77R12829 YDB-D By Burnam H.B. No. 3085 Substitute the following for H.B. No. 3085: By Capelo C.S.H.B. No. 3085 A BILL TO BE ENTITLED 1-1 AN ACT 1-2 relating to the regulation of the sale and use of products 1-3 containing mercury; providing a penalty. 1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: 1-5 SECTION 1. Subtitle D, Title 6, Health and Safety Code, is 1-6 amended by adding Chapter 508 to read as follows: 1-7 CHAPTER 508. MERCURY REDUCTION 1-8 Sec. 508.001. DEFINITIONS. In this chapter: 1-9 (1) "Board" means the Texas Board of Health. 1-10 (2) "Department" means the Texas Department of Health. 1-11 (3) "Manufacturer" means a person that produces a 1-12 product containing mercury or an importer or domestic distributor 1-13 of a product containing mercury produced in a foreign country. For 1-14 a multicomponent product containing mercury, the manufacturer is 1-15 the last manufacturer to produce or assemble the product. If the 1-16 multicomponent product is produced in a foreign country, the 1-17 manufacturer is the importer or domestic distributor. 1-18 (4) "Mercury-added novelty" means a mercury-added 1-19 product intended for personal or household enjoyment or adornment. 1-20 Mercury-added novelties include items intended for use as practical 1-21 jokes, figurines, adornments, toys, games, cards, ornaments, yard 1-22 statues, candles, jewelry, holiday decorations, footwear, and items 1-23 of apparel. 1-24 (5) "Mercury-added product" means a product or a 2-1 component of a product containing mercury or a mercury compound 2-2 intentionally added to the product or component. 2-3 (6) "Mercury fever thermometer" means a mercury-added 2-4 product used for measuring body temperature. 2-5 (7) "Product containing mercury" means a product or a 2-6 component of a product that contains: 2-7 (A) mercury; or 2-8 (B) a mercury compound from any source, 2-9 including a mercury-added product and a product manufactured using 2-10 mercury. 2-11 Sec. 508.002. RULES. The board shall adopt rules to 2-12 administer this chapter. 2-13 Sec. 508.003. NOTIFICATION. (a) A manufacturer may not use 2-14 or distribute for promotional purposes or offer for sale a 2-15 mercury-added product in this state without filing a notification 2-16 form with the department and paying the fee required by Section 2-17 508.004. 2-18 (b) The notification form must include: 2-19 (1) a brief description of the product to be used or 2-20 distributed or offered for sale; 2-21 (2) unless waived by the department for 2-22 confidentiality or practical considerations, the amount of and 2-23 purpose for mercury in each product unit reported as an exact 2-24 number or an average with an upper and lower limit; 2-25 (3) the name and address of the manufacturer; 2-26 (4) the name, address, and telephone number of a 2-27 contact person for the manufacturer; and 3-1 (5) the total amount of mercury contained in all 3-2 products containing mercury sold in the United States, provided 3-3 either by individual manufacturers or aggregated for an industry by 3-4 a trade group. 3-5 (c) On approval from the department, the manufacturer may 3-6 supply the information required in Subsection (b) for a product 3-7 category rather than an individual product. 3-8 (d) The manufacturer shall update and revise the information 3-9 required in the notification when there is significant change in 3-10 the information or at the department's request. 3-11 Sec. 508.004. FEE. The board by rule shall charge a fee for 3-12 each notification required under Section 508.003. The amount of 3-13 the fee must cover the department's costs for administering this 3-14 chapter. 3-15 Sec. 508.005. EXEMPTION. This chapter does not apply to 3-16 prescription drugs or any substance sold over the counter without a 3-17 prescription under the Federal Food, Drug, and Cosmetic Act (21 3-18 U.S.C. Section 301 et seq.). 3-19 Sec. 508.006. CONFIDENTIALITY. (a) Information collected by 3-20 the department under this chapter is for the confidential use of 3-21 the department and the interstate clearinghouse described by 3-22 Section 508.010 in the administration of this chapter if: 3-23 (1) the information relates to: 3-24 (A) production or sales figures; or 3-25 (B) processes or production unique to the 3-26 manufacturer; or 3-27 (2) release of the information may adversely affect 4-1 the competitive position of the manufacturer. 4-2 (b) A manufacturer may expressly agree to the publication of 4-3 information collected under this chapter. 4-4 (c) The department and the interstate clearinghouse may 4-5 compile or publish analyses or summaries relating to the amount and 4-6 effect of mercury in products and in the environment. The analyses 4-7 or summaries may not identify any manufacturer or reveal any 4-8 information that is confidential under this section. 4-9 Sec. 508.007. RESTRICTIONS ON SALE OF CERTAIN MERCURY-ADDED 4-10 PRODUCTS. (a) A person may not use or distribute for promotional 4-11 purposes or offer for sale in this state a mercury-added novelty if 4-12 the seller knows or has reason to know the product contains 4-13 mercury. 4-14 (b) A manufacturer that produces and sells mercury-added 4-15 novelties shall: 4-16 (1) notify retailers of the requirements of this 4-17 chapter and the proper method to dispose of remaining inventory; 4-18 and 4-19 (2) label each novelty with the warning "This product 4-20 contains mercury." 4-21 (c) A person may not sell or supply mercury fever 4-22 thermometers to consumers or patients except by prescription. A 4-23 manufacturer of mercury fever thermometers shall include with each 4-24 thermometer instructions describing: 4-25 (1) the proper care and handling of the thermometer to 4-26 prevent breakage; and 4-27 (2) the proper procedures for cleaning up and 5-1 disposing of mercury. 5-2 (d) Except as provided by Subsection (e), a primary or 5-3 secondary school may not use or purchase for use in the school 5-4 elemental mercury, mercury compounds, or mercury-added 5-5 instructional equipment and materials. 5-6 (e) A primary or secondary school may use or purchase for 5-7 use in the school measuring devices and thermometers that contain 5-8 mercury only if: 5-9 (1) the equipment is used in a school laboratory; and 5-10 (2) no adequate substitute for the mercury-added 5-11 equipment exists. 5-12 Sec. 508.008. LIMITATIONS ON USE OF ELEMENTAL MERCURY. A 5-13 person may not sell or provide elemental mercury to another person 5-14 in this state unless the person provides a material safety data 5-15 sheet, as defined in 42 U.S.C. Section 11049, and the purchaser or 5-16 recipient signs a statement indicating the purchaser or recipient: 5-17 (1) will use the mercury only for medical, dental 5-18 amalgam dispose-caps, research, or manufacturing purposes; 5-19 (2) understands mercury is toxic and will store and 5-20 use the mercury appropriately to prevent the exposure of any person 5-21 to the mercury; and 5-22 (3) will not place or allow anyone under the 5-23 purchaser's or recipient's control to place the mercury or cause 5-24 the mercury to be placed in solid waste for disposal or in a 5-25 wastewater disposal system. 5-26 Sec. 508.009. PUBLIC EDUCATION AND OUTREACH. (a) The 5-27 department shall implement a public education, outreach, and 6-1 assistance program for households, hazardous waste generators, 6-2 local and regional solid waste management agencies, dismantlers, 6-3 institutions, and schools on: 6-4 (1) the hazards of mercury; 6-5 (2) the requirements and obligations of individuals, 6-6 manufacturers, and agencies under this chapter; and 6-7 (3) voluntary actions that individuals, institutions, 6-8 and businesses can take to reduce mercury in the environment. 6-9 (b) The department shall cooperate with manufacturers of 6-10 mercury-added products and other affected businesses in the 6-11 development and implementation of public education and technical 6-12 assistance programs. 6-13 (c) The department shall cooperate with neighboring states 6-14 and regional organizations on developing outreach, assistance, and 6-15 education programs. 6-16 Sec. 508.010. INTERSTATE CLEARINGHOUSE. (a) The department 6-17 may participate in the establishment and implementation of a 6-18 regional, multistate clearinghouse to assist the department in: 6-19 (1) administering this chapter; 6-20 (2) coordinating reviews of: 6-21 (A) the manufacturers' notifications regarding 6-22 mercury-added products; 6-23 (B) applications for phase-out exemptions; 6-24 (C) collection plans; 6-25 (D) the disclosures of mercury content; and 6-26 (E) applications for alternative labeling; and 6-27 (3) providing education and outreach programs. 7-1 (b) The clearinghouse may also maintain: 7-2 (1) a list of all products containing mercury, 7-3 including mercury-added products; 7-4 (2) a file on all exemptions granted by the states; 7-5 and 7-6 (3) a file of all the manufacturers' reports on the 7-7 effectiveness of collection systems. 7-8 Sec. 508.011. ADMINISTRATIVE PENALTY. (a) The department 7-9 may assess an administrative penalty against a person who violates 7-10 this chapter or a rule adopted by the board under this chapter. 7-11 (b) The penalty may not exceed $1,000 for each violation. 7-12 Each day a violation occurs or continues is a separate violation. 7-13 SECTION 2. This Act takes effect May 1, 2002. 7-14 SECTION 3. (a) A person may not offer for final sale, use or 7-15 distribute for promotional purposes, or ship to an address in this 7-16 state any mercury-added product unless the person has complied with 7-17 Chapter 508, Health and Safety Code, as added by this Act, except 7-18 that a retailer in this state may sell products containing mercury 7-19 from the retailer's stock as it existed on the effective date of 7-20 this Act until September 1, 2002. 7-21 (b) The Texas Board of Health shall adopt rules to 7-22 administer Chapter 508, Health and Safety Code, as added by this 7-23 Act, not later than July 1, 2002. 7-24 SECTION 4. (a) The Texas Department of Health shall: 7-25 (1) review the effectiveness of Chapter 508, Health 7-26 and Safety Code, as added by this Act, not later than May 1, 2006; 7-27 and 8-1 (2) provide a report on the effectiveness of Chapter 8-2 508, Health and Safety Code, as added by this Act, to the governor, 8-3 the lieutenant governor, and the speaker of the house of 8-4 representatives not later than November 1, 2006. 8-5 (b) The report shall examine the effectiveness of the 8-6 programs administered under Chapter 508, Health and Safety Code, as 8-7 added by this Act. The report may contain recommendations for 8-8 improving the programs and recommendations for legislative action 8-9 and may identify, with the assistance of the Texas Department of 8-10 Human Services, consumer products and products used in health care 8-11 facilities that contain mercury in amounts greater than one part 8-12 per billion. The Texas Department of Health shall seek voluntary 8-13 industry cooperation.