G/TBT/W/719  
 
10 March  2020 
(20-1838) Page: 1/2 
Committee on Technical Barriers to Trade  Original: English  
 
UNITED STATES - ACT TO AMEND THE ENVIRON MENTAL CONSERVATION LAW,  
IN RELATION TO REGUL ATION OF TOXIC CHEMI CALS IN  
CHILDREN 'S PRODUCTS (STATE OF  NEW YORK –  
SENATE BILL 501B/ASS EMBLY BILL 6296A)  
STATEMENT BY THE EUROPEAN UNION TO THE COMMITTEE ON TECHNICAL BARRIERS T O TRADE  
26 – 27 FEBRUARY  2020 
The following communication, dated 9 March 2020, is being circulated at the request of the 
delegation of the European Union . 
 
_______________  
 
 
1.  The European Union ackn owledges the bilateral dialogue held until now with the US, which has 
led after the communication of the final agenda of the Committee's meeting this week to the 
notification of the State of New York Act to amend the environmental conservation law, in rela tion 
to regulation of toxic chemicals in children's products.  
2.  This notification is necessary in order to allow members for an appropriate comment period as 
the notified measure raises a number of issues given its lack of legal clarity and predictability in  a 
number of areas.  
3.  As a general remark, the European Union is particularly concerned because the notified measure 
introduces an additional layer of regulation beyond the rules on toys that are already in force at 
federal and State levels. This proliferati on of rules and requirements on toys leads to a regulatory 
fragmentation that renders more burdensome and complex the sales and imports of toys in the 
United States.  
4.  When it comes to the notified measure in particular, the European Union remains concerned as 
the procedures foreseen for the listing of chemicals are not fully in line with good regulatory 
practices.  
5.  Firstly, the measure does not provide for the ability of stakeholders to participate and be heard 
in the procedure leading to the listing of chemicals of concern. Could the United States confirm how 
will stakeholders and industry views be effectively taken  into account during this process?  
6.  Another concern refers to the criteria that the newly -created children's product safety council will 
use to recommend to the department the listing of high -priority and prohibited chemicals. In  
particular, the measure doe s not provide that the council, when making these recommendations, 
will consider the potential occurrence of chemicals in children's products, even though this criterion 
should remain a key element in the assessment to prohibit or restrict the use of a che mical. 
Moreover, the Act does not clearly establish whether the department will be able to deviate from the 
recommendations made by the council and, if so, under which basis and criteria.  
7.  Similarly, the measure does not provide for transitional periods for  the industry to adapt when 
new chemicals are to be listed or when such listings are reviewed and updated annually. Will that 
happen in practice?  
8.  Other than these procedural issues, the notified measure also raises a number of concerns on 
substance.  G/TBT/W/719  
 
- 2 - 
 
  9.  Firstly, the Act provides for a prohibition of chemicals, which excludes chemicals present as a 
trace contaminant. The Act defines "trace contaminant " as a trace amount of a chemical that is 
incidental to manufacturing. However, there is no guidance as to how th is "incidental " feature will 
be quantified and measured, which entails a lack of legal certainty for manufacturers as to whether 
they will be caught or not by the prohibition.  
10.  Secondly, manufacturers have to report to the department the use of listed chemi cals of concern 
and high -priority chemicals at the practical quantification limits (PQLs). However, there are no 
indications or guidance on the type of testing that could be used for determining these limits for the 
listed chemicals. They could therefore v ary and differ on the basis of the testing method or testing 
facility used, making them a moving target.  
11.  The European Union considers therefore that these aspects should be fully regulated in the Act 
or at least that the children's product safety council should provide guidance on the notions of trace 
contaminants and practical quantification limits in order to ensure clarity and predictability in the 
implementation of the measure.  
12.  Finally, the European Union expects that any future proposal for th e listing of chemicals of 
concern, high -priority chemicals or prohibited chemicals by the State of New York will be duly notified 
to this Committee in accordance with the TBT Agreement, so as to allow members to comment on 
the proposed listing.  
 
__________