1-1     By:  Moncrief                                         S.B. No. 1045
 1-2           (In the Senate - Filed March 2, 2001; March 5, 2001, read
 1-3     first time and referred to Committee on Business and Commerce;
 1-4     April 17, 2001, reported favorably by the following vote:  Yeas 5,
 1-5     Nays 0; April 17, 2001, sent to printer.)
 1-6                            A BILL TO BE ENTITLED
 1-7                                   AN ACT
 1-8     relating to the hazardous substances law; providing penalties.
 1-9           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-10           SECTION 1.  Section 501.001, Health and Safety Code, is
1-11     amended to read as follows:
1-12           Sec. 501.001.  DEFINITIONS.  In this chapter:
1-13                 (1)  "Board" means the Texas Board of Health.
1-14                 (2)  "Commerce" includes the operation of a business or
1-15     service establishment and other commerce in this state that is
1-16     subject to the jurisdiction of this state.
1-17                 (3)  "Commissioner" means the commissioner of public
1-18     health.
1-19                 (4)  "Department" means the Texas Department of Health.
1-20                 (5) [(4)]  "Label" means a display of written, printed,
1-21     or other graphic matter:
1-22                       (A)  on the immediate container, excluding the
1-23     package liner, of any substance; or
1-24                       (B)  directly on the article or on a tag or other
1-25     suitable material affixed to the article, if the article is
1-26     unpackaged or not packaged in an immediate container intended or
1-27     suitable for delivery to the ultimate consumer.
1-28                 (6) [(5)]  "Misbranded hazardous substance" means
1-29     either of the following that is not properly packaged or does not
1-30     bear a proper label required by this chapter:
1-31                       (A)  a hazardous substance; or
1-32                       (B)  a toy or other article intended for use by
1-33     children that bears or contains a hazardous substance in a manner
1-34     that is accessible by a child to whom the toy or other article is
1-35     entrusted, intended, or packaged in a form suitable for use in a
1-36     household or by children.
1-37           SECTION 2.  Subsections (a) and (d), Section 501.002, Health
1-38     and Safety Code, are amended to read as follows:
1-39           (a)  A hazardous substance is:
1-40                 (1)  a substance or mixture of substances that is
1-41     toxic, corrosive, extremely flammable, flammable, combustible, an
1-42     irritant, or a strong sensitizer, or that generates pressure
1-43     through decomposition, heat, or other means, if the substance or
1-44     mixture of substances may cause substantial personal injury or
1-45     substantial illness during or as a proximate result of any
1-46     customary or reasonably foreseeable handling or use, including
1-47     reasonably foreseeable ingestion by children;
1-48                 (2)  a toy or other article, other than clothing, that
1-49     is intended for use by a child and that presents an electrical,
1-50     mechanical, or thermal hazard; or
1-51                 (3)  a radioactive substance designated as a hazardous
1-52     substance under Section 501.003.
1-53           (d)  A substance or article is extremely flammable,
1-54     flammable, or combustible if it is defined as extremely flammable,
1-55     flammable, or combustible by rule of the board.  Unless the board
1-56     determines that the health, safety, and welfare of persons in this
1-57     state requires a different definition, the board shall define the
1-58     terms as they are defined by the Federal Hazardous Substances Act
1-59     (15 U.S.C. Section 1261 et seq.), as amended, and by federal
1-60     regulations adopted under that Act.  Until the board adopts a
1-61     different definition, the terms each have the meaning assigned by
1-62     the Federal Hazardous Substances Act (15 U.S.C. Section 1261 et
1-63     seq.) and by federal regulations adopted under that Act, as of
1-64     September 1, 2001 [is flammable if it has a flash point of 80
 2-1     degrees Fahrenheit or less, as determined by the Tagliabue Open Cup
 2-2     Tester or other method as provided by Section 501.021].
 2-3           SECTION 3.  Section 501.021, Health and Safety Code, is
 2-4     amended to read as follows:
 2-5           Sec. 501.021.  FLAMMABILITY STANDARDS; DETERMINATION OF
 2-6     FLAMMABILITY.  (a)  The board by rule shall establish the methods
 2-7     for determining the flammability of solids, fabrics, children's
 2-8     clothing, household furnishings, and the contents of
 2-9     self-pressurized containers that the board finds are generally
2-10     applicable to those materials or containers.
2-11           (b)  The board by rule shall establish flammability standards
2-12     for articles described by Subsection (a).  Unless the board
2-13     determines that the health, safety, and welfare of persons in this
2-14     state requires a different standard, the standards must conform to
2-15     standards prescribed by federal regulations adopted under the
2-16     federal Flammable Fabrics Act (15 U.S.C. Section 1191 et seq.), as
2-17     amended, the Federal Hazardous Substances Act (15 U.S.C. Section
2-18     1261 et seq.), as amended, and the federal Consumer Product Safety
2-19     Act (15 U.S.C. Section 2051 et seq.), as amended.  Until the board
2-20     adopts different standards, the flammability standards for articles
2-21     described by Subsection (a) are the standards prescribed by federal
2-22     regulations adopted under the federal Flammable Fabrics Act (15
2-23     U.S.C. Section 1191 et seq.), the Federal Hazardous Substances Act
2-24     (15 U.S.C. Section 1261 et seq.), and the federal Consumer Product
2-25     Safety Act (15 U.S.C. Section 2051 et seq.) as of September 1,
2-26     2001.
2-27           (c)  The department may obtain samples of articles described
2-28     by Subsection (a) and [shall] determine the flammability of the
2-29     [those] articles for compliance with applicable standards
2-30     established under this section.
2-31           SECTION 4.  Subsection (a), Section 501.022, Health and
2-32     Safety Code, is amended to read as follows:
2-33           (a)  The board by rule shall designate as a banned hazardous
2-34     substance any article, including [of] clothing intended for the use
2-35     of children, that is not properly packaged or that does not comply
2-36     with applicable flammability standards established by the board.
2-37     The board's determination that articles of clothing of a specified
2-38     range of sizes are intended for the use of a child 14 years of age
2-39     or younger is conclusive.
2-40           SECTION 5.  The heading for Section 501.023, Health and
2-41     Safety Code, is amended to read as follows:
2-42           Sec. 501.023.  GENERAL LABELING AND PACKAGING REQUIREMENTS.
2-43           SECTION 6.  Subchapter B, Chapter 501, Health and Safety
2-44     Code, is amended by adding Sections 501.0231, 501.0232, and
2-45     501.0233 to read as follows:
2-46           Sec. 501.0231.  LABELING OF CERTAIN TOYS AND GAMES.
2-47     (a)  Toys or games intended for use by children, including the
2-48     parts of those toys or games, shall be labeled in the manner
2-49     required by rule of the board.  Unless the board determines that
2-50     the health, safety, and welfare of persons in this state requires a
2-51     deviation from federal standards, the board's rules under this
2-52     subsection shall be consistent with federal guidelines and
2-53     regulations adopted under the Federal Hazardous Substances Act (15
2-54     U.S.C. Section 1261 et seq.), as amended.  Until the board adopts
2-55     rules under this subsection, the toys, games, and parts shall be
2-56     labeled in the manner required by federal guidelines and
2-57     regulations adopted under the Federal Hazardous Substances Act (15
2-58     U.S.C. Section 1261 et seq.) as of September 1, 2001.
2-59           (b)  Latex balloons, small balls, marbles, and any toy or
2-60     game that contains such a balloon, ball, or marble shall be labeled
2-61     in the manner required by rule of the board.  Unless the board
2-62     determines that the health, safety, and welfare of persons in this
2-63     state requires a deviation from federal standards, the board's
2-64     rules under this subsection shall be consistent with federal
2-65     guidelines and regulations adopted under the Federal Hazardous
2-66     Substances Act (15 U.S.C. Section 1261 et seq.), as amended.  Until
2-67     the board adopts rules under this subsection, latex balloons, small
2-68     balls, marbles, and any toy or game that contains such a balloon,
2-69     ball, or marble shall be labeled in the manner required by federal
 3-1     guidelines and regulations adopted under the Federal Hazardous
 3-2     Substances Act (15 U.S.C. Section 1261 et seq.) as of September 1,
 3-3     2001.
 3-4           Sec. 501.0232.  REVIEW AND LABELING OF HAZARDOUS ART
 3-5     MATERIALS.  (a)  Art materials shall be reviewed by a toxicologist.
 3-6           (b)  Art materials shall be labeled in the manner required by
 3-7     rule of the board.  Unless the board determines that the health,
 3-8     safety, and welfare of persons in this state requires a deviation
 3-9     from federal standards, the board's rules under this subsection
3-10     shall be consistent with the Federal Hazardous Substances Act (15
3-11     U.S.C. Section 1261 et seq.), as amended, and federal regulations
3-12     adopted under that Act.  Until the board adopts rules under this
3-13     subsection, art materials shall be labeled in the manner required
3-14     by the Federal Hazardous Substances Act (15 U.S.C. Section 1261 et
3-15     seq.), and federal regulations adopted under that Act, as of
3-16     September 1, 2001.
3-17           Sec. 501.0233.  PACKAGING OF HAZARDOUS SUBSTANCES.  Hazardous
3-18     substances shall be packaged in the manner required by special
3-19     packaging rules adopted by the board.  Unless the board determines
3-20     that the health, safety, and welfare of persons in this state
3-21     requires a deviation from federal standards, the board's rules
3-22     under this section shall be consistent with federal special
3-23     packaging regulations adopted under the federal Poison Prevention
3-24     Packaging Act of 1970 (15 U.S.C.  Section 1471 et seq.), as
3-25     amended.  Until the board adopts rules under this section,
3-26     hazardous substances shall be packaged in the manner required by
3-27     federal special packaging regulations adopted under the federal
3-28     Poison Prevention Packaging Act of 1970 (15 U.S.C. Section 1471 et
3-29     seq.), as of September 1, 2001.
3-30           SECTION 7.  Section 501.024, Health and Safety Code, is
3-31     amended to read as follows:
3-32           Sec. 501.024.  REGISTRATION.  (a)  A person who manufactures,
3-33     imports, or repacks a hazardous substance that is distributed in
3-34     this state or who distributes a hazardous substance in this state
3-35     under the person's private brand name shall have on file with the
3-36     department a registration statement as provided by this section.
3-37           (b)  The board by rule shall detail the registration
3-38     requirements and prescribe the contents of the registration
3-39     statement.
3-40           (c)  The person must file the registration statement with the
3-41     department [before]:
3-42                 (1)  before beginning business in this state as a
3-43     manufacturer, importer, repacker, or distributor of a hazardous
3-44     substance; and
3-45                 (2)  in each succeeding year that the person continues
3-46     the business in this state, not later than the anniversary of
3-47     [September 1 of each year after] the initial filing.
3-48           (d)  The initial registration statement and each annual
3-49     registration statement must be accompanied by a fee prescribed by
3-50     the board [of $150].
3-51           (e)  The department, after notice and hearing, may refuse to
3-52     register or may cancel, revoke, or suspend the registration of a
3-53     person who manufactures, imports, repacks, or distributes a
3-54     hazardous substance if the person fails to comply with the
3-55     requirements of this chapter [make timely payment of the fee].
3-56           (f)  A hazardous substance is subject to seizure and
3-57     disposition under Section 501.033 if the person who manufactures,
3-58     imports, repacks, or distributes the hazardous substance does not,
3-59     after notice by the department, register with the department and
3-60     make timely payment of the fee under this section.
3-61           (g)  This section does not apply to a retailer who
3-62     distributes a hazardous substance to the general public unless the
3-63     retailer distributes a hazardous substance made to its
3-64     specifications.
3-65           SECTION 8.  Section 501.025, Health and Safety Code, is
3-66     amended to read as follows:
3-67           Sec. 501.025.  RULES.  The board may adopt reasonable rules
3-68     necessary for the efficient administration and enforcement of this
3-69     chapter.  Unless the board determines that the health, safety, and
 4-1     welfare of persons in this state requires a deviation from federal
 4-2     regulations, the [The] rules must conform with regulations adopted
 4-3     under the Federal Hazardous Substances Act (15 U.S.C. Section 1261
 4-4     et seq.), as amended, the federal Consumer Product Safety Act (15
 4-5     U.S.C. Section 2051 et seq.), as amended, the federal Flammable
 4-6     Fabrics Act (15 U.S.C.  Section 1191 et seq.), as amended, and the
 4-7     federal Poison Prevention Packaging Act of 1970 (15 U.S.C. Section
 4-8     1471 et seq.), as amended, as applicable.
 4-9           SECTION 9.  Subchapter B, Chapter 501, Health and Safety
4-10     Code, is amended by adding Section 501.026 to read as follows:
4-11           Sec. 501.026.  FEES.  The board by rule shall set reasonable
4-12     registration fees in an amount designed to recover not more than
4-13     the costs to the department of administering, monitoring compliance
4-14     with, enforcing, and conducting tests under this chapter.
4-15           SECTION 10.  Subsection (b), Section 501.031, Health and
4-16     Safety Code, is amended to read as follows:
4-17           (b)  The officer, employee, or agent of the department may
4-18     obtain samples of any materials, packaging, [or] labeling, or
4-19     finished product.  [The officer, employee, or agent shall pay or
4-20     offer to pay the owner, operator, or agent in charge for a sample
4-21     and shall give a receipt describing a sample obtained.]
4-22           SECTION 11.  Subsection (b), Section 501.033, Health and
4-23     Safety Code, is amended to read as follows:
4-24           (b)  The department shall petition a [the] district court of
4-25     Travis County or of the county in which the article is located to
4-26     authorize the destruction of the article.  If the court determines
4-27     that the article is a banned or misbranded hazardous substance, the
4-28     department shall destroy the article, and the court shall impose
4-29     all court costs and fees and storage and other proper expenses
4-30     against the claimant of the article.  However, if the court finds
4-31     that misbranding occurred in good faith and can be corrected by
4-32     proper labeling, the court may direct that the article be delivered
4-33     to the claimant for proper labeling with the approval of the
4-34     department.
4-35           SECTION 12.  Section 501.034, Health and Safety Code, is
4-36     amended by adding Subsections (g) and (h) to read as follows:
4-37           (g)  A person may not manufacture, import, or repack a
4-38     hazardous substance that is to be distributed in this state or
4-39     otherwise distribute a hazardous substance in this state without
4-40     complying with Section 501.024.
4-41           (h)  A person may not package a hazardous substance in a new
4-42     or reused food, drug, or cosmetic container that is identifiable as
4-43     a food, drug, or cosmetic container by its labeling or other
4-44     identification.
4-45           SECTION 13.  Subsections (a) and (b), Section 501.035, Health
4-46     and Safety Code, are amended to read as follows:
4-47           (a)  A person commits an offense if the person
4-48     [intentionally, knowingly, or recklessly] violates this chapter or
4-49     a rule adopted under this chapter.
4-50           (b)  An offense under this section is a [Class B misdemeanor
4-51     unless it is shown on the trial of the offense that the person's
4-52     intent was to defraud another, in which event the offense is a]
4-53     Class A misdemeanor.
4-54           SECTION 14.  Subchapter C, Chapter 501, Health and Safety
4-55     Code, is amended by adding Sections 501.036 and 501.037 to read as
4-56     follows:
4-57           Sec. 501.036.  INJUNCTION.  (a)  If it appears that a person
4-58     has violated, is violating, or is threatening to violate this
4-59     chapter or a rule adopted or order issued under this chapter, the
4-60     commissioner may request the attorney general or a district,
4-61     county, or city attorney of the county or municipality in which the
4-62     violation has occurred, is occurring, or may occur to institute a
4-63     civil suit for:
4-64                 (1)  an order enjoining the violation or an order
4-65     directing compliance; or
4-66                 (2)  a permanent or temporary injunction, restraining
4-67     order, or other appropriate order if the department shows that the
4-68     person has engaged in, is engaging in, or is about to engage in a
4-69     violation of this chapter or a rule adopted or order issued under
 5-1     this chapter.
 5-2           (b)  Venue for a suit brought under this section is in the
 5-3     county or municipality in which the violation occurred or in Travis
 5-4     County.
 5-5           (c)  The commissioner and either the attorney general or the
 5-6     district, county, or city attorney, as appropriate, may each
 5-7     recover from the violator reasonable expenses incurred in obtaining
 5-8     injunctive relief under this section, including investigative
 5-9     costs, court costs, reasonable attorney's fees, witness fees, and
5-10     deposition expenses.  Expenses recovered by the commissioner may be
5-11     appropriated only to the department to administer and enforce this
5-12     chapter.  Expenses recovered by the attorney general may be
5-13     appropriated only to the attorney general.
5-14           Sec. 501.037.  RECALL ORDERS.  (a)  In conjunction with the
5-15     detention of an article under Section 501.033, the commissioner may
5-16     order that a hazardous substance be recalled from commerce.
5-17           (b)  The commissioner's recall order may require the articles
5-18     to be removed to one or more secure areas approved by the
5-19     commissioner or an authorized agent of the commissioner.
5-20           (c)  The recall order must be in writing and signed by the
5-21     commissioner.
5-22           (d)  The recall order may be issued before or in conjunction
5-23     with the affixing of the tag or other appropriate marking as
5-24     provided by Section 501.033.
5-25           (e)  The recall order is effective until the order:
5-26                 (1)  expires on its own terms;
5-27                 (2)  is withdrawn by the commissioner; or
5-28                 (3)  is reversed by a court in an order denying
5-29     destruction under Section 501.033.
5-30           (f)  The claimant of the articles or the claimant's agent
5-31     shall pay the costs of the removal and storage of the articles
5-32     removed.
5-33           (g)  If the claimant or the claimant's agent does not
5-34     implement the recall order in a timely manner, the commissioner may
5-35     provide for the recall of the articles.  The costs of the recall
5-36     shall be assessed against the claimant of the articles or the
5-37     claimant's agent.
5-38           (h)  The commissioner may request the attorney general to
5-39     bring an action in a district court of Travis County to recover
5-40     costs of the recall.  In a judgment in favor of the state, the
5-41     court may award costs, attorney's fees, and court costs related to
5-42     the recall together with interest on those costs from the time an
5-43     expense was incurred through the date the department is reimbursed.
5-44           SECTION 15.  This Act takes effect September 1, 2001.
5-45           SECTION 16.  (a)  A change in law made by this Act relating
5-46     to the criminal or civil enforcement of Chapter 501, Health and
5-47     Safety Code, applies only to an offense under or other violation of
5-48     Chapter 501, Health and Safety Code, that occurs on or after the
5-49     effective date of this Act, including a continuing offense or
5-50     continuing violation to the extent that it continues on or after
5-51     the effective date of this Act.
5-52           (b)  An offense under or other violation of Chapter 501,
5-53     Health and Safety Code, that occurs before the effective date of
5-54     this Act is covered by the law relating to the criminal and civil
5-55     enforcement of Chapter 501, Health and Safety Code, in effect when
5-56     the violation occurred, and the former law is continued in effect
5-57     for that purpose.
5-58           (c)  For purposes of this section, a criminal offense is
5-59     committed before the effective date of this Act if any element of
5-60     the offense occurs before that date.
5-61                                  * * * * *