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 * * * * *