SENATE DOCKET, NO. 627        FILED ON: 1/15/2015

SENATE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 1132

The Commonwealth of Massachusetts

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PRESENTED BY:

Cynthia S. Creem

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To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
Court assembled:

The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:

An Act to protect children and families from harmful flame retardants.

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PETITION OF:

SENATE DOCKET, NO. 627        FILED ON: 1/15/2015

SENATE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 1132

[SIMILAR MATTER FILED IN PREVIOUS SESSION
SEE SENATE, NO. 351 OF 2013-2014.]

The Commonwealth of Massachusetts

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In the One Hundred and Eighty-Ninth General Court
(2015-2016)

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An Act to protect children and families from harmful flame retardants.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:
 

SECTION 1. Chapter 94B of the General Laws is hereby amended by adding the following 4 sections:-

Section 23. As used in sections 23 to 26, inclusive, the following terms shall have the following meanings unless the context clearly requires otherwise:

"Chemical of high concern", a chemical identified by the United States Environmental Protection Agency, the Toxics Use Reduction Institute or any other authoritative government entity that is known to:  (i) harm the normal development of a fetus or child or cause other developmental toxicity; (ii) cause cancer, genetic damage or reproductive harm; (iii) disrupt the endocrine system; damage the nervous system, immune system or organs or cause other systemic toxicity; (iv) be persistent, bioaccumulative and toxic; (iv) or be very persistent and very bioaccumulative.

“Children’s product”, a consumer product intended, made or marketed for use by children 12 years of age or under.

“DecaBDE”, decabromodiphenyl ether or any technical mixture in which a decabromodiphenyl ether is a congener.

“Department”, the department of environmental protection.

"Manufacturer", a person, firm, association, partnership, corporation, governmental entity, organization, combination or joint venture which produces a consumer product containing a priority chemical substance or an importer or domestic distributor of a consumer product containing a priority chemical substance and that is produced in a foreign country; provided, however, that for a consumer product made with components made by different manufacturers,“manufacturer” shall mean the manufacturer who produced the component containing the priority chemical substance; provided further, that for a consumer product or component produced in a foreign country, “manufacturer” shall mean the importer or domestic distributor; and provided further, that if a company from whom an importer purchases the consumer product or component has a United States presence or assets, that company shall be considered the manufacturer.

“OctaBDE”, octabromodiphenyl ether or any technical mixture in which octabromodiphenyl ether is a congener.

“PBDE”, polybrominated diphenyl ether, including DecaBDE, OctaBDE and PentaBDE. 

“PentaBDE”, pentabromodiphenyl ether or any technical mixture in which a pentabromodiphenyl ether is a congener.

“Principal importer”, the first importer of residential household furniture or children’s products not manufactured in the United States; provided, however, that only persons who are incorporated, licensed or doing business in the United States shall be principal importers.

"Residential upholstered furniture", residential seating products intended for indoor use in a home or other dwelling intended for residential occupancy that consists in whole or in part of resilient cushioning materials enclosed within a covering consisting of fabric or related materials.

"Retailer", a person who offers a product for sale at retail through any means including, but not limited to, remote offerings such as sales outlets, catalogs or the internet, but not including a sale that is a wholesale transaction with a distributor or a retailer; provided, however, that “retailer” shall not include a person, firm, association, partnership, corporation, governmental entity, organization or joint venture that both manufactures and sells a product at retail.

“Technical mixture”, a PBDE mixture that is sold to a manufacturer and is named for the predominant congener in the mixture but is not exclusively made up of that congener.

"TRIS", (i) TDCPP [tris(1,3-dichloro-2- propyl)phosphate], chemical abstracts service number 13674-87-8; (ii) TCEP [tris(2-chloroethyl) phosphate], chemical abstracts service number 115-96-8; and (iii) TCPP [tris(2-chloro-1-methylethyl)phosphate], chemical abstracts service number 13674-84-5.

Section 24. (a) Except for inventory manufactured prior to January 1, 2016, no person, other than a retailer, shall manufacture or knowingly sell, offer for sale, distribute for sale or distribute for use in the commonwealth, any children’s product or residential upholstered furniture containing TRIS in amounts greater than 1,000 parts per 1,000,000 in any product component.

(b) A retailer shall not knowingly sell or offer for sale in the commonwealth any children’s product or residential upholstered furniture that contains TRIS in amounts greater than 1,000 parts per 1,000,000 in any product component.

(c)  No manufacturer, wholesaler, principal importer or retailer shall manufacture or knowingly sell, offer for sale, distribute for sale or distribute for use in the commonwealth any product containing PBDEs in a concentration greater than .1 per cent by weight.

(d) No manufacturer, wholesaler, principal importer or retailer shall manufacture or knowingly sell or offer for sale, distribute for sale or distribute for use in the commonwealth any children’s product or residential upholstered furniture containing flame retardants other than TRIS and PBDEs that are identified as chemicals of high concern in concentrations deemed to be harmful as determined by the United States Environmental Protection Agency, the Toxics Use Reduction Institute or other authoritative government entity.

(e) Sections 23 to 26 inclusive shall not apply to motor vehicles and their component parts, watercraft and their component parts, aircraft and their component parts, all-terrain vehicles and their component parts, off-highway motorcycles and their component parts or to the sale or purchase of any previously-owned product containing a chemical restricted under this section.

(f) Sections 23 to 26 inclusive shall not apply to the sale, purchase, lease, distribution, or use of any product manufactured before January 1, 2014, and any product that contains chemicals restricted under this section due to the presence of recycled materials used during the manufacture of the product.

Section 25. A manufacturer, wholesaler, principal importer or retailer of products containing TRIS, PBDEs or other identified chemicals of high concern in violation of sections 23 to 26, inclusive, shall be subject to a civil penalty of up to $1,000 for each item of residential upholstered furniture, children’s product or other product sold or offered for sale in violation of said sections 23 to 26, inclusive, and any additional civil penalties as may be determined by the rules and regulations of the department.  Manufacturers, wholesalers, principal importers or retailers who are accused of second or subsequent violations shall be subject to a civil penalty by a fine of up to $5,000 for each item in each subsequent offense and any additional civil penalties as may be determined by the rules and regulations of the department. 

Section 26. The department may promulgate such rules and regulations as it deems necessary to implement sections 23 to 25, inclusive.

SECTION 2.  A manufacturer, wholesaler or principal importer of products containing TRIS, PBDEs or other identified chemicals of high concern that are restricted under this section shall provide notice to retailers and other persons that sell the manufacturer's products in the commonwealth of the enactment of sections 23 to 26, inclusive, of chapter 94B of the General Laws not less than 90 days before the effective date of those sections.

SECTION 3.  Subsection (b) of section 24 of chapter 94B of the General Laws shall take effect on January 1, 2016.

SECTION 4. Except as otherwise provided, this act shall take effect on January 1, 2016.