[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[S. 753 Introduced in Senate (IS)]

111th CONGRESS
  1st Session
                                 S. 753

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


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             March 31, 2009

  Mr. Schumer (for himself and Mr. Feingold) introduced the following 
 bill; which was read twice and referred to the Committee on Commerce, 
                      Science, and Transportation

_______________________________________________________________________

                                 A BILL


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

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

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``BPA-Free Kids Act of 2009''.

SEC. 2. DEFINITIONS.

    In this Act:
            (1) Bisphenol a.--The term ``bisphenol A'' means the 
        chemical compound phenol, 4,4-(1-methylethylidine)bis, propane 
        (CAS No. 80-05-7).
            (2) Children's food or beverage container.--
                    (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.
                    (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:
                            (i) A statement by a manufacturer about the 
                        intended use of the product, including a label 
                        on the product, if such statement is 
                        reasonable.
                            (ii) Whether the product is represented in 
                        its packaging, display, promotion, or 
                        advertising as appropriate for children 3 years 
                        of age or younger.
                            (iii) Whether the product is commonly 
                        recognized by consumers as being intended for 
                        use by children 3 years of age or younger.
                            (iv) The Age Determination Guidelines 
                        issued by the Commission in September 2002 and 
                        any successor to such guidelines.
            (3) Commission.--The term ``Commission'' means the Consumer 
        Product Safety Commission.
            (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.
            (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.
            (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.
            (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.

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.).
    (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)).
    (c) Clarification of Agency Jurisdiction.--The Consumer Product 
Safety Commission shall have jurisdiction over and authority to enforce 
the provisions of this Act notwithstanding--
            (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));
            (2) section 2(f)(2) of the Federal Hazardous Substances Act 
        (15 U.S.C. 1261(f)(2));
            (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);
            (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); and
            (5) the Memorandum of Understanding between the U.S. 
        Consumer Product Safety Commission and the U.S. Food and Drug 
        Administration (MOU number 225-76-2003, 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).

SEC. 4. CERTIFICATION AND TESTING REQUIREMENTS.

    (a) Testing Requirements for Plastic Resins.--
            (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.
            (2) Requirements.--The testing requirements prescribed 
        under paragraph (1) shall include the following:
                    (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.
                    (B) Methodologies for--
                            (i) testing plastic resins; and
                            (ii) determining appropriate sample sizes 
                        for testing plastic resins.
                    (C) Standards for record keeping and submittal of 
                test data and results to the Commission.
                    (D) Requirements for public access to test data and 
                test results.
                    (E) Such other requirements as the Commission 
                considers appropriate for testing plastic resins.
    (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--
            (1) the plastic resin has been tested in accordance with 
        the requirements prescribed under subsection (a)(1); and
            (2) the plastic resin does not contain bisphenol A.
    (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.
    (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.

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--
            (1) such children's food or beverage container is composed 
        in whole or in part of plastic resin;
            (2) such plastic resin was certified under subsection (b) 
        of section 4;
            (3) such plastic resin was tested under subsection (c) of 
        such section; and
            (4) such children's food or beverage container is not 
        composed in whole or in part of bisphenol A.
    (b) Compliance Statement.--The compliance statement described in 
this subsection is the following: ``BPA-Free Product''.
    (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--
            (1) display the compliance statement described in 
        subsection (b); or
            (2) be accompanied by such compliance statement immediately 
        adjacent to the advertisement.

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.
    (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.
    (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).
    (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).
    (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:
            (1) The audits carried out under subsection (a).
            (2) The results of the testing program carried out under 
        subsection (b).
            (3) The criminal and civil penalties imposed under 
        subsection (d).

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.
    (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.

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

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.
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