SB3750sam002 96TH GENERAL ASSEMBLY

Sen. Dan Kotowski

Filed: 3/24/2010

09600SB3750sam002 LRB096 20860 JDS 39605 a

AMENDMENT TO SENATE BILL 3750

AMENDMENT NO. ______. Amend Senate Bill 3750 by replacing everything after the enacting clause with the following:

"Section 1. Short title. This Act may be cited as the BPA-Free Kids Act.

Section 5. Legislative findings. The General Assembly finds that:

(a) The incidence of some diseases and disorders that have been linked to chemical exposures is on the rise.

(b) The metabolism, physiology, and exposure patterns of developing fetuses, infants, and children to toxic chemicals differ from those of adults, which makes children more vulnerable than adults to the harmful effects of exposure to some synthetic chemicals.

(c) Unlike pharmaceuticals and pesticides, manufacturers of most chemical substances are not required under current law to supply human or environmental toxicity information before selling their products to the public. Consequently, the vast majority of chemicals used in consumer products have never had any federal or state government review to evaluate potential toxicity to the environment, infants, children, developing fetuses, or adults.

(d) To protect children's health, it is important to reduce or eliminate exposures to certain chemicals that are present in children's products or that may be reasonably anticipated to result in children's exposure or be placed in the mouths of children.

Section 10. Definitions.

"Agency" means the Illinois Environmental Protection Agency.

"Baby food" means a prepared solid food consisting of a soft paste or an easily chewed food that is intended for consumption by children 2 years of age or younger and is commercially available.

"Department" means the Illinois Department of Public Health.

"Infant formula" means a milk-based or soy-based powder, concentrated liquid, or ready-to-feed substitute for human breast milk, which is intended for infant consumption and is commercially available.

"Manufacturer" means a person who manufactured a final product or whose brand name is affixed to a 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 it does not have a presence in the United States.

"Person" means any individual, partnership, co-partnership, firm, company, limited liability company, corporation, association, joint stock company, trust, estate, political subdivision, state agency, or any other legal entity, or his, her, or its legal representative, agent, or assigns.

Section 15. Bisphenol-A ban; exemption.

(a) Beginning June 1, 2011, no person shall sell, offer to sell, distribute, or offer to distribute any reusable children's food or beverage container, including any baby bottle or sippy cup, that contains bisphenol-A if that container (i) is designed, intended, or marketed to be filled with any food or beverage primarily for consumption by children 3 years of age or younger and (ii) is sold or distributed at retail without containing any liquid, food, or beverage.

(b) Beginning June 1, 2015, no person shall sell, offer to sell, distribute, or offer to distribute any infant formula or baby food that is stored in a can, jar, or plastic container that contains bisphenol-A.

(c) The manufacturer of an infant formula or baby food may obtain an exemption from subsection (b) for a particular type of infant formula or baby baby food in a calendar year if (i) there is no bisphenol-a free can, jar, plastic container, or other alternative packaging compatible with that particular type of infant formula or baby food that complies with applicable federal Food and Drug Administration regulations, if any, and (ii) the manufacturer files a notification to that effect with the Illinois Attorney General prior to January 1 of that year. The notification should explain why alternative packaging is not compatible with the product or violates Food and Drug Administration regulations. Manufacturers must submit separate notifications for each particular type of infant formula or baby food for which they seek an exemption.

Section 20. Interstate clearinghouse. The Agency and the Department are authorized to participate, along with other states and governmental entities, in an interstate clearinghouse to promote safer chemicals in consumer products. The Agency and Department may cooperate with the interstate clearinghouse to (i) organize and manage available data on chemicals, including information on uses, hazards, environmental concerns, safer alternatives, and model policies and programs, (ii) provide technical assistance regarding chemical safety to businesses, consumers, and policy makers, and (iii) undertake other activities in support of State programs to promote chemical safety.

Section 25. Implementation and exemption.

(a) Manufacturers and wholesalers of products restricted under Section 15 of this Act must, no less than 90 days before the effective date of such a restriction, notify persons to whom they sell a restricted product about the provisions of this Act.

(b) A retailer who unknowingly sells a product that is restricted from sale under this Act is not liable under this Act.

Section 30. Enforcement and penalties.

(a) The Attorney General is responsible for administering and ensuring compliance with this Act, including the development and adoption of any rules, if necessary, for the implementation and enforcement of this Act.

(b) The Attorney General shall develop and implement a process for receiving and handling complaints from individuals regarding possible violations of this Act.

(c) The Attorney General may conduct any investigation deemed necessary regarding possible violations of this Act including, without limitation, the issuance of subpoenas to: (i) require the filing of a statement or report or answer interrogatories in writing as to all information relevant to the alleged violations; (ii) examine under oath any person who possesses knowledge or information directly related to the alleged violations; and (iii) examine any record, book, document, account, or paper necessary to investigate the alleged violation.

(d) Service by the Attorney General of any notice requiring a person to file a statement or report, or of a subpoena upon any person, shall be made:

(1) personally by delivery of a duly executed copy thereof to the person to be served or, if a person is not a natural person, in the manner provided in the Code of Civil Procedure when a complaint is filed; or

(2) by mailing by certified mail a duly executed copy thereof to the person to be served at his or her last known abode or principal place of business within this State.

(e) In lieu of a civil action, the individual or entity alleged to have engaged in a pattern or practice deemed violative of this Act may enter into an Assurance of Voluntary Compliance with respect to the alleged pattern or practice violation.

(f) If the Attorney General determines that there is a reason to believe that a violation of the Act has occurred, the Attorney General may bring an action in the name of the People of the State to obtain temporary, preliminary, or permanent injunctive relief for any act, policy, or practice that violates this Act.

(g) If any person fails or refuses to file any statement or report, or obey any subpoena, issued pursuant to subsection (c) of this Section, the Attorney General may proceed to initiate a civil action pursuant to subsection (f) of this Section, or file a complaint in the circuit court for the granting of injunctive relief, including restraining the conduct that is alleged to violate this Act until the person files the statement or report, or obeys the subpoena.

(h) Relief that may be granted.

(1) In any civil action brought pursuant to subsection (f) of this Section, the Attorney General may obtain as a remedy, equitable relief (including any permanent or preliminary injunction, temporary restraining order, or other order, including an order enjoining the defendant from engaging in a violation or ordering any action as may be appropriate). In addition, the Attorney General may request and the Court may impose a civil penalty in an amount not to exceed $50,000 for each violation. For purposes of this subsection, each item and each standard constitutes a separate violation.

(2) A civil penalty imposed or a settlement or other payment made pursuant to this Act shall be made payable to the Attorney General's State Projects and Court Ordered Distribution Fund, which is created as a special fund in the State Treasury. Moneys in the Fund shall be used, subject to appropriation, for the performance of any function pertaining to the exercise of the duties of the Attorney General including but not limited to enforcement of any law of this State, product testing, and conducting public education programs.

(3) Any funds collected under this Section in an action in which the State's Attorney has prevailed shall be retained by the county in which he or she serves.

(i) The penalties and injunctions provided in this Act are in addition to any penalties, injunctions, or other relief provided under any other law. Nothing in this Act shall bar a cause of action by the State for any other penalty, injunction, or relief provided by any other law.

Section 90. The State Finance Act is amended by adding Section 5.756 as follows:

(30 ILCS 105/5.756 new)

Sec. 5.756. The Attorney General's State Projects and Court Ordered Distribution Fund.".