BILL REQ. #: Z-0454.1
| State of Washington | 62nd Legislature | 2011 Regular Session |
Read first time 01/18/11. Referred to Committee on Environment.
AN ACT Relating to children's safe products; amending RCW 70.240.010 and 70.240.040; reenacting and amending RCW 43.21B.110 and 43.21B.110; adding new sections to chapter 70.240 RCW; providing an effective date; and providing an expiration date.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
Sec. 1 RCW 70.240.010 and 2008 c 288 s 2 are each amended to read
as follows:
The definitions in this section apply throughout this chapter
unless the context clearly requires otherwise.
(1) "Children's cosmetics" means cosmetics that are made for,
marketed for use by, or marketed to children under the age of twelve.
"Children's cosmetics" includes cosmetics that meet any of the
following conditions:
(a) Represented in its packaging, display, or advertising as
appropriate for use by children;
(b) Sold in conjunction with, attached to, or packaged together
with other products that are packaged, displayed, or advertised as
appropriate for use by children; or
(c) Sold in any of the following:
(i) Retail store, catalogue, or online web site, in which a person
exclusively offers for sale products that are packaged, displayed, or
advertised as appropriate for use by children; or
(ii) A discrete portion of a retail store, catalogue, or online web
site, in which a person offers for sale products that are packaged,
displayed, or advertised as appropriate for use by children.
(2) "Children's jewelry" means jewelry that is made for, marketed
for use by, or marketed to children under the age of twelve.
"Children's jewelry" includes jewelry that meets any of the following
conditions:
(a) Represented in its packaging, display, or advertising as
appropriate for use by children under the age of twelve;
(b) Sold in conjunction with, attached to, or packaged together
with other products that are packaged, displayed, or advertised as
appropriate for use by children;
(c) Sized for children and not intended for use by adults; or
(d) Sold in any of the following:
(i) A vending machine;
(ii) Retail store, catalogue, or online web site, in which a person
exclusively offers for sale products that are packaged, displayed, or
advertised as appropriate for use by children; or
(iii) A discrete portion of a retail store, catalogue, or online
web site, in which a person offers for sale products that are packaged,
displayed, or advertised as appropriate for use by children.
(3)(a) "Children's product" ((includes)) means a consumer product
intended for use by children, including but not limited to any of the
following:
(i) Toys;
(ii) Children's cosmetics;
(iii) Children's jewelry;
(iv) A product designed or intended by the manufacturer to help a
child with sucking or teething, to facilitate sleep, relaxation, or the
feeding of a child, or to be worn as clothing by children; or
(v) Child car seats.
(b) "Children's product" does not include the following:
(i) Batteries;
(ii) Slings and catapults;
(iii) Sets of darts with metallic points;
(iv) Toy steam engines;
(v) Bicycles and tricycles;
(vi) Video toys that can be connected to a video screen and are
operated at a nominal voltage exceeding twenty-four volts;
(vii) Chemistry sets;
(viii) Consumer electronic products, including but not limited to
personal computers, audio and video equipment, calculators, wireless
phones, game consoles, and handheld devices incorporating a video
screen, used to access interactive software and their associated
peripherals;
(ix) Interactive software, intended for leisure and entertainment,
such as computer games, and their storage media, such as compact disks;
(x) BB guns, pellet guns, and air rifles;
(xi) Snow sporting equipment, including skis, poles, boots, snow
boards, sleds, and bindings;
(xii) Sporting equipment, including, but not limited to bats,
balls, gloves, sticks, pucks, and pads;
(xiii) Roller skates;
(xiv) Scooters;
(xv) Model rockets;
(xvi) Athletic shoes with cleats or spikes; ((and))
(xvii) Pocket knives and multitools; and
(xviii) Used products.
(4) "Cosmetics" includes articles intended to be rubbed, poured,
sprinkled, or sprayed on, introduced into, or otherwise applied to the
human body or any part thereof for cleansing, beautifying, promoting
attractiveness, or altering the appearance, and articles intended for
use as a component of such an article. "Cosmetics" does not include
soap, dietary supplements, or food and drugs approved by the United
States food and drug administration.
(5) "Department" means the department of ecology.
(6) "High priority chemical" means a chemical identified by a state
agency, federal agency, or accredited research university, or other
scientific evidence deemed authoritative by the department on the basis
of credible scientific evidence as known to do one or more of the
following:
(a) Harm the normal development of a fetus or child or cause other
developmental toxicity;
(b) Cause cancer, genetic damage, or reproductive harm;
(c) Disrupt the endocrine system;
(d) Damage the nervous system, immune system, or organs or cause
other systemic toxicity;
(e) Be persistent, bioaccumulative, and toxic; or
(f) Be very persistent and very bioaccumulative.
(7) "Manufacturer" includes any person, firm, association,
partnership, corporation, governmental entity, organization, or joint
venture that produces a children's product or an importer or domestic
distributor of a children's product. For the purposes of this
subsection, "importer" means the owner of the children's product.
(8) "Phthalates" means di-(2-ethylhexyl) phthalate (DEHP), dibutyl
phthalate (DBP), benzyl butyl phthalate (BBP), diisonoyl phthalate
(DINP), diisodecyl phthalate (DIDP), or di-n-octyl phthalate (DnOP).
(9) "Toy" means a product designed or intended by the manufacturer
to be used by a child at play.
(10) "Trade association" means a membership organization of persons
engaging in a similar or related line of commerce, organized to promote
and improve business conditions in that line of commerce and not to
engage in a regular business of a kind ordinarily carried on for
profit.
(11) "Very bioaccumulative" means having a bioconcentration factor
or bioaccumulation factor greater than or equal to five thousand, or if
neither are available, having a log Kow greater than 5.0.
(12) "Very persistent" means having a half-life greater than or
equal to one of the following:
(a) A half-life in soil or sediment of greater than one hundred
eighty days;
(b) A half-life greater than or equal to sixty days in water or
evidence of long-range transport.
(13) "Children" means persons under twelve years old.
(14) "Priority product" means a product that requires an
alternatives assessment under section 3(6) of this act.
(15) "Product category" means a classification standard that
identifies products that serve a common purpose, are of similar form
and material, and share the same set of category attributes.
(16) "Product component" means a uniquely identifiable part, piece,
substrate, or coating (including ink or dye) that is intended to be
included as a part of a finished children's product or performs a
distinctive and necessary function in the operation of a product. For
formulated products, the homogenous mixture is considered a single
component.
(17) "Used product" means a previously owned product containing
chemicals of high concern for children that is: Sold in casual or
isolated sales as defined in RCW 82.04.040; sold by nonprofit
organizations; or sold through consignment shops.
Sec. 2 RCW 70.240.040 and 2008 c 288 s 5 are each amended to read
as follows:
(1) Beginning six months after the department has adopted rules
((under section 8(5) of this act)) identifying chemicals of high
concern for children, a manufacturer of a children's product, or a
trade organization on behalf of its member manufacturers, shall provide
notice to the department that the manufacturer's product contains a
high priority chemical. The notice must be filed annually with the
department and must include the following information:
(((1))) (a) The name of the chemical used or produced and its
chemical abstracts service registry number;
(((2))) (b) A brief description of the product or product component
containing the substance;
(((3))) (c) A description of the function of the chemical in the
product or product component;
(((4))) (d) The amount of the chemical used in each unit of the
product or product component. The amount may be reported in ranges,
rather than the exact amount;
(((5))) (e) The name and address of the manufacturer and the name,
address, and phone number of a contact person for the manufacturer; and
(((6))) (f) Any other information the manufacturer deems relevant
to the appropriate use of the product.
(2) Manufacturers may provide notification through a department-approved and certified third party.
NEW SECTION. Sec. 3 (1) Using information submitted by October
2012 by manufacturers in compliance with RCW 70.240.040, the department
shall review and evaluate the information submitted as well as other
relevant information, and develop a draft list of products to be
considered for alternatives assessments. The department shall repeat
this review using additional information submitted in compliance with
RCW 70.240.040 by April 2014 and no more frequently than every two
years thereafter. Such products must be identified based on the
following criteria:
(a) Degree of toxicity of a chemical of high concern for children
present in the product, product category, or product component;
(b) Extent of individual and population exposure to chemicals of
high concern for children based on the following:
(i) Presence of a chemical of high concern for children in multiple
products, product categories, or product components;
(ii) Presence of a chemical of high concern for children in high
concentrations relative to other products, product categories, or
product components;
(iii) Presence of multiple chemicals of high concern for children
in a single product, product category, or product component;
(iv) Presence of multiple potential routes of exposure to a
chemical of high concern for children from the product, product
category, or product component; and
(v) Evidence of children's exposure to chemicals of high concern
for children from sources other than children's products;
(c) Evidence of the availability of safer alternatives to the
chemical of high concern for children for the product; and
(d) Whether the sale of the product has been banned or limited by
another state.
(2) The department shall submit its draft list of products to be
considered for alternatives assessment to the department of health for
prioritization.
(3) Within twelve months of receiving the draft list of products to
be considered for alternatives assessment, the department of health
shall prioritize the draft list based on the following criteria:
(a) The potential for hazard to children from potential exposure to
the chemical of high concern for children through direct or indirect
contact with the product;
(b) The likelihood that a chemical of high concern for children
will be released from the product into a child's environment; and
(c) The number of units of the product sold in Washington or
nationally.
(4) If necessary to complete the prioritization process under
subsection (3) of this section, the department of health may request
the department to order manufacturers to submit additional information
such as, but not limited to: A detailed description or name of the
product; the universal product code of the product; the number of units
sold or distributed for sale in the state or nationally; the likelihood
that the chemical of high concern for children will be released from
the children's product to the environment during the children's product
life cycle; or the extent to which users of children's products are
likely to be exposed to the chemical of high concern for children.
(5) The department shall seek public input on the prioritized list
of products to be considered for alternatives assessment.
(6) The department may identify priority products to be considered
for alternatives assessment consistent with the department of health
prioritization and in consideration of public comment.
(7) The department may issue administrative orders to require
manufacturers of priority products to conduct alternatives assessments
consistent with section 4 of this act.
(8) Manufacturers of priority products shall submit alternatives
assessments to the department within the time frames established in the
administrative order for each priority product.
(9) Manufacturers required to conduct an alternatives assessment
under this section may work with other manufacturers of similar
children's products containing the same chemical to complete and submit
a single alternatives assessment.
(10) The department may apply the provisions of this section that
are applicable to children's products with equal effect to product
categories or product components.
NEW SECTION. Sec. 4 (1) The department, in consultation with the
department of health, shall consult with technical experts to develop
guidelines for conducting alternatives assessments consistent with
subsection (3) of this section. The department shall seek to develop
alternatives assessment guidance consistent with existing guidance from
other jurisdictions. Technical experts to be consulted may include,
but not be limited to:
(a) Manufacturers of fabricated products;
(b) Manufacturers of formulated products;
(c) Small manufacturers of children's products;
(d) Manufacturers of children's product components;
(e) Nongovernmental organizations concerned with the environment;
(f) Nongovernmental organizations concerned with consumer
protection;
(g) Toxicologists;
(h) Children's health specialists; and
(i) Epidemiologists.
(2) The department shall provide at least sixty days for public
input on the draft guidelines and shall consider all comments before
finalizing the guidelines.
(3) An alternatives assessment must, at a minimum, include the
following elements:
(a) Availability of alternatives to chemicals of high concern for
children in priority products identified under section 3 of this act
must be determined in consideration of the following:
(i) Cost;
(ii) Performance;
(iii) Opportunities for product reformulation, chemical
substitution, product redesign, and manufacturing process redesign;
(iv) Whether the sale of a priority product has been banned or
limited by another state; and
(v) Whether the alternative is sold in the United States.
(b) Information on the persistence of, and potential for
bioaccumulation of, any alternatives.
(c) Information relevant to determining the potential hazard to
children's health including, but not limited to, toxicity of
alternative chemicals, potential for children's exposure to those
chemicals, and potential hazards from those chemicals as they may be
used in the product.
(d) Information on the environmental impacts of any alternatives.
(e) Any additional information the manufacturer deems relevant to
the alternatives assessment for the priority product.
NEW SECTION. Sec. 5 (1) The department shall provide at least
sixty days for public input on all alternatives assessments submitted
under section 3 of this act.
(2) The department, in consultation with the department of health,
shall review alternatives assessments and other relevant information,
including any public comments on alternatives assessments and determine
if additional actions are required to protect children's health.
(3) The department, in consultation with the department of health,
shall prepare a report of the review conducted under subsection (2) of
this section and submit these findings to the appropriate committees of
the legislature.
NEW SECTION. Sec. 6 (1) Manufacturers of children's products
with annual gross sales, both within and outside of Washington, of less
than one million dollars, based on the manufacturer's most recent tax
year filing, are exempt from the requirements established in RCW
70.240.040 and section 3 of this act.
(2) Manufacturers of children's products that have a current label
from the United States environmental protection agency design for the
environment program are exempt from the requirements established in RCW
70.240.040 and section 3 of this act for as long as the label remains
current. This exemption applies only to those children's products that
carry a current design for the environment label.
Sec. 7 RCW 43.21B.110 and 2010 c 210 s 7 and 2010 c 84 s 2 are
each reenacted and amended to read as follows:
(1) The hearings board shall only have jurisdiction to hear and
decide appeals from the following decisions of the department, the
director, local conservation districts, the air pollution control
boards or authorities as established pursuant to chapter 70.94 RCW,
local health departments, the department of natural resources, the
department of fish and wildlife, and the parks and recreation
commission:
(a) Civil penalties imposed pursuant to RCW 18.104.155, 70.94.431,
70.105.080, 70.107.050, 70.240.050, 76.09.170, 77.55.291, 78.44.250,
88.46.090, 90.03.600, 90.46.270, 90.48.144, 90.56.310, 90.56.330, and
90.64.102.
(b) Orders issued pursuant to RCW 18.104.043, 18.104.060,
43.27A.190, 70.94.211, 70.94.332, 70.105.095, section 3 of this act,
86.16.020, 88.46.070, 90.14.130, 90.46.250, 90.48.120, and 90.56.330.
(c) A final decision by the department or director made under
chapter 183, Laws of 2009.
(d) Except as provided in RCW 90.03.210(2), the issuance,
modification, or termination of any permit, certificate, or license by
the department or any air authority in the exercise of its
jurisdiction, including the issuance or termination of a waste disposal
permit, the denial of an application for a waste disposal permit, the
modification of the conditions or the terms of a waste disposal permit,
or a decision to approve or deny an application for a solid waste
permit exemption under RCW 70.95.300.
(e) Decisions of local health departments regarding the grant or
denial of solid waste permits pursuant to chapter 70.95 RCW.
(f) Decisions of local health departments regarding the issuance
and enforcement of permits to use or dispose of biosolids under RCW
70.95J.080.
(g) Decisions of the department regarding waste-derived fertilizer
or micronutrient fertilizer under RCW 15.54.820, and decisions of the
department regarding waste-derived soil amendments under RCW 70.95.205.
(h) Decisions of local conservation districts related to the denial
of approval or denial of certification of a dairy nutrient management
plan; conditions contained in a plan; application of any dairy nutrient
management practices, standards, methods, and technologies to a
particular dairy farm; and failure to adhere to the plan review and
approval timelines in RCW 90.64.026.
(i) Any other decision by the department or an air authority which
pursuant to law must be decided as an adjudicative proceeding under
chapter 34.05 RCW.
(j) Decisions of the department of natural resources, the
department of fish and wildlife, and the department that are reviewable
under chapter 76.09 RCW, and the department of natural resources'
appeals of county, city, or town objections under RCW 76.09.050(7).
(k) Forest health hazard orders issued by the commissioner of
public lands under RCW 76.06.180.
(l) Decisions of the department of fish and wildlife to issue,
deny, condition, or modify a hydraulic project approval permit under
chapter 77.55 RCW.
(m) Decisions of the department of natural resources that are
reviewable under RCW 78.44.270.
(n) Decisions of a state agency that is an authorized public entity
under RCW 79.100.010 to take temporary possession or custody of a
vessel or to contest the amount of reimbursement owed that are
reviewable under RCW 79.100.120.
(2) The following hearings shall not be conducted by the hearings
board:
(a) Hearings required by law to be conducted by the shorelines
hearings board pursuant to chapter 90.58 RCW.
(b) Hearings conducted by the department pursuant to RCW 70.94.332,
70.94.390, 70.94.395, 70.94.400, 70.94.405, 70.94.410, and 90.44.180.
(c) Appeals of decisions by the department under RCW 90.03.110 and
90.44.220.
(d) Hearings conducted by the department to adopt, modify, or
repeal rules.
(((e) Appeals of decisions by the department as provided in chapter
43.21L RCW.))
(3) Review of rules and regulations adopted by the hearings board
shall be subject to review in accordance with the provisions of the
administrative procedure act, chapter 34.05 RCW.
Sec. 8 RCW 43.21B.110 and 2010 c 210 s 8 and 2010 c 84 s 3 are
each reenacted and amended to read as follows:
(1) The hearings board shall only have jurisdiction to hear and
decide appeals from the following decisions of the department, the
director, local conservation districts, the air pollution control
boards or authorities as established pursuant to chapter 70.94 RCW,
local health departments, the department of natural resources, the
department of fish and wildlife, and the parks and recreation
commission:
(a) Civil penalties imposed pursuant to RCW 18.104.155, 70.94.431,
70.105.080, 70.107.050, 70.240.050, 76.09.170, 77.55.291, 78.44.250,
88.46.090, 90.03.600, 90.46.270, 90.48.144, 90.56.310, 90.56.330, and
90.64.102.
(b) Orders issued pursuant to RCW 18.104.043, 18.104.060,
43.27A.190, 70.94.211, 70.94.332, 70.105.095, section 3 of this act,
86.16.020, 88.46.070, 90.14.130, 90.46.250, 90.48.120, and 90.56.330.
(c) Except as provided in RCW 90.03.210(2), the issuance,
modification, or termination of any permit, certificate, or license by
the department or any air authority in the exercise of its
jurisdiction, including the issuance or termination of a waste disposal
permit, the denial of an application for a waste disposal permit, the
modification of the conditions or the terms of a waste disposal permit,
or a decision to approve or deny an application for a solid waste
permit exemption under RCW 70.95.300.
(d) Decisions of local health departments regarding the grant or
denial of solid waste permits pursuant to chapter 70.95 RCW.
(e) Decisions of local health departments regarding the issuance
and enforcement of permits to use or dispose of biosolids under RCW
70.95J.080.
(f) Decisions of the department regarding waste-derived fertilizer
or micronutrient fertilizer under RCW 15.54.820, and decisions of the
department regarding waste-derived soil amendments under RCW 70.95.205.
(g) Decisions of local conservation districts related to the denial
of approval or denial of certification of a dairy nutrient management
plan; conditions contained in a plan; application of any dairy nutrient
management practices, standards, methods, and technologies to a
particular dairy farm; and failure to adhere to the plan review and
approval timelines in RCW 90.64.026.
(h) Any other decision by the department or an air authority which
pursuant to law must be decided as an adjudicative proceeding under
chapter 34.05 RCW.
(i) Decisions of the department of natural resources, the
department of fish and wildlife, and the department that are reviewable
under chapter 76.09 RCW, and the department of natural resources'
appeals of county, city, or town objections under RCW 76.09.050(7).
(j) Forest health hazard orders issued by the commissioner of
public lands under RCW 76.06.180.
(k) Decisions of the department of fish and wildlife to issue,
deny, condition, or modify a hydraulic project approval permit under
chapter 77.55 RCW.
(l) Decisions of the department of natural resources that are
reviewable under RCW 78.44.270.
(m) Decisions of a state agency that is an authorized public entity
under RCW 79.100.010 to take temporary possession or custody of a
vessel or to contest the amount of reimbursement owed that are
reviewable under RCW 79.100.120.
(2) The following hearings shall not be conducted by the hearings
board:
(a) Hearings required by law to be conducted by the shorelines
hearings board pursuant to chapter 90.58 RCW.
(b) Hearings conducted by the department pursuant to RCW 70.94.332,
70.94.390, 70.94.395, 70.94.400, 70.94.405, 70.94.410, and 90.44.180.
(c) Appeals of decisions by the department under RCW 90.03.110 and
90.44.220.
(d) Hearings conducted by the department to adopt, modify, or
repeal rules.
(((e) Appeals of decisions by the department as provided in chapter
43.21L RCW.))
(3) Review of rules and regulations adopted by the hearings board
shall be subject to review in accordance with the provisions of the
administrative procedure act, chapter 34.05 RCW.
NEW SECTION. Sec. 9 Sections 3 through 6 of this act are each
added to chapter
NEW SECTION. Sec. 10 Section 7 of this act expires June 30,
2019.
NEW SECTION. Sec. 11 Section 8 of this act takes effect June 30,
2019.