January 19, 2016
The Business Council opposes this legislation, which would mandate the Department of Environmental Conservation implement a chemical review process for which they do not have the staff, resources or expertise. Under this legislation, New York would have to undertake an expensive, highly scientific review to make concrete determinations about the toxicity of chemicals and their potential harm to the public. New York does not have the financial resources or expertise to execute such a review.
The Business Council strongly believes that independent, well-financed national and/or international regulatory bodies dedicated to the protection of human health, including a focus on sensitive populations, should review suspected health hazards when legitimate concerns are raised.
Some advocates have claimed that this legislation would mirror the reporting requirements of other states programs. This simply is not true. The Washington State law that has been estimated to cost businesses up to $27.6 million and has a more limited scope than the proposed legislation.
Specifically, Washington State's reporting requirements are not as broad as those proposed in this bill, as this legislation has no size-based phase-in for reporting, no "due diligence" exclusion for reporting, and no exclusion for inaccessible parts. Due to the substantial differences in this legislation and the state of Washington program, businesses would be forced to duplicate costly reporting requirements.
It is too early to determine the effects of the Washington state law because it has just taken effect. Already, Washington Gov. Jay Inslee has proposed to overhaul the legislation to increase administrative powers and the scope of the legislation beyond “children’s products”.
Toxic Substance Control Act (TSCA)
More than a dozen federal laws currently create a safety net to oversee the safe use of chemical products, including Toxic Substance Control Act (TSCA), which gives the U.S. Environmental Protection Agency (EPA) authority to review and regulate chemicals in commerce. TSCA was designed to ensure that products are safe for intended use.
Consumer Product Safety Improvement Act (CPSIA)
History provides us cautionary tales of similar legislation that fostered uncertainty in consumers, retailers, and manufacturers. The Consumer Product Safety Improvement Act (CPSIA) and Maine's Kids Product Safety Act, were both drafted with the best intentions.
When Congress drafted the CPSIA, limited consideration was given to the potential for exposure. Without this consideration, objects that pose no harm are treated as dangerous.
As a result of CPSIA, thrift stores and other resellers and distributors of used books were ordered to discard children's books printed before 1985 (unless they wished to test for lead or take other typically unpractical steps such as contacting manufacturers). Many older children's books have painted decorative titles and other cover embellishments that contain extremely small quantities of lead, which is unlikely to result in exposure.
It was not until August of 2011 that federal reforms provided the publishing and printing industries with the certainty that they looked to obtain, but this happened after countless used chapter books were destroyed.
Maine's Kids Product Safety Act
The passage of Maine's Kids Product Safety Act resulted in an increased level of uncertainly in the business community. Maine's business community urged the legislature to alleviate this significant deterrent to investing in Maine. Specifically, Ben Gilman of the Maine Chamber of Commerce said: “With the 1,751 ‘chemicals of high concern' list hanging over their heads, why would any business make an investment or take a risk here not knowing when or if the chemicals they use in their products would be next." The Maine legislature reacted to the valid concerns of businesses with a revamping of the legislation.
Many of the problems inherent in CPSIA and with Maine's Kids Product Safety Act are contained in this legislation.
A major concern with this legislation is that its definition of “children's product" is very broad, and includes any item, including its component parts and packaging, that is designed or intended for use by children aged 12 or younger. Under such an expansive view, how would a manufacturer, importer or distributor be able to determine whether or not a personal care product, such as soap, shampoo or toothpaste is intended for children? This will affect entire sectors in manufacturing, business and retail that may be required to discontinue commonly used products.
The bill does not contain a de minimis concentration exemption. The European Union's R.E.A.C.H. program sets an upper limit of 0.1 percent for substances of very high concern, including carcinogens, mutagens and reproductive toxins.
De minimis concentration exemptions are important as they can provide certainty to manufacturers of products that contain recycled content. Maine amended its legislation to include a de minimis exemption to address these legitimate concerns.
The legislation specifically excludes from the definition of “children's products," consumer electronic products enclosed with a secure housing, recognizing that risk is determined by the threat of actual exposure. This bill does not allow the regulatory bodies to consider similar exemptions for other product categories where there might be no risk because there is no pathway to exposure.
The Business Council is concerned with any legislation that calls for state specific chemical bans and restrictions. This bill will create uncertainty for New York's manufacturers who will not know from year to year which chemicals will make the priority list for bans until the list is made public. Chemical regulation in particular is better handled on a national level, rather than having different states with varying standards for chemical and product safety. This in turn will further put New York manufacturers at a competitive disadvantage with those in other states and discourage new businesses from relocating to or expanding in New York.
New York should allow Congress to continue its review and reform of the federal Toxic Substances Control Act (TSCA) and EPA's completion of its designated chemical action plans. This would provide a sound, national statutory and regulatory system that all businesses and manufacturers, including those in New York, can follow. New York should work with the federal government and take advantage of its resources in addressing issues of importance to the state in terms of chemical regulation.
For these reasons, The Business council opposes adoption of this bill.