A3779

An Act concerning child food and beverage containers made with bisphenol A, and supplementing P.L.1960, c.39 (C.56:8-1 et seq.).

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. This act shall be known and may be cited as the “Child Food and Beverage Packaging Act.”

2. The Legislature finds and declares that:

a. Bisphenol A (BPA), which is found in many food and drink packaging applications, is an estrogen-mimicking endocrine disruptor chemical used in the production of epoxy resins and polycarbonate plastics; that it has been shown to have hormone disrupting effects; and that the resins are commonly used as lacquers to coat metal products such as food cans, bottles, bottle tops, and water supply pipes and in many other commodities, including products used by young children;

b. High levels of BPA and other chemical phthalates can have adverse effects on people, and there is substantial evidence that virtually everyone carries some level of phthalates in their body; and that reusable plastic storage containers, such as baby bottles or polycarbonate plastic thermoses, can leach BPA, and each time they are washed and reused, they are at risk of becoming scratched, leading them to degrade further and leach more chemicals;

c. Many other states and countries around the world have studied the effects of BPA, finding that there is cause for concern about the hazards of exposure to it, such as possible neural and behavioral effects caused by BPA exposure in utero, and further concern that the chemical could cause problems in developing fetuses and young children; and

d. Bisphenol A is a hazardous substance and it is therefore necessary and in the public interest to prohibit the sale of certain child-oriented food and beverage packaging and storage containers that are made with or composed of BPA.

3. As used in this act:

“Child food or beverage storage container” means any food or beverage storage container intended for use by children four years of age or younger, and includes but is not limited to baby bottles, spill-proof cups, and resealable containers.

“Food or beverage storage container” means any refillable or reusable plastic container or other plastic package for a food or beverage that may be used for the reheating or storage of the food or beverage.

“Retailer” means a person who owns or operates a business that sells, offers for sale, or distributes for sale to a consumer in the State any child food or beverage storage container.

4. It shall be an unlawful practice for a person to sell, offer for sale, or distribute for sale in the State a food or beverage in a child food or beverage storage container made with or composed of bisphenol A.

5. It shall be an unlawful practice for a person to sell, offer for sale, or distribute for sale in the State a child food or beverage storage container made with or composed of bisphenol A.

6. a. A retailer may apply to the Division of Consumer Affairs, in the Department of Law and Public Safety, for a waiver from the requirements of section 4 of this act, based on economic hardship, to allow the sale of existing stock only for a period of up to six months beyond the effective date of section 4 of this act, as determined by the division.

b. A retailer may apply to the Division of Consumer Affairs for a waiver from the requirements of section 5 of this act, based on economic hardship, to allow the sale of existing stock only for a period of up to six months beyond the effective date of section 5 of this act, as determined by the division.

7. A person shall use the least toxic alternative when replacing bisphenol A in a child food or beverage storage container for the purpose of section 4 or 5 of this act, and shall not replace bisphenol A with:

a. any material or substance that is rated by the United States Environmental Protection Agency as a Group A, B, or C carcinogen; or

b. any reproductive toxicant that causes birth defects, reproductive harm, or developmental harm, as identified by the United States Environmental Protection Agency.

8. The Department of Law and Public Safety, in consultation with the Department of Environmental Protection and the Department of Health, shall adopt, pursuant to the “Administrative Procedure Act,” P.L.1968, c.410 (C.52:14B-1 et seq.), rules and regulations as are necessary to effectuate the purposes of this act.

9. This act shall take effect immediately except section 4 shall take effect on the first day of the fourth month next following the date of enactment of this act and section 5 shall take effect on the first day of the seventh month next following the date of enactment of this act.

STATEMENT

This bill, to be known as the “Child Food and Beverage Packaging Act,” would make it an unlawful consumer fraud practice for a person to sell, offer for sale, or distribute for sale in the State a food or beverage storage container made with or composed of bisphenol A (BPA) and intended for use by young children.

Specifically, this bill would make it an unlawful practice for a person to sell, offer for sale, or distribute for sale in the State a food or beverage in a package or container made with or composed of BPA and intended for use by young children (e.g., the sale of baby food or infant formula in containers that are made with or composed of BPA), beginning on the first day of the fourth month after the date of enactment of this bill into law. Additionally, on the first day of the seventh month next following the date of enactment of this bill into law, it would be an unlawful practice for a person to sell, offer for sale, or distribute for sale in the State a child food or beverage storage container (e.g., a container intended for use by children four years of age or younger, such as a baby bottle or spill-proof “sippy” cup) made with or composed of BPA. A retailer may apply to the Division of Consumer Affairs, in the Department of Law and Public Safety, for a waiver from these sales restrictions, based on economic hardship, to allow the sale of existing stock only for a period of up to six months beyond the effective date of the ban.

Under the bill, any child food or beverage storage container that is to be sold in the State must be made with the least toxic alternative in place of BPA, and BPA could not be replaced with (1) any material or substance rated by the United States Environmental Protection Agency (EPA) as a Group A, B, or C carcinogen, or (2) a reproductive toxicant that causes birth defects, reproductive harm, or developmental harm as identified by the EPA.

A person violating this bill would be subject to the New Jersey consumer fraud act, P.L.1960, c.39 (C.56:8-1 et seq.), and liable for a penalty of up $10,000 for the first offense and up to $20,000 for the second and each subsequent offense.

Nearly a dozen states have enacted laws to restrict BPA in food packaging, many with restrictions specific to child food and beverage containers. More states are considering such legislation, and various other nations have also restricted BPA in food and beverage storage containers.