S 753 ISCommentsClose CommentsPermalink

To prohibit the manufacture, sale, or distribution in commerce of children’s food and beverage containers composed of bisphenol A, and for other purposes.CommentsClose CommentsPermalink

March 31, 2009CommentsClose CommentsPermalink

Mr. SCHUMER (for himself and Mr. FEINGOLD) introduced the following bill; which was read twice and referred to the Committee on Commerce, Science, and TransportationCommentsClose CommentsPermalink

To prohibit the manufacture, sale, or distribution in commerce of children’s food and beverage containers composed of bisphenol A, and for other purposes.CommentsClose CommentsPermalink

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,CommentsClose CommentsPermalink

SECTION 1. SHORT TITLE.

This Act may be cited as the ‘BPA-Free Kids Act of 2009’.CommentsClose CommentsPermalink

SEC. 2. DEFINITIONS.

In this Act:CommentsClose CommentsPermalink





(1) BISPHENOL A- The term ‘bisphenol A’ means the chemical compound phenol, 4,4-(1-methylethylidine)bis, propane (CAS No. 80-05-7).CommentsClose CommentsPermalink





(2) Children’S FOOD OR BEVERAGE CONTAINER-CommentsClose CommentsPermalink





(A) IN GENERAL- The term ‘children’s food or beverage container’ means any bottle (including a baby bottle), cup, bowl, plate, straw, utensil, or other container, except a metal can, that is designed or intended to be filled with any liquid, food, or beverage primarily for consumption from that container by children 3 years of age or younger and is sold or distributed at retail without containing any liquid, food, or beverage.CommentsClose CommentsPermalink





(B) DETERMINATION OF INTENTION FOR USE BY CHILDREN- In determining under subparagraph (A) whether a product is designed or intended for use by children 3 years of age or younger, the following factors shall be considered:CommentsClose CommentsPermalink





(i) A statement by a manufacturer about the intended use of the product, including a label on the product, if such statement is reasonable.CommentsClose CommentsPermalink





(ii) Whether the product is represented in its packaging, display, promotion, or advertising as appropriate for children 3 years of age or younger.CommentsClose CommentsPermalink





(iii) Whether the product is commonly recognized by consumers as being intended for use by children 3 years of age or younger.CommentsClose CommentsPermalink





(iv) The Age Determination Guidelines issued by the Commission in September 2002 and any successor to such guidelines.CommentsClose CommentsPermalink





(3) COMMISSION- The term ‘Commission’ means the Consumer Product Safety Commission.CommentsClose CommentsPermalink





(4) METAL CAN- The term ‘metal can’ means a single-walled container that is manufactured from metal substrate designed to hold or pack food or beverages and sealed by can ends manufactured from metal substrate.CommentsClose CommentsPermalink





(5) PLASTIC RESIN- The term ‘plastic resin’ means a polymer, usually in the form of pellets or beads, that is not yet molded, extruded, or cast into its final shape.CommentsClose CommentsPermalink





(6) SOLD OR DISTRIBUTED AT RETAIL- The term ‘sold or distributed at retail’ means sold or distributed to a consumer, but does not include selling activity that is intermittent.CommentsClose CommentsPermalink





(7) SUPPLIER- The term ‘supplier’ means any person who supplies plastic resin to a manufacturer of children’s food or beverage containers and may include a manufacturer of plastic resins.CommentsClose CommentsPermalink

SEC. 3. BAN ON CERTAIN PRODUCTS MADE WITH BISPHENOL A.

(a) Treatment as Banned Hazardous Substance- Any children’s food or beverage container that is composed in whole or in part of bisphenol A shall be treated as a banned hazardous substance under the Federal Hazardous Substances Act (15 U.S.C. 1261 et seq.).CommentsClose CommentsPermalink





(b) Treatment as a Regulation Under the Federal Hazardous Substances Act- The ban imposed under subsection (a) and the requirements prescribed under section 4(a)(1) shall be treated as regulations of the Commission promulgated under or for the enforcement of section 2(q) of the Federal Hazardous Substances Act (15 U.S.C. 1261(q)), notwithstanding the exception for foods subject to the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 301 et seq.) set forth in section 2(f)(2) of the Federal Hazardous Substances Act (15 U.S.C. 1261(f)(2)).CommentsClose CommentsPermalink





(c) Clarification of Agency Jurisdiction- The Consumer Product Safety Commission shall have jurisdiction over and authority to enforce the provisions of this Act notwithstanding--CommentsClose CommentsPermalink





(1) the exclusion of food from the definition of ‘consumer product’ in section 3(a)(5)(I) of the Consumer Product Safety Act (15 U.S.C. 2052(a)(5)(I));CommentsClose CommentsPermalink





(2) section 2(f)(2) of the Federal Hazardous Substances Act (15 U.S.C. 1261(f)(2));CommentsClose CommentsPermalink





(3) sections 201(s) and 409 of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 321(s) and 348) (regarding the Food and Drug Administration’s authority to regulate food contact surfaces as a food additive);CommentsClose CommentsPermalink





(4) sections 402 and 403 of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 342 and 343) (prohibiting the introduction into interstate commerce of articles of food that are adulterated or misbranded); andCommentsClose CommentsPermalink





(5) the Memorandum of Understanding between the U.S. Consumer Product Safety Commission and the U.S. Food and Drug Administration (MOU number 000-00-2003, signed July 1976), or any successor Memorandum (delineating the areas of jurisdiction for administration of the Consumer Product Safety Act and the Federal Food, Drug, and Cosmetic Act with respect to food, food containers, and food-related articles and equipment).CommentsClose CommentsPermalink

SEC. 4. CERTIFICATION AND TESTING REQUIREMENTS.

(a) Testing Requirements for Plastic Resins-CommentsClose CommentsPermalink





(1) IN GENERAL- Not later than 150 days after the date of the enactment of this Act, the Commission shall prescribe requirements for the testing of plastic resins by suppliers of plastic resin and by manufacturers of children’s food or beverage containers to ensure that the plastic resins that are to be sold, distributed for use, or used in the manufacture of children’s food or beverage containers do not contain bisphenol A.CommentsClose CommentsPermalink





(2) REQUIREMENTS- The testing requirements prescribed under paragraph (1) shall include the following:CommentsClose CommentsPermalink





(A) A schedule for periodic and random testing of plastic resins, including consideration of whether it is reasonable to phase out testing requirements after a period of years.CommentsClose CommentsPermalink





(B) Methodologies for--CommentsClose CommentsPermalink





(i) testing plastic resins; andCommentsClose CommentsPermalink





(ii) determining appropriate sample sizes for testing plastic resins.CommentsClose CommentsPermalink





(C) Standards for record keeping and submittal of test data and results to the Commission.CommentsClose CommentsPermalink





(D) Requirements for public access to test data and test results.CommentsClose CommentsPermalink





(E) Such other requirements as the Commission considers appropriate for testing plastic resins.CommentsClose CommentsPermalink





(b) Certification Requirements for Suppliers of Certain Plastic Resins- Not later than 30 days after the date the Commission prescribes the testing requirements under subsection (a)(1), if a supplier of plastic resins provides plastic resin to a manufacturer that the supplier has reason to believe will use such plastic resin in the manufacture of children’s food or beverage containers, the supplier shall provide the manufacturer a certification that--CommentsClose CommentsPermalink





(1) the plastic resin has been tested in accordance with the requirements prescribed under subsection (a)(1); andCommentsClose CommentsPermalink





(2) the plastic resin does not contain bisphenol A.CommentsClose CommentsPermalink





(c) Testing Requirements for Manufacturers of Children’s Food or Beverage Containers- Not later than 30 days after the date the Commission prescribes requirements under subsection (a)(1), each manufacturer of children’s food or beverage containers shall implement a testing program that meets the requirements prescribed under subsection (a)(1) to ensure that the plastic resins used by such manufacturer do not contain bisphenol A.CommentsClose CommentsPermalink





(d) Exclusion From Product Certification and Labeling Requirements of Consumer Product Safety Act- Section 14 of the Consumer Product Safety Act (15 U.S.C. 2063) shall not apply with respect to the presence of bisphenol A in children’s food or beverage containers.CommentsClose CommentsPermalink

SEC. 5. LABELING AND ADVERTISING REQUIREMENTS.

(a) Labeling- Not later than 180 days after the date of the enactment of this Act, each children’s food or beverage container shall bear or contain the compliance statement described in subsection (b), on or attached to its packaging or the container itself, when sold or distributed at retail, if--CommentsClose CommentsPermalink





(1) such children’s food or beverage container is composed in whole or in part of plastic resin;CommentsClose CommentsPermalink





(2) such plastic resin was certified under subsection (b) of section 4;CommentsClose CommentsPermalink





(3) such plastic resin was tested under subsection (c) of such section; andCommentsClose CommentsPermalink





(4) such children’s food or beverage container is not composed in whole or in part of bisphenol A.CommentsClose CommentsPermalink





(b) Compliance Statement- The compliance statement described in this subsection is the following: ‘BPA-Free Product’.CommentsClose CommentsPermalink





(c) Advertising- Not later than the date that is 180 days after the date of the enactment of this Act, any advertisement by a retailer, manufacturer, importer, distributor, or private labeler (including advertisements on Internet websites or in catalogues or other printed materials) that provides a direct means for the purchase or order of a children’s food or beverage container that bears or contains, pursuant to subsection (a), the compliance statement described in subsection (b) shall--CommentsClose CommentsPermalink





(1) display the compliance statement described in subsection (b); orCommentsClose CommentsPermalink





(2) be accompanied by such compliance statement immediately adjacent to the advertisement.CommentsClose CommentsPermalink

SEC. 6. ENFORCEMENT.

(a) Audits of Suppliers and Manufacturers- The Commission shall carry out random audits of the test data submitted to the Commission by suppliers of plastic resins used in the manufacture of children’s food or beverage containers and by manufacturers of children’s food or beverage containers to ensure that such suppliers and manufacturers are complying with the requirements of subsections (b) and (c) of section 4, respectively.CommentsClose CommentsPermalink





(b) Commission Testing of Children’s Food and Beverage Containers- The Commission shall carry out a program of random testing of children’s food and beverage containers to ensure that children’s food and beverage containers that are treated as banned hazardous substances under section 3(a) are not introduced into commerce.CommentsClose CommentsPermalink





(c) Regulations- Not later than 150 days after the date of the enactment of this Act, the Commission shall prescribe regulations to carry out the provisions of subsections (a) and (b).CommentsClose CommentsPermalink





(d) Penalties- Any failure of a person subject to a requirement of section 3, 4, or 5 to comply with such requirement shall be treated as a violation of section 4 of the Federal Hazardous Substances Act (15 U.S.C. 1263) and subject to the penalties set forth in section 5 of such Act (15 U.S.C. 1264).CommentsClose CommentsPermalink





(e) Reports- Not later than one year after the date of the enactment of this Act and annually thereafter, the Commission shall submit to Congress a report on the actions taken by the Commission to enforce the provisions of this Act, including summaries of the following:CommentsClose CommentsPermalink





(1) The audits carried out under subsection (a).CommentsClose CommentsPermalink





(2) The results of the testing program carried out under subsection (b).CommentsClose CommentsPermalink





(3) The criminal and civil penalties imposed under subsection (d).CommentsClose CommentsPermalink

SEC. 7. EFFECT ON FEDERAL AND STATE LAW.

(a) In General- Nothing in this Act or section 18(b)(1)(B) of the Federal Hazardous Substances Act (15 U.S.C. 1261 note) shall affect the authority of any State or political subdivision of a State to establish or continue in effect a provision of the law of a State or political subdivision of a State relating to regulation of products containing bisphenol A, except to the extent that compliance with both State and Federal law is impossible. Nothing in this section shall be construed to modify or affect any enforcement action or liability of any person under the law of any State.CommentsClose CommentsPermalink





(b) Preservation of Certain State Law- Nothing in this Act shall be construed to preempt or otherwise affect any warning requirement relating to consumer products or substances that is established pursuant to State law that was in effect on August 31, 2003.CommentsClose CommentsPermalink

SEC. 8. RESEARCH ON HEALTH EFFECTS OF EXPOSURE TO BISPHENOL A.

(a) Research Plan Required- Not later than 180 days after the date of the enactment of this Act, the Secretary of Health and Human Services shall, acting through the Director of the National Institute of Environmental Health Sciences, submit to Congress a plan for a five-year research initiative to increase understanding on the health effects of exposure to bisphenol A in all age groups and in pregnant women.CommentsClose CommentsPermalink





(b) Research Required- Not later than 1 year after the date of the enactment of this Act, the Secretary of Health and Human Services shall, acting through the Director of the National Institute of Environmental Health Sciences, commence the research initiative set forth in the plan required by subsection (a).CommentsClose CommentsPermalink





(c) Manner of Research- The research initiative required by subsection (b) may be conducted through intramural research, contracts, grants, and cooperative agreements.CommentsClose CommentsPermalink





(d) Reports to Congress-CommentsClose CommentsPermalink





(1) INTERIM REPORT- Not later than 2 years after the date of the enactment of this Act, the Secretary of Health and Human Services shall, acting through the Director of the National Institute of Environmental Health Sciences, submit to Congress an interim report on the current status of the research carried out under subsection (b), including a description of the results of such research.CommentsClose CommentsPermalink





(2) FINAL REPORT- Not later than 6 years after the date of the enactment of this Act, the Secretary of Health and Human Services shall, acting through the Director of the National Institute of Environmental Health Sciences, submit to Congress a final report on the results of this initiative and the current state of science with respect to bisphenol A.CommentsClose CommentsPermalink





(e) Authorization of Appropriations- There are authorized to be appropriated to the Secretary of Health and Human Services to carry out this section $5,000,000 for each of fiscal years 2010 through 2014.CommentsClose CommentsPermalink

SEC. 9. EFFECTIVE DATE.

This Act shall take effect on the date of the enactment of this Act and apply with respect to children’s food or beverage containers manufactured on or after the date that is 180 days after such date of enactment.CommentsClose CommentsPermalink