New York's Child Safe Products Act Will Affect Manufacturing Globally

The Act applies to children’s products, which are products “primarily intended for, made for or marketed for use by” individuals who are 12 years old or younger.²  Examples include children’s apparel, baby products, toys, car seats, school supplies, children’s furniture and personal care products. Excluded from the Act’s coverage are batteries; consumer electronic products such as personal computers, wireless phones and game consoles; and food, beverages and additives, drugs and biologic or medical devices regulated by the U.S. Food and Drug Administration.

Notice of Dangerous Chemicals: Manufacturers of children’s products containing “dangerous” chemicals will be required to notify entities offering the product for sale or distribution in New York of the presence of the chemical and to provide information about its toxicity.

• Manufacturers: These are entities that manufacture a children’s product or whose brand name is affixed to such product. For an imported product, the manufacturer is the importer or first domestic distributor if the entity that produces or assembles the product, or whose brand name is affixed to the product, does not have a U.S. presence.
• Dangerous Chemicals: These are tris (1, 3 dichloro-2-propyl) phosphate, benzene, lead and compounds (inorganic), mercury and mercury compounds, formaldehyde, asbestos, arsenic and arsenic compounds, cadmium, and organohalogen flame retardants. In the future, the New York State Department of Environmental Conservation (NYSDEC), in consultation with the New York State Department of Health (NYSDOH), may identify a chemical as dangerous if it is present in a children’s product and meets any of the following criteria:

1. Biomonitoring has identified it or its metabolites as present in humans.
2. Sampling and analysis have identified the chemical as present in the home environment, such as in dust, indoor air or drinking water.
3. Monitoring has identified it in fish, wildlife or the natural environment.
4. Its sale or use, or the sale or use of a children’s product containing it, has been banned in another state because of health effects.

• Chemicals of Concern: There are more than 75 substances identified in the Act as chemicals of concern, including phenol, bisphenol A (BPA), F and S (BPS), and vinyl chloride. In the future, NYSDEC, in consultation with NYSDOH, will identify a substance as a chemical of concern if it determines that the chemical has been identified by a state, federal or international governmental body, based on credible scientific evidence, as (1) a carcinogen, reproductive or developmental toxicant, neurotoxicant, asthmagen or endocrine disruptor; (2) persistent, bioaccumulative and toxic; or (3) very persistent and very bioaccumulative.

Reporting: By August 28, 2020, NYSDEC will post lists of dangerous chemicals and chemicals of concern on its website. NYSDEC will periodically review the list and may revise it. Within 12 months after a dangerous chemical appears on NYSDEC’s list of such chemicals, each manufacturer offering a children’s product for sale or distribution in New York containing a dangerous chemical or chemical of concern must submit a report to NYSDEC about such chemical use at practical quantification limits. The report must identify the product, the dangerous chemicals or chemicals of concern in it and their intended purpose. NYSDEC may also require reporting of the amount of such chemicals in the product, or information about the likelihood the chemicals will be released from the product to the environment, and the extent to which the product’s users are likely to be exposed to them.

NYSDEC may waive all or part of the reporting requirements for one or more specified uses of a dangerous chemical. In deciding whether to grant a manufacturer’s request for a waiver, NYSDEC may consider whether (1) substantially equivalent information is publicly available, (2) the information is not needed for the purposes of the Act, (3) other states have granted similar waivers and (4) the specific use is minor in volume.

Prohibition: As of January 1, 2023, the distribution, sale and offering for sale in New York of a children’s product containing these dangerous chemicals is banned: tris (1, 3 dichloro-2-propyl) phosphate, benzene, formaldehyde (except in textiles), asbestos and organohalogen flame retardants. Also, three years after a chemical is added to the list of dangerous chemicals, the foregoing prohibition applies to such a chemical. The prohibition, though, does not apply to a product solely because a dangerous chemical is contained in an enclosed battery or enclosed electronic component. The prohibition also does not apply where federal law preempts state regulation of children’s products or where the chemical is present as a trace contaminant. In addition, NYSDEC may exempt a product from the prohibition if, in NYSDEC’s judgment, the resulting unavailability of a children’s product “could pose an unreasonable risk to public health, safety or welfare.” N.Y. ECL§ 37-0907(1), (2).

Inapplicability: The Act does not apply to used children’s products; chemicals used in the process of manufacturing a product that are not present in the final product; various products used in transportation, such as all-terrain vehicles; dangerous chemicals generated solely as combustion byproducts or that are present in combustible fuels; and products produced by manufacturers with five or fewer employees that are independently owned and operated. In addition, retailers are exempt unless they knowingly sell a children’s product containing a dangerous chemical after its sale is prohibited and after receipt of notice from the manufacturer of the dangerous chemical.

NYSDEC is authorized to enact regulations to implement the Act. Manufacturers affected by the Act may want to monitor and participate in any actions by NYSDEC to promulgate such regulations.

¹ Child Safe Products Act, N.Y. ECL §§ 37-0901 to 37-0913.

² Child Safe Products Act, N.Y. ECL § 37-0901(4), (5).