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HB 96: "An Act relating to chemicals of high concern and to chemicals in children's products; and adding an unlawful act to the Alaska Unfair Trade Practices and Consumer Protection Act."

00                              HOUSE BILL NO. 96                                                                          
01 "An Act relating to chemicals of high concern and to chemicals in children's products;                                  
02 and adding an unlawful act to the Alaska Unfair Trade Practices and Consumer                                            
03 Protection Act."                                                                                                        
04 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA:                                                                
05    * Section 1. AS 18.31 is amended by adding new sections  to read:                                                  
06                  Article 5. Chemicals in Children's Products.                                                         
07            Sec. 18.31.610. Identification of chemicals of high concern. The department,                               
08       after consultation with the Department of Health and Social Services, shall publish a                             
09       list of chemicals of high concern. The department may not include a chemical on the                               
10       list unless it has been identified by a governmental entity based on credible scientific                          
11       evidence as                                                                                                       
12                 (1)  a carcinogen, a reproductive toxicant, a developmental toxicant, or                                
13       an endocrine disruptor;                                                                                           
14                 (2)  persistent, bioaccumulative, and toxic; or                                                         
01                 (3)  very persistent and very bioaccumulative.                                                          
02            Sec. 18.31.620. Revision of list. The department may periodically review and                               
03       revise the list of chemicals of high concern. The department may add a chemical to the                            
04       list if the department, after consultation with the Department of Health and Social                               
05       Services, determines that the chemical is a chemical of high concern. The department                              
06       may remove a chemical from the list of chemicals of high concern based on evidence                                
07       that the chemical is not present in a children's product or otherwise would not be                                
08       subject to the requirements of AS 18.31.610 - 18.31.800.                                                          
09            Sec. 18.31.630. Designation of priority chemicals. (a) The department may                                  
10       designate by regulation a chemical of high concern as a priority chemical if, after                               
11       consultation with the Department of Health and Social Services, the department                                    
12       determines that                                                                                                   
13                 (1)  the chemical has been found, through biomonitoring, to be present                                  
14       in human blood, including umbilical cord blood, breast milk, urine, or other bodily                               
15       tissues or fluids;                                                                                                
16                 (2)  the chemical has been found, through sampling and analysis, to be                                  
17       present in household dust, indoor air, drinking water, or elsewhere in the home                                   
18       environment;                                                                                                      
19                 (3)  the chemical has been found, through monitoring, to be present in                                  
20       fish, wildlife, or the natural environment;                                                                       
21                 (4)  the chemical is present in a consumer product used or present in the                               
22       home;                                                                                                             
23                 (5)  the chemical has been identified as a high production volume                                       
24       chemical by the United States Environmental Protection Agency; or                                                 
25                 (6)  the sale or use of the chemical or a product containing the chemical                               
26       has been banned in another state in the United States.                                                            
27            (b)  The department may, without making the determination required by (a) of                                 
28       this section, designate mercury or a mercury compound as a priority chemical for the                              
29       purpose of prohibiting the manufacture, sale, or distribution of a children's product                             
30       that contains mercury.                                                                                            
31            Sec. 18.31.640. Revision of the designation of priority chemicals. The                                     
01       department shall review the designation of priority chemicals at least every three years                          
02       and may designate additional chemicals as priority chemicals if the department                                    
03       determines, after consultation with the Department of Health and Social Services, that                            
04       the chemicals are priority chemicals.                                                                             
05            Sec. 18.31.650. Notification of use of priority chemical. (a) Not later than                               
06       180 days after a priority chemical is identified under AS 18.31.630 or 18.31.640, a                               
07       person who is a manufacturer or distributor of a children's product that is sold in the                           
08       state and that contains a priority chemical shall notify the department in writing that                           
09       the children's product contains a priority chemical and shall provide, for the children's                         
10       product,                                                                                                          
11                 (1)  an identification;                                                                                 
12                 (2)  the number sold or distributed for sale in the state or nationally;                                
13                 (3)  the priority chemical contained in the children's product;                                         
14                 (4)  the amount of the priority chemical in the children's product; and                                 
15                 (5)  the intended purpose of the priority chemical in the children's                                    
16       product.                                                                                                          
17            (b)  The department may extend the deadline for submission of the information                                
18       required under (a) of this section if the department determines that the manufacturer or                          
19       distributor needs more time to comply with the submission requirements or if the                                  
20       information is not needed at that time.                                                                           
21            (c)  The department may waive all or part of the notification requirement under                              
22       (a) of this section if the department determines that substantially equivalent                                    
23       information is already publicly available, that the information is not needed for the                             
24       purposes of AS 18.31.610 - 18.31.800, or that the amount of the priority chemical used                            
25       in the children's product is insignificant.                                                                       
26            Sec. 18.31.660. Supplemental information. (a) In addition to providing the                                 
27       information required to be in the notice under AS 18.31.650, a manufacturer or                                    
28       distributor of a children's product that is sold in the state and that contains a priority                        
29       chemical shall, if requested by the department, provide                                                           
30                 (1)  information on the likelihood that the chemical will be released                                   
31       from the children's product to the environment during the life cycle of the children's                            
01       product and the extent to which users of the children's product are likely to be exposed                          
02       to the chemical;                                                                                                  
03                 (2)  information on the extent to which the chemical is present in the                                  
04       environment or human body; and                                                                                    
05                 (3)  an assessment of the availability, cost, feasibility, performance, and                             
06       potential for harm to human health and the environment of alternatives to the priority                            
07       chemical in the children's product and the reason the priority chemical is used in the                            
08       manufacture of the children's product instead of alternatives identified under this                               
09       paragraph.                                                                                                        
10            (b)  If a manufacturer or distributor does not provide the information requested                             
11       under (a) of this section in the time set by the department, the department may assess a                          
12       fee on the manufacturer or distributor to cover the department's costs to contract with                           
13       another person to prepare an independent report that provides the information                                     
14       requested under (a)(1) and (2) of this section and the availability of safer alternatives                         
15       for the children's product.                                                                                       
16            (c)  In addition to the other information required by this section, a                                        
17       manufacturer or distributor of a children's product that contains a priority chemical                             
18       may provide additional information to the department regarding the potential for harm                             
19       to human health and the environment from specific uses of the priority chemical for                               
20       the children's products of the manufacturer or distributor.                                                       
21            Sec. 18.31.670. Information management fee. When a manufacturer or                                         
22       distributor submits a notice or other information under AS 18.31.650 or 18.31.660(a)                              
23       or (b), the department may charge the manufacturer or distributor a reasonable fee to                             
24       cover the department's costs to review the information collected.                                                 
25            Sec. 18.31.680. Prohibitions by department. (a) The department may                                         
26       prohibit by regulation the manufacture, distribution, or sale in the state of a children's                        
27       product containing a priority chemical if the department finds, after consideration of                            
28       information filed under AS 18.31.650 and 18.31.660 and other relevant information                                 
29       submitted to or obtained by the department, that                                                                  
30                 (1)  distribution of the children's product directly or indirectly exposes                              
31       children and vulnerable populations to the priority chemical; and                                                 
01                 (2)  one or more safer alternatives to the priority chemical are available                              
02       at a comparable cost.                                                                                             
03            (b)  If there are several available safer alternatives to a priority chemical, the                           
04       department may prohibit the sale of children's products that do not contain the safer                             
05       alternative that is least toxic to human health or least harmful to the environment.                              
06            (c)  The department shall specify the effective date of the prohibition, but the                             
07       regulations creating a prohibition under this section may not take effect until at least                          
08       12 months after the notice of the proposed regulations published under AS 44.62.175                               
09       (Administrative Procedure Act).                                                                                   
10            Sec. 18.31.690. Determination of availability of safer alternatives. When                                  
11       determining whether a safer alternative is available under AS 18.31.680, the                                      
12       department may, in the absence of persuasive evidence to the contrary, presume that                               
13                 (1)  an alternative is a safer alternative if the alternative is not a                                  
14       chemical of high concern;                                                                                         
15                 (2)  a safer alternative is available if the sale of the children's product                             
16       containing the priority chemical has been banned by another state in the United States;                           
17                 (3)  a safer alternative is available if the children's product containing                              
18       the priority chemical is an item of apparel or a novelty; and                                                     
19                 (4)  a safer alternative is available if the alternative is sold in the United                          
20       States.                                                                                                           
21            Sec. 18.31.700. Compliance plan. (a) Not later than 180 days before the                                    
22       effective date of a prohibition adopted under AS 18.31.680, the manufacturer or                                   
23       distributor of a children's product that contains the priority chemical and that is subject                       
24       to the prohibition shall file a compliance plan with the department or seek a waiver                              
25       under AS 18.31.710.                                                                                               
26            (b)  A compliance plan under (a) of this section must                                                        
27                 (1)  identify the children's product that contains the priority chemical;                               
28                 (2)  specify whether compliance will be achieved by discontinuing the                                   
29       sale of the children's product in the state or by substituting a safer alternative in the                         
30       product; and                                                                                                      
31                 (3)  if compliance is achieved by substitution of a safer alternative in                                
01       the product, identify the safer alternative and the timetable for substitution.                                   
02            Sec. 18.31.710. Waiver for specific uses. (a) The manufacturer or distributor                              
03       of a children's product that contains a priority chemical and that is subject to a                                
04       prohibition adopted under AS 18.31.680 may apply to the department for a waiver for                               
05       one or more specific uses of the priority chemical in a children's product. The waiver                            
06       application must, at a minimum,                                                                                   
07                 (1)  identify the specific children's product use for which the waiver is                               
08       sought;                                                                                                           
09                 (2)  identify the alternatives considered for substitution of the priority                              
10       chemical;                                                                                                         
11                 (3)  explain the basis for concluding that the use of an alternative is not                             
12       feasible; and                                                                                                     
13                 (4)  identify the steps that have and will be taken to minimize the use of                              
14       the priority chemical in the children's product.                                                                  
15            (b)  The department may grant a waiver with or without conditions if the                                     
16       department finds that there is a need for the children's product in which the priority                            
17       chemical is used and there are no technically or economically feasible alternatives for                           
18       the use of the priority chemical in the children's product.                                                       
19            (c)  The department may grant a waiver under (b) of this section for a period of                             
20       time that may not exceed five years. The department may renew the waiver for one or                               
21       more additional five-year periods if the manufacturer or distributor submits a written                            
22       application that demonstrates that feasible alternatives are not available for technical                          
23       or economical reasons. The department shall deny or grant a request for a waiver                                  
24       within 60 days after receiving a completed application for a waiver.                                              
25            Sec. 18.31.720. Notification responsibility. A manufacturer or distributor of a                            
26       children's product containing a priority chemical shall provide the persons who sell or                           
27       distribute the product in the state with notice of the requirements of AS 18.31.610 -                             
28       18.31.800.                                                                                                        
29            Sec. 18.31.730. Retailer prohibition. If the manufacturer, distributor, or the                             
30       state has notified the retailer of the prohibition of a children's product under                                  
31       AS 18.31.720, and the manufacturer has not received a waiver under AS 18.31.710, a                                
01       retailer may not knowingly sell the prohibited children's product after the effective                             
02       date of the prohibition adopted by the department under AS 18.31.680. In this section,                            
03       "knowingly" has the meaning given in AS 11.81.900.                                                                
04            Sec. 18.31.740. General exemptions. AS 18.31.610 - 18.31.800 do not apply                                  
05       to                                                                                                                
06                 (1)  chemicals in used products;                                                                        
07                 (2)  motor vehicles or their component parts, except that the use of                                    
08       priority chemicals in detachable car seats is not exempt; in this paragraph, "motor                               
09       vehicle" has the meaning given in AS 28.90.990; or                                                                
10                 (3)  priority chemicals generated solely as combustion by-products or                                   
11       that are present in combustible fuels.                                                                            
12            Sec. 18.31.750. Education and assistance. If the department has sufficient                                 
13       resources for the program, the department shall develop a program to educate and                                  
14       assist consumers and retailers in identifying children's products that may contain                                
15       priority chemicals.                                                                                               
16            Sec. 18.31.760. Manufacturer and distributor prohibitions. (a) A                                           
17       manufacturer or distributor may not manufacture, sell, or distribute for sale in the state                        
18       a children's product containing a priority chemical if the manufacturer or distributor                            
19       has failed to provide information as required for the children's product under                                    
20       AS 18.31.650 and 18.31.660. The department shall exempt a children's product from                                 
21       this prohibition if the department determines that the lack of availability of the                                
22       children's product could pose an unreasonable risk to public health, safety, or welfare.                          
23            (b)  A manufacturer or distributor may not manufacture, sell, or distribute for                              
24       sale in the state a children's product that contains a priority chemical and that is                              
25       prohibited by the department under AS 18.31.680, unless otherwise allowed by                                      
26       AS 18.31.710.                                                                                                     
27            Sec. 18.31.770. Certificate of compliance. If there are grounds to suspect that                            
28       a children's product is being sold in violation of AS 18.31.610 - 18.31.800, the                                  
29       department may request that the manufacturer or distributor of the product provide a                              
30       certificate of compliance with the provisions of AS 18.31.610 - 18.31.800. Within 10                              
31       days after receipt of a request under this section, the manufacturer or distributor shall                         
01                 (1)  provide the department with the certificate attesting that the                                     
02       children's product does not contain a priority chemical; or                                                       
03                 (2)  notify the persons who sell the children's product in the state that                               
04       the sale of the children's product is prohibited and provide the department with a list of                        
05       the names and addresses of the persons notified.                                                                  
06            Sec. 18.31.780. Interstate clearinghouse to promote safer alternatives. (a)                                
07       The department may participate in an interstate clearinghouse to promote safer                                    
08       chemicals in children's products in cooperation with other states and governmental                                
09       entities.                                                                                                         
10            (b)  Under (a) of this section, the department may cooperate with the interstate                             
11       clearinghouse to                                                                                                  
12                 (1)  classify existing chemicals in commerce into one of four                                           
13       categories: chemicals of high concern, chemicals of moderate concern, chemicals of                                
14       unknown concern, and chemicals of low concern; in this paragraph,                                                 
15                      (A)  "chemical of low concern" means a chemical for which                                          
16            adequate toxicity and environmental data are available to determine that it is                               
17            not a chemical of high concern, a chemical of moderate concern, or a chemical                                
18            of unknown concern;                                                                                          
19                      (B)  "chemical of moderate concern" means a chemical                                               
20            identified by an authoritative governmental entity on the basis of credible                                  
21            scientific evidence as being suspected of causing an adverse health or                                       
22            environmental effect;                                                                                        
23                      (C)  "chemical of unknown concern" means a chemical for                                            
24            which insufficient data are available to classify it as a chemical of high                                   
25            concern, a chemical of moderate concern, or a chemical of low concern;                                       
26                 (2)  organize and manage available data on chemicals, including                                         
27       information on uses, hazards, and environmental concerns;                                                         
28                 (3)  produce and inventory information on safer alternatives to specific                                
29       uses of chemicals of concern and on model policies and programs;                                                  
30                 (4)  provide technical assistance to businesses and consumers related to                                
31       safer alternatives; and                                                                                           
01                 (5)  undertake other activities in support of state programs to promote                                 
02       safer alternatives.                                                                                               
03            Sec. 18.31.790. Regulations. The department may adopt regulations under                                    
04       AS 44.62 (Administrative Procedure Act) to implement AS 18.31.610 - 18.31.800.                                    
05            Sec. 18.31.800. Definitions. In AS 18.31.610 - 18.31.800, unless the context                               
06       indicates otherwise,                                                                                              
07                 (1)  "alternative" means a substitute process, product, material,                                       
08       chemical, or strategy or a combination of a substitute process, product, material,                                
09       chemical, or strategy that serves a functionally equivalent purpose to a chemical in a                            
10       children's product;                                                                                               
11                 (2)  "chemical" means                                                                                   
12                      (A)  a substance with a distinct molecular composition;                                            
13                      (B)  a group of substances if the molecular compositions of the                                    
14            substances are related;                                                                                      
15                      (C)  a substance that forms through decomposition, degradation,                                    
16            or metabolism of a substance described in (A) or (B) of this paragraph;                                      
17                 (3)  "chemical of high concern" means a chemical identified as a                                        
18       chemical of high concern under AS 18.31.610;                                                                      
19                 (4)  "child" means an individual under 16 years of age;                                                 
20                 (5)  "children's product" means a consumer product intended for use by                                  
21       a child, including baby products, toys, car seats, personal care products, and clothing;                          
22                 (6)  "consumer product" means an item sold for residential or                                           
23       commercial use, a component of the item, and the packaging of the item, except                                    
24                      (A)  a food, a beverage, an additive to a food, an additive to a                                   
25            beverage, a tobacco product, paper, or a forest product;                                                     
26                      (B)  a pesticide regulated by the United States Environmental                                      
27            Protection Agency;                                                                                           
28                      (C)  a drug or biologic regulated by the United States Food and                                    
29            Drug Administration;                                                                                         
30                      (D)  the packaging of a drug or biologic regulated by the United                                   
31            States Food and Drug Administration if the packaging is regulated by the                                     
01            United States Food and Drug Administration;                                                                  
02                 (7)  "department" means the Department of Environmental                                                 
03       Conservation;                                                                                                     
04                 (8)  "distributor" means a person who sells consumer products to retail                                 
05       establishments on a wholesale basis;                                                                              
06                 (9)  "manufacturer" means a person who, in the course of business,                                      
07                      (A)  manufactures a consumer product;                                                              
08                      (B)  affixes a brand name to a consumer product; or                                                
09                      (C)  is the importer or first domestic distributor of a consumer                                   
10            product if the consumer product was imported into the United States and if the                               
11            person who manufactured or assembled the consumer product or whose brand                                     
12            name is affixed to the consumer product does not do business in the United                                   
13            States;                                                                                                      
14                 (10)  "packaging" means, for a consumer product that is a food or                                       
15       beverage, the packaging of a food or beverage that is intentionally marketed or                                   
16       intended for a child under three years of age;                                                                    
17                 (11)  "priority chemical" means a chemical identified as a priority                                     
18       chemical under AS 18.31.630;                                                                                      
19                 (12)  "safer alternative" means an alternative that, when compared to a                                 
20       priority chemical that it could replace,                                                                          
21                      (A)  would reduce the potential for harm to human health or the                                    
22            environment;                                                                                                 
23                      (B)  has not been shown to pose the same or greater potential                                      
24            for harm to human health or the environment as the priority chemical;                                        
25                 (13)  "sell" includes an offer to sell.                                                                 
26    * Sec. 2. AS 45.50.471(b) is amended by adding a new paragraph to read:                                            
27                 (58)  violating AS 18.31.730 or 18.31.760 (chemicals in children's                                      
28       products).                                                                                                        
29    * Sec. 3. The uncodified law of the State of Alaska is amended by adding a new section to                          
30 read:                                                                                                                   
31       TRANSITION: INITIAL LIST OF CHEMICALS OF HIGH CONCERN. By                                                         
01 January 1, 2015, the Department of Environmental Conservation, in consultation with the                                 
02 Department of Health and Social Services, shall identify and publish the first list of chemicals                        
03 of high concern under AS 18.31.610, enacted by sec. 1 of this Act. In developing the list, the                          
04 departments may consider                                                                                                
05            (1)  chemicals identified as Group 1 carcinogens or Group 2A carcinogens by                                  
06 the World Health Organization, International Agency for Research on Cancer;                                             
07            (2)  chemicals identified as "known to be carcinogens" or "reasonably                                        
08 anticipated to be carcinogens" under 42 U.S.C. 241(b)(4);                                                               
09            (3)  chemicals identified as Group A carcinogens or Group B carcinogens by                                   
10 the United States Environmental Protection Agency;                                                                      
11            (4)  chemicals identified as reproductive or developmental toxicants by                                      
12                 (A)  the United States Department of Health and Human Services,                                         
13       National Toxicology Program, Center for the Evaluation of Risks to Human                                          
14       Reproduction; and                                                                                                 
15                 (B)  the California Environmental Protection Agency, Office of                                          
16       Environmental Health Hazard Assessment, under the Safe Drinking Water and Toxic                                   
17       Enforcement Act of 1986, Section 25249.8;                                                                         
18            (5)  chemicals identified as known or likely endocrine disruptors through                                    
19 screening or testing conducted under protocols developed by the United States Environmental                             
20 Protection Agency under 21 U.S.C. 346a(p);                                                                              
21            (6)  chemicals listed on the basis of endocrine-disrupting properties in Annex                               
22 XIV, List of Substances Subject to Authorization, Regulation (EC) No 1907/2006 of the                                   
23 European Parliament concerning the Registration, Evaluation, Authorization and Restriction                              
24 of Chemicals, as amended by Regulation (EU) 143/2011 and Regulation (EU) 125/2012;                                      
25            (7)  persistent, bioaccumulative, and toxic chemicals identified by                                          
26                 (A)  the State of Washington, Department of Ecology, in the                                             
27       Washington Administrative Code, Chapter 173-333; or                                                               
28                 (B)  the United States Environmental Protection Agency in 40 CFR                                        
29       372; and                                                                                                        
30            (8)  a very persistent, very bioaccumulative chemical listed in Annex XIV, List                              
31 of Substances Subject to Authorization, Regulation (EC) No 1907/2006 of the European                                    
01 Parliament concerning the Registration, Evaluation, Authorization and Restriction of                                    
02 Chemicals, as amended by Regulation (EU) 143/2011 and Regulation (EU) 125/2012.                                         
03    * Sec. 4. The uncodified law of the State of Alaska is amended by adding a new section to                          
04 read:                                                                                                                   
05       TRANSITION: INITIAL DESIGNATION OF PRIORITY CHEMICALS. (a) By                                                     
06 January 1, 2016, the Department of Environmental Conservation, in consultation with the                                 
07 Department of Health and Social Services, shall identify and designate at least two chemicals                           
08 of high concern, or groups of similar chemicals, as priority chemicals under AS 18.31.630,                              
09 enacted by sec. 1 of this Act.                                                                                          
10       (b)  Before designating the priority chemicals under (a) of this section, the department                          
11 shall                                                                                                                   
12            (1)  convene a group that includes representatives of consumer product                                       
13 manufacturers, chemical manufacturers, retailers, trade associations, nonprofit health                                  
14 organizations, business groups, environmental groups, and other affected parties;                                       
15            (2)  invite independent experts with relevant experience with chemicals to                                   
16 participate in the group; and                                                                                           
17            (3)  seek recommendations from the group on the                                                              
18                 (A)  development of a protocol to be used for the designation of priority                               
19       chemicals under AS 18.31.630, enacted by sec. 1 of this Act;                                                      
20                 (B)  responsibilities, activities, and proposed rules necessary to                                      
21       implement AS 18.31.630, enacted by sec. 1 of this Act; and                                                        
22                 (C)  issues of concern to the members of the group regarding the                                        
23       implementation of AS 18.31.630, enacted by sec. 1 of this Act.                                                    
24    * Sec. 5. The uncodified law of the State of Alaska is amended by adding a new section to                          
25 read:                                                                                                                   
26       REVISOR'S INSTRUCTION. Wherever "chapter" appears in AS 18.31.010 -                                               
27 18.31.500, the revisor of statutes shall substitute "AS 18.31.010 - 18.31.500."