BG C.S.H.B. 1786 75(R)BILL ANALYSIS PUBLIC HEALTH C.S.H.B. 1786 By: Coleman 4-10-97 Committee Report (Substituted) BACKGROUND The sale of certain abusable consumer products to minors is prohibited under Chapters 484 and 485, Health and Safety Code. By combining these two chapters, retailers would be prohibited from selling abusable consumer products to minors if the product manufacturer labeled the product with a "Vapor Harmful" warning statement. Under current law, retailers must review the chemical analysis of each product they sell to determine if it may, or may not, be sold to minors. Volatile chemicals are typically paints, solvents, fuel additives, carburetor cleaners, dyes and aerosol products, they are addressed in Chapter 484. If they contain 10% or more of toluene or xylene; or 4% or more of methyl alcohol, their sale is are prohibited to to minors. Although products containing these chemicals must be labeled with a "vapor harmful" warning statement such as "WARNING-VAPOR HARMFUL"or "DANGER-VAPOR HARMFUL" according to federal and state law, there is no permit requirement to sell them. Although the law provides for criminal penalties, no government entity is responsible for enforcement. Chapter 485 is entitled "Abusable Glues and Aerosol Paints." It prohibits the sale of glues and aerosol paints to minors if they contain certain abusable chemicals. These products must also be labeled with a "vapor harmful" warning statement. Before selling these products, retailers must first obtain a retail sales permit from the Texas Department of Health (TDH). Retailers must also post a bilingual warning sign that states that the products may not be sold to minors. Revenue from the sale of permits is dedicated to TDH for administration and enforcement and to the Texas Commission on Alcohol and Drug Abuse for inhalant abuse prevention programs. Under current law, approximately 10,000 retail establishments are issued the $25.00 permit annually. PURPOSE C.S.H.B. 1786 merges Chapter 484 into Chapter 485 and changes the name from "Abusable Glues and Aerosol Paints" to "Abusable Volatile Chemicals". Permit requirements are expanded to include abusable consumer products previously regulated under Chapter 484 and a small number of products which were not previously regulated. RULEMAKING AUTHORITY It is the committee's opinion that this bill expressly grants additional rulemaking authority in SECTION 1 (Sec, 485.0135, Health and Safety Code) to the Texas Board of Health (board). Existing rulemaking authority is transferred to the board from the Commissioner of Health in Sec. 485.011(a); and from TDH in Sec. 485.013(b). SECTION BY SECTION ANALYSIS SECTION 1. Amends Chapter 485, Health and Safety Code, by changing the heading from "Abusable Glues and Aerosol Paints" to Abusable Volatile Chemicals," revising Subchapters A, B, and C, and adding Subchapter D as follows: Subchapter A. Sec. 485.001. Replaces references to abusable "glues or aerosol paint" with "volatile chemical." Omits language regarding the size or weight of the container. Adds language to define "abusable volatile chemical" as a chemical which when inhaled, ingested or introduced into a person's body may affect the central nervous system or cause intoxication as specified. Specifies that this definition does not include pesticides; food, drugs, or cosmetics covered under Chapter 431, Health and Safety Code; or alcoholic beverages. Removes definitions for glue. Adds definitions for "Board" meaning the Texas Board of Health, and "Sell." Makes conforming changes. Subchapter B. Sec. 485.011. Changes "commissioner" to "board" in reference to whose rules are required. Replaces references to "abusable glues or aerosol paint" to "abusable volatile chemicals." Sec. 485.012. Makes conforming and nonsubstantive language changes. Sec. 485.013. Omits language setting the amount of the permit application fee at $25 and adds reference to a new Section 485.135 under which the board will set fees. Replaces "department" with the "board" in regards to the entity required to adopt rules necessary to administer this chapter. Makes conforming and nonsubstantive language changes. Deletes reference to Section 484.005(a) which is being folded into Chapter 485. Sec. 485.0135. Adds this section to allow the board, by rule, to establish fees as necessary to recover costs associated with administering this chapter, including a standard fee in an amount not to exceed $50 for issuance of a permit. Sec. 485.014. Makes conforming changes. Sec. 485.015. Makes conforming changes Sec. 485.016. Revises language to omit the requirement that TDH receive the funds under Section 485.013, but retains the requirement that TDH account for amounts received and conforms the section under which the funds are received to Sec. 485.0135. Revises language to clarify that "those amounts" must be sent to the comptroller, who will deposit them into a separate account to be known as the inhalant abuse prevention account. Establishes that money in the account may only be used as specified. Makes conforming and nonsubstantive language changes. Sec. 485.017. Changes "3rd degree" felony to "state jail" felony. Makes conforming changes. Sec. 485.018. Makes conforming and nonsubstantive language changes. Subchapter C. Sec. 485.031 Makes conforming and nonsubstantive language changes. Sec. 485.032. Replaces "commissioner" with "board" in regards to whose adopted rules should be in accordance with and makes conforming changes. Sec. 485.033. Removes "intentionally, knowingly, or" from the adverb recklessly. Revises the reference to rules adopted by the "commissioner" to the "board." Adds as a defense to criminal prosecution under this section, the circumstance in which the person making the delivery is not the manufacturer and is unaware of labeling faults as specified. Makes conforming and nonsubstantive language changes. Sec. 485.034. Deletes terminology regarding "intentional" use, possession, or sale of inhalant paraphernalia, makes conforming and nonsubstantive language changes. Sec. 485.035. Makes conforming and nonsubstantive language changes. Sec. 485.036. Makes conforming and nonsubstantive language changes. Sec. 485.037. Makes conforming change. Sec. 485.038. Makes conforming change. Subchapter D. CIVIL AND ADMINISTRATIVE PENALTIES. Sec. 485.051. (a) allows the commissioner to request the attorney general or government attorney, as specified, to institute a civil suit if it appears that a person is in violation of this chapter. Lists certain legal remedies to be requested in such a lawsuit. Subsection (b) establishes that a penalty amount is not to exceed $25,000 for each violation, and that each day a violation continues is a separate violation. Subsection (c) requires the court to consider factors, as specified, in determining the amount of the penalty. Subsection (d) establishes the venue for bringing a suit under this action as specified. Subsection (e) requires that a civil penalty recovered in a suit brought by a county or municipality under this chapter be paid to the county or municipality. Requires that a civil penalty recovered by the attorney general or district attorney be deposited in the state treasury to the credit of the inhalant abuse prevention account. Subsection (f) allows the commissioner, the attorney general, a county, or municipality to recover reasonable expenses, as specified. Sec. 485.052. ADMINISTRATIVE PENALTY. Subsection (a) allows TDH to impose an administrative penalty against a person holding a permit and in violation as specified. Subsection (b) allows the penalty to be in an amount not over $25,000 for each violation as specified. Subsection (c) requires TDH to consider factors as specified in determining the amount of the penalty. Sec. 485.053. NOTICE OF ADMINISTRATIVE PENALTY; ACCEPTANCE OR REQUEST FOR A HEARING. Subsection (a) requires TDH to give written notice as specified if it determines that a violation has occurred. Subsection (b) allows the person to accept the determination and the proposed penalty amount or make a written request for a hearing not later than 20 days after notice is received. Subsection (c) requires TDH to issue an affirming order as specified if the determination is accepted or if the person fails to respond timely to the notice. Sec. 485.054 HEARING; ORDER. Subsection (a) requires TDH to set a hearing, give notice and designate a hearings examiner, as specified. Subsection (b) requires the hearings examiner to make judgements as specified and promptly issue a decision proposal to TDH. Subsection (c) allows TDH to find, by order, that a violation has or has not occurred as specified. Subsection (d) stipulates that the notice of the order must include a statement of the person's right to judicial review. Sec. 485.055. COMPLIANCE WITH ORDER; RIGHT TO JUDICIAL REVIEW. Subsection (a) requires the person to pay the amount of the penalty; pay the amount and file a contesting petition as specified; or file a petition and without paying the penalty as specified, not later than 30 days after the order becomes final. Subsection (b) allows the person who opts to file a contest without paying the penalty, to stay enforcement of the penalty as specified. Subsection (c) allows TDH to contest a person's affidavit about financial inability as specified. Requires the court to hold a hearing on the alleged facts as soon as practicable and stay the enforcement of the penalty if it is found that the affidavit is true. Establishes that the burden of proof is on the person filing the affidavit as specified. Subsection (d) allows TDH to refer the matter to the attorney general for collection as specified. Sec. 485.056. JUDICIAL REVIEW; FINAL DISPOSITION. Subsection (a) establishes that judicial review is instituted by filing a petition as specified and is under the substantial evidence rule. Subsection (b) allows the court to uphold or reduce the amount of the penalty and order the person to pay the appropriate amount, if the occupance of the violation is sustained. Requires the court to order than no penalty is owed if the violation is not sustained. Subsection (c) requires the court to proceed under this subsection when the judgment becomes final . Requires the court to order TDH to remit the appropriate amount plus interest as specified, if the person paid the penalty amount and then it was reduced or not upheld. Requires the court to order a bond release as specified, if a bond was given and the amount of the penalty is not upheld. Requires the court to order release of the bond after the person pays the amount, if a bond was given and the penalty amount then reduced. Subsection (d) requires that a penalty collected be deposited in the state treasury to the credit of the inhalant abuse prevention account. Sec. 485.057. RECOVERY OF COSTS. Subsection (a) allows TDH to order a person to make a payment to TDH in an amount necessary to recover reasonable costs and expenses as specified. Requires the person ordered under this subsection, to remit not later than 30 days as specified. Allows TDH to refer the matter to the attorney general for collection. Subsection (b) allows the attorney general to recover reasonable costs and expenses incurred as specified. SECTION 2. Repeals Chapter 484, Health and Safety Code. SECTION 3. Establishes that this Act applies only to an offense or violation committed on or after the effective date, an offense committed prior to the effective date is subject to existing law, which is continued in effect for that purpose. Establishes that an offense or violation is considered prior to the effective date if any element of it occurred before that date. Establishes that a permit issued under prior law remains in effect until the permit expires, is revoked or suspended by the TDH, or is surrendered by the permit holder. SECTION 4. This Act is effective September 1, 1997. SECTION 5. Emergency clause. COMPARISON OF ORIGINAL TO SUBSTITUTE In SECTION 1 (Chapter 485, Health and Safety Code) CSHB 1786 adds language to include "aerosol paint" as an abusable volatile chemical, reinserts its definition, and removes the definition of person in Subchapter A, Sec. 485.001 of of the original bill. In Subchapter B, Sec. 485.0135, the fee that the Board of Health can set for a permit to sell abusable volatile chemicals is limited to a maximum of $50 in the substitute bill. A defense to criminal prosecution for selling volatile chemicals to a minor is added to Subchapter C, Sec. 485.033(b) in CSHB 1786. An additional factor regarding the person's efforts to establish or implement policies or procedures to ensure compliance is added to the required court considerations in determining the amount of a penalty in the substitute bill's Subchapter D, Secs. 485.051(c) and 485.052(c). CSHB 1786 removes the words "in writing" from the provision in Subchapter D, Sec. 485.053(b) regarding the person accepting TDH's determination and adds language to Sec. 485.053(c) concerning TDH's required issuance of an affirming order to include " if the person fails to respond timely to the notice." Additionally, CSHB omits language from the original bill in Sec. 485.054 which would have required TDH to set a hearing if the person fails to respond timely to the notice.