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."