BILL REQ. #:  S-1264.1 

READ FIRST TIME 02/09/11.   

     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 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 and science kits;
     (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;
     (xviii) Used products;
     (xix) Food and food packaging, over-the-counter drugs, prescriptions drugs, and dietary supplements regulated by the United States food and drug administration;
     (xx) Medical devices regulated by the United States food and drug administration; and
     (xxi) Paper or forest 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 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 should be taken by the legislature to protect children's health.
     (3) By December 1, 2015, 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 70.240 RCW.

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.