Developments in State Chemicals Policy:

Identifying and Regulating Priority Chemicals

 

New York

A law enacted by the New York State legislature in 2020 establishes a program requiring manufacturers to disclose the use of certain chemicals in children’s products, banning the use of certain chemicals by 2023, and creating a framework under which additional “dangerous chemicals” and “chemicals of concern” may be identified and prohibited from use in the future. See N.Y. Senate Bill 501-B (2019 Session). The law, which takes effect March 1, 2020, will be codified as NY Envir. Conservation Law, Article 37, Sections 37-901 et seq. The law also authorizes the department of environmental conservation to adopt rules and regulations to implement the law.

Disclosure of Information on Priority Chemicals. The law lists 103 chemicals that are defined in the law as “chemicals of concern,” and 9 chemicals that are defined as “dangerous chemicals.”

Under the law’s consumer notice provision, within 180 days of the law’s effective date, the Department of Environmental Conservation (“Department”) is required to post the lists of dangerous chemicals and chemicals of concern on its website.

Under the law’s reporting provision, no later than one year after a dangerous chemical appears on the list published by the Department, every manufacturer who offers a children’s product for sale or distribution in New York State that contains a dangerous chemical or chemical of concern must report such chemical use at practical quantification limits to the Department. At a minimum, the report must identify the children’s product, the dangerous chemical or chemical of concern contained in the product, and the intended purpose of such chemicals. The Department may require additional information in the report, including the amount of such chemical in the children’s product or information on the likelihood that the chemical will be released from the product into the environment and the extent to which users are likely to be exposed.

A manufacturer of a children’s product containing a dangerous chemical also must notify persons that offer the product for sale or distribution in New York State of the presence of such dangerous chemical, and provide such persons with information regarding the chemical’s toxicity. A children’s product containing a dangerous chemical may not be sold, offered for sale, or distributed in the state unless the manufacturer has provided such notification by the date required. The Department is required to notify consumers about children’s products containing dangerous chemicals and chemicals of concern via notification published on the department’s website.

Identification of additional priority chemicals. The Department is required to “periodically” review the list of dangerous chemicals and is authorized to promulgate regulations to add or remove dangerous chemicals or chemicals of concern from the respective lists.

The Department is authorized to add a dangerous chemical to the list if it determines, in consultation with the Department of Health, that the chemical is present in a children’s product and meets one of the following criteria: the chemical or its metabolites have been found through biomonitoring to be present in humans; the chemical has been found through sampling and analysis to be present in household dust, indoor air, drinking water or elsewhere in the home environment; the chemical has been found through monitoring to be present in fish, wildlife, or the natural environment; or the sale or use of the chemical (or a children’s product containing the chemical) has been banned in another U.S. state because of the chemical’s health effects. (Chemicals may be removed from the list if, upon review, the department determines on the basis of credible scientific evidence that the chemical no longer meets the criteria for listing.)

The Department is required to identify a chemical as a chemical of concern if, upon review and in consultation with the department of health, it determines that the chemical has been identified by a state, federal, or international government entity on the basis of credible scientific evidence as being: a carcinogen, reproductive or developmental toxicant, neurotoxicant, asthmagen, or endocrine disruptor; persistent, bioaccumulative, and toxic; or very persistent and very bioaccumulative.

Regulation of Priority Chemicals. In addition to the disclosure requirements, the law includes a sales prohibition that applies to certain chemicals beginning January 1, 2023. Starting on that date, no person may distribute, sell, or offer for sale in New York State (with certain stated exceptions) a children’s product containing: tris (1, 3, dichloro-2-propyl) phosphate, benzene, formaldehyde (other than in textiles), asbestos, and organohalogen flame retardants. When any chemical is added to the dangerous chemicals list through the process established by the law, the sales prohibition applies to that chemical effective three years after the date it was added to the list.

The law does not apply to sale or distribution of used products, nor to children’s product makers that are independently owned and operated and employ 5 people or fewer. Retailers are exempt from the law’s requirements unless they knowingly sell a children’s product containing a dangerous chemical after the effective date of its prohibition, of which the retailer has received notice pursuant to the law.

 

Back to Indoor Chemical Exposures: State Policies for Identifying and Regulating Priority Chemicals