By: Moncrief S.B. No. 1045
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the hazardous substances law; providing penalties.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Section 501.001, Health and Safety Code, is
1-5 amended to read as follows:
1-6 Sec. 501.001. DEFINITIONS. In this chapter:
1-7 (1) "Board" means the Texas Board of Health.
1-8 (2) "Commerce" includes the operation of a business or
1-9 service establishment and other commerce in this state that is
1-10 subject to the jurisdiction of this state.
1-11 (3) "Commissioner" means the commissioner of public
1-12 health.
1-13 (4) "Department" means the Texas Department of Health.
1-14 (5) [(4)] "Label" means a display of written, printed,
1-15 or other graphic matter:
1-16 (A) on the immediate container, excluding the
1-17 package liner, of any substance; or
1-18 (B) directly on the article or on a tag or other
1-19 suitable material affixed to the article, if the article is
1-20 unpackaged or not packaged in an immediate container intended or
1-21 suitable for delivery to the ultimate consumer.
1-22 (6) [(5)] "Misbranded hazardous substance" means
1-23 either of the following that is not properly packaged or does not
1-24 bear a proper label required by this chapter:
1-25 (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. The board shall
2-25 define the terms as they are defined by the Federal Hazardous
2-26 Substances Act (15 U.S.C. Section 1261 et seq.), as amended, and by
3-1 federal regulations adopted under that Act. The terms each have
3-2 the meaning assigned by the Federal Hazardous Substances Act (15
3-3 U.S.C. Section 1261 et seq.) and by federal regulations adopted
3-4 under that Act, as of September 1, 2001 [is flammable if it has a
3-5 flash point of 80 degrees Fahrenheit or less, as determined by the
3-6 Tagliabue Open Cup Tester or other method as provided by Section
3-7 501.021].
3-8 SECTION 3. Section 501.021, Health and Safety Code, is
3-9 amended to read as follows:
3-10 Sec. 501.021. FLAMMABILITY STANDARDS; DETERMINATION OF
3-11 FLAMMABILITY. (a) The board by rule shall establish the methods
3-12 for determining the flammability of solids, fabrics, children's
3-13 clothing, household furnishings, and the contents of
3-14 self-pressurized containers that the board finds are generally
3-15 applicable to those materials or containers.
3-16 (b) The board by rule shall establish flammability standards
3-17 for articles described by Subsection (a). The standards must
3-18 conform to standards prescribed by federal regulations adopted
3-19 under the federal Flammable Fabrics Act (15 U.S.C. Section 1191 et
3-20 seq.), as amended, the Federal Hazardous Substances Act (15 U.S.C.
3-21 Section 1261 et seq.), as amended, and the federal Consumer Product
3-22 Safety Act (15 U.S.C. Section 2051 et seq.), as amended. Until the
3-23 board adopts standards, the flammability standards for articles
3-24 described by Subsection (a) are the standards prescribed by federal
3-25 regulations adopted under the federal Flammable Fabrics Act (15
3-26 U.S.C. Section 1191 et seq.), the Federal Hazardous Substances Act
4-1 (15 U.S.C. Section 1261 et seq.), and the federal Consumer Product
4-2 Safety Act (15 U.S.C. Section 2051 et seq.) as of September 1,
4-3 2001.
4-4 (c) The department may obtain samples of articles described
4-5 by Subsection (a) and [shall] determine the flammability of the
4-6 [those] articles for compliance with applicable standards
4-7 established under this section.
4-8 SECTION 4. Subsection (a), Section 501.022, Health and
4-9 Safety Code, is amended to read as follows:
4-10 (a) The board by rule shall designate as a banned hazardous
4-11 substance any article, including [of] clothing intended for the use
4-12 of children, that is not properly packaged or that does not comply
4-13 with applicable flammability standards established by the board.
4-14 The board's determination that articles of clothing of a specified
4-15 range of sizes are intended for the use of a child 14 years of age
4-16 or younger is conclusive.
4-17 SECTION 5. The heading for Section 501.023, Health and
4-18 Safety Code, is amended to read as follows:
4-19 Sec. 501.023. GENERAL LABELING AND PACKAGING REQUIREMENTS.
4-20 SECTION 6. Subchapter B, Chapter 501, Health and Safety
4-21 Code, is amended by adding Sections 501.0231, 501.0232, and
4-22 501.0233 to read as follows:
4-23 Sec. 501.0231. LABELING OF CERTAIN TOYS AND GAMES.
4-24 (a) Toys or games intended for use by children, including the
4-25 parts of those toys or games, shall be labeled in the manner
4-26 required by rule of the board. The board's rules under this
5-1 subsection shall be consistent with federal guidelines and
5-2 regulations adopted under the Federal Hazardous Substances Act (15
5-3 U.S.C. Section 1261 et seq.), as amended. Until the board adopts
5-4 rules under this subsection, the toys, games, and parts shall be
5-5 labeled in the manner required by federal guidelines and
5-6 regulations adopted under the Federal Hazardous Substances Act (15
5-7 U.S.C. Section 1261 et seq.) as of September 1, 2001.
5-8 (b) Latex balloons, small balls, marbles, and any toy or
5-9 game that contains such a balloon, ball, or marble shall be labeled
5-10 in the manner required by rule of the board. The board's rules
5-11 under this subsection shall be consistent with federal guidelines
5-12 and regulations adopted under the Federal Hazardous Substances Act
5-13 (15 U.S.C. Section 1261 et seq.), as amended. Until the board
5-14 adopts rules under this subsection, latex balloons, small balls,
5-15 marbles, and any toy or game that contains such a balloon, ball, or
5-16 marble shall be labeled in the manner required by federal
5-17 guidelines and regulations adopted under the Federal Hazardous
5-18 Substances Act (15 U.S.C. Section 1261 et seq.) as of September 1,
5-19 2001.
5-20 Sec. 501.0232. REVIEW AND LABELING OF HAZARDOUS ART
5-21 MATERIALS. (a) Art materials shall be reviewed by a toxicologist.
5-22 (b) Art materials shall be labeled in the manner required by
5-23 rule of the board. The board's rules under this subsection shall
5-24 be consistent with the Federal Hazardous Substances Act (15 U.S.C.
5-25 Section 1261 et seq.), as amended, and federal regulations adopted
5-26 under that Act. Until the board adopts rules under this
6-1 subsection, art materials shall be labeled in the manner required
6-2 by the Federal Hazardous Substances Act (15 U.S.C. Section 1261 et
6-3 seq.), and federal regulations adopted under that Act, as of
6-4 September 1, 2001.
6-5 Sec. 501.0233. PACKAGING OF HAZARDOUS SUBSTANCES. Hazardous
6-6 substances shall be packaged in the manner required by special
6-7 packaging rules adopted by the board. The board's rules under this
6-8 section shall be consistent with federal special packaging
6-9 regulations adopted under the federal Poison Prevention Packaging
6-10 Act of 1970 (15 U.S.C. Section 1471 et seq.), as amended. Until
6-11 the board adopts rules under this section, hazardous substances
6-12 shall be packaged in the manner required by federal special
6-13 packaging regulations adopted under the federal Poison Prevention
6-14 Packaging Act of 1970 (15 U.S.C. Section 1471 et seq.), as of
6-15 September 1, 2001.
6-16 SECTION 7. Section 501.024, Health and Safety Code, is
6-17 amended to read as follows:
6-18 Sec. 501.024. REGISTRATION. (a) A person who manufactures,
6-19 imports, or repacks a hazardous substance that is distributed in
6-20 this state or who distributes a hazardous substance in this state
6-21 under the person's private brand name shall have on file with the
6-22 department a registration statement as provided by this section.
6-23 (b) The board by rule shall detail the registration
6-24 requirements and prescribe the contents of the registration
6-25 statement.
6-26 (c) The person must file the registration statement with the
7-1 department [before]:
7-2 (1) before beginning business in this state as a
7-3 manufacturer, importer, repacker, or distributor of a hazardous
7-4 substance; and
7-5 (2) in each succeeding year that the person continues
7-6 the business in this state, not later than the anniversary of
7-7 [September 1 of each year after] the initial filing.
7-8 (d) The initial registration statement and each annual
7-9 registration statement must be accompanied by a fee prescribed by
7-10 the board [of $150].
7-11 (e) The department, after notice and hearing, may refuse to
7-12 register or may cancel, revoke, or suspend the registration of a
7-13 person who manufactures, imports, repacks, or distributes a
7-14 hazardous substance if the person fails to comply with the
7-15 requirements of this chapter [make timely payment of the fee].
7-16 (f) A hazardous substance is subject to seizure and
7-17 disposition under Section 501.033 if the person who manufactures,
7-18 imports, repacks, or distributes the hazardous substance does not,
7-19 after notice by the department, register with the department and
7-20 make timely payment of the fee under this section.
7-21 (g) This section does not apply to a retailer who
7-22 distributes a hazardous substance to the general public unless the
7-23 retailer distributes a hazardous substance made to its
7-24 specifications.
7-25 SECTION 8. Section 501.025, Health and Safety Code, is
7-26 amended to read as follows:
8-1 Sec. 501.025. RULES. The board may adopt reasonable rules
8-2 necessary for the efficient administration and enforcement of this
8-3 chapter. The rules must conform with regulations adopted under the
8-4 Federal Hazardous Substances Act (15 U.S.C. Section 1261 et seq.),
8-5 as amended, the federal Consumer Product Safety Act (15 U.S.C.
8-6 Section 2051 et seq.), as amended, the federal Flammable Fabrics
8-7 Act (15 U.S.C. Section 1191 et seq.), as amended, and the federal
8-8 Poison Prevention Packaging Act of 1970 (15 U.S.C. Section 1471 et
8-9 seq.), as amended, as applicable.
8-10 SECTION 9. Subchapter B, Chapter 501, Health and Safety
8-11 Code, is amended by adding Section 501.026 to read as follows:
8-12 Sec. 501.026. FEES. The board by rule shall set reasonable
8-13 registration fees in an amount designed to recover not more than
8-14 the costs to the department of administering, monitoring compliance
8-15 with, enforcing, and conducting tests under this chapter.
8-16 SECTION 10. Subsection (b), Section 501.031, Health and
8-17 Safety Code, is amended to read as follows:
8-18 (b) The officer, employee, or agent of the department may
8-19 obtain samples of any materials, packaging, [or] labeling, or
8-20 finished product. [The officer, employee, or agent shall pay or
8-21 offer to pay the owner, operator, or agent in charge for a sample
8-22 and shall give a receipt describing a sample obtained.]
8-23 SECTION 11. Subsection (b), Section 501.033, Health and
8-24 Safety Code, is amended to read as follows:
8-25 (b) The department shall petition a [the] district court of
8-26 Travis County or of the county in which the article is located to
9-1 authorize the destruction of the article. If the court determines
9-2 that the article is a banned or misbranded hazardous substance, the
9-3 department shall destroy the article, and the court shall impose
9-4 all court costs and fees and storage and other proper expenses
9-5 against the claimant of the article. However, if the court finds
9-6 that misbranding occurred in good faith and can be corrected by
9-7 proper labeling, the court may direct that the article be delivered
9-8 to the claimant for proper labeling with the approval of the
9-9 department.
9-10 SECTION 12. Section 501.034, Health and Safety Code, is
9-11 amended by adding Subsections (g) and (h) to read as follows:
9-12 (g) A person may not manufacture, import, or repack a
9-13 hazardous substance that is to be distributed in this state or
9-14 otherwise distribute a hazardous substance in this state without
9-15 complying with Section 501.024.
9-16 (h) A person may not package a hazardous substance in a new
9-17 or reused food, drug, or cosmetic container that is identifiable as
9-18 a food, drug, or cosmetic container by its labeling or other
9-19 identification.
9-20 SECTION 13. Subsection (b), Section 501.035, Health and
9-21 Safety Code, is amended to read as follows:
9-22 (b) An offense under this section is a [Class B misdemeanor
9-23 unless it is shown on the trial of the offense that the person's
9-24 intent was to defraud another, in which event the offense is a]
9-25 Class A misdemeanor.
9-26 SECTION 14. Subchapter C, Chapter 501, Health and Safety
10-1 Code, is amended by adding Sections 501.036 and 501.037 to read as
10-2 follows:
10-3 Sec. 501.036. INJUNCTION. (a) If it appears that a person
10-4 has violated, is violating, or is threatening to violate this
10-5 chapter or a rule adopted or order issued under this chapter, the
10-6 commissioner may request the attorney general or a district,
10-7 county, or city attorney of the county or municipality in which the
10-8 violation has occurred, is occurring, or may occur to institute a
10-9 civil suit for:
10-10 (1) an order enjoining the violation or an order
10-11 directing compliance; or
10-12 (2) a permanent or temporary injunction, restraining
10-13 order, or other appropriate order if the department shows that the
10-14 person has engaged in, is engaging in, or is about to engage in a
10-15 violation of this chapter or a rule adopted or order issued under
10-16 this chapter.
10-17 (b) Venue for a suit brought under this section is in the
10-18 county or municipality in which the violation occurred or in Travis
10-19 County.
10-20 (c) The commissioner and either the attorney general or the
10-21 district, county, or city attorney, as appropriate, may each
10-22 recover from the violator reasonable expenses incurred in obtaining
10-23 injunctive relief under this section, including investigative
10-24 costs, court costs, reasonable attorney's fees, witness fees, and
10-25 deposition expenses. Expenses recovered by the commissioner may be
10-26 appropriated only to the department to administer and enforce this
11-1 chapter. Expenses recovered by the attorney general may be
11-2 appropriated only to the attorney general.
11-3 Sec. 501.037. RECALL ORDERS. (a) In conjunction with the
11-4 detention of an article under Section 501.033, the commissioner may
11-5 order that a hazardous substance be recalled from commerce.
11-6 (b) The commissioner's recall order may require the articles
11-7 to be removed to one or more secure areas approved by the
11-8 commissioner or an authorized agent of the commissioner.
11-9 (c) The recall order must be in writing and signed by the
11-10 commissioner.
11-11 (d) The recall order may be issued before or in conjunction
11-12 with the affixing of the tag or other appropriate marking as
11-13 provided by Section 501.033.
11-14 (e) The recall order is effective until the order:
11-15 (1) expires on its own terms;
11-16 (2) is withdrawn by the commissioner; or
11-17 (3) is reversed by a court in an order denying
11-18 destruction under Section 501.033.
11-19 (f) The claimant of the articles or the claimant's agent
11-20 shall pay the costs of the removal and storage of the articles
11-21 removed.
11-22 (g) If the claimant or the claimant's agent does not
11-23 implement the recall order in a timely manner, the commissioner may
11-24 provide for the recall of the articles. The costs of the recall
11-25 shall be assessed against the claimant of the articles or the
11-26 claimant's agent.
12-1 (h) The commissioner may request the attorney general to
12-2 bring an action in a district court of Travis County to recover
12-3 costs of the recall. In a judgment in favor of the state, the
12-4 court may award costs, attorney's fees, and court costs related to
12-5 the recall together with interest on those costs from the time an
12-6 expense was incurred through the date the department is reimbursed.
12-7 SECTION 15. This Act takes effect September 1, 2001.
12-8 SECTION 16. (a) A change in law made by this Act relating
12-9 to the criminal or civil enforcement of Chapter 501, Health and
12-10 Safety Code, applies only to an offense under or other violation of
12-11 Chapter 501, Health and Safety Code, that occurs on or after the
12-12 effective date of this Act, including a continuing offense or
12-13 continuing violation to the extent that it continues on or after
12-14 the effective date of this Act.
12-15 (b) An offense under or other violation of Chapter 501,
12-16 Health and Safety Code, that occurs before the effective date of
12-17 this Act is covered by the law relating to the criminal and civil
12-18 enforcement of Chapter 501, Health and Safety Code, in effect when
12-19 the violation occurred, and the former law is continued in effect
12-20 for that purpose.
12-21 (c) For purposes of this section, a criminal offense is
12-22 committed before the effective date of this Act if any element of
12-23 the offense occurs before that date.