SF 225

2nd Engrossment - 86th Legislature (2009 - 2010) Posted on 02/09/2010 02:12am

A bill for an act
relating to public health; protecting the health of children from toxic chemicals in
products; authorizing the Department of Health to designate priority chemicals of
high concern and require replacement with safer alternatives; requiring disclosure
by manufacturers of children's products that contain priority chemicals; requiring
the Pollution Control Agency to regulate the sale of children's products
containing a priority chemical; allowing a waiver for specific uses; exempting
certain chemicals and products from the requirements; requiring 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 116.

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

Section 1.

new text begin [116.9401] DEFINITIONS.
new text end

new text begin (a) For the purposes of sections 116.9401 to 116.9412, the following terms have
the meanings given them.
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new text begin (b) "Agency" means the Pollution Control Agency.
new text end

new text begin (c) "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 (d) "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 (e) "Chemical of high concern" means a chemical identified on the basis of credible
scientific evidence by a governmental entity or the United Nations' World Health
Organization as being known or suspected with a high degree of probability 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;
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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;
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new text begin (5) be persistent, bioaccumulative, and toxic; or
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new text begin (6) be very persistent and very bioaccumulative.
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new text begin (f) "Child" means a person under 12 years of age.
new text end

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

new text begin (i) "Department" means the Department of Health.
new text end

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

new text begin (k) "Green chemistry" means an approach to designing and manufacturing products
in ways that minimize the use and generation of toxic substances.
new text end

new text begin (l) "Manufacturer" means any person who manufactures a final consumer product
sold at retail or whose brand name is affixed to the consumer product. In the case of a
consumer product 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 (m) "Priority chemical" means a chemical identified by the Department of Health
as a chemical of high concern that is contained in a children's product offered for sale in
Minnesota and meets the criteria in section 116.9403.
new text end

new text begin (n) "Safer alternative" means an alternative whose potential to harm human health is
less than that of a priority chemical that it could replace.
new text end

Sec. 2.

new text begin [116.9402] IDENTIFICATION OF CHEMICALS OF HIGH CONCERN.
new text end

new text begin (a) By January 15, 2010, the Department of Health shall publish in the State Register
and on the department's Internet Web site a list of chemicals of high concern.
new text end

new text begin (b) The department must periodically review and revise the list of chemicals of high
concern at least every three years. The department may add chemicals to the list if the
chemical meets one or more of the criteria in section 116.9401, paragraph (e).
new text end

new text begin (c) The department shall consider, among others, chemicals listed in the following
sources for possible inclusion on the list of 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;
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new text begin (3) chemicals identified as "Group A carcinogens" or "Group B carcinogens" by the
United States Environmental Protection Agency;
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new text begin (4) chemicals identified as reproductive or developmental toxicants by:
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new text begin (i) the United States Department of Health and Human Services, National
Toxicology Program, Center for the Evaluation of Risks to Human Reproduction; and
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new text begin (ii) the California Environmental Protection Agency, Office of Environmental Health
Hazard Assessment pursuant to the California Health and Safety Code, Safe Drinking
Water and Toxic Enforcement Act of 1986, chapter 6.6, section 25249.8;
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new text begin (5) chemicals identified as known or likely endocrine disruptors through screening
or testing conducted in accordance with protocols developed by the United States
Environmental Protection Agency pursuant to the federal Food, Drug and Cosmetic Act,
United States Code, title 21, section 346a(p), as amended by the federal Food Quality
Protection Act (Public Law 104-170) or the federal Safe Drinking Water Act, United
States Code, title 42, section 300j-17;
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new text begin (6) chemicals listed on the basis of endocrine-disrupting properties in Annex
XIV, List of Substances Subject to Authorisation, Regulation (EC) No 1907/2006 of
the European Parliament concerning the Registration, Evaluation, Authorisation, and
Restriction of Chemicals;
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new text begin (7) persistent, bioaccumulative, and toxic chemicals identified by:
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new text begin (i) the state of Washington Department of Ecology in Washington Administrative
Code, Chapter 173-333; or
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new text begin (ii) the United States Environmental Protection Agency in Code of Federal
Regulations, title 40, part 372; and
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new text begin (8) a very persistent, very bioaccumulative chemical listed in Annex XIV, List of
Substances Subject to Authorisation, Regulation (EC) No 1907/2006 of the European
Parliament concerning the Registration, Evaluation, Authorisation, and Restriction of
Chemicals.
new text end

new text begin (d) The department may consider chemicals listed by another state as harmful to
human health or the environment for possible inclusion in the list of chemicals of high
concern.
new text end

Sec. 3.

new text begin [116.9403] IDENTIFICATION OF PRIORITY CHEMICALS.
new text end

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

new text begin (1) the chemical is contained in a children's product offered for sale in Minnesota;
and
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new text begin (2) 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 (3) 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 (4) the chemical has been found through monitoring to be present in fish, wildlife, or
the natural environment;
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new text begin (5) 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 (6) the sale or use of the chemical or a product containing the chemical has been
prohibited in another state within the United States.
new text end

new text begin (b) 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 (c) By February 1, 2011, the department shall publish a list of priority chemicals in
the State Register and on the department's Internet Web site and shall update the published
list whenever a new priority chemical is designated.
new text end

Sec. 4.

new text begin [116.9404] 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 116.9403, 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 agency of that fact in writing unless the children's product is not subject
to regulation under section 116.9408. This written notice must identify the product, the
number of units sold or distributed for sale in this state or nationally during the previous
calendar year, the priority chemical or chemicals contained in the product, and the
intended purpose of the priority 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 agency:
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 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 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 agency is not timely submitted as
determined by the agency, 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 a contractor of the agency's choice.
new text end

Sec. 5.

new text begin [116.9405] SAFER ALTERNATIVES TO PRIORITY CHEMICALS.
new text end

new text begin Subdivision 1. new text end

new text begin Replacement with safer alternative. new text end

new text begin A manufacturer or distributor
of a children's product containing a priority chemical designated by the department must:
new text end

new text begin (1) discontinue offering the product for sale in Minnesota;
new text end

new text begin (2) obtain a waiver from the commissioner under section 116.9407 in order to
continue offering the product for sale in Minnesota; or
new text end

new text begin (3) replace the priority chemical with a safer alternative if the department determines
that a safer alternative is available and is a technically feasible replacement for the specific
use in the children's product.
new text end

new text begin Subd. 2. new text end

new text begin Determination of safer alternative. new text end

new text begin Upon the department making a
determination that a safer alternative is available for the specified use of the priority
chemical in a product, the agency shall specify a reasonably expeditious timeline, not to
exceed three years, by which date the priority chemical in the children's product sold
in this state must be replaced with a safer alternative. In determining whether a safer
alternative is available, the agency 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;
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new text begin (2) a safer alternative is available if the children's product containing the priority
chemical is an item of apparel or a novelty; and
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new text begin (3) a safer alternative is available if the alternative is sold in the United States.
new text end

new text begin Subd. 3. new text end

new text begin Compliance plan. new text end

new text begin At least one year prior to the effective date of a
prohibition adopted under section 116.9406, the manufacturer or distributor of a children's
product that contains the priority chemical that is subject to the prohibition shall file
a compliance plan with the commissioner or seek a waiver under section 116.9407. A
compliance plan must:
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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 [116.9406] PROHIBITION OF SALE.
new text end

new text begin Subdivision 1. new text end

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

new text begin The
agency shall prohibit the 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 to
the priority chemical; and
new text end

new text begin (2) one or more safer alternatives to the priority chemical are available and are
technically and economically feasible substitutes for the specific use of the priority
chemical in the product; or
new text end

new text begin (3) the manufacturer or distributor fails to provide the information required under
section 116.9404 in a timely fashion.
new text end

new text begin Subd. 2. new text end

new text begin Notice of prohibition of sale. new text end

new text begin The agency shall notify a manufacturer
or distributor of its decision to prohibit the offering for sale in this state of a product
containing a priority chemical, unless the manufacturer or distributor has been granted a
waiver under section 116.9407. The notice of prohibition of sale must contain the effective
date of the prohibition, which must be at least 270 days after the date of the notice.
new text end

new text begin Subd. 3. new text end

new text begin Certificate of compliance. new text end

new text begin No less than 60 days prior to the effective
date of the prohibition of sale determined under section 116.9406, a manufacturer or
distributor must send to the agency, in writing, a certificate of compliance certifying that
after the effective date of the prohibition, the manufacturer or distributor will not offer
the product containing the priority chemical for sale in this state, and, if applicable, that
compliance will be achieved through substitution of a safer alternative approved by the
Department of Health.
new text end

new text begin Subd. 4. new text end

new text begin Retailer notification. new text end

new text begin A manufacturer or distributor of a children's product
issued a notice of prohibition of sale under subdivision 2 shall notify, in writing, persons
that offer the product for sale or distribution in the state of the requirements of sections
116.9401 to 116.9411, and of the effective date of the prohibition of sale. Notice under
this subdivision must be issued within 30 days of the issuance of the notice of prohibition
of sale, unless the manufacturer or distributor has applied for a waiver under section
116.9407, in which case the notice must be issued within 30 days of a permit denial by
the commissioner.
new text end

new text begin Subd. 5. new text end

new text begin Sale of inventory. new text end

new text begin A retailer selling a children's product containing a
priority chemical that is the subject of a prohibition issued under subdivision 1 may not
offer the children's product for sale in this state after the effective date of the prohibition,
except that a retailer may exhaust stocks present in the retailer's premises 90 days prior to
the effective date of the prohibition, after providing evidence of that fact to the agency.
new text end

new text begin Subd. 6. new text end

new text begin Exceptions. new text end

new text begin A children's product containing a priority chemical designated
by the department may continue to be sold or offered for sale in this state if:
new text end

new text begin (1) the manufacturer or distributor obtains a waiver under section 116.9407; or
new text end

new text begin (2) 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

Sec. 7.

new text begin [116.9407] 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 116.9406 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 technically or
economically 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 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 [116.9408] APPLICABILITY.
new text end

new text begin The requirements of sections 116.9401 to 116.9412 do not apply to:
new text end

new text begin (1) chemicals in used children's products;
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new text begin (2) priority chemicals used in the manufacturing process, but that are not present
in the final product;
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new text begin (3) priority chemicals used in agricultural production;
new text end

new text begin (4) 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 (5) priority chemicals generated solely as combustion by-products or that are present
in combustible fuels;
new text end

new text begin (6) retailers, unless that retailer knowingly sells a children's product containing
a priority chemical after the effective date of its prohibition, of which that retailer has
received prior notification from a manufacturer, distributor, or the state;
new text end

new text begin (7) pharmaceutical products and biologics;
new text end

new text begin (8) "medical devices" as defined in section 201(h) of the federal Food, Drug, and
Cosmetic Act, United States Code, title 21, section 321(h);
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new text begin (9) consumer electronics products and electronic components, including, but not
limited to, personal computers; audio and video equipment; calculators; digital displays;
wireless phones; cameras; game consoles; printers; and handheld electronic and electrical
devices used to access interactive software or their associated peripherals; or products that
comply with the provisions of directive 2002/95/EC of the European Union, adopted by
the European Parliament and Council of the European Union; or
new text end

new text begin (10) food and food or beverage packaging, except a container containing baby food
or infant formula.
new text end

Sec. 9.

new text begin [116.9409] DONATIONS TO THE STATE.
new text end

new text begin The commissioner may accept donations, grants, and other funds to carry out the
purposes of sections 116.9401 to 116.9412. All donations, grants, and other funds must
be accepted without preconditions regarding the outcomes of the regulatory oversight
processes set forth in sections 116.9401 to 116.9412.
new text end

Sec. 10.

new text begin [116.9410] PARTICIPATION IN INTERSTATE CHEMICALS
CLEARINGHOUSE.
new text end

new text begin The agency must 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 [116.9411] REPORTS.
new text end

new text begin (a) By January 15, 2010, the Pollution Control Agency, in conjunction with the
commissioner of health, 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 116.9401
to 116.9408, and make recommendations for funding the implementation of those sections.
new text end

new text begin (b) By January 15, 2012, the Pollution Control Agency, in conjunction with the
commissioner of health and the commissioner of commerce, shall report to the senate
and house of representatives committees with jurisdiction over environment and natural
resources, public health, and commerce 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

Sec. 12.

new text begin [116.9412] ENFORCEMENT.
new text end

new text begin The agency shall enforce sections 116.9401 to 116.9411 in the manner provided by
sections 115.071, subdivisions 1 to 6, and section 116.072.
new text end

Sec. 13. new text begin RULEMAKING.
new text end

new text begin The agency shall adopt rules under Minnesota Statutes, chapter 14, to implement the
provisions of Minnesota Statutes, sections 116.9404 to 116.9408, no later than October
1, 2010.
new text end

Sec. 14. new text begin EFFECTIVE DATE.
new text end

new text begin Sections 1 to 13 are effective the day following final enactment.
new text end