Amendment #26 to H4912

Banning Toxic Flame Retardants

Ms. Decker of Cambridge moves to amend the bill, as amended, by inserting the following two new sections:-

SECTION XX. Chapter 21A of the General Laws, as amended by section 5 of chapter 209 of the acts of 2018, is hereby further amended by adding the following section:-

Section 28. (a) As used in this section, the following words shall, unless the context clearly requires otherwise, have the following meanings:-

“Bedding”, any residential or commercial bedding material including, but not limited to, a mattress, mattress pad, mattress cover, sheeting, pillow, blanket, comforter, duvet cover, sleeping bag or any other stuffed item intended to be used for reclining or sleeping.

“Carpeting”, residential or commercial fabric floor covering, including carpet padding.

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

“Covered product”, bedding, carpeting, children’s product, residential upholstered furniture or window treatment.

“Department”, the department of environmental protection.

“Engineered nanoobject”, a material with 1, 2 or 3 external dimensions in the nanoscale.

“Manufacturer”, a person or entity that produces, imports or distributes covered products.

“Nanoscale”, a size range from approximately 1 nanometer to 100 nanometers.

“Residential upholstered furniture”, seating or other upholstered products intended for indoor or outdoor use in or at 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 other textile.

“Retailer”, a person or entity that 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 shall not include a sale that is a wholesale transaction with a distributor or a retailer.

“Window treatment”, residential or commercial curtain materials, blinds or shades.

(b) A manufacturer or retailer shall not sell, offer or manufacture for sale, distribute in commerce or import into the commonwealth a covered product, except for inventory manufactured prior to June 1, 2020 that contains any of the following chemical flame retardants or a chemical analogue the total weight of which exceeds 1,000 parts per million for any component part of the covered product:

(i) Tris(1,3-dichloro-2-propyl)phosphate (TDCPP) (Chemical Abstracts Service number 13674–87–8);

(ii) Tris(2-chloroethyl)phosphate (TCEP) (Chemical Abstracts Service number 115–1496–8);

(iii) Antimony trioxide (Chemical Abstracts Service number 1309–64–4);

(iv) Hexabromocyclododecane (HBCD) (Chemical Abstracts Service number 25637–99–4);

(v) Bis(2-Ethylhexyl)-3,4,5,6- tetrabromophthalate (TBPH) (Chemical Abstracts Service number 26040–51–7);

(vi) 2-EthylhexYl-2,3,4,5-tetrabromobenzoate (TBB) (Chemical Abstracts Service number 183658– 27–7);

(vii) Chlorinated paraffins (Chemical Abstracts Service number 85535–84–8);

(viii) Tris (1-chloro-2-propyl) phosphate (TCPP) (Chemical Abstracts Service number 13674–84–5);

(ix) pentaBDE (Chemical Abstracts Service number 32534-81-9);

(x) octaBDE (Chemical Abstracts Service number 32536-52-0);

(xi) Tetrabromobisphenol A (TBBPA) (Chemical Abstracts Service number 79-94-7); or

(xii) any other chemical flame retardants specified by the department pursuant to subsection (c).

(c) Every 3 years the department shall, in consultation with the Toxics Use Reduction Institute at the University of Massachusetts Lowell and its Science Advisory Board established in section 6 of chapter 21I, review, identify and recommend other chemical flame retardants that should be prohibited under subsection (b); provided, however, that the department shall demonstrate that the chemical flame retardant is known or reasonably anticipated to be 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; (iv) damage the nervous system, immune system or an organ or cause other systemic toxicity; or (v) is found to be persistent, bioaccumulative and toxic.

If the department determines that a chemical flame retardant meets the conditions of this subsection, it shall promulgate rules to restrict the manufacture, sale, distribution in commerce or importation of any children’s product or residential upholstered furniture containing the chemical flame retardant within 9 months after making such determination and upon such determination send notice to the General Court. A manufacturer or retailer shall not sell, offer or manufacture for sale, distribute in commerce or import into the commonwealth any covered product, except for inventory manufactured prior to the effective date of the promulgated rule, that contains the chemical flame retardant in a total weight that exceeds 1,000 parts per million for any component part of the covered product; provided, however, that if the chemical flame retardant is an engineered nanoobject a manufacturer or retailer shall not sell, offer or manufacture for sale, distribute in commerce or import into the commonwealth any covered product, except for inventory manufactured prior to the effective date of the promulgated rule, that contains the chemical flame retardant in any amount.

(d) This section shall not apply to: (i) motor vehicles, watercraft, aircraft, all-terrain vehicles, off-highway motorcycles or any component parts; or (ii) the sale or purchase of any previously-owned product containing a chemical flame retardant prohibited under this section.

(e) Subsections (a) to (c), inclusive, shall not apply to the sale, purchase, lease, distribution or use of any covered product manufactured before June 1, 2020 or any covered product that contains chemicals prohibited under this section due to the presence of recycled materials used during the manufacture of the product covered.

(f) A manufacturer or retailer who violates the provisions of subsection (b), or any regulations promulgated thereunder, shall be subject to the following civil penalties:

(i) for the first violation, a fine of not more than $100 per covered product, not to exceed a total of $5,000;

(ii) for the second violation, a fine of not more than $250 per covered product, not to exceed a total of $25,000; and

(iii) for the third or subsequent violation, a fine of not more than $1,000 per covered product, not to exceed a total of $50,000.

For purposes of calculating a penalty under this subsection, a collection of covered products that are sold as a set shall constitute 1 covered product.

A manufacturer or retailer who knowingly violates this section shall be subject to a civil penalty equal to 3 times the amount of the fine imposed for such violation pursuant to the first paragraph.

A civil penalty for a violation of this section imposed pursuant to this subsection shall be waived by the department if the department determines that a manufacturer or retailer acted in good faith to be in compliance with this section, pursued compliance with due diligence and promptly corrected any noncompliance after discovery of the violation.

(g) The department may promulgate such rules and regulations as it deems necessary to implement this section.

(h) The department may establish a labeling program for any covered product that meets relevant fire safety standards and does not contain a chemical flame retardant prohibited by subsection (b).

SECTION XXX. A manufacturer of a covered product as defined in section 28 of chapter 21A of the General Laws that contains a chemical flame retardant prohibited by said section 28 of said chapter 21A shall provide notice to retailers and other persons that sell covered products in the commonwealth of the passage of this act on or before July 31, 2021.

Additional co-sponsor(s) added to Amendment #26 to H4912

Banning Toxic Flame Retardants