N.Y. General Business Law § 396-k: Hazardous toys and other articles intended primarily for use by children; prohibition and enforcement

* § 396-k. Hazardous toys and other articles intended primarily for

use by children; prohibition and enforcement. 1. No person, firm,

corporation, association or agent or employee thereof shall import,

manufacture, sell, hold for sale or distribute a toy or other article

intended for use by a child which presents an electrical, mechanical or

thermal hazard. The following definitions are applicable to this

section:

(a) "Child" means any person less than fourteen years of age;

(b) A toy or other article presents an electrical hazard if, in normal

use or when subjected to reasonably foreseeable damage or abuse, its

design or manufacture may cause personal injury or illness by electrical

shock or electrocution;

(c) A toy or other article presents a mechanical hazard if, in normal

use or when subjected to reasonably foreseeable damage or abuse, its

design or manufacture presents an unreasonable risk of personal injury

or illness:

(1) from fracture, fragmentation or disassembly of the article;

(2) from propulsion of the article or any part or accessory thereof;

(3) from points or other protrusions, surfaces, edges, openings or

closures;

(4) from moving parts;

(5) from lack or insufficiency of controls to reduce or stop motion;

(6) as a result of self-adhering characteristics of the article;

(7) because the article or any part or accessory thereof may be

aspirated or ingested;

(8) because of instability;

(9) from stuffing material which is not free of dangerous or harmful

substances; or

(10) because of any other aspect of the article's design or

manufacture.

(d) A toy or other article presents a thermal hazard if, in normal use

or when subjected to reasonably foreseeable damage or abuse, its design

or manufacture presents an unreasonable risk to personal injury or

illness because of heat as from heated parts, substances or surfaces.

2. Whenever the attorney general shall believe from evidence

satisfactory to him that any person, firm, corporation or association or

agent or employee thereof has violated any provision of this section, he

may bring an action in the supreme court of the state of New York for a

judgment enjoining the continuance of such violation and for a civil

penalty of not more than one thousand dollars for each violation, except

that the court may impose a civil penalty of not more than four thousand

dollars if the violation is knowing and willful. If it shall appear to

the satisfaction of the court or justice that the defendant has violated

any provision of this section, no proof shall be required that any

person has been injured thereby nor that the defendant knowingly or

intentionally violated such provision. In such action preliminary relief

may be granted under article sixty-three of the civil practice law and

rules.

3. Before any violation of this section is sought to be enjoined, the

attorney general shall be required to give the person against whom such

proceeding is contemplated notice by certified mail and an opportunity

to show in writing within five business days after receipt of notice why

proceedings should not be instituted against him, unless the attorney

general shall find, in any case in which he seeks preliminary relief,

that to give such notice and opportunity is not in the public interest.

4. In any such action it shall be a complete defense that the toy or

other article sought to be enjoined either complies with, or is exempt

under, the federal "Child Protection and Toy Safety Act of 1969", as

amended, or the federal "Consumer Product Safety Act", as amended, or

any regulation or exemption promulgated under either act or any other

applicable federal law. In the case of children's sleepware, it shall be

a complete defense that the article sought to be enjoined complies with

any enforcement policy formally issued by a federal agency having

enforcement authority with respect thereto.

5. In connection with any such proposed application, the attorney

general is authorized to take proof, issue subpoenas and administer

oaths in the manner provided in the civil practice law and rules.

6. If any provisions of this chapter or the application thereof to any

person or circumstances is held unconstitutional, such invalidity shall

not affect other provisions or applications of this chapter which can be

given effect without the invalid provision or application, and to this

end the provisions of this chapter are severable.

* NB There are 2 § 396-k's