HBA-KMH S.B. 1533 76(R) BILL ANALYSIS Office of House Bill AnalysisS.B. 1533 By: Carona Public Health 4/30/1999 Engrossed BACKGROUND AND PURPOSE Current law requires the Texas Board of Health (board) to regulate hazardous substances. H.B. 2638 amends flammability standards set forth by the board for certain products; provides for the labeling of certain toys and games and art materials as hazardous substances; and provides special packaging standards for hazardous substances. This bill also provides criminal, administrative, and civil penalties for violation of the law regulating hazardous substances. RULEMAKING AUTHORITY It is the opinion of the Office of House Bill Analysis that rulemaking authority is expressly delegated to the Texas Board of Health in SECTION 3 (Section 501.021, Health and Safety Code) and SECTION 6 (Sections 501.0231, 501.0232, and 501.0233, Health and Safety Code) of this bill; and rulemaking authority previously delegated to the Texas Board of Health is modified in SECTION 7 (Section 501.024, Health and Safety Code) and SECTION 8 (Section 501.025, Health and Safety Code) of this bill. SECTION BY SECTION ANALYSIS SECTION 1. Amends Section 501.001, Health and Safety Code, to define "commissioner" as the commissioner of public health. Includes a hazardous substance or a toy that is not properly packaged in the definition of "misbranded hazardous substance." Makes conforming changes. SECTION 2. Amends Sections 501.002(a) and (d), Health and Safety Code, as follows: (a) Includes a substance or mixture of substances that is extremely flammable or combustible in the list of what is a hazardous substance. (d) Provides that a substance or article is extremely flammable, flammable or combustible if it is defined as so by rule of the Texas Board of Health (board). Requires the board to define the terms as defined by the certain federal law and regulations, unless it determines that the health, safety, and welfare of persons in this state requires a different definition. Provides that terms each have the meaning assigned by federal law and regulation until the board adopts another definition. Deletes language providing that a substance is flammable if it has a flash point of 80 degrees Fahrenheit or less, as determined by the Tagliabue Open Cup Tester. SECTION 3. Amends Section 501.021, Health and Safety Code, as follows: Sec. 501.021. New Title: FLAMMABILITY STANDARDS; DETERMINATION OF FLAMMABILITY. Requires the board, by rule, to establish flammability standards for solids, fabrics, children's clothing, household furnishings, and the contents of selfpressurized containers. Provides that the standards must conform to standards prescribed by certain federal law and regulations, unless the board determines that the health, safety, and welfare of persons in this state requires a different definition. Provides that the flammability standards are the standards prescribed by federal law and regulations, until the board adopts different standards. Authorizes the Texas Department of Health (TDH) to obtain samples of the article regulated by this section and determine the flammability of the articles for compliance with applicable standards. Makes conforming changes. SECTION 4. Amends Section 501.022(a), Health and Safety Code, to make conforming changes. SECTION 5. Amends the heading for Section 501.023, Health and Safety Code, as follows: Sec. 501.023. New Title: GENERAL LABELING AND PACKAGING REQUIREMENTS. Adds "general" and "and packaging requirements" to the title. SECTION 6. Amends Subchapter B, Chapter 501, Health and Safety Code, by adding Sections 501.0231-501.0233, as follows: Sec. 501.0231. LABELING OF CERTAIN TOYS AND GAMES. (a) Requires the labeling of toys or games intended for use by children, including the parts of those toys or games, in a the manner required by rule of the board. Requires the consistency of the board's rules under this subsection with certain federal guidelines and regulations, unless the board determines that the health, safety, and welfare of persons in this state requires a deviation from federal standards. Requires the labeling to follow certain federal guidelines and regulations, until the board adopts rules under this subsection. (b) Requires the labeling of latex balloons, small balls, marbles, and any toy or game that contains such a balloon, ball, or marble in a manner required by rule of the board. Requires the consistency of the board's rules under this subsection with certain federal guidelines and regulations, unless the board determines that the health, safety, and welfare of persons in this state requires a deviation from federal standards. Requires the labeling to follow certain federal guidelines and regulations, until the board adopts rules under this subsection. Sec. 501.0232. REVIEW AND LABELING OF HAZARDOUS ART MATERIALS. Requires the review of art materials by a toxicologist. Requires art materials to be labeled in the manner required by rule of the board. Requires the consistency of the board's rules under this subsection with certain federal law and regulations, unless the board determines that the health, safety, and welfare of persons in this state requires a deviation from federal standards. Requires that the labeling of art materials follow certain federal law and regulations, until the board adopts rules under this section. Sec. 501.0233. PACKAGING OF HAZARDOUS SUBSTANCES. Requires the packaging of hazardous substances in the manner required by special packaging rules adopted by the board. Requires the consistency of the board's rules under this subsection with certain federal law and regulations, unless the board determines that the health, safety, and welfare of persons in this state requires a deviation from federal standards. Requires that the packaging of hazardous substances follow certain federal law and regulations, until the board adopts rules under this subsection. SECTION 7. Amends Section 501.024, Health and Safety Code, to include persons who import a hazardous substance in this state and persons who distribute a hazardous substance in this state under the person's private brand name among those persons who are required to have a registration statement on file with TDH. Requires the board, by rule, to detail the registration requirements, in addition to prescribe the contents of the registration statement. Requires the person to file the registration statement with TDH in each succeeding year the person continues business in this state, not later than the anniversary of the initial filing, rather than September 1 of each year after the initial filing. Provides that the registration fee is prescribed by the board, rather than $150. Provides that a hazardous substance is subject to seizure and disposition under Section 501.033 if the person who manufactures, imports, repacts, or distributes the hazardous substance does not, after notice by TDH, register with TDH and make timely payment of the fee. Makes conforming changes. SECTION 8. Amends Section 501.025, Health and Safety Code, to authorize the board to adopt reasonable rules necessary for the efficient administration, in addition to enforcement, of this chapter. Makes conforming changes. SECTION 9. Amends Subchapter B, Chapter 501, Health and Safety Code, by adding Section 501.026, as follows: Sec. 501.026. FEES. Requires the board, by rule, to set reasonable registration fees in an amount designed to recover not more than the costs to TDH of administering, monitoring compliance with, enforcing, and conducting tests under this chapter. SECTION 10. Amends Section 501.031(b), Health and Safety Code, to authorize TDH to obtain, rather than pay for, samples of any materials, packaging, labeling, or finished product. SECTION 11. Amends Section 501.033(b), Health and Safety Code, to requires TDH to petition a district court of Travis County or of the county, rather than the district court of the county, in which the article is located to authorize the destruction of the article. SECTION 12. Amends Section 501.034, Health and Safety Code, by adding Subsections (g) and (h), as follows: (g) Prohibits a person from manufacturing, importing, or repacking a hazardous substance that is to be distributed in this state or otherwise distribute a hazardous substance in this state without complying with Section 501.024. (h) Prohibits a person from packaging a hazardous substance in a new or reused food, drug, or cosmetic container that is identifiable as a food, drug, or cosmetic container by its labeling or other identification. SECTION 13. Amends Sections 501.035(a) and (b), Health and Safety Code, to provide that a person commits a Class A, rather than Class B, misdemeanor if the person violates, rather than intentionally, knowingly, or recklessly violates, this chapter (Hazardous Substances) or a rule adopted under this chapter. Deletes language providing that an offense under this chapter is a Class A misdemeanor if it is shown on trial that the person's intent was to defraud another. SECTION 14. Amends Subchapter C, Chapter 501, Health and Safety Code, by adding Sections 501.036-501.037, as follows: Sec. 501.036. INJUNCTION. (a) Authorizes the commissioner, if it appears that a person has violated, is violating, or is threatening to violate this chapter or a rule adopted or order issued under this chapter, to request the attorney general or a district, county, or city attorney of the county or municipality in which the violation has occurred, is occurring, or may occur to institute certain civil action. (b) Provides that venue for a suit brought under this section is in the county or municipality in which the violation occurred or in Travis County. (c) Authorizes the commissioner and either the attorney general or the district, county, or city attorney, as appropriate, to each recover from the violator reasonable expenses incurred in obtaining injunctive relief under this section, including investigative costs, court costs, reasonable attorney's fees, witness fees, and deposition expenses. Authorizes the appropriation of expenses recovered by the commissioner only to TDH to administer and enforce this chapter. Authorizes appropriation of expenses recovered by the attorney general only to the attorney general. Sec. 501.037. RECALL ORDERS. (a) Authorizes the commissioner, in conjunction with the detention of an article under Section 501.033, to order that a hazardous substance be recalled from commerce. Sets forth recall procedure. Authorizes the commissioner to request the attorney general to bring an action in a district court of Travis County to recover costs of the recall. Authorizes the court, in a judgment in favor of the state, to award costs, attorney's fees, and court costs related to the recall together with interest on those costs from the time an expense was incurred through the date TDH is reimbursed. SECTION 15. Effective date: September 1, 1999. SECTION 16. (a) Makes application of a change in law made by this Act relating to the criminal, civil, or administrative enforcement of Chapter 501, Health and Safety Code, prospective. SECTION 17. Emergency clause.