HF 250

as introduced - 86th Legislature (2009 - 2010) Posted on 02/09/2010 01:35am

A bill for an act
relating to public health; protecting the health of children from toxic chemicals
in products; requiring disclosure by manufacturers of children's products that
contain chemicals of high concern; authorizing the Pollution Control Agency to
designate priority chemicals of high concern and require replacement with safer
alternatives; providing an exemption process; authorizing participation in an
interstate clearinghouse; requiring reports to the legislature on implementation
plans and comprehensive safe products framework; proposing coding for new
law in Minnesota Statutes, chapter 325F.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

Section 1.

new text begin [325F.172] DEFINITIONS.
new text end

new text begin (a) For the purposes of sections 325F.172 to 325F.173, the following terms have
the meanings given them.
new text end

new text begin (b) "Alternative" means a substitute process, product, material, chemical, strategy,
or combination of these that serves a functionally equivalent purpose to a chemical in a
children's product.
new text end

new text begin (c) "Chemical" means a substance with a distinct molecular composition or a group
of structurally related substances and includes the breakdown products of the substance or
substances that form through decomposition, degradation, or metabolism.
new text end

new text begin (d) "Chemical of high concern" means a chemical identified by an authoritative
governmental entity on the basis of credible scientific evidence as being known to:
new text end

new text begin (1) harm the normal development of a fetus or child or cause other developmental
toxicity;
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new text begin (2) cause cancer, genetic damage, or reproductive harm;
new text end

new text begin (3) disrupt the endocrine or hormone system;
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new text begin (4) damage the nervous system, immune system, or organs, or cause other systemic
toxicity; or
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new text begin (5) be persistent, bioaccumulative, and toxic.
new text end

new text begin (e) "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 or a
chemical of moderate concern.
new text end

new text begin (f) "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 paragraph (d).
new text end

new text begin (g) "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.
new text end

new text begin (h) "Child" means a person under 12 years of age.
new text end

new text begin (i) "Children's product" means a consumer product intended for use by children,
such as baby products, toys, car seats, personal care products, and clothing.
new text end

new text begin (j) "Commissioner" means commissioner of the Pollution Control Agency.
new text end

new text begin (k) "Department" means the Pollution Control Agency.
new text end

new text begin (l) "Distributor" means a person who sells consumer products to retail establishments
on a wholesale basis.
new text end

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

new text begin (n) "Priority chemical subject to regulation" means a chemical identified by the
commissioner as a chemical of high concern that meets the criteria in section 325F.1722.
new text end

new text begin (o) "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.
new text end

Sec. 2.

new text begin [325F.1721] IDENTIFICATION OF CHEMICALS OF HIGH CONCERN.
new text end

new text begin (a) By July 1, 2010, the department shall publish a list of chemicals of high concern
found in children's products.
new text end

new text begin (b) The department may periodically review and revise the list of chemicals of high
concern. The department may add chemicals to the list if the chemical meets one or more
of the criteria in paragraph (a), including chemicals of moderate or unknown concern for
which new health-effects data is available. The department may remove a chemical from
the list of chemicals of high concern based on evidence that the chemical is not present in
a children's product or otherwise would not be subject to the requirements of this chapter.
new text end

new text begin (c) The department shall consider, among others, the following authoritative sources
to evaluate criteria for chemicals of high concern:
new text end

new text begin (1) chemicals identified as "Group 1 carcinogens" or "Group 2A carcinogens" by the
World Health Organization, International Agency for Research on Cancer;
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new text begin (2) chemicals identified as "known to be a human carcinogen" and "reasonably
anticipated to be a human carcinogen" by the secretary of the United States Department
of Health and Human Services;
new text end

new text begin (3) chemicals identified as "Group A carcinogens" or "Group B carcinogens" by
the United States Environmental Protection Agency; or
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new text begin (4) chemicals identified as reproductive or developmental toxicants by the agencies
named in clauses (1), (2), and (3), or by other authoritative sources, including, but not
limited to, the California Office of Environmental Health Hazard Assessment.
new text end

Sec. 3.

new text begin [325F.1722] IDENTIFICATION OF PRIORITY CHEMICALS SUBJECT
TO REGULATION.
new text end

new text begin Subdivision 1. new text end

new text begin Designation. new text end

new text begin The department may designate a chemical of high
concern as a priority chemical if the department finds:
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new text begin (1) 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;
new text end

new text begin (2) 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;
new text end

new text begin (3) the chemical has been found through monitoring to be present in fish, wildlife, or
the natural environment;
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new text begin (4) the chemical has been identified as a high-production volume chemical by the
federal Environmental Protection Agency; or
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new text begin (5) the sale or use of the chemical or a product containing the chemical has been
banned in another state within the United States.
new text end

new text begin The department shall designate at least five priority chemicals by January 1, 2011,
and an additional five priority chemicals by January 1, 2013.
new text end

new text begin Subd. 2. new text end

new text begin Updates. new text end

new text begin The department shall review the list of chemicals of high concern
at least every three years and shall designate additional priority chemicals that meet one of
the criteria listed in subdivision 1.
new text end

Sec. 4.

new text begin [325F.1723] DISCLOSURE OF INFORMATION ON PRIORITY
CHEMICALS.
new text end

new text begin Subdivision 1. new text end

new text begin Reporting of chemical use. new text end

new text begin Not later than 180 days after a priority
chemical is identified under section 325F.1722, any person who is a manufacturer or
distributor of a children's product for sale in this state that contains a priority chemical shall
notify the department in writing unless waived by the commissioner under this section
or not subject to regulation under section 325F.1727. This written notice must identify
the product, the number of units sold or distributed for sale in this state or nationally, the
priority chemical or chemicals contained in the product, the amount of the chemicals in
each unit of product, and the intended purpose of the chemicals in the product.
new text end

new text begin Subd. 2. new text end

new text begin Supplemental information. new text end

new text begin The manufacturer or distributor of a
children's product that contains a priority chemical shall provide the following additional
information if requested by the department:
new text end

new text begin (1) information on the likelihood that the chemical will be released from the
children's product to the environment during the children's product's lifecycle and the
extent to which users of the children's product are likely to be exposed to the chemical;
new text end

new text begin (2) additional information regarding the potential for harm to human health and the
environment from specific uses of the priority chemical; and
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new text begin (3) an assessment of the availability, cost, feasibility, and performance, including
potential for harm to human health and the environment, of alternatives to the priority
chemical and the reason the priority chemical is used in the manufacture of the children's
product in lieu of identified alternatives. If an assessment acceptable to the department is
not timely submitted, the department 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 a contractor of the department's choice.
new text end

new text begin Subd. 3. new text end

new text begin Waiver of reporting. new text end

new text begin The department may waive all or part of the
notification requirement under subdivision 1 for one or more specified uses of a priority
chemical if the commissioner determines that substantially equivalent information is
already publicly available, that the information is not needed for purposes of this chapter,
or that the specified use or uses are minor in volume.
new text end

new text begin Subd. 4. new text end

new text begin Extension of deadline. new text end

new text begin The department may extend the deadline for
submission of the required information for one or more specified uses of a priority
chemical in a children's product if it determines that more time is needed by the
manufacturer or distributor to comply with the submission requirement or if the
information is not needed at that time.
new text end

new text begin Subd. 5. new text end

new text begin Manufacturer or distributer notification. new text end

new text begin A manufacturer or distributor
of a children's product containing a priority chemical shall notify persons that offer the
product for sale or distribution in the state of the requirements of sections 325F.172 to
325F.173.
new text end

Sec. 5.

new text begin [325F.1724] SAFER ALTERNATIVES TO PRIORITY CHEMICALS
AND SALES PROHIBITION.
new text end

new text begin Subdivision 1. new text end

new text begin Safer alternative required. new text end

new text begin The department shall require a
manufacturer or distributor to replace a priority chemical in a children's product sold
in this state with a safer alternative whenever the department determines that a safer
alternative is available for the specified use of the priority chemical in that product. Upon
making the determination, the department shall specify a reasonably expeditious timeline,
not to exceed two years, by which date the priority chemical in the children's product sold
in this state must be replaced with a safer alternative. The manufacturer or distributor
subject to a requirement under this section must comply with the requirement or be subject
to the prohibition specified in section 325F.1725. For the purpose of determining whether
a safer alternative is available, the department may, in the absence of persuasive evidence
to the contrary presume that:
new text end

new text begin (1) an alternative is a safer alternative if the alternative is not a chemical of high
concern;
new text end

new text begin (2) a safer alternative is available if the sale of the children's product containing the
priority chemical has been banned by another state within the United States;
new text end

new text begin (3) a safer alternative is available if the children's product containing the priority
chemical is an item of apparel or a novelty; and
new text end

new text begin (4) a safer alternative is available if the alternative is sold in the United States.
new text end

new text begin Subd. 2. new text end

new text begin Compliance plan required. new text end

new text begin No later than 180 days prior to the effective
date of a prohibition adopted under section 325F.1725, the manufacturer or distributor of a
children's product that contains the priority chemical and that is subject to the prohibition
at the time of adoption shall file a compliance plan with the commissioner or seek a waiver
under section 325F.1726. A compliance plan must:
new text end

new text begin (1) identify the children's product that contains the priority chemical;
new text end

new text begin (2) specify whether compliance will be achieved by discontinuing the sale of the
children's product in this state or by substituting a safer alternative in the product; and
new text end

new text begin (3) if compliance is achieved by substitution of a safer alternative in the product,
identify the safer alternative and the timetable for substitution.
new text end

Sec. 6.

new text begin [325F.1725] ENFORCEMENT AND IMPLEMENTATION.
new text end

new text begin Subdivision 1. new text end

new text begin Generally. new text end

new text begin If a manufacturer or distributor fails to comply with a
requirement of sections 325F.172 to 325F.173 within 90 days of the effective date of the
requirement, unless otherwise provided in sections 325F.172 to 325F.173, the department
may take enforcement action and assess penalties under chapter 116, and may request the
attorney general to initiate immediate injunction proceedings to prevent the sale of the
product.
new text end

new text begin Subd. 2. new text end

new text begin Department action against product containing priority chemical.
new text end

new text begin (a) The department may prohibit the manufacture, sale, or distribution in this state of a
children's product containing a priority chemical if the department finds that:
new text end

new text begin (1) distribution of the children's product directly or indirectly exposes children and
vulnerable populations to the priority chemical; and
new text end

new text begin (2) one or more safer alternatives to the priority chemical are available.
new text end

new text begin (b) If there are several available safer alternatives to a priority chemical, the
department may prohibit the sale of children's products that do not contain the safer
alternative that is least toxic to human health or least harmful to the environment.
new text end

new text begin Subd. 3. new text end

new text begin Failure to provide notice. new text end

new text begin A children's product containing a priority
chemical may not be sold, offered for sale, or distributed for sale in this state if the
manufacturer or distributor has failed to provide information required under section
325F.1723 by the date required in that section. The commissioner shall exempt a children's
product from this prohibition if, in the commissioner's judgment, the lack of availability of
the children's product could pose an unreasonable risk to public health, safety, or welfare.
new text end

new text begin Subd. 4. new text end

new text begin Certificate of compliance. new text end

new text begin If there are grounds to suspect that a children's
product is being offered for sale in violation of sections 325F.172 to 325F.173, the
department may request the manufacturer or distributor of the product to provide a
certificate of compliance. Within ten days of receipt of a request, the manufacturer
or distributor shall:
new text end

new text begin (1) provide the department with the certificate attesting that the children's product
does not contain the priority chemical; or
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new text begin (2) notify persons who sell the product in this state that the sale of the children's
product is prohibited and provide the department with a list of the names and addresses of
those notified.
new text end

Sec. 7.

new text begin [325F.1726] WAIVER FOR SPECIFIC USES.
new text end

new text begin Subdivision 1. new text end

new text begin Application for waiver. new text end

new text begin The manufacturer or distributor of a
children's product that contains a priority chemical and that is subject to a prohibition
under section 325F.1725 may apply to the commissioner for a waiver for one or more
specific uses of the priority chemical. The waiver application must, at a minimum:
new text end

new text begin (1) identify the specific children's product use or uses for which the waiver is sought;
new text end

new text begin (2) identify the alternatives considered for substitution of the priority chemical;
new text end

new text begin (3) explain the basis for concluding that the use of an alternative is not feasible; and
new text end

new text begin (4) identify the steps that have and will be taken to minimize the use of the priority
chemical.
new text end

new text begin Subd. 2. new text end

new text begin Term of waiver. new text end

new text begin The commissioner may grant a waiver with or without
conditions upon finding that there is a need for the children's product in which the priority
chemical is used and there are no technically or economically feasible alternatives for
the use of the priority chemical in the children's product. Waivers may be granted for a
term not to exceed four years and may be renewed for one or more additional four-year
terms upon written application demonstrating that technically or economically feasible
alternatives remain unavailable. The commissioner shall deny or grant waiver requests
within 60 days after receipt of a completed waiver application.
new text end

Sec. 8.

new text begin [325F.1727] APPLICABILITY.
new text end

new text begin The requirements of sections 325F.172 to 325F.173 do not apply to:
new text end

new text begin (1) chemicals in used products;
new text end

new text begin (2) priority chemicals used in or for industry or manufacturing, including chemicals
processed or otherwise used in or for industrial or manufacturing processes;
new text end

new text begin (3) motor vehicles as defined in chapter 168 or watercraft as defined in chapter
86B or their component parts, except that the use of priority chemicals in detachable
car seats is not exempt;
new text end

new text begin (4) priority chemicals generated solely as combustion by-products or that are present
in combustible fuels;
new text end

new text begin (5) retailers, unless that retailer knowingly sells a children's product containing a
priority chemical after the effective date of its prohibition, for which that retailer has
received prior notification from a manufacturer, distributor, or the state;
new text end

new text begin (6) a telecommunications carrier whose name appears on a telecommunications
device unless the telecommunications carrier is the actual manufacturer of the device. As
used in this section, "telecommunications carrier" has the meaning given in chapter 237; or
new text end

new text begin (7) a container or packaging for a food or beverage product, unless that product is
intentionally marketed or intended for the use of children under three years of age.
new text end

Sec. 9.

new text begin [325F.1728] DONATIONS TO THE STATE.
new text end

new text begin The department, through the governor, may accept donations, grants, and other funds
to carry out the purposes of sections 325F.172 to 325F.173. All such donations, grants,
and other funds must be accepted without preconditions regarding the outcomes of the
regulatory oversight processes set forth in sections 325F.172 to 325F.173.
new text end

Sec. 10.

new text begin [325F.1729] PARTICIPATION IN INTERSTATE CHEMICALS
CLEARINGHOUSE.
new text end

new text begin The department may participate in an interstate chemicals clearinghouse to promote
safer chemicals in consumer products in cooperation with other states, including the
classification of chemicals in commerce; organizing and managing available data on
chemicals, including information on uses, hazards, and environmental and health
concerns; and producing and evaluating information on safer alternatives to specific uses
of chemicals of concern.
new text end

Sec. 11.

new text begin [325F.173] REPORTS.
new text end

new text begin (a) By January 15, 2010, the Pollution Control Agency shall report to the senate
and house of representatives committees with jurisdiction over environment and natural
resources, commerce, and public health regarding the department's plans for implementing
the requirements of sections 325F.172 to 325F.173, and make recommendations for
funding implementation of sections 325F.172 to 325F.173.
new text end

new text begin (b) By January 15, 2012, the Pollution Control Agency, in conjunction with the
commissioner of human services and the commissioner of commerce, shall report to the
senate and house of representatives committees with jurisdiction over environment and
natural resources, commerce, and public health regarding recommendations to evaluate
and regulate toxic chemicals in all consumer products; and to promote and provide
incentives for product design that uses principles of green chemistry and lifecycle analysis
to protect public health and the environment.
new text end