1.This Act may be cited as
the BPA-Free Kids Act of
2009
.
2.In this Act:
(1)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)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 childrenIn 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)The
term Commission means the Consumer Product Safety
Commission.
(4)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)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 retailThe term sold or distributed at
retail means sold or distributed to a consumer, but does not include
selling activity that is intermittent.
(7)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.
3.Ban on certain
products made with bisphenol A
(a)Treatment as
banned hazardous substanceAny 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 ActThe 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 jurisdictionThe 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).
4.Certification
and testing requirements
(a)Testing
requirements for plastic resins
(1)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)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 resinsNot 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
containersNot 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
ActSection 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.
5.Labeling and
advertising requirements
(a)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)The compliance statement described in this subsection
is the following: BPA-Free Product
.
(c)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.
6.
(a)Audits of
suppliers and manufacturersThe 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 containersThe
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)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)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)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).
7.Effect on
Federal and State law
(a)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 lawNothing 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.
8.Research on
health effects of exposure to bisphenol A
(a)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)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)The research initiative required by subsection (b) may
be conducted through intramural research, contracts, grants, and cooperative
agreements.
(d)
(1)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)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 appropriationsThere 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.
9.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.