[Adopted 6-2-2015 by L.L.
No. 22-2015]
This Legislature hereby finds and determines that the County
of Suffolk is a leader in protecting the health and safety of its
residents, particularly children, who are the most vulnerable in our
communities. This Legislature also finds and determines that there
are chemicals of high concern for the environment and human health
that can be found in everyday products, as has been determined by
many authoritative government bodies, including the State of Maine,
Article 38 MRSA Chapter 16-D, Toxic Chemicals in Children's Products.
This Legislature further finds and determines that several of the
chemicals of high concern listed in Maine's law are known to
be toxic and carcinogenic, including lead, mercury, antimony, arsenic,
cadmium, and cobalt. This Legislature finds that many common children's
products contain these toxic and carcinogenic chemicals. This Legislature
also finds that lead can contaminate drinking water supplies and may
cause conditions such as brain damage, hyperactivity, anemia, liver
and kidney damage, developmental delays, lowered IQ, poor impulse
control, and, in some cases, even death. This Legislature further
finds that mercury can contaminate fish and other wildlife and can
cause damage to brain development, impairments in cognitive thinking,
a decrease in fine motor and visual special skills, and muscle weakness.
This Legislature also determines that antimony can cause respiratory
and cardiovascular damage, skin disorders, and gastrointestinal disorders.
This Legislature further determines that arsenic is known to cause
skin lesions, developmental delays, neurotoxicity, diabetes, and cardiovascular
disease, as well as lung and other cancers. This Legislature finds
and determines that cobalt, while an essential element as a constituent
of vitamin B12, can cause cardiomyopathy and gastrointestinal effects
from chronic exposure. This Legislature also finds and determines
that cadmium exposure can result in kidney disease, bronchiolitis,
emphysema, and damage to the liver, lungs, bone, immune system, blood,
and nervous system. This Legislature further finds and determines
that several states, localities and the federal government are considering
a ban on these six chemicals in children's products. This Legislature
finds that Suffolk County is committed to protecting the environment
and the public health and welfare of our County's infants and
children, whose growing bodies are vulnerable to the health hazards
caused by these seven chemicals, particularly given the absence of
state or federal regulation on this subject. Therefore, the purpose
of this article is to ban the sale of children's products which
contain lead, mercury, antimony, arsenic, cadmium, or cobalt in the
County of Suffolk.
As used in this article, the following terms shall have the
meanings indicated:
Susceptible of access by children in the course of customary
or reasonably foreseeable handling or use.
[Added 10-3-2017 by L.L.
No. 26-2017]
Any person or persons aged 12 and under.
Any product primarily intended for, made for, or marketed
for use by children. "Children's product" does not mean batteries,
consumer electronics or electronic components, paper products, or
a drug, biologic, medical device, food, or food additive regulated
by the US Food and Drug Administration.
Parts per million..
[Amended 10-3-2017 by L.L. No. 26-2017]
Any public establishment in the County of Suffolk that sells
children's products.
[Amended 10-3-2017 by L.L. No. 26-2017]
Effective November 1, 2017:
A.
No retailer shall:
(2)
Knowingly distribute, sell or offer for sale in the County of Suffolk
a children's product containing lead above 100 PPM of accessible
content or above 90 PPM in paint or any similar surface coating.
(3)
Knowingly distribute, sell or offer for sale in the County of Suffolk
a children's product containing cadmium above 75 PPM of accessible
content.
B.
In the event that federal laws on the chemical content of children's
products are amended to include additional metals beyond those enumerated
in this article, no retailer shall knowingly distribute, sell or offer
for sale in the County of Suffolk a children's product containing
such additional metals above the federally prescribed levels as determined
by Consumer Product Safety Commission test methods. The Department
of Health Services shall automatically incorporate those metals into
its testing regimen at the federally prescribed levels and test methods.
A.
This article shall not apply to used children's products or
apparel that is sold or distributed for free at secondhand stores,
yard sales, or donated to charities, nor shall it apply to children's
products or apparel sold exclusively on the internet.
B.
This article shall not apply to protective sporting equipment designed
to prevent injury, including, but not limited to, helmets, athletic
supporters, knee pads or elbow pads.
C.
The restrictions in this article shall not apply to a children's
product solely based on its containing an enclosed battery or enclosed
electronic components.
[Amended 10-3-2017 by L.L. No. 26-2017]
A.
This article shall be enforced by the Department of Health Services.
B.
Beginning on October 15, 2017, the Department of Health Services
will inform retailers selling children's products of the requirements
of this article.
C.
Enforcement of the article through the random inspection of at least
10 retailers per quarter shall commence on December 1, 2017.
(1)
At each retailer inspected, the Department will select no more than
10 children's products for purchase and subsequent off-site content
screening using an x-ray fluorescence analyzer. If the x-ray fluorescence
analyzer indicates that a children's product may have toxic accessible
material contents in excess of the limits stated in this article,
the Department shall send the children's product for independent
testing per Consumer Product Safety Commission designated test methods
at a federal Consumer Product Safety Commission certified laboratory.
(2)
The Department shall inform the retailer of products tested that
exceed the toxic accessible content levels in this article as determined
by such certified laboratory. That determination shall be considered
a final determination unless, within 10 business days of notification
by the Department, the retailer submits a written request explaining,
in full detail, the reasons for contesting the determination. Within
20 days of receipt of a request, the Department shall inform the retailer
of the Department's final determination. A retailer that continues
to offer for sale a children's product found by the Department
to violate this article shall be issued a notice of violation.
(3)
The Department shall maintain a list on a dedicated webpage of all children's products that are tested and found by a Consumer Product Safety Commission certified laboratory per Consumer Product Safety Commission designated testing methods to be above the accessible PPM limits set forth in this article. Posting of a product on the webpage list shall only occur after there is a final determination made on a children's product in accordance with Subsection C(2) of this section. The Department shall update the list at least quarterly each year. Retailers shall be deemed to have notice of a children's product that violates this article at such time as it is posted on the Department's webpage.
A.
The Commissioner of the Department of Health Services is hereby authorized,
empowered and directed to promulgate such rules and regulations as
he or she deems necessary to implement this article.
B.
The Commissioner of the Department of Health Services may, in his
or her discretion, exempt a children's product from this article
if, in the Commissioner's judgment, the lack of availability
of such product could pose an unreasonable risk to public health,
safety or welfare.
A.
Any retailer who knowingly violates the provisions of this article
shall be subject to an initial civil penalty of $500 per violation,
with all subsequent violations subject to a civil penalty of $1,000
per violation. Each violation shall constitute a separate and distinct
offense.
B.
No penalties shall be imposed by the Department of Health Services
until a hearing is held by the Commissioner or his or her designee
and the alleged violator is given an opportunity to be heard.
C.
In the event the Department of Health Services determines that an
illegal children's product is being sold by a retailer, the Commissioner
is authorized and empowered to order the removal of all stock of such
product from being offered for sale by the retailer, in addition to
any civil penalties that may be assessed.
This article shall apply to all actions occurring on or after
the effective date of this article.
[1]
Editor’s Note: Former § 740-80, Reverse preemption,
was repealed 10-3-2017 by L.L. No. 26-2017.
