Prohibits the sale of toys and play equipment which are subject to a government or manufacturer recall

BILL NUMBER:A460

Title of bill

An act to amend the general business law, in relation to prohibiting the sale of certain items which are subject to a government or manufacturer recall

Summary of provisions

The bill would add a new Section 390-d to the General Business Law (GEL) to hold retailers and wholesale distributors criminally liable. Liability will attach where a distributor knowingly or intentionally sells or makes available to the public any toy or play equipment that has been subject to a manufacturer or government ordered recall, due to a condition that poses a health or safety threat to a consumer. The sale must take place at least thirty days after the retailer or wholesale distributor has notice of such a recall.

The bill would make sale of a recalled toy a class A misdemeanor punish- able by a fine of between one and five thousand dollars per infraction and a maximum of one year in prison. The Attorney General would be granted the authority to enforce this law.

Reasons for support

This proposed legislation is designed to deter retail and wholesale distributors from continuing to sell recalled toys to the public that threaten the health or safety of children. Under the current state of the law, other than the possibility of private civil litigation, there are no adverse consequences that attach to a distribu- tor who intentionally sells recalled toys that are dangerous to the public. Standing alone, however, the threat of civil litigation has failed to encourage sufficient compliance with government or manufactur- er ordered recalls.

For instance, according to a recent report by the New York State Consum- er Protection Board, stores in New York continue to sell recalled toys with unsafe levels of lead. In connection with this report, inspectors visited 2,800 stores and documented 620 recalled toys still on shelves.

In New York State, approximately 5,000 children a year are diagnosed with lead poisoning. Exposure to lead in children and unborn babies can cause brain damage, nervous system dysfunction, behavioral and learning disability, slowed growth, hearing problems and headaches. As this one health threat indicates, the adverse consequences of the continued availability of recalled toys can be substantial.

In order to balance consumer protection with market sensitivity, the bill imposes criminal liability on toy distributors under specifically tailored circumstances. First, there exists an intentionally require- ment. The retailer or wholesaler must knowingly or intentionally sell a recalled toy that is dangerous. Second, there is a notice requirement. The distributor must have actual or constructive notice of the recall. Third, the bill imposes a temporal requirement, since criminal liability only attaches thirty days after notice of a recall is provided.

There are a substantial number of toys sold in New York State that are manufactured in foreign countries, where safety standards and protections may not be as rigid. Given this reality, it is imperative that government protects the consumer to the fullest extent possible by enacting legislation that deters dangerous toys from being made avail- able on the market. This bill substantially advances that objective.

Prior legislative history

New bill.