HB 238: "An Act relating 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. 238 01 "An Act relating to chemicals in children's products; and adding an unlawful act to the 02 Alaska Unfair Trade Practices and Consumer Protection Act." 03 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 04 * Section 1. AS 18 is amended by adding new sections to read: 05 Article 4. Chemicals in Children's Products. 06 Sec. 18.31.610. Identification of chemicals of high concern. The department, 07 after consultation with the Department of Health and Social Services, shall publish a 08 list of chemicals of high concern. The department may include a chemical on the list 09 only if it has been identified by a governmental entity based on credible scientific 10 evidence as being known as 11 (1) a carcinogen, a reproductive toxicant, a developmental toxicant, or 12 an endocrine disruptor; 13 (2) persistent, bioaccumulative, and toxic; or 14 (3) very persistent and very bioaccumulative.
01 Sec. 18.31.620. Revision of list. The department may periodically review and 02 revise the list of chemicals of high concern. The department may add a chemical to the 03 list if the department, after consultation with the Department of Health and Social 04 Services, determines that the chemical is a chemical of high concern. The department 05 may remove a chemical from the list of chemicals of high concern based on evidence 06 that the chemical is not present in a children's product or otherwise would not be 07 subject to the requirements of AS 18.31.610 - 18.31.800. 08 Sec. 18.31.630. Designation of priority chemicals. (a) The department may 09 designate by regulation a chemical of high concern as a priority chemical if, after 10 consultation with the Department of Health and Social Services, the department 11 determines that 12 (1) the chemical has been found, through biomonitoring, to be present 13 in human blood, including umbilical cord blood, breast milk, urine, or other bodily 14 tissues or fluids; 15 (2) the chemical has been found, through sampling and analysis, to be 16 present in household dust, indoor air, drinking water, or elsewhere in the home 17 environment; 18 (3) the chemical has been found, through monitoring, to be present in 19 fish, wildlife, or the natural environment; 20 (4) the chemical is present in a consumer product used or present in the 21 home; 22 (5) the chemical has been identified as a high production volume 23 chemical by the United States Environmental Protection Agency; or 24 (6) the sale or use of the chemical or a product containing the chemical 25 has been banned in another state in the United States. 26 (b) The department may, without making the determination required by (a) of 27 this section, designate mercury or a mercury compound as a priority chemical for the 28 purpose of prohibiting the manufacture, sale, or distribution of a children's product 29 that contains mercury. 30 Sec. 18.31.640. Revision of the designation of priority chemicals. The 31 department shall review the designation of priority chemicals at least every three years
01 and may designate additional chemicals as priority chemicals if the department 02 determines, after consultation with the Department of Health and Social Services, that 03 the chemicals are priority chemicals. 04 Sec. 18.31.650. Notification of use of priority chemical. (a) Not later than 05 180 days after a priority chemical is identified under AS 18.31.630 or 18.31.640, a 06 person who is a manufacturer or distributor of a children's product that is sold in the 07 state and that contains a priority chemical shall notify the department in writing that 08 the children's product contains a priority chemical and shall provide, for the children's 09 product, 10 (1) an identification; 11 (2) the number sold or distributed for sale in the state or nationally; 12 (3) the priority chemical contained in the children's product; 13 (4) the amount of the priority chemical in the children's product; and 14 (5) the intended purpose of the priority chemical in the children's 15 product. 16 (b) The department may extend the deadline for submission of the information 17 required under (a) of this section if the department determines that the manufacturer or 18 distributor needs more time to comply with the submission requirements or if the 19 information is not needed at the time. 20 (c) The department may waive all or part of the notification requirement under 21 (a) of this section if the department determines that substantially equivalent 22 information is already publicly available, that the information is not needed for the 23 purposes of AS 18.31.610 - 18.31.800, or that the amount of the priority chemical used 24 in the children's product is minor. 25 Sec. 18.31.660. Supplemental information. (a) In addition to providing the 26 information required to be in the notice under AS 18.31.650, a manufacturer or 27 distributor of a children's product that is sold in the state and that contains a priority 28 chemical shall, if requested by the department, provide 29 (1) information on the likelihood that the chemical will be released 30 from the children's product to the environment during the life cycle of the children's 31 product and the extent to which users of the children's product are likely to be exposed
01 to the chemical; 02 (2) information on the extent to which the chemical is present in the 03 environment or human body; and 04 (3) an assessment of the availability, cost, feasibility, performance, and 05 potential for harm to human health and the environment of alternatives to the priority 06 chemical in the children's product and the reason the priority chemical is used in the 07 manufacture of the children's product instead of alternatives identified under this 08 paragraph. 09 (b) If a manufacturer or distributor does not provide the information requested 10 under (a) of this section in the time set by the department, the department may assess a 11 fee on the manufacturer or distributor to cover the department's costs to contract with 12 another person to prepare an independent report on the availability of safer alternatives 13 for the children's product. 14 (c) In addition to the other information required by this section, a 15 manufacturer or distributor of a children's product that contains a priority chemical 16 may provide additional information to the department regarding the potential for harm 17 to human health and the environment from specific uses of the priority chemical for 18 the children's products of the manufacturer or distributor. 19 Sec. 18.31.670. Information management fee. When a manufacturer or 20 distributor submits a notice or other information under AS 18.31.650 or 18.31.660(a) 21 or (b), the department may charge the manufacturer or distributor a reasonable fee to 22 cover the department's costs to review the information collected. 23 Sec. 18.31.680. Prohibitions by department. (a) The department may 24 prohibit by regulation the manufacture, distribution, or sale in the state of a children's 25 product containing a priority chemical if the department finds, after consideration of 26 information filed under AS 18.31.650 and 18.31.660 and other relevant information 27 submitted to or obtained by the department, that 28 (1) distribution of the children's product directly or indirectly exposes 29 children and vulnerable populations to the priority chemical; and 30 (2) one or more safer alternatives to the priority chemical are available 31 at a comparable cost.
01 (b) If there are several available safer alternatives to a priority chemical, the 02 department may prohibit the sale of children's products that do not contain the safer 03 alternative that is least toxic to human health or least harmful to the environment. 04 (c) The department shall specify the effective date of the prohibition, which 05 may not be sooner than 12 months after the notice of the proposed regulation to make 06 the prohibition is published under AS 44.62.175 (Administrative Procedure Act). 07 Sec. 18.31.690. Determination of availability of safer alternatives. When 08 determining whether a safer alternative is available under AS 18.31.680, the 09 department may, in the absence of persuasive evidence to the contrary, presume that 10 (1) an alternative is a safer alternative if the alternative is not a 11 chemical of high concern; 12 (2) a safer alternative is available if the sale of the children's product 13 containing the priority chemical has been banned by another state in the United States; 14 (3) a safer alternative is available if the children's product containing 15 the priority chemical is an item of apparel or a novelty; and 16 (4) a safer alternative is available if the alternative is sold in the United 17 States. 18 Sec. 18.31.700. Compliance plan. (a) Not later than 180 days before the 19 effective date of a prohibition adopted under AS 18.31.680, the manufacturer or 20 distributor of a children's product that contains the priority chemical and that is subject 21 to the prohibition shall file a compliance plan with the department or seek a waiver 22 under AS 18.31.710. 23 (b) A compliance plan under (a) of this section must 24 (1) identify the children's product that contains the priority chemical; 25 (2) specify whether compliance will be achieved by discontinuing the 26 sale of the children's product in the state or by substituting a safer alternative in the 27 product; and 28 (3) if compliance is achieved by substitution of a safer alternative in 29 the product, identify the safer alternative and the timetable for substitution. 30 Sec. 18.31.710. Waiver for specific uses. (a) The manufacturer or distributor 31 of a children's product that contains a priority chemical and that is subject to a
01 prohibition adopted under AS 18.31.680 may apply to the department for a waiver for 02 one or more specific uses of the priority chemical in a children's product. The waiver 03 application must, at a minimum, 04 (1) identify the specific children's product use for which the waiver is 05 sought; 06 (2) identify the alternatives considered for substitution of the priority 07 chemical; 08 (3) explain the basis for concluding that the use of an alternative is not 09 feasible; and 10 (4) identify the steps that have and will be taken to minimize the use of 11 the priority chemical in the children's product. 12 (b) The department may grant a waiver with or without conditions if the 13 department finds that there is a need for the children's product in which the priority 14 chemical is used and there are no technically or economically feasible alternatives for 15 the use of the priority chemical in the children's product. 16 (c) The department may grant a waiver under (b) of this section for a period of 17 time that may not exceed five years. The department may renew the waiver for one or 18 more additional five-year periods if the manufacturer or distributor submits a written 19 application that demonstrates that feasible alternatives are not available for technical 20 or economical reasons. The department shall deny or grant a request for a waiver 21 within 60 days after receiving a completed application for a waiver. 22 Sec. 18.31.720. Notification responsibility. A manufacturer or distributor of a 23 children's product containing a priority chemical shall notify the persons who sell or 24 distribute the product in the state of the requirements of AS 18.31.610 - 18.31.800. 25 Sec. 18.31.730. Retailer prohibition. A retailer may not knowingly sell a 26 children's product containing a priority chemical after the effective date of a regulation 27 that is adopted by the department under AS 18.31.680 and that prohibits the sale of the 28 children's product, if the manufacturer, distributor, or the state has notified the retailer 29 of the prohibition under AS 18.31.720 for which the manufacturer has not received a 30 waiver under AS 18.31.710. In this section, "knowingly" has the meaning given in 31 AS 11.81.900.
01 Sec. 18.31.740. General exemptions. AS 18.31.610 - 18.31.800 do not apply 02 to 03 (1) chemicals in used products; 04 (2) motor vehicles or their component parts, except that the use of 05 priority chemicals in detachable car seats is not exempt; in this paragraph, "motor 06 vehicle" has the meaning given in AS 28.90.990; or 07 (3) priority chemicals generated solely as combustion by-products or 08 that are present in combustible fuels. 09 Sec. 18.31.750. Education and assistance. If the department has sufficient 10 resources for the program, the department shall develop a program to educate and 11 assist consumers and retailers in identifying children's products that may contain 12 priority chemicals. 13 Sec. 18.31.760. Manufacturer and distributor prohibitions. (a) A 14 manufacturer or distributor may not manufacture, sell, or distribute for sale in the state 15 a children's product containing a priority chemical if the manufacturer or distributor 16 has failed to provide information as required for the children's product under 17 AS 18.31.650 and 18.31.660. The department shall exempt a children's product from 18 this prohibition if the department determines that the lack of availability of the 19 children's product could pose an unreasonable risk to public health, safety, or welfare. 20 (b) A manufacturer or distributor may not manufacture, sell, or distribute for 21 sale in the state a children's product that contains a priority chemical and that is 22 prohibited by the department under AS 18.31.680, unless otherwise allowed by 23 AS 18.31.710. 24 Sec. 18.31.770. Certificate of compliance. If there are grounds to suspect that 25 a children's product is being sold in violation of AS 18.31.610 - 18.31.800, the 26 department may request the manufacturer or distributor of the product to provide a 27 certificate of compliance with the provisions of AS 18.31.610 - 18.31.800. Within 10 28 days after receipt of a request under this section, the manufacturer or distributor shall 29 (1) provide the department with the certificate attesting that the 30 children's product does not contain a priority chemical; or 31 (2) notify the persons who sell the children's product in the state that
01 the sale of the children's product is prohibited and provide the department with a list of 02 the names and addresses of the persons notified. 03 Sec. 18.31.780. Interstate clearinghouse to promote safer alternatives. (a) 04 The department may participate in an interstate clearinghouse to promote safer 05 chemicals in children's products in cooperation with other states and governmental 06 entities. 07 (b) Under (a) of this section, the department may cooperate with the interstate 08 clearinghouse to 09 (1) classify existing chemicals in commerce into one of four 10 categories: chemicals of high concern, chemicals of moderate concern, chemicals of 11 unknown concern, and chemicals of low concern; in this paragraph, 12 (A) "chemical of low concern" means a chemical for which 13 adequate toxicity and environmental data are available to determine that it is 14 not a chemical of high concern, a chemical of moderate concern, or a chemical 15 of unknown concern; 16 (B) "chemical of moderate concern" means a chemical 17 identified by an authoritative governmental entity on the basis of credible 18 scientific evidence as being suspected of causing an adverse health or 19 environmental effect; 20 (C) "chemical of unknown concern" means a chemical for 21 which insufficient data are available to classify it as a chemical of high 22 concern, a chemical of moderate concern or a chemical of low concern; 23 (2) organize and manage available data on chemicals, including 24 information on uses, hazards, and environmental concerns; 25 (3) produce and inventory information on safer alternatives to specific 26 uses of chemicals of concern and on model policies and programs; 27 (4) provide technical assistance to businesses and consumers related to 28 safer alternatives; and 29 (5) undertake other activities in support of state programs to promote 30 safer alternatives. 31 Sec. 18.31.790. Regulations. The department may adopt regulations under
01 AS 44.62 (Administrative Procedure Act) to implement AS 18.31.610 - 18.31.800. 02 Sec. 18.31.800. Definitions. In AS 18.31.610 - 18.31.800, unless the context 03 indicates otherwise, 04 (1) "alternative" means a substitute process, product, material, 05 chemical, or strategy or a combination of a substitute process, product, material, 06 chemical, or strategy that serves a functionally equivalent purpose to a chemical in a 07 children's product; 08 (2) "chemical" means 09 (A) a substance with a distinct molecular composition; 10 (B) a group of structurally related substances; and 11 (C) a substance that forms through decomposition, degradation, 12 or metabolism of a substance described in (A) or (B) of this paragraph; 13 (3) "chemical of high concern" means a chemical identified as a 14 chemical of high concern under AS 18.31.610; 15 (4) "child" means an individual under 16 years of age; 16 (5) "children's product" means a consumer product intended for use by 17 a child, including baby products, toys, car seats, personal care products, and clothing; 18 (6) "consumer product" means an item sold for residential or 19 commercial use, a component of the item, and the packaging of the item, except 20 (A) a food, a beverage, an additive to a food, an additive to a 21 beverage, a tobacco product, paper, or a forest product; 22 (B) a pesticide regulated by the United States Environmental 23 Protection Agency; 24 (C) a drug or biologic regulated by the United States Food and 25 Drug Administration; 26 (D) the packaging of a drug or biologic regulated by the United 27 States Food and Drug Administration if the packaging is regulated by the 28 United States Food and Drug Administration; 29 (7) "department" means the Department of Environmental 30 Conservation; 31 (8) "distributor" means a person who sells consumer products to retail
01 establishments on a wholesale basis; 02 (9) "manufacturer" means a person who, in the course of business, 03 (A) manufactures a consumer product; 04 (B) affixes a brand name to a consumer product; or 05 (C) is the importer or first domestic distributor of a consumer 06 product if the consumer product was imported into the United States and if the 07 person who manufactured or assembled the consumer product or whose brand 08 name is affixed to the consumer product does not do business in the United 09 States; 10 (10) "packaging" means, for a consumer product that is a food or 11 beverage, the packaging of a food or beverage that is intentionally marketed or 12 intended for a child under three years of age; 13 (11) "priority chemical" means a chemical identified as a priority 14 chemical under AS 18.31.630; 15 (12) "safer alternative" means an alternative that, when compared to a 16 priority chemical that it could replace, 17 (A) would reduce the potential for harm to human health or the 18 environment; 19 (B) has not been shown to pose the same or greater potential 20 for harm to human health or the environment as the priority chemical; 21 (13) "sell" includes an offer to sell. 22 * Sec. 2. AS 45.50.471(b) is amended by adding a new paragraph to read: 23 (58) violating AS 18.31.730 or 18.31.760 (chemicals in children's 24 products). 25 * Sec. 3. The uncodified law of the State of Alaska is amended by adding a new section to 26 read: 27 TRANSITION: INITIAL LIST OF CHEMICALS OF HIGH CONCERN. By 28 January 1, 2013, the Department of Environmental Conservation, in consultation with the 29 Department of Health and Social Services, shall identify and publish the first list of chemicals 30 of high concern under AS 18.31.610, enacted by sec. 1 of this Act. In developing the list, the 31 departments may consider
01 (1) chemicals identified as "Group 1 carcinogens" or "Group 2A carcinogens" 02 by the World Health Organization, International Agency for Research on Cancer; 03 (2) chemicals identified as "known to be carcinogens" or "reasonably 04 anticipated to be carcinogens" under 42 U.S.C. 241(b)(4); 05 (3) chemicals identified as "Group A carcinogens" or "Group B carcinogens" 06 by the United States Environmental Protection Agency; 07 (4) chemicals identified as reproductive or developmental toxicants by 08 (A) the United States Department of Health and Human Services, 09 National Toxicology Program, Center for the Evaluation of Risks to Human 10 Reproduction; and 11 (B) the California Environmental Protection Agency, Office of 12 Environmental Health Hazard Assessment, under the Safe Drinking Water and Toxic 13 Enforcement Act of 1986, Chapter 6.6, Section 25249.8; 14 (5) chemicals identified as known or likely endocrine disruptors through 15 screening or testing conducted under protocols developed by the United States Environmental 16 Protection Agency under 21 U.S.C. 346a(p); 17 (6) chemicals listed on the basis of endocrine-disrupting properties in Annex 18 XIV, List of Substances Subject to Authorisation, Regulation (EC) No 1907/2006 of the 19 European Parliament concerning the Registration, Evaluation, Authorisation and Restriction 20 of Chemicals; 21 (7) persistent, bioaccumulative, and toxic chemicals identified by 22 (A) the State of Washington, Department of Ecology, in the 23 Washington Administrative Code, Chapter 173-333; or 24 (B) the United States Environmental Protection Agency in 40 CFR 25 372; and 26 (8) a very persistent, very bioaccumulative chemical listed in Annex XIV, List 27 of Substances Subject to Authorisation, Regulation (EC) No 1907/2006 of the European 28 Parliament concerning the Registration, Evaluation, Authorisation and Restriction of 29 Chemicals. 30 * Sec. 4. The uncodified law of the State of Alaska is amended by adding a new section to 31 read:
01 TRANSITION: INITIAL DESIGNATION OF PRIORITY CHEMICALS. (a) By 02 January 1, 2014, the Department of Environmental Conservation, in consultation with the 03 Department of Health and Social Services, shall identify and designate at least two chemicals 04 of high concern, or groups of similar chemicals, as priority chemicals under AS 18.31.630, 05 enacted by sec. 1 of this Act. 06 (b) Before designating the priority chemicals under (a) of this section, the department 07 shall 08 (1) convene a group that includes representatives of consumer product 09 manufacturers, chemical manufacturers, retailers, trade associations, nonprofit health 10 organizations, business groups, environmental groups, and other affected parties; 11 (2) invite independent experts with relevant experience with chemicals to 12 participate in the group; and 13 (3) seek recommendations from the group on the 14 (A) development of a protocol to be used for the designation of priority 15 chemicals under AS 18.31.630, enacted by sec. 1 of this Act; 16 (B) responsibilities, activities, and proposed rules necessary to 17 implement AS 18.31.630, enacted by sec. 1 of this Act; and 18 (C) issues of concern to the members of the group regarding the 19 implementation of AS 18.31.630, enacted by sec. 1 of this Act. 20 * Sec. 5. The uncodified law of the State of Alaska is amended by adding a new section to 21 read: 22 REVISOR'S INSTRUCTION. Wherever "chapter" appears in AS 18.31.010 - 23 18.31.500, the revisor of statutes shall substitute "AS 18.31.010 - 18.31.500."