By: Carona S.B. No. 1533
A BILL TO BE ENTITLED
AN ACT
1-1 relating to the hazardous substances law; providing penalties.
1-2 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-3 SECTION 1. Section 501.001, Health and Safety Code, is
1-4 amended to read as follows:
1-5 Sec. 501.001. DEFINITIONS. In this chapter:
1-6 (1) "Board" means the Texas Board of Health.
1-7 (2) "Commerce" includes the operation of a business or
1-8 service establishment and other commerce in this state that is
1-9 subject to the jurisdiction of this state.
1-10 (3) "Commissioner" means the commissioner of public
1-11 health.
1-12 (4) "Department" means the Texas Department of Health.
1-13 (5) [(4)] "Label" means a display of written, printed,
1-14 or other graphic matter:
1-15 (A) on the immediate container, excluding the
1-16 package liner, of any substance; or
1-17 (B) directly on the article or on a tag or other
1-18 suitable material affixed to the article, if the article is
1-19 unpackaged or not packaged in an immediate container intended or
1-20 suitable for delivery to the ultimate consumer.
1-21 (6) [(5)] "Misbranded hazardous substance" means
1-22 either of the following that is not properly packaged or does not
1-23 bear a proper label required by this chapter:
1-24 (A) a hazardous substance; or
2-1 (B) a toy or other article intended for use by
2-2 children that bears or contains a hazardous substance in a manner
2-3 that is accessible by a child to whom the toy or other article is
2-4 entrusted, intended, or packaged in a form suitable for use in a
2-5 household or by children.
2-6 SECTION 2. Subsections (a) and (d), Section 501.002, Health
2-7 and Safety Code, are amended to read as follows:
2-8 (a) A hazardous substance is:
2-9 (1) a substance or mixture of substances that is
2-10 toxic, corrosive, extremely flammable, flammable, combustible, an
2-11 irritant, or a strong sensitizer, or that generates pressure
2-12 through decomposition, heat, or other means, if the substance or
2-13 mixture of substances may cause substantial personal injury or
2-14 substantial illness during or as a proximate result of any
2-15 customary or reasonably foreseeable handling or use, including
2-16 reasonably foreseeable ingestion by children;
2-17 (2) a toy or other article, other than clothing, that
2-18 is intended for use by a child and that presents an electrical,
2-19 mechanical, or thermal hazard; or
2-20 (3) a radioactive substance designated as a hazardous
2-21 substance under Section 501.003.
2-22 (d) A substance or article is extremely flammable,
2-23 flammable, or combustible if it is defined as extremely flammable,
2-24 flammable, or combustible by rule of the board. Unless the board
2-25 determines that the health, safety, and welfare of persons in this
2-26 state requires a different definition, the board shall define the
3-1 terms as they are defined by the Federal Hazardous Substances Act
3-2 (15 U.S.C. Section 1261 et seq.), as amended, and by federal
3-3 regulations adopted under that Act. Until the board adopts a
3-4 different definition, the terms each have the meaning assigned by
3-5 the Federal Hazardous Substances Act (15 U.S.C. Section 1261 et
3-6 seq.) and by federal regulations adopted under that Act, as of
3-7 September 1, 1999 [is flammable if it has a flash point of 80
3-8 degrees Fahrenheit or less, as determined by the Tagliabue Open Cup
3-9 Tester or other method as provided by Section 501.021].
3-10 SECTION 3. Section 501.021, Health and Safety Code, is
3-11 amended to read as follows:
3-12 Sec. 501.021. FLAMMABILITY STANDARDS; DETERMINATION OF
3-13 FLAMMABILITY. (a) The board by rule shall establish the methods
3-14 for determining the flammability of solids, fabrics, children's
3-15 clothing, household furnishings, and the contents of
3-16 self-pressurized containers that the board finds are generally
3-17 applicable to those materials or containers.
3-18 (b) The board by rule shall establish flammability standards
3-19 for articles described by Subsection (a). Unless the board
3-20 determines that the health, safety, and welfare of persons in this
3-21 state requires a different standard, the standards must conform to
3-22 standards prescribed by federal regulations adopted under the
3-23 federal Flammable Fabrics Act (15 U.S.C. Section 1191 et seq.), as
3-24 amended, the Federal Hazardous Substances Act (15 U.S.C. Section
3-25 1261 et seq.), as amended, and the federal Consumer Product Safety
3-26 Act (15 U.S.C. Section 2051 et seq.), as amended. Until the board
4-1 adopts different standards, the flammability standards for articles
4-2 described by Subsection (a) are the standards prescribed by federal
4-3 regulations adopted under the federal Flammable Fabrics Act (15
4-4 U.S.C. Section 1191 et seq.), the Federal Hazardous Substances Act
4-5 (15 U.S.C. Section 1261 et seq.), and the federal Consumer Product
4-6 Safety Act (15 U.S.C. Section 2051 et seq.) as of September 1,
4-7 1999.
4-8 (c) The department may obtain samples of articles described
4-9 by Subsection (a) and [shall] determine the flammability of the
4-10 [those] articles for compliance with applicable standards
4-11 established under this section.
4-12 SECTION 4. Subsection (a), Section 501.022, Health and
4-13 Safety Code, is amended to read as follows:
4-14 (a) The board by rule shall designate as a banned hazardous
4-15 substance any article, including [of] clothing intended for the use
4-16 of children, that is not properly packaged or that does not comply
4-17 with applicable flammability standards established by the board.
4-18 The board's determination that articles of clothing of a specified
4-19 range of sizes are intended for the use of a child 14 years of age
4-20 or younger is conclusive.
4-21 SECTION 5. The heading for Section 501.023, Health and
4-22 Safety Code, is amended to read as follows:
4-23 Sec. 501.023. GENERAL LABELING AND PACKAGING REQUIREMENTS.
4-24 SECTION 6. Subchapter B, Chapter 501, Health and Safety
4-25 Code, is amended by adding Sections 501.0231, 501.0232, and
4-26 501.0233 to read as follows:
5-1 Sec. 501.0231. LABELING OF CERTAIN TOYS AND GAMES.
5-2 (a) Toys or games intended for use by children, including the
5-3 parts of those toys or games, shall be labeled in the manner
5-4 required by rule of the board. Unless the board determines that
5-5 the health, safety, and welfare of persons in this state requires a
5-6 deviation from federal standards, the board's rules under this
5-7 subsection shall be consistent with federal guidelines and
5-8 regulations adopted under the Federal Hazardous Substances Act (15
5-9 U.S.C. Section 1261 et seq.), as amended. Until the board adopts
5-10 rules under this subsection, the toys, games, and parts shall be
5-11 labeled in the manner required by federal guidelines and
5-12 regulations adopted under the Federal Hazardous Substances Act (15
5-13 U.S.C. Section 1261 et seq.) as of September 1, 1999.
5-14 (b) Latex balloons, small balls, marbles, and any toy or
5-15 game that contains such a balloon, ball, or marble shall be labeled
5-16 in the manner required by rule of the board. Unless the board
5-17 determines that the health, safety, and welfare of persons in this
5-18 state requires a deviation from federal standards, the board's
5-19 rules under this subsection shall be consistent with federal
5-20 guidelines and regulations adopted under the Federal Hazardous
5-21 Substances Act (15 U.S.C. Section 1261 et seq.), as amended. Until
5-22 the board adopts rules under this subsection, latex balloons, small
5-23 balls, marbles, and any toy or game that contains such a balloon,
5-24 ball, or marble shall be labeled in the manner required by federal
5-25 guidelines and regulations adopted under the Federal Hazardous
5-26 Substances Act (15 U.S.C. Section 1261 et seq.) as of September 1,
6-1 1999.
6-2 Sec. 501.0232. REVIEW AND LABELING OF HAZARDOUS ART
6-3 MATERIALS. (a) Art materials shall be reviewed by a toxicologist.
6-4 (b) Art materials shall be labeled in the manner required by
6-5 rule of the board. Unless the board determines that the health,
6-6 safety, and welfare of persons in this state requires a deviation
6-7 from federal standards, the board's rules under this subsection
6-8 shall be consistent with the Federal Hazardous Substances Act (15
6-9 U.S.C. Section 1261 et seq.), as amended, and federal regulations
6-10 adopted under that Act. Until the board adopts rules under this
6-11 subsection, art materials shall be labeled in the manner required
6-12 by the Federal Hazardous Substances Act (15 U.S.C. Section 1261 et
6-13 seq.), and federal regulations adopted under that Act, as of
6-14 September 1, 1999.
6-15 Sec. 501.0233. PACKAGING OF HAZARDOUS SUBSTANCES. Hazardous
6-16 substances shall be packaged in the manner required by special
6-17 packaging rules adopted by the board. Unless the board determines
6-18 that the health, safety, and welfare of persons in this state
6-19 requires a deviation from federal standards, the board's rules
6-20 under this section shall be consistent with federal special
6-21 packaging regulations adopted under the federal Poison Prevention
6-22 Packaging Act of 1970 (15 U.S.C. Section 1471 et seq.), as amended.
6-23 Until the board adopts rules under this section, hazardous
6-24 substances shall be packaged in the manner required by federal
6-25 special packaging regulations adopted under the federal Poison
6-26 Prevention Packaging Act of 1970 (15 U.S.C. Section 1471 et seq.),
7-1 as of September 1, 1999.
7-2 SECTION 7. Section 501.024, Health and Safety Code, is
7-3 amended to read as follows:
7-4 Sec. 501.024. REGISTRATION. (a) A person who manufactures,
7-5 imports, or repacks a hazardous substance that is distributed in
7-6 this state or who distributes a hazardous substance in this state
7-7 under the person's private brand name shall have on file with the
7-8 department a registration statement as provided by this section.
7-9 (b) The board by rule shall detail the registration
7-10 requirements and prescribe the contents of the registration
7-11 statement.
7-12 (c) The person must file the registration statement with the
7-13 department [before]:
7-14 (1) before beginning business in this state as a
7-15 manufacturer, importer, repacker, or distributor of a hazardous
7-16 substance; and
7-17 (2) in each succeeding year that the person continues
7-18 the business in this state, not later than the anniversary of
7-19 [September 1 of each year after] the initial filing.
7-20 (d) The initial registration statement and each annual
7-21 registration statement must be accompanied by a fee prescribed by
7-22 the board [of $150].
7-23 (e) The department, after notice and hearing, may refuse to
7-24 register or may cancel, revoke, or suspend the registration of a
7-25 person who manufactures, imports, repacks, or distributes a
7-26 hazardous substance if the person fails to comply with the
8-1 requirements of this chapter [make timely payment of the fee].
8-2 (f) A hazardous substance is subject to seizure and
8-3 disposition under Section 501.033 if the person who manufactures,
8-4 imports, repacks, or distributes the hazardous substance does not,
8-5 after notice by the department, register with the department and
8-6 make timely payment of the fee under this section.
8-7 (g) This section does not apply to a retailer who
8-8 distributes a hazardous substance to the general public unless the
8-9 retailer distributes a hazardous substance made to its
8-10 specifications.
8-11 SECTION 8. Section 501.025, Health and Safety Code, is
8-12 amended to read as follows:
8-13 Sec. 501.025. RULES. The board may adopt reasonable rules
8-14 necessary for the efficient administration and enforcement of this
8-15 chapter. Unless the board determines that the health, safety, and
8-16 welfare of persons in this state requires a deviation from federal
8-17 regulations, the [The] rules must conform with regulations adopted
8-18 under the Federal Hazardous Substances Act (15 U.S.C. Section 1261
8-19 et seq.), as amended, the federal Consumer Product Safety Act (15
8-20 U.S.C. Section 2051 et seq.), as amended, the federal Flammable
8-21 Fabrics Act (15 U.S.C. Section 1191 et seq.), as amended, and the
8-22 federal Poison Prevention Packaging Act of 1970 (15 U.S.C. Section
8-23 1471 et seq.), as amended, as applicable.
8-24 SECTION 9. Subchapter B, Chapter 501, Health and Safety
8-25 Code, is amended by adding Section 501.026 to read as follows:
8-26 Sec. 501.026. FEES. The board by rule shall set reasonable
9-1 registration fees in an amount designed to recover not more than
9-2 the costs to the department of administering, monitoring compliance
9-3 with, enforcing, and conducting tests under this chapter.
9-4 SECTION 10. Subsection (b), Section 501.031, Health and
9-5 Safety Code, is amended to read as follows:
9-6 (b) The officer, employee, or agent of the department may
9-7 obtain samples of any materials, packaging, [or] labeling, or
9-8 finished product. [The officer, employee, or agent shall pay or
9-9 offer to pay the owner, operator, or agent in charge for a sample
9-10 and shall give a receipt describing a sample obtained.]
9-11 SECTION 11. Subsection (b), Section 501.033, Health and
9-12 Safety Code, is amended to read as follows:
9-13 (b) The department shall petition a [the] district court of
9-14 Travis County or of the county in which the article is located to
9-15 authorize the destruction of the article. If the court determines
9-16 that the article is a banned or misbranded hazardous substance, the
9-17 department shall destroy the article, and the court shall impose
9-18 all court costs and fees and storage and other proper expenses
9-19 against the claimant of the article. However, if the court finds
9-20 that misbranding occurred in good faith and can be corrected by
9-21 proper labeling, the court may direct that the article be delivered
9-22 to the claimant for proper labeling with the approval of the
9-23 department.
9-24 SECTION 12. Section 501.034, Health and Safety Code, is
9-25 amended by adding Subsections (g) and (h) to read as follows:
9-26 (g) A person may not manufacture, import, or repack a
10-1 hazardous substance that is to be distributed in this state or
10-2 otherwise distribute a hazardous substance in this state without
10-3 complying with Section 501.024.
10-4 (h) A person may not package a hazardous substance in a new
10-5 or reused food, drug, or cosmetic container that is identifiable as
10-6 a food, drug, or cosmetic container by its labeling or other
10-7 identification.
10-8 SECTION 13. Subsections (a) and (b), Section 501.035, Health
10-9 and Safety Code, are amended to read as follows:
10-10 (a) A person commits an offense if the person
10-11 [intentionally, knowingly, or recklessly] violates this chapter or
10-12 a rule adopted under this chapter.
10-13 (b) An offense under this section is a [Class B misdemeanor
10-14 unless it is shown on the trial of the offense that the person's
10-15 intent was to defraud another, in which event the offense is a]
10-16 Class A misdemeanor.
10-17 SECTION 14. Subchapter C, Chapter 501, Health and Safety
10-18 Code, is amended by adding Sections 501.036 and 501.037 to read as
10-19 follows:
10-20 Sec. 501.036. INJUNCTION. (a) If it appears that a person
10-21 has violated, is violating, or is threatening to violate this
10-22 chapter or a rule adopted or order issued under this chapter, the
10-23 commissioner may request the attorney general or a district,
10-24 county, or city attorney of the county or municipality in which the
10-25 violation has occurred, is occurring, or may occur to institute a
10-26 civil suit for:
11-1 (1) an order enjoining the violation or an order
11-2 directing compliance; or
11-3 (2) a permanent or temporary injunction, restraining
11-4 order, or other appropriate order if the department shows that the
11-5 person has engaged in, is engaging in, or is about to engage in a
11-6 violation of this chapter or a rule adopted or order issued under
11-7 this chapter.
11-8 (b) Venue for a suit brought under this section is in the
11-9 county or municipality in which the violation occurred or in Travis
11-10 County.
11-11 (c) The commissioner and either the attorney general or the
11-12 district, county, or city attorney, as appropriate, may each
11-13 recover from the violator reasonable expenses incurred in obtaining
11-14 injunctive relief under this section, including investigative
11-15 costs, court costs, reasonable attorney's fees, witness fees, and
11-16 deposition expenses. Expenses recovered by the commissioner may be
11-17 appropriated only to the department to administer and enforce this
11-18 chapter. Expenses recovered by the attorney general may be
11-19 appropriated only to the attorney general.
11-20 Sec. 501.037. RECALL ORDERS. (a) In conjunction with the
11-21 detention of an article under Section 501.033, the commissioner may
11-22 order that a hazardous substance be recalled from commerce.
11-23 (b) The commissioner's recall order may require the articles
11-24 to be removed to one or more secure areas approved by the
11-25 commissioner or an authorized agent of the commissioner.
11-26 (c) The recall order must be in writing and signed by the
12-1 commissioner.
12-2 (d) The recall order may be issued before or in conjunction
12-3 with the affixing of the tag or other appropriate marking as
12-4 provided by Section 501.033.
12-5 (e) The recall order is effective until the order:
12-6 (1) expires on its own terms;
12-7 (2) is withdrawn by the commissioner; or
12-8 (3) is reversed by a court in an order denying
12-9 destruction under Section 501.033.
12-10 (f) The claimant of the articles or the claimant's agent
12-11 shall pay the costs of the removal and storage of the articles
12-12 removed.
12-13 (g) If the claimant or the claimant's agent does not
12-14 implement the recall order in a timely manner, the commissioner may
12-15 provide for the recall of the articles. The costs of the recall
12-16 shall be assessed against the claimant of the articles or the
12-17 claimant's agent.
12-18 (h) The commissioner may request the attorney general to
12-19 bring an action in a district court of Travis County to recover
12-20 costs of the recall. In a judgment in favor of the state, the
12-21 court may award costs, attorney's fees, and court costs related to
12-22 the recall together with interest on those costs from the time an
12-23 expense was incurred through the date the department is reimbursed.
12-24 SECTION 15. This Act takes effect September 1, 1999.
12-25 SECTION 16. (a) A change in law made by this Act relating
12-26 to the criminal or civil enforcement of Chapter 501, Health and
13-1 Safety Code, applies only to an offense under or other violation of
13-2 Chapter 501, Health and Safety Code, that occurs on or after the
13-3 effective date of this Act, including a continuing offense or
13-4 continuing violation to the extent that it continues on or after
13-5 the effective date of this Act.
13-6 (b) An offense under or other violation of Chapter 501,
13-7 Health and Safety Code, that occurs before the effective date of
13-8 this Act is covered by the law relating to the criminal and civil
13-9 enforcement of Chapter 501, Health and Safety Code, in effect when
13-10 the violation occurred, and the former law is continued in effect
13-11 for that purpose.
13-12 (c) For purposes of this section, a criminal offense is
13-13 committed before the effective date of this Act if any element of
13-14 the offense occurs before that date.
13-15 SECTION 17. The importance of this legislation and the
13-16 crowded condition of the calendars in both houses create an
13-17 emergency and an imperative public necessity that the
13-18 constitutional rule requiring bills to be read on three several
13-19 days in each house be suspended, and this rule is hereby suspended.