New York's Child Safe Products Act failed to make it to the state Senate floor prior to the end of the legislative session last Friday, despite being passed by the New York State Assembly with overwhelming bipartisan support. The bill would have better protected children by tightening standards on toxic chemicals used in kids' products, from car seats to toys to clothes. New York is one of several states seeking to create stronger chemical safeguards than currently exist at the federal level.

Children face higher risks from chemical exposure due to biological and behavioral factors, and studies show that exposure to certain chemicals can interfere with their development. Because of this, it is critical that the products children play with, eat from, or sleep on are free from hazardous chemicals.

New York's proposed legislation, sponsored by state Sen. Phil Boyle (R-Suffolk County), would have created a list of nine priority chemicals (including toxins like arsenic and lead) that would eventually be banned from all children's products sold in the state. Manufacturers would have had one year to test for the priority chemicals and report them to the Department of Environmental Conservation (DEC). Starting Jan. 1, 2018, products containing these chemicals would have been banned outright.

Moreover, legislators would have been allowed to add up to 10 new chemicals to the priority list every three years. When first introduced, the bill sought to give the New York Department of Environmental Conservation the authority to add new priority chemicals with no limit on the number of substances it could add. Following lobbying efforts by the chemical industry, the provision was amended to place responsibility with legislators and restrict the number of chemicals that could be added to the list.

Many were deeply disappointed that the legislation, which flew through the Assembly on a 111-25 vote, never made it to a Senate vote. Some blamed chemical industry lobbyists, who, despite succeeding with amending the bill, spent significant funds to block this and other chemical reforms. Either way, the legislation – with over 40 state Senate sponsors and 55 organizational endorsements – speaks to the desire for a stronger, more inclusive regulatory framework for chemicals in children's products.

New York Not Alone

The Child Safe Products Act was modeled off of similar legislation passed in other states. Washington State restricts the use of lead, cadmium, and phthalates in children's products and currently has a list of over 60 priority chemicals that require reporting by manufacturers. This data is publically available on the Washington Department of Ecology's website, where people can search by chemical or product type.

Maine's law identifies two priority chemicals with use restrictions that also require reporting. Bisphenol-A (BPA), for instance, is banned from baby food packaging and must be reported to Maine's Department of Environmental Protection (DEP) when included in children's toys and tableware. Restricting the use of harmful chemicals and making information public is essential for parents and caregivers looking to protect their children from chemical exposure.

What about Federal Regulations?

States like Maine and Washington enacted this legislation because current federal regulations are not rigorous enough to keep toxic chemicals out of children's products. The Toxic Substances Control Act (TSCA) of 1976, the main legislation that oversees chemicals in commerce, gives the U.S. Environmental Protection Agency (EPA) authority to require manufacturers to test chemicals they use and to restrict the use of harmful chemicals. While this sounds promising, in reality, the EPA's scope is quite limited. A report by the Lowell Center for Sustainable Production demonstrates that the agency must go through numerous hoops in order to test and restrict a chemical, including proving that the benefits of regulation exceed the costs.

Moreover, TSCA essentially gave a free pass to the more than 60,000 chemicals that were already in commerce when the law was passed, declaring them safe until proven otherwise. This puts the burden of proof on government agencies that have limited resources and authority to test the tens of thousands of chemicals in use. In the 38 years since TSCA was enacted, EPA has required testing on just 200 chemicals and restricted a mere five. Thus the agency lacks health data on nearly all of the 84,000 chemicals on the TSCA inventory.

This means that products intended for children contain chemicals with unknown risks – or in some cases, known toxins are allowed to remain in use. For instance, in 2012, the Consumer Product Safety Commission (CPSC) tested children's jewelry and found traces of cadmium at hazardous levels in six different products, one of which was a bracelet marketed for infants. Cadmium exposure can cause kidney and bone damage and is linked to learning disabilities in children. Yet the CPSC claimed it could neither issue a recall nor sound a public warning about these hazards, saying that jewelry did not meet the definition of "children's products" – despite the fact that they were packaged and marketed to children.

We clearly have a broken chemical regulatory system when government agencies cannot remove cadmium-laced baby bracelets from the market. Interestingly, the New York bill would have closed this loophole in the state and banned cadmium by 2018 while providing a clear definition of what constitutes a "children's product."

Conclusion

This bill, along with those that passed in other states, sends a clear message that improved federal standards are needed. Congress is considering legislation to update TSCA, but current bills in the House and Senate would further weaken our ability to restrict harmful chemicals.

The state child product safety bills, on the other hand, provide a more comprehensive framework for safeguarding children. The laws also take into consideration children's specific vulnerabilities and provide clear definitions of children's products to reduce gaps and loopholes. The state measures also consistently provide clear authority for state agencies to require testing on priority chemicals, shifting the burden to the manufacturers to prove their products are safe.

Building provisions like these into any federal TSCA reform would provide more child-specific protections and ensure that agencies can regulate the 84,000 chemicals they're supposed to oversee.

For more information on state chemical legislation, visit SaferStates, a network of environmental health organizations across the country working to strengthen both state and national chemical policies.