An Act To Protect Children's Health and the Environment from Toxic Chemicals in Toys and Children's Products
Maine Legislature, Session 123, LD 2048
Committee Amendment CA_A_H898 (House)
Amends: 38 MRSA §1609

COMMITTEE AMENDMENT "A" to H.P. 1432, 1.0. 2048, Bill, "An Act To 
Protect Children's Health and the Environment from Toxic Chemicals in Toys and 
Children's Products" 
Amend the bill by striking out everything after the enacting clause and before the 
summary and inserting the following: 
'Sec. 1. 38 MRSA §1609, sub-§10, as enacted by PL 2007, c. 296, §1, IS 
repealed. 
Sec. 2. 38 MRSA c. 16-D is enacted to read: 
CHAPTER 16-D 
TOXIC CHEMICALS IN CHILDREN'S PRODUCTS 
§1691. Definitions 
As used in this chapter, unless the context otherwise indicates, the following terms 
have the following meanings. 
1. Alternative. "Alternative" means a substitute process, product, material, chemical, 
strategy or combination of these that serves a functionally equivalent purpose to a 
chemical in a children's product. 
2. Chemical. "Chemical" means a substance with a distinct molecular composition 
or a group of structurally related substances and includes the breakdown products of the 
substance or substances that form through decomposition, degradation or metabolism. 
3. 
Chemical of hieh concern. "Chemical of high concern" means a chemical 
identified by the department pursuant to section 1693. 
4. 
Chemical of low concern. "Chemical of low concern" means a chemical for 
which adequate toxicity and environmental data are available to determine that it is not a 
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chemical of high concern, a chemical of moderate concern or a chemical of unknown 
concern. 
5. 
Chemical of moderate concern. "Chemical of moderate concern" means a 
chemical identified by an authoritative governmental entity on the basis of credible 
scientific evidence as being suspected of causing an adverse health or environmental 
effect listed in section 1693, subsection 1. 
6. 
Chemical of unknown concern. "Chemical of unknown concern" means a 
chemical for which insufficient data are available to classify it as a chemical of high 
concern, a chemical of moderate concern or a chemical of low concern. 
7. Children's product. "Children's product" means a consumer product intended for 
use by children, such as baby products, toys, car seats, personal care products and 
clothing, and any consumer product containing a chemical of high concern that when 
used or disposed of may result in a child's or a fetus's being exposed to that chemical. 
8. Consumer product. "Consumer product" means any item sold for residential or 
commercial use, including any component parts and packaging. "Consumer product" 
does not include a food or beverage or an additive to a food or beverage, a tobacco 
product or a pesticide regulated by the federal Environmental Protection Agency. 
"Consumer product" also does not include a drug or biologic regulated by the federal 
Food and Drug Administration or the packaging of a drug or biologic regulated by the 
federal Food and Drug Administration if the packaging is regulated by the federal Food 
and Drug Administration. 
9. Distributor. "Distributor" means a person who sells consumer products to retail 
establishments on a wholesale basis. 
-
10. Manufacturer. "Manufacturer" means any person who manufactured a [mal 
consumer product or whose brand name is affixed to the consumer product. In the case of 
a consumer product that was imported into the United States, "manufacturer" includes the 
importer or domestic distributor of the consumer product if the person who manufactured 
or assembled the consumer product or whose brand name is affixed to the consumer 
product does not have a presence in the United States. 
11. Priority chemical. "Priority chemical" means a chemical identified as such by 
the commissioner pursuant to section 1694, subsection 1. 
12. Safer alternative. "Safer alternative" means an alternative that, when compared 
to a priority chemical that it could replace, would reduce the potential for harm to human 
health or the environment or that has not been shown to pose the same or greater potential 
for harm to human health or the environment as that priority chemical. 
§1692. Declaration of policy 
It is the policy of the State, consistent with its duty to protect the health, safety and 
welfare of its citizens, to reduce exposure of children and other vulnerable popUlations to 
chemicals of high concern by substituting safer alternatives when feasible. By enactment 
of this chapter, the Legislature confers upon the department the regulatory power to 
collect information on chemical use and prohibit the sale of children's products containing 
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priority chemicals when safer alternatives are available. The policy represented in this 
chapter is in furtherance of the toxics use reduction policies under chapter 26. 
§1693. Identification of chemicals of high concern 
1. 
Criteria. 
By January 1, 2010, the department, in consultation with the 
Department of Health and Human Services, Maine Center for Disease Control and 
Prevention, shall publish a list of chemicals of high concern. 
A chemical may be 
included on the list only if it has been identified by an authoritative governmental entity 
on the basis of credible scientific evidence as being known as: 
A. A carcinogen, a reproductive or developmental toxicant or an endocrine disruptor; 
B. Persistent, bioaccumulative and toxic; or 
C. Very persistent and very bioaccumulative. 
2. 
Revisions. 
The department may periodically review and revise the list of 
chemicals of high concern. The department may add chemicals to the list if, in the 
judgment of the Department of Health and Human Services, Maine Center for Disease 
Control and Prevention, the chemical meets one or more of the criteria in subsection 1. 
The department may remove a chemical from the list of chemicals of high concern based 
on evidence that the chemical is not present in a children's product or otherwise would 
not be subject to the requirements of this chapter. 
§1694. Identification of priority chemicals 
1. Desieoation. The commissioner may designate a chemical of high concern as a 
priority chemical if the commissioner finds: 
A. The chemical has been found through biomonitoring to be present in human 
blood, including umbilical cord blood, breast milk, urine or other bodily tissues or 
fluids; 
B. 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; 
C. The chemical has been found through monitoring to be present in fish, wildlife or 
the natural environment; 
D. The chemical has been added to or is present in a consumer product used or 
present in the home; 
E. The chemical has been identified as a high production volume chemical by the 
federal Environmental Protection Agency; or 
F. The sale or use of the chemical or a product containing the chemical has been 
banned in another state within the United States. 
The commissioner shall designate at least 2 priority chemicals by January 1, 2011. 
2. Updates. The commissioner shall review the list of chemicals of high concern at 
least every 3 years and may designate additional priority chemicals if the commissioner 
finds that the chemicals meet one of the criteria listed in subsection 1. 
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3. 
Consultation. 
The commISSIOner shall consult with consumer product 
manufacturers, chemical manufacturers, retailers, independent experts. other interested 
parties and the Department of Health and Human Services, Maine Center for Disease 
Control and Prevention prior to designating a priority chemical. 
Notwithstanding Title 5, section 8003, the Maine Administrative Procedure Act does 
not apply to this section. 
§1695. Disclosure of information on priority chemicals 
1. Reportine of chemical use. Not later than 180 days after a priority chemical is 
identified pursuant to section 1694, a person who is a manufacturer or distributor of a 
children's product for sale in the State that contains a priority chemical shall notify the 
department in writing unless waived by the commissioner pursuant to this section or 
exempt from this chapter pursuant to section 1697. This written notice must identify the 
children's product, the number of units sold or distributed for sale in the State or 
nationally. the priority chemical or chemicals contained in the children's product, the 
amount of such chemicals in each unit of children's product and the intended purpose of 
the chemicals in the children's product. 
2. Supplemental information. The manufacturer or distributor of a children's 
product that contains a priority chemical shall provide the following additional 
information if requested by the department: 
A. 
Information on the likelihood that the chemical will be released from the 
children's product to the environment during the children's product's life cycle and the 
extent to which users of the children's product are likely to be exposed to the 
chemical; 
B. Information on the extent to which the chemical is present in the environment or 
human body; and 
C. An assessment of the availability, cost, feasibility and performance. including 
potential for harm to human health and the environment. of alternatives to the priority 
chemical and the reason the priority chemical is used in the manufacture of the 
children's product in lieu of identified alternatives. If an assessment acceptable to the 
department is not timely submitted. the department may assess a fee on the 
manufacturer or distributor to cover the costs to prepare an independent report on the 
availability of safer alternatives by a contractor of the department's choice. 
3. Waiver of reporting; fee; extension of deadline. The commissioner may waive 
all or part of the notification requirement under subsection 1 for one or more specified 
uses of a priority chemical if the commissioner determines that substantially equivalent 
information is already publicly available. that the information is not needed for the 
purposes of this chapter or that the specified use or uses are minor in volume. The 
department may assess a fee payable by the manufacturer or distributor upon submission 
of the notification to cover the department's reasonable costs in managing the information 
collected. The department may extend the deadline for submission of the information 
required under subsection 1 for one or more specified uses of a priority chemical in a 
children's product if it determines that more time is needed by the manufacturer or 
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distributor to comply with the submission requirement or if the information is not needed 
at thattime. 
§1696. Sales prohibition; rules; safer alternatives to priority chemicals 
1. Authority. The board may adopt rules prohibiting the manufacture, sale or 
distribution in the State of a children's product containing a priority chemical if the board 
finds, after consideration of information filed under section 1695 and other relevant 
information submitted to or obtained by the board, that: 
A. Distribution of the children's product directly or indirectly exposes children and 
vulnerable populations to the priority chemical; and 
B. One or more safer alternatives to the priority chemical are available. 
If there are several available safer alternatives to a priority chemical, the board may 
prohibit the sale of children's products that do not contain the safer alternative that is least 
toxic to human health or least harmful to the environment. 
A rule established pursuant to this subsection must specify the effective date of the 
prohibition, which may not be sooner than 12 months after notice of the proposed rule is 
published as required under Title 5, section 8053, subsection 5. Rules adopted pursuant 
to this subsection are major substantive rules as defined in Title 5, chapter 375, 
subchapter 2-A. 
2. 
Alternatives assessment; presumptions. 
For the purpose of determining 
whether a safer alternative is available under subsection 1, paragraph B, the board may, in 
the absence of persuasive evidence to the contrary: 
A. Presume that an alternative is a safer alternative if the alternative is not a chemical 
of high concern; 
B. Presume that a safer alternative is available if the sale of the children's product 
containing the priority chemical has been banned by another state within the United 
States; 
C. Presume that a safer alternative is available if the children's product containing the 
priority chemical is an item of apparel or a novelty; and 
D. Presume that a safer alternative is available if the alternative is sold in the United 
States. 
3. 
Implementation. 
No later than 180 days prior to the effective date of a 
prohibition adopted under subsection 1, the manufacturer or distributor of a children's 
product that contains the priority chemical and that is subject to the prohibition at the 
time of adoption shall file a compliance plan with the commissioner or seek a waiver 
under subsection 5. A compliance plan must: 
A. Identify the children's product that contains the priority chemical; 
B. Specify whether compliance will be achieved by discontinuing the sale of the 
children's product in the State or by substituting a safer alternative in the product; and 
C. If compliance is achieved by substitution of a safer alternative in the product, 
identify the safer alternative and the timetable for substitution. 
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4. Responsibility. A manufacturer or distributor of a children's product containing a 
priority chemical shall notify persons that offer the product for sale or distribution in the 
State of the requirements of this chapter. 
5. Waiver for specific uses. The manufacturer or distributor of a children's product 
that contains a priority chemical and that is subject to a prohibition adopted pursuant to 
subsection 1 may apply to the commissioner for a waiver for one or more specific uses of 
the priority chemical. The waiver application must, at a minimum: 
A. Identify the specific children's product use or uses for which the waiver is sought; 
B. Identify the alternatives considered for substitution of the priority chemical; 
C. Explain the basis for concluding that the use of an alternative is not feasible; and 
D. Identify the steps that have and will be taken to minimize the use of the priority 
chemical. 
The commissioner may grant a waiver with or without conditions upon finding that there 
is a need for the children's product in which the priority chemical is used and there are no 
technically or economically feasible alternatives for the use of the priority chemical in the 
children's product. Waivers may be granted for a term not to exceed 5 years and may be 
renewed for one or more additional 5-year terms upon written application demonstrating 
that technically or economically feasible alternatives remain unavailable. 
The 
commissioner shall deny or grant waiver requests within 60 days after receipt of a 
completed waiver application. 
6. Petitions. If rulemaking to prohibit the sale of a children's product containing a 
priority chemical is initiated by petition under Title 5, section 8055, the department shall 
consider the information submitted in support of the petition but is not obligated to 
conduct a search of other sources of information on the chemical or its uses. 
The 
petitioner bears the burden of demonstrating that the criteria under subsection 1 for 
adoption of rules are met. 
§1697. Applicability 
1. Used products. This chapter does not apply to chemicals in used products. 
2. 
Industry. The requirements of this chapter do not apply to use of priority 
chemicals for industrial or manufacturing purposes. 
3. Vehicles. The requirements of this chapter do not apply to motor vehicles as 
defined in Title 29-A, section 101, subsection 42 or their component parts, except that the 
use of priority chemicals in detachable car seats is not exempt. 
4. Combustion. The requirements of this chapter do not apply to priority chemicals 
generated solely as combustion by-products or that are present in combustible fuels. 
5. Retailers. A retailer is exempt from the requirements of this chapter unless that 
retailer knowingly sells a children's product containing a priority chemical after the 
effective date of its prohibition for which that retailer has received prior notification from 
a manufacturer, distributor or the State. 
6. 
Mercury-added products. The commissioner may designate mercury or a 
mercury compound as a priority chemical for the purpose of adopting rules under section 
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1696 to prohibit the manufacture, sale or distribution of a mercury-added product that is 
not regulated under section 1661-C or 1667 prior to the effective date of this section. The 
disclosure requirements of section 1695 do not apply to the manufacturer or distributor of 
a children's product that contains the designated mercury or mercury compound if the 
manufacturer has complied with the notification requirement under section 1661-A. 
§1698. Interstate clearinghouse to promote safer chemicals 
The department is authorized to participate in an interstate clearinghouse to promote 
safer chemicals in consumer products in cooperation with other states and governmental 
entities. The department may cooperate with the interstate clearinghouse to classify 
existing chemicals in commerce into one of 4 categories: chemicals of high concern, 
chemicals of moderate concern, chemicals of unknown concern and chemicals of low 
concern. 
The department may also cooperate with the interstate clearinghouse in order to 
organize and manage available data on chemicals, including information on uses, hazards 
and environmental concerns; to produce and inventory information on safer alternatives 
to specific uses of chemicals of concern and on model policies and programs; to provide 
technical assistance to businesses and consumers related to safer chemicals; and to 
undertake other activities in support of state programs to promote safer chemicals. 
§1699. Education and assistance 
As resources allow, the department shall develop a program to educate and assist 
consumers and retailers in identifying children's products that may contain priority 
chemicals. 
§1699-A. Enforcement and implementation 
1. Failure to provide notice. A children's product containing a priority chemical 
may not be sold, offered for sale or distributed for sale in this State if the manufacturer or 
distributor has failed to provide information required under section 1695 by the date 
required in that section. The commissioner shall exempt a children's product from this 
prohibition if, in the commissioner's judgment, the lack of availability of the children's 
product could pose an unreasonable risk to public health, safety or welfare. 
2. 
Certificate of compliance. If there are grounds to suspect that a children's 
product is being offered for sale in violation of this chapter, the department may request 
the manufacturer or distributor of the product to provide a certificate of compliance with 
the provisions of this chapter. 
Within 10 days of receipt of a request under this 
subsection, the manufacturer or distributor shall: 
A. Provide the department with the certificate attesting that the children's product 
does not contain the priority chemical; or 
B. Notify persons who sell the product in this State that the sale of the children's 
product is prohibited and provide the department with a list of the names and 
addresses of those notified. 
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§1699-B. Donations to the State 
The department, through the Governor, may accept donations, grants and other funds 
to carry out the purposes of this chapter. 
Sec. 3. Initial list of chemicals of high concern. By January 1, 2010, the 
Department of Environmental Protection, in consultation with the Department of Health 
and Human Services, Maine Center for Disease Control and Prevention, shall identify an 
initial list of chemicals of high concern in accordance with the Maine Revised Statutes, 
Title 38, section 1693. In developing the list, the departments may consider: 
1. Chemicals identified as "Group 1 carcinogens" or "Group 2A carcinogens" by the 
World Health Organization, International Agency for Research on Cancer; 
2. 
Chemicals identified as "known to be a human carcinogen" and "reasonably 
anticipated to be a human carcinogen" by the Secretary of the United States Department 
of Health and Human Services pursuant to the Public Health Service Act, 42 United 
States Code, Section 241(b)(4), as amended; 
3. Chemicals identified as "Group A carcinogens" or "Group B carcinogens" by the 
United States Environmental Protection Agency; 
4. Chemicals identified as reproductive or developmental toxicants by: 
A. 
The United States Department of Health and Human Services, National 
Toxicology Program, Center for the Evaluation of Risks to Human Reproduction; and 
B. 
The California Environmental Protection Agency, Office of Environmental 
Health Hazard Assessment pursuant to the California Health and Safety Code, Safe 
Drinking Water and Toxic Enforcement Act of 1986, Chapter 6.6, Section 25249.8; 
5. Chemicals identified as known or likely endocrine disruptors through screening or 
testing conducted in accordance with protocols developed by the United States 
Environmental Protection Agency pursuant to the Federal Food, Drug and Cosmetic Act, 
United States Code, 346a(p), as amended by the federal Food Quality Protection Act 
(Public Law 104-170) or the federal Safe Drinking Water Act, 42 United States Code, 
Section 300j-17; 
6. Chemicals listed on the basis of endocrine-disrupting properties in Annex XIV, 
List of Substances Subject to Authorisation, Regulation (EC) No 1907/2006 of the 
European Parliament concerning the Registration, Evaluation, Authorisation and 
Restriction of Chemicals; 
7. Persistent, bioaccumulative and toxic chemicals identified by: 
A. The State of Washington Department of Ecology in Washington Administrative 
Code, Chapter 173-333; or 
B. 
The United States Environmental Protection Agency in 40 Code of Federal 
Regulations, Part 372; and 
8. A very persistent, very bioaccumulative chemical listed in Annex XIV, List of 
Substances Subject to Authorisation, Regulation (EC) No 1907/2006 of the European 
Parliament concerning the Registration, Evaluation, Authorisation and Restriction of 
Chemicals. ' 
COMMITTEE AMENDMENT 
COMMITTEE AMENDMENT ,A" to H.P. 1432, L.D. 2048 
SUMMARY 
This amendment is the majority report. The amendment adds a declaration of policy. 
The amendment deletes the requirement to identify 100 priority chemicals of high 
concern, replacing it with an unspecified number. The amendment adds a provision 
authorizing the Department of Environmental Protection to include on the list of 
chemicals of high concern chemicals identified by specified entities. Prior to designating 
priority chemicals, the Department of Environmental Protection is required to consult 
with affected industries, independent experts and other interested parties and with the 
Department of Health and Human Services, Maine Center for Disease Control and 
Prevention. The amendment replaces a mandatory review and determination of safer 
alternatives by the Commissioner of Environmental Protection with authority granted to 
the Board of Environmental Protection to adopt rules restricting the sale of children's 
products containing priority chemicals if safer alternatives are available. The amendment 
authorizes the Commissioner of Environmental Protection to designate mercury or a 
mercury compound as a priority chemical for the purpose of adopting rules to prohibit the 
sale of a mercury-added product that is not currently regulated under the Maine Revised 
Statutes, Title 38, section 1661-C or 1667. The amendment repeals the biennial reporting 
requirement on brominated flame retardants for the purpose of freeing up existing 
resources to implement this chapter. 
FISCAL NOTE REQUIRED 
(See attached) 
COMMITTEE AMENDMENT 
Approved: 03/31/08 ;!dac.: 
LD 2048 
LR 2877(02) 
An Act To Protect Children's Health and the Environment from Toxic Chemicals in Toys and 
Children's Products 
Fiscal Detail and Notes 
Fiscal Note for Bill as Amended by Committee Amendment "A" 
Committee: Natural Resources 
Fiscal Note Required: Yes 
Fiscal Note 
Minor cost increase - General Fund 
Minor cost increase - Other Special Revenue Funds 
Additional costs associated with this legislation can be absorbed by the Department of Environmental Protection 
utilizing existing budgeted resources. 
LR2877(02) - Fiscal Note - Page 1 of 1