HB5040 96TH GENERAL ASSEMBLY

LRB096 17893 RPM 33261 b

96TH GENERAL ASSEMBLY
State of Illinois
2009 and 2010
HB5040

Introduced 1/25/2010, by Rep. Naomi D. Jakobsson - Mike Fortner

SYNOPSIS AS INTRODUCED:

New Act

Creates the Child-Safe Chemicals Act. Regulates the sale and distribution of children's products or product components containing cadmium and priority chemicals of high concern. Designates cadmium as a priority chemical. Requires manufacturers and trade associations to report to the Environmental Protection Agency. Sets forth the responsibilities of the Agency. Provides for exemptions. Requires the Agency to create an interstate clearinghouse. Contains provisions for implementation and enforcement. Contains other provisions. Effective immediately.

A BILL FOR

AN ACT concerning safety.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 1. Short title. This Act may be cited as the Child-Safe Chemicals Act.

Section 5. Legislative findings. The General Assembly finds:

(1) Research shows that many toys, children's products, and other consumer products contain cadmium and other chemicals that have been shown to cause harm to children's health and the environment. Cadmium and other chemicals like it have been linked to long-term health impacts, including birth defects, reproductive harm, impaired learning, liver toxicity, and cancer.

(2) The scientific literature provides extensive evidence that cadmium is a dangerous neurotoxicant that can damage the human brain, internal organs, and nervous system.

(3) Because children's bodies are growing and developing, they are especially vulnerable to the effects of toxic chemicals.

(4) To protect children's health, it is important to phase out the use of cadmium in children's toys and to collect information on other hazardous chemicals that are present in toys and other products to determine whether further action is required.

Section 10. Definitions. In this Act:

"Agency" means the Illinois Environmental Protection Agency.

"Alternative" means a substitute process, product, material, chemical, strategy, or combination of these that serves a functionally equivalent purpose to a chemical in a consumer product.

"Children's jewelry" means jewelry that is made for, marketed for use by, or marketed to children under the age of 12 and includes jewelry that meets any of the following conditions:

(1) represented in its packaging, display, or advertising as appropriate for use by children under the age of 12;

(2) sold in conjunction with, attached to, or packaged together with other products that are packaged, displayed, or advertised as appropriate for use by children;

(3) sized for children and not intended for use by adults; or

(4) sold in any of the following:

(i) a vending machine;

(ii) a retail store, catalogue, or online web site, in which a person exclusively offers for sale products that are packaged, displayed, or advertised as appropriate for use by children; or

(iii) a discrete portion of a retail store, catalogue, or online web site, in which a person offers for sale products that are packaged, displayed, or advertised as appropriate for use by children.

"Children's product" includes any of the following:

(1) toys;

(2) cosmetics intended for children under the age of 12;

(3) children's jewelry;

(4) 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, or to be worn as clothing by children; or

(5) child car seats.

"Chemical of high concern" means a chemical identified by an authoritative government entity on the basis of credible scientific evidence as known to:

(1) harm the normal development of a fetus or child or cause other developmental toxicity;

(2) cause cancer, genetic damage, or reproductive harm;

(3) disrupt the endocrine or hormone system;

(4) damage the nervous system, immune system, or organs or cause other systemic toxicity;

(5) be persistent, bioaccumulative, and toxic; or

(6) be very persistent and very bioaccumulative.

"Chemical of low concern" means a chemical for which adequate toxicity and environmental data are available to determine that it is not a chemical of high concern, a chemical of moderate concern, or a chemical of unknown concern.

"Chemical of moderate concern" means a chemical identified by an authoritative governmental entity on the basis of credible scientific evidence as being suspected of causing an adverse health or environmental effect listed in the definition of "chemicals of high concern."

"Chemical of unknown concern" means a chemical for which insufficient data are available to classify it as a chemical of high concern, a chemical of moderate concern, or a chemical of low concern.

"Consumer product" means any item sold for residential or commercial use, including any component parts and packaging. For purposes of this Act, a consumer product does not include a drug or biologic regulated by the U.S. Food and Drug Administration, a food or beverage or additives thereto, tobacco products, or a pesticide regulated by the U.S. Environmental Protection Agency, except that a consumer product may include a container or packaging in which those products are sold.

"Cosmetics" includes articles intended to be rubbed, poured, sprinkled, or sprayed on, introduced into, or otherwise applied to the human body or any part thereof for cleansing, beautifying, promoting attractiveness, or altering the appearance, and articles intended for use as a component of such an article.

"Distributor" means a person who sells products to retail establishments on a wholesale basis.

"Manufacturer" means the person who manufactured a final product or whose brand name is affixed to the product. In the case of a product that was imported into the United States, "manufacturer" includes the importer or domestic distributor of the product if the person who manufactured or assembled the product or whose brand name is affixed to the product does not have a presence in the United States.

"Priority chemical" means a chemical designated as such pursuant to Section 20 of this Act.

"Safer alternative" means an alternative that, when compared to a priority chemical that it could replace, would reduce the potential for harm to human health or the environment or that has not been shown to pose the same or greater potential for harm to human health or the environment as that priority chemical.

"Toy" means a product designed or intended by the manufacturer to be used by a child at play.

"Trade association" means a membership organization of persons engaging in a similar or related line of commerce, organized to promote and improve business conditions in that line of commerce and not to engage in a regular business of a kind ordinarily carried on for profit.

Section 15. Regulation of toxic chemicals in children's products. Beginning July 1, 2011, no person may manufacture, knowingly sell, offer for sale, distribute for sale, or distribute for use in this State a children's product or product component containing cadmium at more than 0.004 percent by weight (40 parts per million).

Section 20. Chemicals of high concern to children designated as priority chemicals.

(a) Cadmium is hereby designated a priority chemical.

(b) The Agency may designate chemicals of high concern as additional priority chemicals after considering a child's or developing fetus's potential for exposure to the chemical based on credible scientific evidence of any one or more of the following:

(i) the chemical has been found through biomonitoring to be present in human blood, including umbilical cord blood, breast milk, urine, or other bodily tissues or fluids;

(ii) 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;

(iii) the chemical has been added to or is present in a consumer product used or present in the home; or

(iv) the chemical has been identified as a high production volume chemical by the U.S. Environmental Protection Agency.

Section 25. Reporting of priority chemicals in consumer products.

(a) Six months after a chemical is identified as a priority chemical pursuant to Section 20 of this Act, a manufacturer of a consumer product containing a priority chemical, or a trade association on behalf of its members, shall provide notice to the Agency that the manufacturer's product contains a priority chemical. The notice shall be in electronic format. The notice must be filed annually with the Agency and shall include the following information:

(i) the name and a brief description of the product;

(ii) the name of the priority chemical;

(iii) the amount of the chemical in each unit of the product;

(iv) the total amount of the chemical in all units of the product sold in Illinois and the United States during the most recent calendar year for which sales figures are available;

(v) the intended purpose of the chemical in the product;

(vi) the name and address of the manufacturer and the name, address, and phone number of a contact person for the manufacturer of the product; and

(vii) a statement of the manufacturer's policy regarding the use of priority chemicals in consumer products.

(b) The Agency may waive the notification requirement under subsection (a) of this Section for one or more specified uses of a priority chemical if the Agency determines that substantially equivalent information is already publicly available or that the specified use or uses are minor in volume and very unlikely to result in exposure of a child or fetus to the chemical. The Agency may grant an extension of the deadline for submission of the required information for one or more specified uses of a priority chemical in a consumer product if it determines that more time is needed by the manufacturer.

Section 30. Other authorities and responsibilities of the Agency.

(a) The Agency shall develop, publish, and maintain a web site that includes a list of priority chemicals, with explanations for why they are so designated, and provides consumers with information on consumer products that contain priority chemicals and available information on safer alternatives to the priority chemical.

(b) By January 15 2011, and January 15 of every subsequent 2-year period in which one or more chemicals has been designated a priority chemical pursuant to Section 20 of this Act, the Agency shall submit a report on priority chemicals in consumer products to the committees of the legislature having jurisdiction over environmental health matters. The report shall identify consumer products or product categories that may contain priority chemicals, available information on safer alternatives to those chemicals, and a list of and recommendations regarding policy options for addressing consumer products that contain priority chemicals, including, but not limited to, policies that phase out existing and prevent new uses of priority chemicals in consumer products, policies to facilitate the identification or development of safer alternatives, and ways to inform consumers about toxic chemicals in products, including labeling.

(c) The Agency may assess fees, not to exceed $250 for a manufacturer or $10,000 for a trade association, payable upon submission of notice of priority chemical use, to cover the Agency's reasonable costs, including hiring staff, in complying with the requirements of this Act.

(d) The Agency has the authority to require that a manufacturer of a children's product containing a priority chemical, or a trade association on its member's behalf, prepare and submit a report acceptable to the Agency that assesses the availability of safer alternatives to that chemical. The Agency shall the allow the manufacturer or trade association reasonable time to complete the report. If a report acceptable to the Agency is not timely submitted, the Agency may assess a fee on the manufacturer or distributor to cover the costs to prepare an independent report on the availability of safer alternatives by Agency staff or a contractor of the Agency's choice.

Section 35. Exemptions. The following are exempt from the reporting and requirements in Section 20 of this Act.

(a) Industry. The requirements of this Act do not apply to the use of priority chemicals for industrial or manufacturing purposes if that use does not result in the priority chemicals inclusion in a consumer product.

(b) Transportation. The requirements of this Act do not apply to transportation vehicles or their component parts, except that the use of priority chemicals in detachable car seats is not exempt.

(c) Combustion. The requirements of this Act do not apply to priority chemicals generated solely as combustion byproducts or that are present in combustible fuels.

(d) Retailers. Retailers are exempt from the requirements of this Act, except if they knowingly sell a consumer product containing a priority chemical after the effective date of its prohibition under this Act for which they have received prior notification from a manufacturer, trade association, or the State.

Section 40. Interstate clearinghouse. The Agency is authorized to participate in an interstate clearinghouse to promote safer chemicals in consumer products in cooperation with other states and governmental entities. The Agency may cooperate with the interstate clearinghouse to organize and manage available data on chemicals, including information on uses, hazards, and environmental concerns; to produce an inventory of information on safer alternatives to specific uses of chemicals of high concern, and on model policies and programs; to provide technical assistance to business and consumers related to safer chemicals; and to undertake other activities in support of State programs to promote safer chemicals. The Agency may provide the interstate clearinghouse with product information submitted to the Agency in accordance with this Act.

Section 45. Enforcement and implementation.

(a) A consumer product containing a priority chemical may not be knowingly offered for final sale, use, or distribution after the effective date of this Act unless the manufacturer of that product is in compliance with the requirements of this Act.

(b) A manufacturer of consumer products that are restricted under this Act must notify persons that sell the manufacturer's products in this State about the provisions of this Act no less than 90 days prior to the effective date of the restrictions. A manufacturer that produces, sells, or distributes a consumer product prohibited from manufacture, sale, or distribution in this Act shall recall the product and reimburse the retailer or any other purchaser for the product.

(c) A manufacturer of consumer products in violation of this Act is subject to a civil penalty not to exceed $5,000 for each violation in the case of a first offense. Manufacturers who are repeat violators are subject to a civil penalty not to exceed $10,000 for each repeat offense. Penalties collected under this Section shall be allocated to the Agency to help cover the Agency's reasonable costs in complying with the requirements of this Act.

(d) If there are grounds to suspect that a product is being offered for sale, use, or distribution in violation of this Act, the Agency may request the manufacturer to provide a certificate of compliance. Within 10 days after receipt of a request, the manufacturer shall:

(i) provide the Agency with a certificate attesting that the product complies with the requirements of this Section; or

(ii) notify persons who sell the manufacturer's products in this State that the sale of the product is prohibited and reimburse them for the product and any applicable shipping and handling charges for returning the product.

Section 99. Effective date. This Act takes effect upon becoming law.