Introduced Version






SENATE BILL No. 540

_____


DIGEST OF INTRODUCED BILL



Citations Affected: IC 13-11-2; IC 13-17; IC 24-6-10.

Synopsis: Consumer commodities. Requires the department of environmental management to regulate toys containing toxic materials. Requires that a consumer commodity must display a label that indicates: (1) the country where the commodity was manufactured, grown, or processed; and (2) the presence of any toxic material in the commodity. Authorizes the Indiana economic development corporation to adopt administrative rules to implement the statute. Provides that knowing or intentional violations of the statute or rules adopted under the statute are deceptive acts that may be remedied by the attorney general as deceptive acts under Indiana law.

Effective: July 1, 2009.





Simpson




    January 15, 2009, read first time and referred to Committee on Commerce, Public Policy & Interstate Cooperation.







Introduced

First Regular Session 116th General Assembly (2009)


PRINTING CODE. Amendments: Whenever an existing statute (or a section of the Indiana Constitution) is being amended, the text of the existing provision will appear in this style type, additions will appear in this style type, and deletions will appear in this style type.
Additions: Whenever a new statutory provision is being enacted (or a new constitutional provision adopted), the text of the new provision will appear in this style type. Also, the word NEW will appear in that style type in the introductory clause of each SECTION that adds a new provision to the Indiana Code or the Indiana Constitution.
Conflict reconciliation: Text in a statute in this style type or this style type reconciles conflicts between statutes enacted by the 2008 Regular Session of the General Assembly.

SENATE BILL No. 540



    A BILL FOR AN ACT to amend the Indiana Code concerning trade regulation.

    Whereas, Research shows that many toys and other children's products contain toxic chemicals, such as lead, cadmium, and phthalates that have been shown to cause harm to children's health and the environment;

    Whereas, These chemicals have been linked to long-term health effects, including birth defects, reproductive harm, impaired learning, liver toxicity, and cancer;

    Whereas, Because children's bodies are growing and developing, they are especially vulnerable to the effects of toxic chemicals;

    Whereas, Regulation of toxic chemicals in children's toys and other products is woefully inadequate; and

    Whereas, To protect children's health, it is important to phase out the use of lead, cadmium, and phthalates in children's toys and other products and to begin collecting information on other chemicals that are present in toys and other products to determine whether further action is required: Therefore,


Be it enacted by the General Assembly of the State of Indiana:

SOURCE: IC 13-11-2-25.2; (09)IN0540.1.1. -->     SECTION 1. IC 13-11-2-25.2 IS ADDED TO THE INDIANA CODE AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2009]: Sec. 25.2. "Children's cosmetics", for purposes of IC 13-17-15, has the meaning set forth in IC 13-17-15-1.
SOURCE: IC 13-11-2-25.3; (09)IN0540.1.2. -->     SECTION 2. IC 13-11-2-25.3 IS ADDED TO THE INDIANA CODE AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2009]: Sec. 25.3. "Children's jewelry", for purposes of IC 13-17-15, has the meaning set forth in IC 13-17-5-2.
SOURCE: IC 13-11-2-25.4; (09)IN0540.1.3. -->     SECTION 3. IC 13-11-2-25.4 IS ADDED TO THE INDIANA CODE AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2009]: Sec. 25.4. "Children's product", for purposes of IC 13-17-15, has the meaning set forth in IC 13-17-15-3.
SOURCE: IC 13-11-2-43.7; (09)IN0540.1.4. -->     SECTION 4. IC 13-11-2-43.7 IS ADDED TO THE INDIANA CODE AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2009]: Sec. 43.7. "Cosmetics", for purposes of IC 13-17-15, has the meaning set forth in IC 13-17-15-4.
SOURCE: IC 13-11-2-102.3; (09)IN0540.1.5. -->     SECTION 5. IC 13-11-2-102.3 IS ADDED TO THE INDIANA CODE AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2009]: Sec. 102.3. "High priority chemical", for purposes of IC 13-15-15, has the meaning set forth in IC 13-17-15-5.
SOURCE: IC 13-11-2-126; (09)IN0540.1.6. -->     SECTION 6. IC 13-11-2-126 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2009]: Sec. 126. (a) "Manufacturer", for purposes of IC 13-20-16, means a person who is engaged in the business of making lead acid batteries:
        (1) in Indiana; or
        (2) for sale in Indiana.
    (b) "Manufacturer", for purposes of IC 13-27.5, means a manufacturer in Indiana operating under standard industrial classification codes twenty (20) through thirty-nine (39) in the Standard Industrial Classification Manual of the United States Office of Management and Budget.
    (c) "Manufacturer", for purposes of IC 13-20-17.5, means any individual, corporation, limited liability company, partnership, trust, estate, or unincorporated association that:
        (1) produces in the United States a mercury-added product that does not consist of multiple components produced by separate entities;
        (2) is the last entity to produce or assemble in the United States

a mercury-added product that consists of multiple components produced by separate entities; or
        (3) domestically distributes a mercury-added product produced in a foreign country.
     (d) "Manufacturer", for purposes of IC 13-17-15, has the meaning set forth in IC 13-17-15-6.

SOURCE: IC 13-11-2-163.5; (09)IN0540.1.7. -->     SECTION 7. IC 13-11-2-163.5 IS ADDED TO THE INDIANA CODE AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2009]: Sec. 163.5. "Phthalates", for purposes of IC 13-17-15, has the meaning set forth in IC 13-17-15-7.
SOURCE: IC 13-11-2-233.2; (09)IN0540.1.8. -->     SECTION 8. IC 13-11-2-233.2 IS ADDED TO THE INDIANA CODE AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2009]: Sec. 233.2. "Toy", for purposes of IC 13-17-15, has the meaning set forth in IC 13-17-15-8.
SOURCE: IC 13-11-2-233.7; (09)IN0540.1.9. -->     SECTION 9. IC 13-11-2-233.7 IS ADDED TO THE INDIANA CODE AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2009]: Sec. 233.7. "Trade association", for purposes of IC 13-17-15, has the meaning set forth in IC 13-17-15-9.
    
SECTION 10. IC 13-11-2-245.3 IS ADDED TO THE INDIANA CODE AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2009]: Sec. 245.3. "Very bioaccumulative", for purposes of IC 13-17-15, has the meaning set forth in IC 13-17-15-10.
    
SECTION 11. IC 13-11-2-245.4 IS ADDED TO THE INDIANA CODE AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2009]: Sec. 245.4. "Very persistent", for purposes of IC 13-17-15, has the meaning set forth in IC 13-17-15-11.
SOURCE: IC 13-17-14-6; (09)IN0540.1.12. -->     SECTION 12. IC 13-17-14-6 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2009]: Sec. 6. (a) The lead trust fund is established to provide a source of money for the purposes set forth in subsection (f).
    (b) The expenses of administering the fund shall be paid from the money in the fund.
    (c) The treasurer of state shall invest the money in the fund not currently needed to meet the obligations of the fund in the same manner as other public money may be invested. Interest that accrues from these investments shall be deposited in the fund.
    (d) Money in the fund at the end of a state fiscal year does not revert to the state general fund.
    (e) The sources of money for the fund are the following:
        (1) License fees established under section 5 of this chapter.
        (2) Appropriations made by the general assembly, gifts, and donations intended for deposit in the fund.
        (3) Penalties imposed under IC 13-30-4 and IC 13-30-5 for violations of this chapter and rules adopted under this chapter concerning lead-based paint activities.
         (4) Penalties imposed under IC 13-17-15 for violations of toxic materials in toys.
    (f) The department may use money in the fund to do the following:
        (1) Pay the expenses of administering this chapter.
        (2) Cover other costs related to implementation of 40 CFR 745 for lead-based paint activities in target housing and child occupied facilities.
         (3) Pay the expenses of administering IC 13-17-15.
SOURCE: IC 13-17-15; (09)IN0540.1.13. -->     SECTION 13. IC 13-17-15 IS ADDED TO THE INDIANA CODE AS A NEW CHAPTER TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2009]:
     Chapter 15. Toxic Materials in Toys
    Sec. 1. For purposes of this chapter, "children's cosmetics" means cosmetics that are made for, marketed for use by, or marketed to children less than twelve (12) years of age. The term includes cosmetics that meet any of the following conditions:
        (1) Represented in packaging, display, or advertising as appropriate for use by children.
        (2) Sold in conjunction with, attached to, or packaged together with other products that are packaged, displayed, or advertised as appropriate for use by children.
        (3) Sold in any of the following:
            (A) A 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.
            (B) A separate part 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.
    Sec. 2. For purposes of this chapter, "children's jewelry" means jewelry that is made for, marketed for use by, or marketed to children less than twelve (12) years of age. The term includes jewelry that meets any of the following conditions:
        (1) Represented in its packaging, display, or advertising as appropriate for use by children.
        (2) Sold in conjunction with, attached to, or packaged together with other products that are packaged, displayed, or advertised as appropriate for use by children.
        (3) Sized for children and not intended for use by adults.
        (4) Sold in any of the following:
            (A) A vending machine.
            (B) A 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.
            (C) A separate part 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.
    Sec. 3. (a) For purposes of this chapter, "children's product" includes the following:
        (1) Toys.
        (2) Children's cosmetics.
        (3) Children's jewelry.
        (4) 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.
        (5) Child car seats.
    (b) For purposes of this chapter, the term does not include the following:
        (1) Batteries.
        (2) Slings and catapults.
        (3) Sets of darts with metallic points.
        (4) Toy steam engines.
        (5) Bicycles and tricycles.
        (6) Video toys that can be connected to a video screen and are operated at a nominal voltage exceeding twenty-four (24) volts.
        (7) Chemistry sets.
        (8) 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.
        (9) Interactive software intended for leisure and entertainment, including computer games, and their storage

media, such as compact disks.
        (10) BB guns, pellet guns, and air rifles.
        (11) Snow sporting equipment, including skis, poles, boots, snow boards, sleds, and bindings.
        (12) Sporting equipment, including bats, balls, gloves, sticks, pucks, and pads.
        (13) Roller skates.
        (14) Scooters.
        (15) Model rockets.
        (16) Athletic shoes with cleats or spikes.
        (17) Pocket knives and multitools.
    Sec. 4. For purposes of this chapter "cosmetics" includes articles intended to be rubbed, poured, sprinkled, sprayed on, introduced into, or otherwise applied to the human body or any part of the body for cleansing, beautifying, promoting attractiveness, or altering the appearance and articles intended for use as a component of such an article. The term does not include soap, dietary supplements, or food and drugs approved by the United States Food and Drug Administration.
    Sec. 5. For purposes of this chapter, "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 known to do one (1) or more of the following:
        (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 system.
        (4) Damage the nervous system, immune system, or organs or cause other systemic toxicity.
        (5) Be persistent, bioaccumulative, and toxic.
        (6) Be very persistent and very bioaccumulative.
    Sec. 6. For purposes of this chapter, "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.
    Sec. 7. For purposes of this chapter, "phthalates" means di2-ethylhexyl phthalate (DEHP), dibutyl phthalate (DBP), benzyl butyl phthalate (BBP), diisononyl phthalate (DINP), diisodecyl phthalate (DIDP), or di-n-octyl phthalate (DnOP).
    Sec. 8. For purposes of this chapter, "toy" means a product

designed or intended by the manufacturer to be used by a child at play.
    Sec. 9. For purposes of this chapter, "trade association" means a membership organization of persons engaged in a similar or related line of commerce, organized to promote and improve business conditions in that line of commerce, and not engaged in a regular business of a kind ordinarily carried on for profit.
    Sec. 10. For purposes of this chapter, "very bioaccumulative" means having a bioconcentration factor or bioaccumulation factor greater than or equal to five thousand (5,000), or if neither the bioconcentration factor or bioaccumulation factor is available, having a log Kow greater than five (5).
    Sec. 11. For purposes of this chapter, "very persistent" means having at least:
        (1) a half-life in soil or sediment of one hundred eighty (180) days; or
        (2) a half-life of sixty (60) days in water or evidence of long-range transport.
    Sec. 12. (a) Beginning July 1, 2010, a manufacturer, wholesaler, or retailer may not manufacture, knowingly sell, offer for sale, distribute for sale, or distribute for use in Indiana a children's product or product component containing the following:
        (1) Lead at more than nine-thousandths of one percent (0.009%) by weight (ninety (90) parts per million);
        (2) Cadmium at more than four-thousandths of one percent (0.004%) by weight (forty (40) parts per million); or
        (3) Phthalates, individually or in combination, at more than one-tenth of one percent (0.1%) by weight (one thousand (1,000) parts per million).
    (b) If determined feasible for manufacturers to achieve and necessary to protect children's health, the department, in consultation with the department of health, may by rule, require that a manufacturer, wholesaler, or retailer may not manufacture, knowingly sell, offer for sale, distribute for sale, or distribute for use in Indiana a children's product or product component containing lead at more than four-thousandths of one percent (0.004%) by weight (forty (40) parts per million).
    Sec. 13. By January 1, 2010, the department, in consultation with the department of health, shall identify high priority chemicals that are of high concern for children after considering a child's or developing fetus's potential for exposure to each chemical. In identifying the chemicals, the department shall include

chemicals that meet one (1) or more of the following criteria:
        (1) The chemical has been found through biomonitoring studies that demonstrate the presence of the chemical in human umbilical cord blood, human breast milk, human urine, or other bodily tissues or fluids.
        (2) The chemical has been found through sampling and analysis to be present in household dust, indoor air, drinking water, or elsewhere in the home environment.
        (3) The chemical has been added to or is present in a consumer product used or present in the home.
    Sec. 14. By January 1, 2010, the department shall identify children's products or product categories that may contain chemicals identified under section 13 of this chapter.
    Sec. 15. By January 1, 2010, the department shall submit a report on the chemicals of high concern to children and the children's products or product categories they identify to the appropriate standing committees of the legislature. The report must include policy options for addressing children's products that contain chemicals of high concern for children, including recommendations for additional ways to inform consumers about toxic chemicals in products, such as labeling.
    Sec. 16. Beginning six (6) months after the department has adopted rules under section 20 of this chapter, 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) The name of the chemical used or produced and its chemical abstracts service registry number.
        (2) A brief description of the product or product component containing the substance.
        (3) A description of the function of the chemical in the product.
        (4) 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) The name and address of the manufacturer and the name, address, and phone number of a contact person for the manufacturer.
        (6) Any other information the manufacturer deems relevant to the appropriate use of the product.


    Sec. 17. (a) The commissioner shall establish and maintain a product safety education campaign to promote greater awareness of products designed to be used by infants and children, excluding toys that:
        (1) are recalled by the United States Consumer Products Safety Commission;
        (2) do not meet federal safety regulations and voluntary safety standards; or
        (3) contain chemicals of high concern for children as identified under this chapter.
    (b) The department shall make reasonable efforts to ensure that the infant and children product safety education campaign reaches the target population. The target population for this campaign includes:
        (1) parents;
        (2) foster parents;
        (3) other care givers;
        (4) child care providers;
        (5) consignment and resale stores selling infant and child products; and
        (6) charitable and governmental entities serving infants, children, and families.
    (c) The commissioner may use a combination of methods to achieve this outreach and education goal, including print and electronic media. The commissioner may operate the campaign or may contract with a vendor.
    (d) The department shall coordinate this infant and children product safety education campaign with child serving entities including:
        (1) hospitals;
        (2) birthing centers;
        (3) midwives;
        (4) pediatricians;
        (5) obstetricians;
        (6) family practice physicians;
        (7) governmental and private entities serving infants, children, and families; and
        (8) relevant manufacturers.
    (e) The department shall coordinate with other agencies and entities to eliminate duplication of effort in disseminating infant and children consumer product safety information.
    (f) The department may receive funding for this infant and

children product safety education effort from federal, state, and local governmental entities, child serving foundations, or other private sources.
    Sec. 18. (a) A manufacturer of products that is restricted under this chapter shall notify persons that sell the manufacturer's products in Indiana about the provisions of this chapter at least ninety (90) days before the effective date of the restrictions.
    (b) A manufacturer that produces, sells, or distributes a product prohibited from manufacture, sale, or distribution in Indiana under this chapter shall recall the product and reimburse the retailer or any other purchaser for the product.
    (c) A manufacturer of children's products in violation of this chapter is subject to a civil penalty not to exceed five thousand dollars ($5,000) for each violation in the case of a first offense. A manufacturer who commits a subsequent violation is subject to a civil penalty not to exceed ten thousand dollars ($10,000) for each violation. Penalties collected under this section shall be deposited in the lead trust fund established by IC 13-17-14-6.
    (d) A retailer who unknowingly sells a product that is restricted from sale under this chapter is not liable under this chapter.
    Sec. 19. (a) Before the prohibitions under this chapter take effect, the department shall prepare and distribute information to in-state and out-of-state manufacturers, to the maximum extent practicable, to assist manufacturers in identifying products prohibited for manufacture, sale, or distribution under this chapter.
    (b) The department shall assist Indiana retailers in identifying products restricted under this chapter.
    (c) The department may require manufacturers to electronically file the notice required under this chapter to the department that the manufacturer's product contains a high priority chemical.
    (d) The department shall develop and publish a web site that provides consumers with information on:
        (1) the chemicals used in children's products;
        (2) the reason the chemical has been identified as a high priority chemical; and
        (3) any safer alternatives to the chemical.
    Sec. 20. The department may adopt rules under IC 4-22-2 to implement and enforce this chapter.

SOURCE: IC 24-6-10; (09)IN0540.1.14. -->     SECTION 14. IC 24-6-10 IS ADDED TO THE INDIANA CODE AS A NEW CHAPTER TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2009]:
     Chapter 10. Labeling Consumer Commodities
    Sec. 1. This chapter does not apply if federal law preempts the application of this chapter.
    Sec. 2. As used in this chapter, "consumer commodity" or "commodity" means an article that is used or bought for use primarily for personal, family, or household purposes.
    Sec. 3. As used in this chapter, "corporation" refers to the Indiana economic development corporation.
    Sec. 4. As used in this chapter, "label" means a display of written, printed, or graphic matter on the package of a consumer commodity.
    Sec. 5. As used in this chapter, "merchant" refers to a person who sells consumer commodities at retail.
    Sec. 6. (a) As used in this chapter, "package" means a container or wrapping in which a consumer commodity is enclosed for use in the delivery or display of that consumer commodity to retail purchasers.
    (b) The term does not include any of the following:
        (1) Shipping containers or wrappings used solely for the transportation of a consumer commodity in bulk or in quantity to manufacturers, packers, processors, wholesale distributors, or merchants. (2) Shipping containers or outer wrappings used by merchants to ship or deliver a commodity to retail customers if the containers and wrappings bear no printed matter pertaining to a particular commodity.
    Sec. 7. As used in this chapter, "toxic material" has the meaning set forth in IC 13-11-2-233.
    Sec. 8. (a) A merchant may not sell a consumer commodity at retail unless the package of the commodity has a label that contains the following information:
        (1) The country in which the commodity was manufactured, grown, or processed.
        (2) The presence of any toxic materials in the commodity. The label must specifically identify each material that is known to be a toxic material.
    (b) The label required by this section must be located in a conspicuous place as legibly, indelibly, and permanently as the nature of the consumer commodity will permit.
    (c) If a merchant:
        (1) receives a consumer commodity without a label indicating the information required by this section; and
        (2) is unable to determine the information required by this section through reasonable inquiry;
the merchant may affix a label to the commodity under subsection (d).
    (d) If subsection (c) applies, a merchant may affix to a commodity a label that contains one (1) or more of the following statements (whichever is applicable):
        (1) "Country of origin unknown".
        (2) "Presence of toxic materials unknown".
        (3) "List of toxic materials may be incomplete". A label may carry this designation only if the label lists the presence of at least one (1) toxic material.
    Sec. 9. (a) The corporation may adopt rules under IC 4-22-2 to administer this chapter, including rules to specify the means by which various consumer commodities may be labeled under this chapter.
    (b) Rules adopted under this section may not unduly restrict a person from conducting business.
    Sec. 10. A merchant who knowingly or intentionally violates this chapter or rules adopted under this chapter commits a deceptive act that is actionable by the attorney general or by a purchaser of the consumer commodity under IC 24-5-0.5 and is subject to the penalties set forth in IC 24-5-0.5.