video screen, used to access interactive software and their associated peripherals; (iii) foods, beverages and food/beverage additives regulated by the U.S. Food and Drug Administration; and (iv) drugs, biologics and medicals devices regulated by the FDA.
The legislation identifies nine dangerous chemicals – tris (1, 3 dichloro-2-propyl) phosphate; benzene; lead and compounds (inorganic); mercury and mercury compounds, including methyl mercury; formaldehyde; asbestos; arsenic and arsenic compounds, including arsenic trioxide and dimethyl arsenic; cadmium; and organohalogen flame retardants – as well as a broad range of chemicals of concern and provides for a list of these chemicals to be made available on-line and updated on a regular basis. The initial list must be published by 28 August and 12 months thereafter manufacturers that offer children’s products for sale or distribution in New York that contain a chemical included in the list will be required to report the use of such chemical at practical quantification limits. At a minimum, the report must identify the children’s product, the dangerous chemical(s) or chemical(s) of concern, and the intended purpose of such chemical(s), although certain additional information may also be requested. The Department of Environmental Conservation will, in turn, notify consumers on its website about children’s products containing chemicals of concern and dangerous chemicals.
Children’s products containing a dangerous chemical will be barred from being distributed, sold or offered for sale state-wide effective three years after being added to the dangerous chemical list, subject to the aforementioned exemptions for batteries and enclosed electronic components as well as federal pre-emption.
Separately, legislation enacted into law in New York at the end of last year will require manufacturers of children’s jewellery containing lead in an amount of more than 40 parts per million but less than federal standards to provide effective from 1 January 2021 the following warning statement on the jewellery itself or on a label on the immediate container of the jewellery: "WARNING: CONTAINS LEAD. MAY BE HARMFUL IF EATEN OR CHEWED. COMPLIES WITH FEDERAL STANDARDS."
The warning requirement will not apply to children’s jewellery (i) for which federal law governs warnings in a manner that pre-empts state authority; (ii) if the component parts of the children's jewellery containing lead are inaccessible to a child through normal and reasonably foreseeable use and abuse as defined by the U.S. Consumer Product Safety Commission; (iii) if the component parts in question are exempt from third-party testing as determined by the CPSC; or (iv) to children's jewellery resold or offered for resale, or distributed by consumers for consumer use.
- Baby Products
- Toys & Games
- Stationery & Office Equipment
- Furniture & Furnishings
- Garments, Textiles & Accessories
- North America