The New York counties’ chemical restrictions remain in flux, but FJATA members may want to take a more activist stance given the expanded list of covered chemicals, relative importance of some of these chemicals to the jewelry industry (like antimony), and absence of specified exclusions for certain materials or instances where a child will not be exposed to the substance at harmful levels. The status of the laws remains in question, so here is an overview.
Rockland County has adopted a revised version of its original zero-content ban, instead stating that covered products must comply with Section 396-k of the New York General Business Law. This provision, here, prohibits the sale of hazardous 2 articles intended for children, the Federal Hazardous Substances Act, the Consumer Product Safety Act, and New York state or federal regulations, as may be amended from time to time. This seems to allow for flexibility to rely on risk assessment where substances not covered by CPSIA are concerned, and to conclude that the levels of a chemical present do not pose a hazard.
The Albany County law is in limbo pending resolution of the ongoing lawsuit. The County was supposed to send regulations to the plaintiffs in the lawsuit on or about February 1st, and then the plaintiffs are supposed to either voluntarily dismiss the case or seek other relief (an injunction, lifting of the stay, etc.). The County Legislature approved a bill, Local Law P, 2015, to set specific content limits on all children’s products. That law was finalized in February, and takes effect July not 1, 2016. The law adopts total content limits without any exemption for certain materials (like crystal, etc.), or an alternative to total content limits for chemicals that will migrate at harmful levels. The law mirrors ASTM F963 substrate limits for mercury (60 ppm), antimony (60 ppm), cadmium (75 ppm, but without an express reference to an alternative migration standard), and arsenic (25 ppm). For lead the limits mirror CPSIA (100 ppm in substrates, 90 ppm in coatings). Cobalt is limited to 40 ppm and benzene is limited to 100 ppm. The law does not recognize an exclusion for “inaccessible parts” (CPSIA and F963 allow an inaccessible parts exception). Crucially, however, the law states that it is preempted by conflicting requirements under New York or federal law, which functionally appears to establish an exemption for inaccessible component parts (but not for materials where the chemical is bound to the substrate in such a manner to make exposure at harmful levels unlikely). However, the cadmium and other limits in the voluntary ASTM jewelry safety standard do not preempt state law. As the lawsuit is ongoing, Albany County’s approach remains up in the air.
Westchester County did not set total content thresholds, instead imposing zero-content limits. It has yet to issue regulations, but enforcement has been stayed pending a settlement between the Safe to Play Coalition and Albany County.
Suffolk County adopted lower limits than ASTM F963 for some substances, and we understand the county Department of Public Health is circulating letters to retailers in the county notifying them that the county will begin enforcing the limits on heavy metals in children’s products adopted under Local Law 22–2015 through random retailer inspections beginning December 1. Those limits are 40 ppm for antimony, arsenic, cobalt and mercury; 75 ppm for cadmium; 90 ppm for lead in surface coatings; and 100 ppm for lead in substrate. We understand there will be an industry meeting later this week with county officials to discuss concerns, and that industry representatives intend to discuss grounds for federal preemption and the ongoing lawsuit filed in Albany County over its similar local law. Thus, FJATA will be closely monitoring Suffolk County over the coming weeks.
For the time being, the picture in New York counties remains unclear. Litigation has helped prod the counties into a more reasonable stance, but the litigation is primarily on behalf of the toy industry, one reason that the focus has been on harmonizing limits to ASTM F963. We believe that, at least with respect to chemicals covered by ASTM F963 and CPSIA, the counties are likely to eventually line up with federal toy safety requirements. In addition to antimony, cobalt and benzene also seem likely to become subject to total content limits, although this is less certain. While it seems likely that restrictions will be more consistent with the toy safety standard, the adoption of total content limits mirroring ASTM F963 requirements on some of these substances could prove problematic for the jewelry industry.
Last year FJATA discussed the legal challenge being mounted against the local legislation and adopted a wait-and-see position before deciding to commit funds. These New York county developments remind us that states (and localities) continue to adopt limits that are inconsistent with science and pose significant issues for the jewelry industry. FJATA welcomes member input on how to respond.