By: Whitmire S.B. No. 138 73R2434 KLL-F A BILL TO BE ENTITLED 1-1 AN ACT 1-2 relating to safety requirements regarding the use of certain toxic 1-3 household products; providing a civil penalty. 1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: 1-5 SECTION 1. Chapter 161, Health and Safety Code, is amended 1-6 by adding Subchapter K to read as follows: 1-7 SUBCHAPTER K. SAFETY REQUIREMENTS RELATING TO 1-8 TOXIC HOUSEHOLD PRODUCTS 1-9 Sec. 161.121. DEFINITIONS. In this subchapter: 1-10 (1) "Household product" means any product used: 1-11 (A) directly on humans or pets; 1-12 (B) in, on, or around any structure, vehicle, 1-13 article, surface, or area associated with the household, including 1-14 nonagricultural outbuildings, noncommercial greenhouses, pleasure 1-15 boats, and recreational vehicles; or 1-16 (C) in or around any preschool or day-care 1-17 facility. 1-18 (2) "Liquid" means a liquid preparation that flows 1-19 readily in its natural state at room temperature and that contains 1-20 one or more soluble chemical substances dissolved in water or other 1-21 solvents, including aqueous acids and nonaqueous solutions. 1-22 (3) "Toxic household product" means a household 1-23 product that has the capacity to produce significant personal 1-24 injury or illness to humans if orally ingested in moderate amounts. 2-1 The term does not include: 2-2 (A) a product that contains hydrocarbons in 2-3 which the only known toxicity is through lung aspiration of minute 2-4 amounts and not absorption through the stomach; 2-5 (B) a product intended for use in or around the 2-6 mouth or reasonably expected to be used orally or ingested; 2-7 (C) an economic poison packaged in containers of 2-8 more than one gallon liquid or more than 10 pounds dry weight; 2-9 (D) a drug, as defined in the Federal Food, 2-10 Drug, and Cosmetic Act (21 U.S.C. Section 301 et seq.) other than a 2-11 product containing 2.5 percent or more by weight camphor in liquid 2-12 formulations; or 2-13 (E) a product that, immediately upon ingestion, 2-14 causes severe damage or irritation to the mouth or tongue or that 2-15 is fatal on a single taste. 2-16 Sec. 161.122. BITTERING AGENT REQUIRED. (a) A toxic 2-17 household product that contains any substance listed in Subsection 2-18 (b) and that is manufactured on or after January 1, 1994, and sold 2-19 in this state must include in the product a bittering agent that is 2-20 nontoxic in the product, in a concentration that renders the 2-21 product aversively bitter, unless the product is packaged with 2-22 child-resistant safety closures in accordance with the Federal 2-23 Poison Prevention Packaging Act of 1970 (15 U.S.C. Section 1471 et 2-24 seq.) and regulations adopted under that Act (16 C.F.R. Section 2-25 1700.1 et seq.). 2-26 (b) The manufacturer of a toxic household product that 2-27 contains any of the following substances shall comply with this 3-1 section: 3-2 (1) Acetonitrile; 3-3 (2) Bromates (used in hair product formulations); 3-4 (3) Carbamates (used in insecticide formulations); 3-5 (4) Chlorinated hydrocarbon insecticides and solvents 3-6 (five percent or more by weight); 3-7 (5) Cyanide; 3-8 (6) Diquat; 3-9 (7) Ethylene glycol (four percent or more by weight); 3-10 (8) Organophosphate insecticides; 3-11 (9) Metaldehyde; 3-12 (10) Methanol (methyl alcohol, four percent or more by 3-13 weight); 3-14 (11) Phenol (10 percent or more by weight); 3-15 (12) Pine oil, in concentrations of 20 percent or 3-16 more; or 3-17 (13) Strychnine formulations. 3-18 Sec. 161.123. CHILD-RESISTANT SAFETY ENCLOSURES. Because of 3-19 the lack of long-term testing results for dermal exposure of 3-20 available bittering agents, manufacturers of toxic household 3-21 products that contain any of the following substances in liquid 3-22 formulations, in lieu of complying with Section 161.122, shall 3-23 package those products with child-resistant safety closures in 3-24 accordance with the Federal Poison Prevention Packaging Act of 1970 3-25 (15 U.S.C. Section 1471 et seq.) and regulations adopted under that 3-26 Act (16 C.F.R. Section 1700.1 et seq.): 3-27 (1) Camphor (2.5 percent or more by weight); 4-1 (2) Diethyltoluamide; or 4-2 (3) Ethylhexanediol. 4-3 Sec. 161.124. RULES; REPORT. (a) The board shall adopt 4-4 rules as necessary to implement this subchapter. 4-5 (b) The department shall report to the legislature by 4-6 February 1 of each odd-numbered year regarding recommendations on 4-7 changes in the composition of the list of substances set forth in 4-8 Sections 161.122(b) and 161.123. 4-9 Sec. 161.125. PROHIBITED ACTS. (a) A person may not 4-10 distribute or sell a toxic household product or cause a toxic 4-11 household product to be distributed or sold in this state if the 4-12 product does not meet the requirements of this subchapter. 4-13 (b) The prohibition contained in Subsection (a) does not 4-14 apply to a person engaged in the business of wholesale or retail 4-15 distribution of a toxic household product, unless the person is 4-16 engaged in the manufacture of the product or has knowledge that a 4-17 toxic household product that the person is distributing or selling 4-18 is in violation of this subchapter. 4-19 (c) This section may not be construed to exempt a 4-20 distributor of a house brand from any provision of this subchapter. 4-21 Sec. 161.126. CIVIL ACTION. (a) A civil action may be 4-22 brought in a court of competent jurisdiction to enforce the 4-23 requirements of this subchapter. The court may grant injunctive 4-24 relief in any action brought under this section. 4-25 (b) The court may award exemplary damages in any action 4-26 brought under Chapter 41, Civil Practice and Remedies Code. 4-27 (c) If the person bringing an action under this section is 5-1 the prevailing party, the person may be awarded attorney fees and 5-2 costs by the court. 5-3 Sec. 161.127. CIVIL PENALTY; FUND. (a) A person who 5-4 violates this subchapter is liable for a civil penalty not to 5-5 exceed $5,000 for each day of violation. The penalty shall be 5-6 assessed and recovered in a civil action brought in the name of the 5-7 state by the attorney general in any court of competent 5-8 jurisdiction. 5-9 (b) The children's poison protection fund is in the state 5-10 treasury. All civil penalties recovered under this section shall 5-11 be deposited to the credit of that fund. Money in the fund shall 5-12 be available, on appropriation by the legislature, for the 5-13 enforcement of this subchapter and for poison control centers 5-14 established under Chapter 773. 5-15 SECTION 2. This Act takes effect September 1, 1993. 5-16 SECTION 3. The importance of this legislation and the 5-17 crowded condition of the calendars in both houses create an 5-18 emergency and an imperative public necessity that the 5-19 constitutional rule requiring bills to be read on three several 5-20 days in each house be suspended, and this rule is hereby suspended.