SUMMARY OF NYS ASSEMBLY JOINT PUBLIC HEARING ON REGULATION OF CHEMICALS IN CHILDREN’S PRODUCTS

On December 5, 2011 in New York City, the New York State Assembly Standing Committees on Environmental Conservation, Health, and Consumer Affairs & Protection held a Joint Public Hearing on the Regulation of Chemicals in Children’s Products.  The primary legislation underlying the hearing was A.3141 (Sweeney) / S.1526 (Perkins), which would amend the NY Environmental Conservation Law by adding a new Title 7 of Article 37 to such law entitled “Toxic Chemicals in Children’s Products.”   The bill would, amongst other things, establish lists of “chemicals of high concern” and “priority chemicals” that if contained in certain consumer products would be prohibited for sale or distribution in New York.

Witnesses presenting testimony at the hearing were arranged in “like-minded” panels, which included:

• quasi-governmental group, the National Conference of State Legislatures;
• healthcare providers, Albert Einstein College of Medicine & NYS Nurses Association;
• industry trades, Fashion Jewelry & Accessories Trade Association, Toy Industry Association, Juvenile Products Manufacturers Association, American Chemistry Council, & Business Council of NYS;
• “green products” groups, Green Depot, American Sustainable Business Council, Naturepedic Certified Organic Mattresses;
• environmental/consumer advocacy organizations, NYPIRG, NY Lawyers for the Public Interest, Grassroots Environmental Education, Center for Environmental Health, Citizen’s Environmental Coalition, Learning Disabilities Association of NYS, Clean and Health NY, Earthjustice:
• a “documentary” film maker of “Toxic Baby.”

Predictably, the healthcare providers, “green products” purveyors, and environmental / consumer activists all spoke in full-throated favor of immediate passage of A.3141 and its enactment into law.  Many of the groups listed above, or their affiliates, have been heavily involved in the lobbying efforts that have gained passage of similar laws regulating chemicals in consumer products in the states of Maine, Washington and California.

Various industry association representatives spoke to the need to regulate chemicals at the national rather than state level, in accordance with the ongoing reauthorization and modernization of the federal Toxic Substances and Control Act (TSCA).  Moreover, industry representatives also suggested that standards for the regulation of chemicals in consumer products should be based upon peer-reviewed, science-based chemical risk assessments.  These are best left to the federal regulators such as the Environmental Protection Agency, Consumer Product Safety Commission and Food and Drug Administration, interacting with the Centers for Disease Control, National Institutes of Health, and National Academy of Science, to set such standards under statutory guidance from the U.S. Congress.

Brent Cleaveland, Executive Director of the Fashion Jewelry and Accessories Trade Association, was specifically invited by the Assembly Committees to testify at the public hearing.  Brent focused on unworkable portions of the legislation, A.3141, such as its lack of exceptions for “de minimis” levels of chemicals in consumer products, that may be naturally occurring trace elements.  Brent also took issue with establishing lists of “priority chemicals” that would form the basis of product bans, without proper, independent laboratory testing based upon scientific risk assessments.

With respect to the regulation of heavy metals in children’s jewelry, Brent also urged passage of a separate bill, A.6758-A (Englebright) / S.4055-A (Alesi), which embodies the recently published ASTM International Children’s Jewelry Safety Standard, ASTM F2923-11 that sets an acceptable solubility standard for migratable cadmium in children’s jewelry.  This ASTM standard is supported by the U.S. Consumer Product Safety Commission, and is the only voluntary national standard for children’s jewelry.  Brent urged the committee members to consider harmonizing existing standards by passing the bills modeled on the new ASTM voluntary standard.

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