H. B. 2305
(By Delegates Manypenny, Moye and Poore)
[Introduced February 13, 2013; referred to the
Committee on Health and Human Resources then the
A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new article, designated §16-45-1, §16-45-2,
§16-45-3, §16-45-4, §16-45-5 and §16-45-6; and to amend and
reenact §46A-6-102 of said code, all relating to
"BPA-Free Kids Act"; prohibiting the manufacture, sale, and
distribution of infant formula or baby food stored in a
plastic container, jar, or can containing bisphenol A;
prohibiting the manufacture, sale, and distribution of any
reusable food or beverage container containing bisphenol A
enforcement and penalties;
and legislative rules.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new article, designated §16-45-1, §16-45-2,
§16-45-3, §16-45-4, §16-45-5 and §16-45-6; and that §46A-6-102 of
said code be amended and reenacted, all to read as follows:
CHAPTER 16. PUBLIC HEALTH.
ARTICLE 45. THE BPA-FREE KIDS ACT.
§16-45-1. Short title.
____________________________________________This article may be cited as the "BPA-Free Kids Act."
____________________________________________The Legislature finds that:
____________________________________________(1) Bisphenol A (BPA) is a synthetic estrogen that was
originally considered for use in managing challenging pregnancies.
Low-dose exposure to BPA has been linked to breast cancer, prostate
cancer, recurrent miscarriages, early onset puberty, reduced sperm
count, delayed development, heart disease, diabetes and obesity.
____________________________________________(2) Over ninety percent of the more than one hundred
government-funded studies of low-dose exposure to BPA have
demonstrated adverse health effects.
____________________________________________(3) According to the Centers for Disease Control and
Prevention, more than ninety percent of Americans have detectable
levels of BPA in their bodies, and children have higher
concentrations of BPA in their bodies than do adolescents or
____________________________________________(4) Approximately seven billion pounds of BPA is produced
globally each year for use in baby bottles, dental sealants,
compact discs, water bottles, food cans, and a wide variety of
____________________________________________(5) BPA is one of the most frequently detected industrial
chemicals in groundwater and is also found in landfill leachate,
surface water, sewage, sludge, and treated wastewater discharge.
____________________________________________(6) The use of BPA should be limited in order to protect the
health of the citizens and environment of West Virginia.
____________________________________________(7) Alternatives to BPA exist, including glass, stainless
steel, and aluminum bottles; BPA-free plastic containers, some of
which are already used by several manufacturers of infant formula;
foil packets; and powdered foods stored in cardboard boxes.
____________________________________________As used in this article:
____________________________________________(1) "Baby food" means a prepared solid food consisting of a
soft paste or an easily chewed food that is intended for
consumption by children two years of age or younger and that is
____________________________________________(2) "Bisphenol A" means an industrial chemical used primarily
in the manufacture of polycarbonate plastic and epoxy resins.
____________________________________________(3) "Infant formula" means a milk-based or soy-based powder,
concentrated liquid, or ready-to-feed substitute for human breast
milk that is intended for infant consumption and that is
____________________________________________(4) "Reusable food or beverage container" means a receptacle
for storing food or beverages, including baby bottles, spill-proof
cups, sports bottles, and thermoses. The term does not include food or beverage containers intended for disposal after initial usage.
The term shall not include commercial water cooler jugs.
§16-45-4. Prohibitions on containers with BPA; alternatives.
____________________________________________(a) Beginning July 1, 2014, no person or entity may
manufacture, sell, or distribute in commerce in this state any
reusable food or beverage container containing bisphenol A.
____________________________________________(b) (1) Beginning July 1, 2014, no person or entity may
manufacture, sell, or distribute in commerce in this state any
infant formula or baby food stored in a plastic container or jar
that contains bisphenol A.
____________________________________________(2) Beginning July 1, 2016, no person or entity may
manufacture, sell, or distribute in commerce in this state any
infant formula or baby food stored in a can that contains bisphenol
____________________________________________(c) Manufacturers shall use the least toxic alternative when
replacing bisphenol A in accordance with this section.
____________________________________________(d) Manufacturers may not replace bisphenol A, pursuant to
this article, with carcinogens rated by the U.S. Environmental
Protection Agency (EPA) as A, B, or C carcinogens or substances
listed on the EPA's "List of Chemicals Evaluated for Carcinogenic
Potential" as known or likely carcinogens, known to be human
carcinogens, likely to be human carcinogens, or suggestive of being
____________________________________________(e) Manufacturers may not replace bisphenol A, pursuant to this article, with reproductive toxicants that the EPA has
identified as causing birth defects, reproductive harm, or
§16-45-5. Enforcement; penalties.
____________________________________________This article shall be enforceable by the Attorney General. A
violation of any provision of this section is an unfair or
deceptive act or practice within the meaning of section one hundred
two, article six, chapter forty-six-a of this code and is subject
to the enforcement and penalty provisions contained in chapter
forty-six-a of this code.
§16-45-6. Legislative rules.
____________________________________________The Commissioner of the Bureau for Public Health shall propose
rules for legislative approval in accordance with the provisions of
article three, chapter twenty-nine-a of this code to implement the
provisions of this article.
CHAPTER 46A. WEST VIRGINIA CONSUMER CREDIT
AND PROTECTION ACT.
ARTICLE 6. GENERAL CONSUMER PROTECTION.
When used in this article, the following words, terms and
phrases, and any variations thereof required by the context, shall
have the meaning ascribed to them in this article, except where the
context indicates a different meaning:
(1) "Advertisement" means the publication, dissemination or
circulation of any matter, oral or written, including labeling,
which tends to induce, directly or indirectly, any person to enter
into any obligation, sign any contract or acquire any title or
interest in any goods or services and includes every word device to
disguise any form of business solicitation by using such terms as
"renewal", "invoice", "bill", "statement" or "reminder" to create
an impression of existing obligation when there is none or other
language to mislead any person in relation to any sought-after
(2) "Consumer" means a natural person to whom a sale or lease
is made in a consumer transaction and a "consumer transaction"
means a sale or lease to a natural person or persons for a
personal, family, household or agricultural purpose.
(3) "Cure offer" means a written offer of one or more things
of value, including, but not limited to, the payment of money, that
is made by a merchant or seller and that is delivered by certified
mail to a consumer claiming to have suffered a loss as a result of
a consumer transaction or to the attorney for such person.
(4) "Merchantable" means, in addition to the qualities
prescribed in section three hundred fourteen, article two, chapter
forty-six of this code, that the goods conform in all material
respects to applicable state and federal statutes and regulations
establishing standards of quality and safety of goods and, in the case of goods with mechanical, electrical or thermal components,
that the goods are in good working order and will operate properly
in normal usage for a reasonable period of time.
(5) "Sale" includes any sale, offer for sale or attempt to
sell any goods for cash or credit or any services or offer for
services for cash or credit.
(6) "Trade" or "commerce" means the advertising, offering for
sale, sale or distribution of any goods or services and shall
include any trade or commerce, directly or indirectly, affecting
the people of this state.
(7) "Unfair methods of competition and unfair or deceptive
acts or practices" means and includes, but is not limited to, any
one or more of the following:
(A) Passing off goods or services as those of another;
(B) Causing likelihood of confusion or of misunderstanding as
to the source, sponsorship, approval or certification of goods or
(C) Causing likelihood of confusion or of misunderstanding as
to affiliation, connection or association with or certification by
(D) Using deceptive representations or designations of
geographic origin in connection with goods or services;
(E) Representing that goods or services have sponsorship,
approval, characteristics, ingredients, uses, benefits or quantities that they do not have or that a person has a
sponsorship, approval, status, affiliation or connection that he or
she does not have;
(F) Representing that goods are original or new if they are
deteriorated, altered, reconditioned, reclaimed, used or
(G) Representing that goods or services are of a particular
standard, quality or grade, or that goods are of a particular style
or model if they are of another;
(H) Disparaging the goods, services or business of another by
false or misleading representation of fact;
(I) Advertising goods or services with intent not to sell them
(J) Advertising goods or services with intent not to supply
reasonably expectable public demand, unless the advertisement
discloses a limitation of quantity;
(K) Making false or misleading statements of fact concerning
the reasons for, existence of or amounts of price reductions;
(L) Engaging in any other conduct which similarly creates a
likelihood of confusion or of misunderstanding;
(M) The act, use or employment by any person of any deception,
fraud, false pretense, false promise or misrepresentation, or the
concealment, suppression or omission of any material fact with
intent that others rely upon such concealment, suppression or omission, in connection with the sale or advertisement of any goods
or services, whether or not any person has in fact been misled,
deceived or damaged thereby;
(N) Advertising, printing, displaying, publishing,
distributing or broadcasting, or causing to be advertised, printed,
displayed, published, distributed or broadcast in any manner, any
statement or representation with regard to the sale of goods or the
extension of consumer credit including the rates, terms or
conditions for the sale of such goods or the extension of such
credit, which is false, misleading or deceptive or which omits to
state material information which is necessary to make the
statements therein not false, misleading or deceptive;
(O) Representing that any person has won a prize, one of a
group of prizes or any other thing of value if receipt of the prize
or thing of value is contingent upon any payment of a service
charge, mailing charge, handling charge or any other similar charge
by the person or upon mandatory attendance by the person at a
promotion or sales presentation at the seller's place of business
or any other location: Provided, That a person may be offered one
item or the choice of several items conditioned on the person
listening to a sales promotion or entering a consumer transaction
if the true retail value and an accurate description of the item or
items are clearly and conspicuously disclosed along with the
person's obligations upon accepting the item or items; such description and disclosure shall be typewritten or printed in at
least eight point regular type, in upper or lower case, where
(P) Violating any provision or requirement of article six-b of
this chapter; or
_____(Q) Violating any provision or requirement of article
forty-five, chapter sixteen of this code.
(8) "Warranty" means express and implied warranties described
and defined in sections three hundred thirteen, three hundred
fourteen and three hundred fifteen, article two, chapter forty-six
of this code and expressions or actions of a merchant which assure
the consumer that the goods have described qualities or will
perform in a described manner.
NOTE: The purpose of this bill is to create the "BPA-Free
Kids Act" to limit exposure to bisphenol A (BPA) by prohibiting the
manufacture, sale, and distribution
of certain containers which
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
§§16-45-1 through 6 are new; therefore, they have been