WEST virginia Legislature
2017 regular session
By
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to the Committee on Health and Human Resources then the Judiciary.
A BILL to amend the Code
of West Virginia, 1931, as amended, by adding thereto a new article designated §16-52-1,
§16-52-2, §16-52-3, §16-52-4, §16-52-5, §16-52-6, §16-52-7, §16-52-8 and §16-52-9,
all relating to creating the West Virginia Residential Furniture and Children's
Products Flame Retardants Act administered and enforced under the authority of
the Commissioner of the Bureau for Public Health; prohibiting the use of
certain flame-retardant chemicals in certain products; legislative findings;
definitions; rule-making authority; when replacement chemicals may be used;
exemptions to requirements; requiring report to Joint Committee on Government
and Finance; requiring certificate of compliance; injunctive relief for
violations; and providing civil penalties for violations.
Be it enacted by the
Legislature of West Virginia:
That the Code of West
Virginia, 1931, as amended, be amended by adding thereto a new article
designated, §16-52-1, §16-52-2, §16-52-3, §16-52-4, §16-52-5, §16-52-6, §16-52-7,
§16-52-8 and §16-52-9, all to read as follows:
ARTICLE 52. WEST VIRGINIA RESIDENTIAL FURNITURE AND
CHILDREN'S PRODUCTS FLAME RETARDANTS act.
§16-52-1. Legislative
findings.
The Legislature makes
the following findings:
(a) The safety and
efficacy of organohalogen and organophosphorus flame retardants when used in
children's products or upholstered residential furniture is doubtful when their
exposure impact on human health is compared with any purported fire safety
benefits.
(b) Organohalogen and
organophosphorus flame retardants migrate from consumer products and can be
inhaled, ingested, or absorbed through the skin. The United States Centers for
Disease Control and Prevention estimates that ninety-seven percent of the
population has measurable quantities of organohalogen or organophosphorus flame
retardants in their bodies. Scientific research indicates concentrations of
these flame retardants are increasing in human tissues, including breast milk,
and children carry the highest concentrations per unit of body weight.
(c) Organohalogen and
organophosphorus flame retardants have been found in sediments, air, surface
water, and wildlife including fish, birds, and mammals. Scientific research
indicates the concentrations of these flame retardants are increasing in the
environment.
(d) Organohalogen and
organophosphorus flame retardants as a class are toxic due to their physical,
chemical, and biological properties. Exposure to organohalogen and
organophosphorus flame retardants is linked to many adverse human health
impacts, including reproductive impairment, endocrine disruption, immune
disorders, and neurological impacts such as decreased IQ in children, impaired
memory and learning deficits. Exposure to some organohalogen and
organophosphorus flame retardants has produced cancer in laboratory animals and
several forms of organohalogen and organophosphorus are recognized by state and
federal agencies as probable human carcinogens.
(e) This article shall
be known as the West Virginia Residential Furniture and Children's Products Flame
Retardants Act.
§16-52-2.
Definitions.
For the purposes of this
article, the following terms have the meanings given.
(a) “Bedding” means any
mattress, upholstered spring, sleeping bag, pad, comforter, cushion, pillow,
decorative pillow and any other padded or stuffed item designed to be or
commonly used for reclining or sleeping. This definition includes dual purpose
furniture such as studio couches and sofa beds. The term "mattress"
does not include water bed liners, bladders or cylinders unless they contain
padding or stuffing. The term "mattress" also does not include quilts
and comforters made principally by hand sewing or stitching in a home or
community workshop.
(b) “Child” means a
person under twelve years of age.
(c) “Children's product” means a product
primarily designed or intended by a manufacturer to be used by or for a child,
including any article used as a component of such a product, but excluding a
food, beverage, dietary supplement, pharmaceutical product or biologic, children's
toys that are subject to the most recent version of the American Society for
Testing and Materials F963, Standard Consumer Safety Specification for Toy
Safety, a medical device as defined in the Federal Food, Drug and Cosmetic Act,
United States Code, title 21, section 321(h), products listed under section
116.9405, clauses (10) and (11), and products listed under sections 325F.03 and
325F.04.
(d) “Commissioner” means
the Commissioner of the Bureau for Public Health.
(e) “Congener” means any
of two or more chemical substances related to each other by origin, structure
or function.
(f) “Flame retardant”
means any chemical that is added to a plastic, foam, textile or other material
to inhibit flame formation.
(g) “Manufacturer” means
any person or enterprise that manufactures children's products or upholstered
residential furniture containing a regulated flame retardant or any person or
enterprise whose brand name is affixed to children's products or upholstered
residential furniture containing a regulated flame retardant. Manufacturer
includes, in the case of children's products or upholstered residential
furniture that was imported into the United States, the importer or domestic
distributor of the children's products or upholstered residential furniture
when the person who manufactured or assembled the children's products or
upholstered residential furniture, or whose brand name is affixed to the
children's products or upholstered residential furniture, does not have a
presence in the United States.
(h) “Regulated flame
retardant” means any of the following flame retardants:
(1) TDCPP (tris (1,
3-dichloro-2propyl) phosphate);
(2) Decabromodiphenyl
ether;
(3) Pentabromodiphenyl
ether;
(4)
Hexabromocyclododecane;
(5) TCEP (tris
(2-chloroethyl) phosphate).
(i) “Renovate” or
“renovated” means the reworking or remaking of used children's products or
upholstered residential furniture or the making of children's products or
upholstered residential furniture from materials from which previous use has
been made.
(j) “Retailer” means and
includes every person engaging in the business of selling, leasing or renting
tangible personal property or custom software or furnishing a taxable service
for use within the meaning of this article, or in the business of selling, at
auction, tangible personal property or custom software owned by the person or
others for use in this state: Provided, That when in the opinion of
the Tax Commissioner it is necessary for the efficient administration of this
article to regard any salespersons, representatives, truckers, peddlers or
canvassers as the agents of the dealers, distributors, supervisors, employees
or persons under whom they operate or from whom they obtain the tangible
personal property sold by them, irrespective of whether they are making sales
on their own behalf or on behalf of the dealers, distributors, supervisors,
employers or persons, the Tax Commissioner may so regard them and may regard
the dealers, distributors, supervisors, employers or persons as retailers for
purposes of this article
(k) “Upholstered
residential furniture” means furniture with padding, coverings or cushions
intended and sold for use in the home or places of lodging and includes, but is
not limited to, bedding.
§16-52-3. Prohibition
of flame retardants.
(a) On and after July 1,
2020, no manufacturer or wholesaler may manufacture, sell, offer for sale,
distribute for sale or distribute for use in this state a children's product or
upholstered residential furniture containing, in amounts greater than one
thousand parts per million in any product component of any regulated flame
retardant.
(b) On and after July 1,
2021, no retailer may sell or offer for sale or use in this state a children's
product or upholstered residential furniture containing in amounts greater than
one thousand parts per million in any product component of any regulated flame
retardant.
(c) The sale or offer
for sale of any previously owned product containing a chemical restricted under
this section is exempt from the provisions of this section.
§16-52-4. Replacement
chemicals.
A manufacturer may not
replace a chemical whose use is prohibited under this article with a chemical
identified on the basis of credible scientific evidence known or suspected with
a high degree of probability by any state, federal, or international agency to:
(1) Harm the normal
development of a fetus or child or cause other developmental toxicity;
(2) Cause cancer,
genetic damage, or reproductive harm;
(3) Disrupt the endocrine
or hormone system; or
(4) Damage the nervous
system, immune system or organs, or cause other systemic toxicity.
§16-52-5. Rules;
exemptions.
The Commissioner of the
Bureau for Public Health is responsible for the administration and enforcements
of the provisions of this article. The
commissioner shall propose rules for legislative approval in accordance with
article three, chapter twenty-nine-a of this code for the implementation of the
provisions of this article.
The commissioner may grant
an exemption to any provisions of this article for a term not to exceed two
years. The exemption shall be renewable upon written application if the
specific use of the regulated flame retardant continues to meet the criteria of
this section and the manufacturer or other persons comply with the conditions
of its original approval. The commissioner may grant an exemption for a
specific use of the regulated flame retardant with or without conditions, upon
finding that the applicant has demonstrated one or more of the following:
(1) A technically
feasible alternative is not available at comparable cost.
(2) The potential harm
to public health and the environment directly posed by a technically feasible
alternative is greater than the potential harm caused by the regulated flame
retardant.
§16-52-6. Labeling
requirements.
The commissioner may
establish a "Meets Fire Safety Standards Without the Use of Chemical Flame
Retardants" labeling program for children's products or upholstered
furniture that meet fire safety standards and do not contain regulated flame
retardants. The commissioner may establish partnerships with manufacturers to
enhance the market for children's products or upholstered furniture designed to
retard fire without the use of regulated flame retardants and reduce the use of
other potentially hazardous flame retardants in children's products or
upholstered furniture. The commissioner may develop an awards program to
recognize the accomplishments of West Virginia manufacturers who exceed the
requirements of this article and who excel at reducing or eliminating regulated
flame retardants in children's products or upholstered furniture.
§16-52-7. Education
and outreach.
(a) The commissioner
shall develop a program to inform and educate retailers of children's products
or upholstered furniture regarding the requirements of this article and methods
for identifying children's products or upholstered furniture that contains
regulated flame retardants.
(b) The commissioner may
participate in a regional, multistate clearinghouse to do all of the following:
(1) Assist in the
implementation of the requirements of this section.
(2) Help coordinate
public education and outreach activities.
(3) Review risk
assessments.
(4) Review alternatives
to regulated flame retardants in children's products or upholstered furniture.
(5) Implement other
activities related to the administration of this article.
§16-52-8. Flame
retardant reports.
(a) By January 15, 2018,
the Commissioner of the Bureau for Public Health in consultation with the State
Fire Marshal, shall report to the Joint Committee on Government and Finance
regarding:
(1) The status of
federal, international and other states' laws and regulations in identifying,
prioritizing, evaluating and regulating the use of flame retardants in
upholstered furniture, mattresses and carpet pads;
(2) The status of
relevant fire safety standards and practices for residential settings for
products including mattresses, upholstered furniture and carpet pads;
(3) The status of and
any authoritative findings from studies and reports on a direct link to
meaningful negative health and safety effects and impacts on firefighters of
flame retardants covered by this article, particularly as it relates to the
combustion of flame retardants in articles in actual firefighting settings
relative to overall smoke hazards and combustion byproducts;
(b) In developing the
report, the commissioner and fire marshal may consult with stakeholders,
including representatives of state agencies, product manufacturers, chemical
manufacturers, firefighters, public health experts and independent scientists.
The report must include information on any stakeholder process consulted with
or used in developing the report.
§16-52-9. Certificate
of compliance, injunctive relief, and civil penalties.
(a) If the commissioner
reasonably suspects that children's products or upholstered furniture
containing a regulated flame retardant is being manufactured, sold, offered for
sale or distributed for sale in violation of this article, the commissioner may
request the manufacturer of the children's products or upholstered furniture to
provide the commissioner with a certificate of compliance. Within ten days of
receipt of the request for a certificate of compliance, the manufacturer shall
do at least one of the following:
(1) Provide the
commissioner with a certificate declaring that the children's products or
upholstered furniture complies with the requirements of this article.
(2) Notify persons that
sell the manufacturer's children's products or upholstered furniture in the
state that the sale of the children's products or upholstered furniture is
prohibited and submit to the commissioner a list of the names and addresses of
those notified.
(b) If a manufacturer
fails to comply with the requirements under this article, the commissioner may
take enforcement action against the children's products or upholstered
furniture manufacturer by requesting the Attorney General to initiate immediate
injunction proceedings, or assessing civil penalties under subsection (c) of
this section to prevent the sale of the children's products or upholstered
furniture, or both.
(c) Subject to
subsections (d) and (e) of this section, a person who violates this article is
subject to the following civil penalties:
(1) If the violation is
the person's first offense under this article, a civil fine of not more than
$100 per article of children's products or upholstered furniture, not to exceed
$5,000 total.
(2) If the violation is
the person's second offense under this article, a civil penalty of not more
than $250 per article of children's products or upholstered furniture, not to
exceed a total of $25,000.
(3) If the violation is
the person's third or subsequent offense under this article, a civil penalty of
not more than $1,000 per article of children's products or upholstered
furniture, not to exceed a total of $50,000.
(4) For purposes of
calculating a penalty under this section, a collection of children's products
or upholstered furniture items that are sold as a set shall collectively
constitute one article of children's products or upholstered furniture.
(d) If a person
knowingly violates this article, the person is subject to a civil penalty equal
to three times the amount of the penalty under subdivision (3) of subsection
(c) of this section.
(e) A civil fine imposed
under this section shall be waived if it is determined that a person acted in
good faith to be in compliance with this article, pursued compliance with due
diligence, and promptly corrected any noncompliance after discovery of the
violation.
NOTE: The purpose of this bill is
to create the West Virginia Residential Furniture and Children's Products Flame
Retardants Act administered and enforced under the authority of the
Commissioner of the Bureau for Public Health.
The bill prohibits the use of certain flame-retardant chemicals in
certain products, including those designed for use by children. The bill states
when replacement chemicals may be used in these product and provides exemptions
to requirements. The bill requires a
report to the Joint Committee on Government and Finance by the Commissioner of
the Bureau for Public Health in conjunction with the Fire Marshal. The bill requires certificates of compliance
from persons or businesses selling products subject to this article, provides
for injunctive relief for violations and provides for civil penalties.
Strike-throughs indicate language
that would be stricken from a heading or the present law and underscoring
indicates new language that would be added.