SB2473.DOC

SECTION 1. The legislature finds that phthalates are a family of chemicals widely used in a variety of consumer products to soften plastics, such as plastic toys and baby teethers. Researchers report that regular contact with phthalates through chewing on plastic toys may cause hormonal damage in young children and increase the chances of serious illness later in life. In 2006, San Francisco became the first city in the United States to restrict phthalates in consumer products. In 2007, California followed suit and became the first state in the nation to ban children toys containing toxic plastic softeners.

The legislature further finds that many states have laws that prohibit the sale or distribution of packaging containing intentionally added cadmium, lead, mercury, and hexavalent chromium. The goal of these laws is to reduce the amount of heavy metals in packaging and packaging components sold and distributed throughout the nation.

In addition to state legislation, some companies are limiting their use of products containing certain chemical compounds in an effort to reduce their carbon imprint. For example, Catholic Healthcare West, a large hospital network consisting of forty-one hospitals in the United States, advocates for polyvinyl chloride-free intravenous bag products in its hospital network. Although the chemical components in polyvinyl chloride gives products, such as intravenous bags, flexibility and pliability, the potential harmful effects include leaching into the intravenous medication preparations and into patient blood streams, and absorption of medication into the walls of the bags. Other large national companies, such as Microsoft, Johnson & Johnson, and Wal-Mart have all committed to phase out their use of polyvinyl chloride in packaging and move toward safer and healthier alternatives.

The purpose of this Act is to prohibit the sale or distribution of products or packaging containing certain toxic chemicals.

PART I

SECTION 2. The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:

"Chapter

toxics in packaging

§ -1 Definitions. As used in this chapter, unless the context otherwise requires:

"ASTM" means the American Society for Testing Materials.

"Department" means the department of health.

"Director" means the director of health.

"Distribution" means the practice of taking title to a package or a packaging component for promotional purposes or resale. A person involved solely in delivering a package or a packaging component on behalf of a third party shall not be deemed to be engaged in distribution.

"Incidental presence" means the presence of a regulated metal as an unintended or undesired ingredient of a package or packaging component.

"Intentional introduction" means the act of deliberately using a regulated metal in the formation of a package or packaging component where its continued presence is desired in the final package or packaging component to provide a specific characteristic, appearance, or quality. "Intentional introduction" shall not include:

(1) The use of a regulated metal as a processing agent or intermediate to impart certain chemical or physical changes during manufacturing, where the incidental retention of a residue of that metal in the final package or packaging component is not desired or deliberate, if the final package or packaging component is in compliance with section -2(c); or

(2) The use of recycled materials as feedstock for the manufacture of new packaging materials, where some portion of the recycled materials may contain amounts of regulated metal, if the new package or packaging component is in compliance with section -2(c).

"Manufacturer" means any person, firm, association, partnership, or corporation producing a package or packaging component.

"Manufacturing" means the physical or chemical modification of a material to produce packaging or a packaging component.

"Package" means any container, produced either domestically or in a foreign country, providing a means of marketing, protecting, or handling a product from its point of manufacture to its sale or transfer to a consumer, including a unity package, an intermediate package, or a shipping container, as defined in the ASTM specification D996. "Package" also includes but is not limited to unsealed receptacles, including carrying cases, crates, cups, pails, rigid foil and other trays; wrappers; and wrapping films, bags, and tubs; provided that "package" shall not include reusable bags.

"Packaging component" means any individual assembled part of a package that is produced either domestically or in a foreign country, including any interior or exterior blocking, bracing, cushioning, weatherproofing, exterior strapping, coatings, closures, inks, labels, dyes, pigments, adhesives, stabilizers, or any additives. Tin-plated steel that meets the ASTM specifications A623 shall be considered as a single package component. Electrogalvanized coated steel and hot dipped coated galvanized steel that meet the ASTM qualifications A591, A653, A879, and A924 shall be treated in the same manner as tin-plated steel.

"Purchaser" means a person who purchases and takes title to a package or a packaging component from a manufacturer or supplier for the purpose of packaging a product manufactured, distributed, or sold by the purchaser.

"Recycled material" means a material that has been separated from solid waste for the purpose of recycling the material as a secondary material feedstock. Recycled materials include paper, plastic, wood, glass, ceramics, metals, and other materials. "Recycled materials" shall not include a regulated metal that has been separated from other materials into its elemental or other chemical state for recycling as a secondary material feedstock.

"Regulated metal" means lead, mercury, cadmium, or hexavalent chromium.

"Supplier" means a person who does or is one or more of the following:

(1) Sells, offers for sale, or offers for promotional purposes, a package or packaging component that is used by any other person to package a product;

(2) Takes title to a package or packaging component, produced either domestically or in a foreign country that is purchased for resale or promotional purposes;

(3) Acts as an intermediary for the purchase of a package or packaging component for resale from a manufacturer located in another country to a purchaser located in this State and who may receive a commission or a fee on that sale; or

(4) Listed as the importer of record on a United States Customs Service form for an imported package or packaging component.

"Supplier" shall not include a person involved solely in delivering a package or packaging component on behalf of a third party.

§ -2 Restriction on manufacture or distribution. (a) Except as provided under section -3, on or after January 1, 2013, a manufacturer or supplier shall not offer for sale or for promotional purposes in this State a package or packaging component that includes a regulated metal in the package itself or in a packaging component if the regulated metal has been intentionally introduced into the package or packaging component during manufacturing or distribution.

(b) Except as provided under section -3, on or after January 1, 2013, a person shall not offer for sale or for promotional purposes in this State a product in a package that includes a regulated metal in the package itself or in packaging component if the regulated metal has been intentionally introduced into the package or packaging component during manufacturing or distribution.

(c) Except as provided under section -3, on or after January 1, 2013, a person shall not offer for sale or for promotional purposes in this State a package, packaging component, or product in a package if the sum of the incidental total concentration levels of all regulated metals present in a single-component package or in an individual packaging component exceeds one hundred parts per million by weight.

§ -3 Exceptions. (a) A package or a packaging component is exempt from the requirements under section -2, and shall be deemed in compliance with this chapter if the package or packaging component meets any of the following conditions:

(1) The package or packaging component is marked with a code indicating a date of manufacture prior to January 1, 2013;

(2) A regulated metal has been added to the package or packaging component in the manufacturing, forming, printing, or distribution process to comply with the health or safety requirements of a federal or state law;

(3) The package or packaging component contains no intentionally introduced regulated metals, but exceeds the applicable maximum concentration level set forth under section -2(c), only because of the addition of a recycled material;

(4) A regulated metal was added to the package or packaging component in the manufacturing, forming, printing, or distribution process for a use for which there is no feasible alternative;

(5) The package or packaging component is reused and contains no intentionally introduced regulated metals, but exceeds the applicable maximum concentration level set forth under section -2(c), and the following apply:

(A) The product conveyed by the package, the package, or packaging component is otherwise regulated under a federal or state health or safety requirement;

(B) The transportation of the packaged product is regulated under federal or state transportation requirements; or

(6) The package or packaging component has a controlled distribution and reuse, and contains no intentionally introduced regulated metals, but exceeds the applicable maximum concentration level set forth under section -2(c); or

(7) The packaging or packaging component is a glass or ceramic package or packaging component that does not exceed 1.0 parts per million for cadmium, 5.0 parts per million for hexavalent chromium, or 5.0 parts per million for lead; provided that the following shall not be exempt under this paragraph:

(A) A glass or ceramic package or packaging component containing mercury; and

(B) A glass bottle package with paint or an applied ceramic decoration on the bottle if the paint or applied ceramic decoration contains lead or lead components in excess of 0.06 per cent by weight.

(b) For purposes of this section, "no feasible alternative" means a use, other than for purposes of marketing, for which a regulated metal is essential to the protection, safe handling, or function of the package's contents, and technical constraints preclude the substitution of other materials.

§ -4 Additional regulated metals. If the department determines it is necessary to add other packaging substances to the list of regulated metals under section -1 in order to further reduce the toxicity of packaging waste, the department may recommend additions to the governor and legislature.

§ -5 Penalties. (a) A manufacturer or supplier of a package or packaging component who knowingly and intentionally offers for sale or for promotional purposes a package or packaging component in violation of this chapter shall be guilty of a misdemeanor.

(b) A person who offers for retail sale or for promotional purposes a product in a package or packaging component that includes a regulated metal shall be subject to administrative penalties, as determined by the department.

§ -6 Enforcement. (a) The department shall administer and enforce this chapter.

(b) Upon obtaining consent or an inspection warrant and presenting the proper credentials at a reasonable time, the department may perform the following:

(1) Enter a factory, warehouse, or establishment in which a package or packaging component is manufactured, packed, held, or sold in violation or suspected violation of this chapter; enter a vehicle that is being used to transport, hold, or sell a package or packaging component in violation or suspected violation of this chapter; or enter a place where a package or packaging component is in violation or suspected of being held or sold in violation of this chapter; and

(2) Inspect a factory, warehouse, establishment, vehicle, or places described under paragraph (1), and all pertinent equipment, raw material, finished and unfinished materials, containers, and labeling in the factory, warehouse, establishment, vehicle, or place.

(c) When taking action authorized under this chapter, the department may secure a sample of a package, packaging component, or product in a package. Upon request, the department shall return a sample that is not destroyed during testing when the department no longer has any purpose for retaining the sample.

§ -7 Injunctive relief and other relief. The director may institute a civil action in any court of competent jurisdiction for injunctive and other relief to:

(1) Address the manufacturing and distribution of a package or packaging component containing an intentionally introduced regulated metal;

(2) Prevent any violation of this chapter and any rule adopted pursuant to this chapter; or

(3) Collect administrative penalties and obtain other relief.

The court shall have power to grant relief in accordance with the Hawaii rules of civil procedure.

§ -8 Appeal. If any party is aggrieved by the decision of the director, the party may appeal in a manner provided under chapter 91 to the circuit court of the circuit in which the party resides or has the party's principal place of business or in which the action in question occurred.

§ -9 Rules. The department shall adopt rules pursuant to chapter 91 necessary for the purpose of this chapter."

PART II

SECTION 3. Chapter 321, Hawaii Revised Statutes, is amended by adding a new part to be appropriately designated and to read as follows:

"Part . Infant and toddler safety

§321- Definitions. As used in this part, unless the context otherwise requires:

"Bisphenol-A" means an estrogen-mimicking endocrine disrupter chemical used in the production of epoxy resins and polycarbonate plastics.

"Child care article" means all products designed or intended by a manufacturer to facilitate sleep, relaxation, or the feeding of children or to help children with sucking or teething.

"Phthalates" and "phthalate esters" means a group of chemical compounds that are used mainly to plasticize food containers, plastic wrap, toys, shampoos, perfumes, and other beauty products.

"Toy" means a product designed or intended by a manufacturer to be used by children for recreational purposes.

§321- Manufacture, sale, or distribution prohibited. On or after January 1, 2013, a person shall not manufacture, sell, or distribute in commerce any toy or child care article that is:

(1) Intended for use by a child under three years of age and contains bisphenol-A;

(2) Contains di-2-ethyl hexyl phthalates, di-n-butyl phthalate, or butyl benzyl phthalate in concentrations exceeding 0.1 per cent; or

(3) Intended for use by a child under three years of age, is small enough to be placed in a child's mouth, and contains diisononyl phthalate, diisodecyl phthalate, or di-n-octyl phthalate in concentrations exceeding 0.1 per cent.

§321- Alternatives to bisphenol-A and phthalates. Manufacturers shall use the least toxic alternative when replacing bisphenol-A and phthalates in accordance with this part. Pursuant to this part, manufacturers shall not replace bisphenol-A and phthalates with either:

(1) Carcinogens rated as A, B, or C by the United States Environmental Protection Agency's list of chemicals evaluated for carcinogenic potential; or

(2) Reproductive toxicants that cause birth defects, reproductive harm, or developmental harm as identified by the United States Environmental Protection Agency.

§321- Penalty. Any person who intentionally violates this part shall be guilty of a misdemeanor."

PART III

SECTION 4. Chapter 103D, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"§103D- Polyvinyl chloride-free intravenous products. (a) To encourage the reduction of products containing chemicals that may pose harmful effects to patients in state health facilities and affiliates, the Hawaii health systems corporation shall award contracts to the lowest responsible and responsive bidders, with preference being given to intravenous products that do not contain polyvinyl chloride. The corporation shall adopt policies governing the preference for polyvinyl chloride-free intravenous products for its regional systems to follow accordingly.

(b) This section shall not apply when precluded by federal requirements for competitive bidding or when its application will disqualify the corporation from receiving federal funds or aid."

PART IV

SECTION 5. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

SECTION 6. If any provision of this Act, or the application thereof to any person or circumstance, is held invalid, the invalidity does not affect other provisions or applications of the Act that can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.

SECTION 7. New statutory material is underscored.

SECTION 8. This Act shall take effect upon its approval.

INTRODUCED BY:	_____________________________

THE SENATE	S.B. NO.	2473
TWENTY-SIXTH LEGISLATURE, 2012
STATE OF HAWAII