LRB-3842/1
CTS:jld:rs
2009 - 2010 LEGISLATURE
December 18, 2009 - Introduced by Representatives Mason, Roys, Parisi, Turner,
Berceau, Hilgenberg, Benedict and Milroy, cosponsored by Senators
Hansen, Taylor and Miller. Referred to Committee on Consumer Protection.
AB637,1,2
1An Act to create 100.58 of the statutes;
relating to: regulating chemicals in
2children's products and granting rule-making authority.
Analysis by the Legislative Reference Bureau
This bill regulates chemicals used in consumer products intended for use by
children and in certain consumer products to which a child or fetus may be exposed
(children's products).
Under the bill, the Department of Agriculture, Trade and Consumer Protection
(DATCP) must identify chemicals known, on the basis of credible scientific evidence,
to be capable of causing certain types of harm to a child or fetus (priority chemicals).
Any person who manufactures or distributes a children's product that contains a
priority chemical must provide certain information to DATCP about the product and
the use of the priority chemical in the product. The bill imposes deadlines for
DATCP's initial identification of priority chemicals and for subsequent updates.
The bill requires DATCP to identify safer alternatives to specific uses of priority
chemicals in children's products. A safer alternative, under the bill, generally means
a product, process, or material that is functionally equivalent to a chemical in a
children's product and that has less potential for harm to human health or to the
environment. DATCP must promulgate a rule that imposes a reasonable deadline,
not to exceed three years, for a manufacturer or distributor to replace a priority
chemical used in a children's products. Within 180 days after DATCP promulgates
the rule, a manufacturer or distributor must submit to DATCP a plan for replacing
the priority chemical in a children's product with a safer alternative.
The bill permits DATCP to promulgate rules that do any of the following: 1)
require a manufacturer or distributor to adopt an alternative to the use of a priority
chemical in a children's product that is the least toxic or harmful to the environment
of the available alternatives; 2) require a manufacturer or distributor to submit a
report to DATCP assessing the availability of safer alternatives; or 3) exempt from
the bill's disclosure requirements the manufacturer of a product sold in small
quantities.
Under the bill, any person may petition DATCP to determine whether a safer
alternative exists to a specific use of a priority chemical in a children's product. The
bill provides exemptions for all of the following: 1) the use of a priority chemical for
industrial or manufacturing purposes; 2) a motor vehicle or component part of a
motor vehicle; 3) combustible fuel or a by-product of a combustible fuel; and 4) a
retailer of children's products, unless the retailer knowingly sells a children's
product that the retailer reasonably should know contains a priority chemical. The
bill also authorizes DATCP to grant an exemption for a specific use of a priority
chemical in a children's product if DATCP determines there is no safer alternative
to the use of the priority chemical.
For further information see the state fiscal estimate, which will be printed as
an appendix to this bill.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
AB637, s. 1
1Section
1. 100.58 of the statutes is created to read:
AB637,2,2
2100.58 Chemicals in children's products. (1) Definitions. In this section:
AB637,2,53
(a) "Alternative" means a process, product, material, chemical, strategy, or a
4combination of processes, products, materials, chemicals, or strategies that is
5functionally equivalent to a chemical in a children's product.
AB637,2,76
(b)
"Chemical of high concern" means a chemical that is known, on the basis
7of credible scientific evidence, to be capable of doing any of the following:
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1. Harming the normal development of a fetus or child or causing other
9developmental toxicity.
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2. Causing cancer, genetic damage, or reproductive harm.
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3. Disrupting the endocrine system.
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4. Damaging the nervous system, immune system, or causing other systemic
13toxicity.
AB637,3,1
15. Being persistent, bioaccumulative, and toxic.
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6. Being very persistent and very bioaccumulative.
AB637,3,53
(c) "Chemical of low concern" means a chemical that credible scientific evidence
4indicates is not a chemical of high concern, a chemical of moderate concern, or a
5chemical of unknown concern.
AB637,3,86
(d) "Chemical of moderate concern" means a chemical suspected, on the basis
7of credible scientific evidence, as being capable of doing anything described in par.
8(b) 1. to 6.
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(e) "Chemical of unknown concern" means a chemical for which there is
10insufficient credible scientific evidence available to classify the chemical as a
11chemical of high concern, a chemical of moderate concern, or a chemical of low
12concern.
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(f) "Children's product" means any of the following:
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1. A consumer product intended for use by children.
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2. A consumer product containing a chemical of high concern, if use or disposal
16of the consumer product may result in the exposure of a child or fetus to the chemical
17of high concern.
AB637,3,1918
(g) "Consumer product" means a product intended for personal, family, or
19household use.
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(h) "Manufacturer" includes any person whose brand name is affixed to a
21consumer product. With respect to a consumer product that was not manufactured
22in the United States, "manufacturer" includes the importer or domestic distributor
23of a consumer product, if the person who manufactured or assembled the consumer
24product or whose brand name is affixed to the consumer product does not have a
25presence in the United States.
AB637,4,2
1(i) "Safer" means having less potential for harm to human health or to the
2environment.
AB637,4,8
3(2) Identification of priority chemicals. (a) Not later than January 1, 2013,
4the department shall identify at least 100 chemicals of high concern as priority
5chemicals based on consideration of the potential for exposure of a child or fetus to
6the chemical, as indicated by credible scientific evidence. The department may
7identify a chemical of high concern as a priority chemical if any of the following
8applies:
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1. The chemical has been found through biomonitoring to be present in human
10blood, including umbilical cord blood, breast milk, urine, or other bodily tissues or
11fluids.
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2. The chemical has been found through sampling and analysis to be present
13in household dust, indoor air, drinking water, or elsewhere in homes.
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3. The chemical has been added to, or is present in, a consumer product used
15or present in homes.
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4. The chemical has been identified as a high production volume chemical by
17the federal environmental protection agency.
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(b) After January 1, 2013, the department shall update the list of chemicals of
19high concern at least once every 3 years.
AB637,5,2
20(3) Disclosure of information on priority chemicals. (a) Not later than 180
21days after the department identifies a priority chemical under sub. (2), any person
22who manufactures or distributes a children's product for sale in this state that
23contains the priority chemical shall notify the department in writing, unless the
24department waives notification under par. (b). The notice shall identify the product,
25the number of units sold or distributed for sale in in this state or nationally, the
1priority chemical contained in the product, the amount of such chemical in each unit
2of product, and the intended purpose of the chemical in the product.
AB637,5,63
(b) The department may waive the notification requirement under par. (a) for
4a specific use of a priority chemical if the department determines that substantially
5equivalent information is already available to the public or that the specific use is
6minor in volume or is not likely to result in exposure of a child or fetus to the chemical.
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(c) The department may assess a fee for submission of a notification under par.
8(a) to cover the department's reasonable costs in managing the information collected.
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(d) The department may extend the deadline for submission of a notification
10under par. (a) for good cause.
AB637,5,17
11(4) Safer alternatives to priority chemicals. (a) Not later than January 1,
122014, the department shall determine, for at least one specific use of a priority
13chemical in a children's product, whether there is a safer alternative to the priority
14chemical. In making determinations under this paragraph, the department shall
15presume that an alternative is safer than the use of a priority chemical if the process,
16product, material, chemical, or strategy does not involve the use of a chemical of high
17concern.
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(b) Not later than January 1, 2015, the department shall promulgate a schedule
19for determining whether a process, product, material, chemical, or strategy could
20serve as a safer alternative to the use of the priority chemicals identified by the
21department. The schedule shall be updated periodically to account for the
22department's identification of additional priority chemicals.
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(c) The department shall promulgate a rule requiring a manufacturer or
24distributor to replace a priority chemical in a children's product sold in this state with
25a safer alternative identified by the department. The rule shall impose a reasonable
1deadline, not to exceed 3 years from the date on which the rule is promulgated, by
2which date a manufacturer or distributor shall replace the priority chemical.
AB637,6,8
3(5) Compliance plan. Not later than 180 days before the deadline specified by
4the department under sub. (4) (c), a manufacturer or distributor of a children's
5product containing the priority chemical shall submit to the department a
6compliance plan that identifies the means of compliance, the safer alternative that
7will replace the priority chemical, and a plan for educating and assisting retailers to
8ensure timely compliance.
AB637,6,11
9(6) Notification of retailers. A manufacturer or distributor of a children's
10product containing a priority chemical shall notify persons that sell the product at
11retail of the requirements of this chapter.
AB637,6,13
12(7) Rule making. The department may promulgate rules that do any of the
13following:
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(a) Require that a safer alternative required under this section to replace a
15priority chemical in a children's product be the least toxic to human health or least
16harmful to the environment of available safer alternatives to the priority chemical
17in question.
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(b) Require that a manufacturer or distributor of a children's product
19containing a priority chemical prepare and submit, within a reasonable time, a
20report acceptable to the department that assesses the availability of safer
21alternatives to that chemical.
AB637,6,2422
(c) Impose on a manufacturer or distributor that fails to timely submit a report
23under par. (b) a fee to cover the cost of an independent report on the availability of
24safer alternatives prepared by a contractor selected by the department.
AB637,7,2
1(d) Exempt from the disclosure requirements of sub. (3) a manufacturer of
2products sold in small quantities.
AB637,7,9
3(8) Petitions. Any person may submit a written petition requesting that the
4department make a determination whether a safer alternative is available for a
5specific use of a priority chemical in a children's product. The department shall make
6the determination not more than 180 days after the department concludes that the
7petitioner has submitted sufficient information to establish a reasonable basis for
8informing the department's determination. The petitioner bears the burden of proof
9in establishing the availability of a safer alternative.
AB637,7,10
10(9) Exemptions. (a) This section does not apply to any of the following:
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1. The use of a priority chemical for industrial or manufacturing purposes.
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2. A motor vehicle, as defined in s. 340.01 (35), or a component part of a motor
13vehicle, except that this paragraph does not apply to a priority chemical used in a
14detachable car seat.
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3. A priority chemical that is generated solely as a by-product of combustion
16or that is present in a combustible fuel.
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4. A retailer, unless the retailer knowingly sells a consumer product containing
18a substance that the retailer reasonably should know is a priority chemical after the
19department identifies the substance as a priority chemical.
AB637,8,420
(b) The department may grant an exemption for a specific use of a priority
21chemical to a manufacturer or distributor if the department determines that there
22is no safer alternative to the use of a priority chemical in a consumer product. A
23manufacturer or distributor shall submit a written application for an exemption
24under this paragraph that identifies the specific use for which the manufacturer or
25distributor seeks an exemption, the alternatives that the manufacturer or
1distributor has evaluated, and the manufacturer's or distributor's basis for
2concluding that the alternatives are not feasible. The duration of an exemption
3under this paragraph may not exceed 5 years from the date on which the department
4grants the exemption.
AB637,8,10
5(10) Enforcement. If the department has reason to believe that a consumer
6product is being offered for sale in violation of this section, the department may bring
7an action in the name of the state for temporary or permanent injunctive relief and
8for any other appropriate relief. The court may make any order or judgment that is
9necessary to restore to any person any pecuniary loss suffered because of a violation
10of this section if proof of the loss is shown to the satisfaction of the court.