DEFINITIONS
SEC. 2. [15 U.S.C. 1261]
For the purposes of this Act--
(a) The term ``territory'' means any territory or
possession of the United States, including the
District of Columbia and the Commonwealth of Puerto
Rico but excluding the Canal Zone.
(b) The term ``interstate commerce'' means (1)
commerce between any State or territory and any
place outside thereof, and (2) commerce within the
District of Columbia or within any territory not
organized with a legislative body.
(c) The term ``Department'' means the Department
of Health, Education, and Welfare. {Health and
Human Services}
(d) The term ``Secretary'' means the Secretary of
Health, Education, and Welfare.
(e) The term ``person'' includes an individual,
partnership, corporation, and association.
(f) The term ``hazardous substance'' means:
(1)(A) Any substance or mixture of substances
which (i) is toxic, (ii) is corrosive, (iii) is
an irritant, (iv) is a strong sensitizer, (v) is
flammable or combustible, or (vi) generates
pressure through decomposition, heat, or other
means, if such substance or mixture of
substances may cause substantial personal injury
or substantial illness during or as a proximate
result of any customary or reasonably
foreseeable handling or use, including
reasonably foreseeable ingestion by children.
(B) Any substances which the Secretary by
regulation finds, pursuant to the provisions of
section 3(a), meet the requirements of
subparagraph 1(A) of this paragraph.
(C) Any radioactive substance, if, with
respect to such substance as used in a
particular class of article or as packaged, the
Secretary determines by regulation that the
substance is sufficiently hazardous to require
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labeling in accordance with this Act in order to
protect the public health.
(D) Any toy or other article intended for use
by children which the Secretary by regulation
determines, in accordance with section 3(e) of
this Act, presents an electrical, mechanical, or
thermal hazard.
(E) Any solder which has a lead content in
excess of 0.2 percent.
(2) The term ``hazardous substance'' shall not
apply to pesticides subject to the Federal
Insecticide, Fungicide, and Rodenticide Act, [7
U.S.C. 136] nor to foods, drugs, and cosmetics
subject to the Federal Food, Drug, and Cosmetic
Act, [21 U.S.C. 301 et seq.] nor to substances
intended for use as fuels when stored in
containers and used in the heating, cooking, or
refrigeration system of a house, nor to tobacco
and tobacco products, but such term shall apply
to any article which is not itself a pesticide
within the meaning of the Federal Insecticide,
Fungicide, and Rodenticide Act but which is a
hazardous substance within the meaning of
subparagraph 1 of this paragraph by reason of
bearing or containing such a pesticide.
(3) The term ``hazardous substance'' shall not
include any source material, special nuclear
material, or byproduct material as defined in
the Atomic Energy Act of 1954, as amended, and
regulations issued pursuant thereto by the
Atomic Energy Commission. [42 U.S.C. 2011 et
seq.]
(g) The term ``toxic'' shall apply to any
substance (other than a radioactive substance) which
has the capacity to produce personal injury or
illness to man through ingestion, inhalation, or
absorption through any body surface.
(h)(1) The term ``highly toxic'' means any
substance which falls within any of the following
categories: (a) Produces death within fourteen days
in half or more than half of a group of ten or more
laboratory white rats each weighing between two
hundred and three hundred grams, at a single dose of
fifty milligrams or less per kilogram of body
weight, when orally administered; or (b) produces
death within fourteen days in half or more than half
of a group of ten or more laboratory white rats each
weighing between two hundred and three hundred
grams, when inhaled continuously for a period of one
hour or less at an atmospheric concentration of two
hundred parts per million by volume or less of gas
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or vapor or two milligrams per liter by volume or
less of mist or dust, provided such concentration is
likely to be encountered by man when the substance
is used in any reasonably foreseeable manner; or (c)
produces death within fourteen days in half or more
than half of a group of ten or more rabbits tested
in a dosage of two hundred milligrams or less per
kilogram of body weight, when administered by
continuous contact with the bare skin for twenty-
four hours or less.
(2) If the Secretary finds that available data on
human experience with any substance indicate results
different from those obtained on animals in the
above-named dosages or concentrations, the human
data shall take precedence.
(i) The term ``corrosive'' means any substance
which in contact with living tissue will cause
destruction of tissue by chemical action; but shall
not refer to action on inanimate surfaces.
(j) The term ``irritant'' means any substance not
corrosive within the meaning of subparagraph (i)
which on immediate, prolonged, or repeated contact
with normal living tissue will induce a local
inflammatory reaction.
(k) The term ``strong sensitizer'' means a
substance which will cause on normal living tissue
through an allergic or photodynamic process a
hypersensitivity which becomes evident on
reapplication of the same substance and which is
designated as such by the Secretary. Before
designating any substance as a strong sensitizer,
the Secretary, upon consideration of the frequency
of occurrence and severity of the reaction, shall
find that the substance has a significant potential
for causing hypersensitivity.
(l)(1) The terms ``extremely flammable'',
``flammable'', and ``combustible'' as applied to any
substance, liquid, solid, or the content of a self-
pressurized container shall be defined by
regulations issued by the Commission. [16 CFR
1500.3(b)(10), 1500.3(c)(6), 1500.43, 1500.43a]
(2) The test methods found by the Commission to be
generally applicable for defining the flammability
or combustibility characteristics of any such
substance shall also be specified in such
regulations.
(3) In establishing definitions and test methods
related to flammability and combustibility, the
Commission shall consider the existing definitions
and test methods of other Federal agencies involved
in the regulation of flammable and combustible
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substances in storage, transportation and use; and
to the extent possible, shall establish compatible
definitions and test methods.
(4) Until such time as the Commission issues a
regulation under paragraph (1) defining the term
``combustible'' as applied to liquids, such term
shall apply to any liquid which has a flash point
above eighty degrees Fahrenheit to and including one
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hundred and fifty degrees, as determined by the
Tagliabue Open Cup Tester.
(m) The term ``radioactive substance'' means a
substance which emits ionizing radiation.
(n) The term ``label'' means a display of written,
printed, or graphic matter upon the immediate
container of any substance or, in the case of an
article which is unpackaged or is not packaged in an
immediate container intended or suitable for
delivery to the ultimate consumer, a display of such
matter directly upon the article involved or upon a
tag or other suitable material affixed thereto; and
a requirement made by or under authority of this Act
that any word, statement, or other information
appear on the label shall not be considered to be
complied with unless such word, statement, or other
information also appears (1) on the outside
container or wrapper, if any there be, unless it is
easily legible through the outside container or
wrapper and (2) on all accompanying literature where
there are directions for use, written or otherwise.
(o) The term ``immediate container'' does not
include package liners.
(p) The term ``misbranded hazardous substance''
means a hazardous substance (including a toy, or
other article intended for use by children, which is
a hazardous substance, or which bears or contains a
hazardous substance in such manner as to be
susceptible of access by a child to whom such toy or
other article is entrusted) intended, or packaged in
a form suitable, for use in the household or by
children, if the packaging or labeling of such
substance is in violation of an applicable
regulation issued pursuant to section 3 or 4 of the
Poison Prevention Packaging Act of 1970 or if such
substance, except as otherwise provided by or
pursuant to section 3, fails to bear a label--
(1) which states conspicuously (A) the name
and place of business of the manufacturer,
packer, distributor or seller; (B) the common or
usual name or the chemical name (if there be no
common or usual name) of the hazardous substance
or of each component which contributes
substantially to its hazard, unless the
Secretary by regulation permits or requires the
use of a recognized generic name; (C) the signal
word ``DANGER'' on substances which are
extremely flammable, corrosive, or highly toxic,
(D) the signal word ``WARNING'' or ``CAUTION''
on all other hazardous substances; (E) an
affirmative statement of the principal hazard or
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hazards, such as ``Flammable'', ``Combustible,''
``Vapor Harmful'', ``Causes Burns'', ``Absorbed
Through Skin'', or similar wording descriptive
of the hazard; (F) precautionary measures
describing the action to be followed or avoided,
except when modified by regulation of the
Secretary pursuant to section 3; (G)
instruction, when necessary or appropriate, for
first-aid treatment; (H) the word ``poison'' for
any hazardous substance which is defined as
``highly toxic'' by subsection (h); (I)
instructions for handling and storage of
packages which require special care in handling
or storage; and (J) the statement (i) ``Keep out
of the reach of children'' or its practical
equivalent, or, (ii) if the article is intended
for use by children and is not a banned
hazardous substance, adequate directions for the
protection of children from the hazard, and
(2) on which any statements required under
subparagraph (1) of this paragraph are located
prominently and are in the English language in
conspicuous and legible type in contrast by
typography, layout, or color with other printed
matter on the label.
The term ``misbranded hazardous substance'' also
includes a household substance as defined in section
2(2)(D) of the Poison Prevention Packaging Act of
1970 if it is a substance described in paragraph 1
of section 2(f) of this Act and its packaging or
labeling is in violation of an applicable regulation
issued pursuant to section 3 or 4 of the Poison
Prevention Packaging Act of 1970.
(q)(1) The term ``banned hazardous substance''
means (A) any toy, or other article intended for use
by children, which is a hazardous substance, or
which bears or contains a hazardous substance in
such manner as to be susceptible of access by a
child to whom such toy or other article is
entrusted; or (B) any hazardous substance intended,
or packaged in a form suitable, for use in the
household, which the Secretary by regulation
classifies as a ``banned hazardous substance'' on
the basis of a finding that, notwithstanding such
cautionary labeling as is or may be required under
this Act for that substance, the degree or nature of
the hazard involved in the presence or use of such
substance in households is such that the objective
of the protection of the public health and safety
can be adequately served only by keeping such
substance, when so intended or packaged, out of the
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channels of interstate commerce: Provided, That the
Secretary, by regulation, (i) shall exempt from
clause (A) of this paragraph articles, such as
chemical sets, which by reason of their functional
purpose require the inclusion of the hazardous
substance involved, or necessarily present an
electrical, mechanical, or thermal hazard, and which
bear labeling giving adequate directions and
warnings for safe use and are intended for use by
children who have attained sufficient maturity, and
may reasonably be expected, to read and heed such
directions and warnings, and (ii) shall exempt from
clause (A), and provide for the labeling of, common
fireworks (including toy paper caps, cone fountains,
cylinder fountains, whistles without report, and
sparklers) to the extent that he determines that
such articles can be adequately labeled to protect
the purchasers and users thereof.
(2) Proceedings for the issuance, amendment, or
repeal of regulations pursuant to clause (B) of
subparagraph (1) of this paragraph shall be governed
by the provisions of sections 701 (e), (f), and (g)
of the Federal Food, Drug, and Cosmetic Act: [21
U.S.C. 371(e), (f), (g)] Provided, That if the
Secretary finds that the distribution for household
use of the hazardous substance involved presents an
imminent hazard to the public health, he may by
order published in the Federal Register give notice
of such finding, and thereupon such substance when
intended or offered for household use, or when so
packaged as to be suitable for such use, shall be
deemed to be a ``banned hazardous substance''
pending the completion of proceedings relating to
the issuance of such regulations.
(r) An article may be determined to present an
electrical hazard if, in normal use or when
subjected to reasonably foreseeable damage or abuse,
its design or manufacture may cause personal injury
or illness by electric shock.
(s) An article may be determined to present a
mechanical hazard if, in normal use or when
subjected to reasonably foreseeable damage or abuse,
its design or manufacture presents an unreasonable
risk of personal injury or illness (1) from
fracture, fragmentation, or disassembly of the
article, (2) from propulsion of the article (or any
part or accessory thereof), (3) from points or other
protrusions, surfaces, edges, openings, or closures,
(4) from moving parts, (5) from lack or
insufficiency of controls to reduce or stop motion,
(6) as a result of self-adhering characteristics of
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the article, (7) because the article (or any part or
accessory thereof) may be aspirated or ingested, (8)
because of instability, or (9) because of any other
aspect of the article's design or manufacture.
(t) An article may be determined to present a
thermal hazard if, in normal use or when subjected
to reasonably foreseeable damage or abuse, its
design or manufacture presents an unreasonable risk
of personal injury or illness because of heat as
from heated parts, substances, or surfaces.
REGULATIONS DECLARING HAZARDOUS SUBSTANCES
AND ESTABLISHING VARIATIONS AND EXEMPTIONS
SEC. 3. [15 U.S.C. 1262]
(a) 1. Whenever in the judgment of the Secretary
such action will promote the objectives of this Act
by avoiding or resolving uncertainty as to its
application, the Secretary may by regulation declare
to be a hazardous substance, for the purposes of
this Act, any substance or mixture of substances
which he finds meets the requirements of
subparagraph (1)(A) of section 2(f).
2. Proceedings for the issuance, amendment, or
repeal of regulations under this subsection and the
admissibility of the record of such proceedings in
other proceedings, shall in all respects be governed
by the provisions of sections 701(e), (f), and (g)
of the Federal Food, Drug, and Cosmetic Act, [21
U.S.C. 371(e),(f),(g)] except that
(A) the Secretary's order after public hearing
(acting upon objections filed to an order made
prior to hearing) shall be subject to the
requirements of section 409(f)(2) of the Federal
Food, Drug, and Cosmetic Act; [21 U.S.C.
348(f)(2)] and
(B) the scope of judicial review of such order
shall be in accordance with the fourth sentence
of paragraph (2), and with the provisions of
paragraph (3), of section 409(g) of the Federal
Food, Drug, and Cosmetic Act.
(b) If the Secretary finds that the requirements
of section 2(p)(1) are not adequate for the
protection of the public health and safety in view
of the special hazard presented by any particular
hazardous substance, he may by regulation establish
such reasonable variations or additional label
requirements as he finds necessary for the
protection of the public health and safety; and any
such hazardous substance intended, or packaged in a
form suitable, for use in the household or by
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children, which fails to bear a label in accordance
with such regulations shall be deemed to be a
misbranded hazardous substance.
(c) If the Secretary finds that, because of the
size of the package involved or because of the minor
hazard presented by the substance contained therein,
or for other good and sufficient reasons, full
compliance with the labeling requirements otherwise
applicable under this Act is impracticable or is not
necessary for the adequate protection of the public
health and safety, the Secretary shall promulgate
regulations exempting such substance from these
requirements to the extent he determines to be
consistent with adequate protection of the public
health and safety.
(d) The Secretary may exempt from the requirements
established by or pursuant to this Act any hazardous
substance or container of a hazardous substance with
respect to which he finds that adequate requirements
satisfying the purposes of this Act have been
established by or pursuant to any other Act of
Congress.
(e)(1) A determination by the Secretary that a toy
or other article intended for use by children
presents an electrical, mechanical, or thermal
hazard shall be made by regulation in accordance
with the procedures prescribed by section 553 (other
than clause (B) of the last sentence of subsection
(b) of such section) of title 5 of the United States
Code unless the Secretary elects the procedures
prescribed by subsection (e) of section 701 of the
Federal Food, Drug, and Cosmetic Act, [21 U.S.C.
371(e)] in which event such subsection and
subsections (f) and (g) of such section 701 shall
apply to the making of such determination. If the
Secretary makes such election, he shall publish that
fact with the proposal required to be published
under paragraph (1) of such subsection (e).
(2) If, before or during a proceeding pursuant to
paragraph (1) of this subsection, the Secretary
finds that, because of an electrical, mechanical, or
thermal hazard, distribution of the toy or other
article involved presents an imminent hazard to the
public health and he, by order published in the
Federal Register, gives notice of such finding, such
toy or other article shall be deemed to be a banned
hazardous substance for purposes of this Act until
the proceeding has been completed. If not yet
initiated when such order is published, such a
proceeding shall be initiated as promptly as
possible.
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(3)(A) In the case of any toy or other article
intended for use by children which is determined by
the Secretary, in accordance with section 553 of
title 5 of the United State Code, to present an
electrical, mechanical, or thermal hazard, any
person who will be adversely affected by such a
determination may, at any time prior to the 60th day
after the regulation making such determination is
issued by the Secretary, file a petition with the
United States Court of Appeals for the circuit in
which such person resides or has his principal place
of business for a judicial review of such
determination. A copy of the petition shall be
forthwith transmitted by the clerk of the court to
the Secretary or other officer designated by him for
that purpose. The Secretary shall file in the court
the record of the proceedings on which the Secretary
based his determination, as provided in section 2112
of title 28 of the United States Code.
(B) If the petitioner applies to the court for
leave to adduce additional evidence, and shows to
the satisfaction of the court that such additional
evidence is material and that there was no
opportunity to adduce such evidence in the
proceeding before the Secretary, the court may order
such additional evidence (and evidence in rebuttal
thereof) to be taken before the Secretary in a
hearing or in such other manner, and upon such terms
and conditions, as to the court may seem proper.
The Secretary may modify his findings as to the
facts, or make new findings, by reason of the
additional evidence so taken, and he shall file such
modified or new findings, and his recommendation, if
any, for the modification or setting aside of his
original determination, with the return of such
additional evidence.
(C) Upon the filing of the petition under this
paragraph, the court shall have jurisdiction to
review the determination of the Secretary in
accordance with subparagraphs (A), (B), (C), and (D)
of paragraph (2) of the second sentence of section
706 of title 5 of the United States Code. If the
court ordered additional evidence to be taken under
subparagraph (B) of this paragraph, the court shall
also review the Secretary's determination to
determine if, on the basis of the entire record
before the court pursuant to subparagraphs (A) and
(B) of this paragraph, it is supported by
substantial evidence. If the court finds the
determination is not so supported, the court may set
it aside. With respect to any determination
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reviewed under this paragraph, the court may grant
appropriate relief pending conclusion of the review
proceedings, as provided in section 705 of such
title.
(D) The judgment of the court affirming or setting
aside, in whole or in part, any such determination
of the Secretary shall be final, subject to review
by the Supreme Court of the United States upon
certiorari or certification, as provided in section
1254 of title 28 of the United States Code.
(f) A proceeding for the promulgation of a
regulation under section 2(q)(1) classifying an
article or substance as a banned hazardous substance
or a regulation under subsection (e) of this section
shall be commenced by the publication in the Federal
Register of an advance notice of proposed rulemaking
which shall--
(1) identify the article or substance and the
nature of the risk of injury associated with the
article or substance;
(2) include a summary of each of the
regulatory alternatives under consideration by
the Commission (including voluntary standards);
(3) include information with respect to any
existing standard known to the Commission which
may be relevant to the proceedings, together
with a summary of the reasons why the Commission
believes preliminarily that such standard does
not eliminate or adequately reduce the risk of
injury identified in paragraph (1);
(4) invite interested persons to submit to the
Commission, within such period as the Commission
shall specify in the notice (which period shall
not be less than 30 days or more than 60 days
after the date of publication of the notice),
comments with respect to the risk of injury
identified by the Commission, the regulatory
alternatives being considered, and other
possible alternatives for addressing the risk;
(5) invite any person (other than the
Commission) to submit to the Commission, within
such period as the Commission shall specify in
the notice (which period shall not be less than
30 days after the date of publication of the
notice), an existing standard or a portion of a
standard as a proposed regulation under section
2(q)(1) or subsection (e) of this section; and
(6) invite any person (other than the
Commission) to submit to the Commission, within
such period as the Commission shall specify in
the notice (which period shall not be less than
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30 days after the date of publication of the
notice), a statement of intention to modify or
develop a voluntary standard to address the risk
of injury identified in paragraph (1) together
with a description of a plan to modify or
develop the standard.
The Commission shall transmit such notice within 10
calendar days to the Committee on Commerce, Science,
and Transportation of the Senate and the Committee
on Energy and Commerce {now Committee on Commerce}
of the House of Representatives.
(g)(1) If the Commission determines that any
standard submitted to it in response to an
invitation in a notice published under subsection
(f)(5) if promulgated (in whole, in part, or in
combination with any other standard submitted to the
Commission or any part of such a standard) as a
regulation under section 2(q)(1) or subsection (e)
of this section, as the case may be, would eliminate
or adequately reduce the risk of injury identified
in the notice provided under subsection (f)(1), the
Commission may publish such standard, in whole, in
part, or in such combination and with nonmaterial
modifications, as a proposed regulation under such
section or subsection.
(2) If the Commission determines that--
(A) compliance with any standard submitted to
it in response to an invitation in a notice
published under subsection (f)(6) is likely to
result in the elimination or adequate reduction
of the risk of injury identified in the notice,
and
(B) it is likely that there will be
substantial compliance with such standard,
the Commission shall terminate any proceeding to
promulgate a regulation under section 2(q)(1) or
subsection (e) of this section, respecting such risk
of injury and shall publish in the Federal Register
a notice which includes the determination of the
Commission and which notifies the public that the
Commission will rely on the voluntary standard to
eliminate or reduce the risk of injury except that
the Commission shall terminate any such proceeding
and rely on a voluntary standard only if such
voluntary standard is in existence. For purposes of
this section, a voluntary standard shall be
considered to be in existence when it is finally
approved by the organization or other person which
developed such standard, irrespective of the
effective date of the standard. Before relying upon
any voluntary standard, the Commission shall afford
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interested persons (including manufacturers,
consumers, and consumer organizations) a reasonable
opportunity to submit written comments regarding
such standard. The Commission shall consider such
comments in making any determination regarding
reliance on the involved voluntary standard under
this subsection.
(3) The Commission shall devise procedures to
monitor compliance with any voluntary standards--
(A) upon which the Commission has relied under
paragraph (2) of this subsection;
(B) which were developed with the
participation of the Commission; or
(C) whose development the Commission has
monitored.
(h) No regulation under section 2(q)(1)
classifying an article or substance as a banned
hazardous substance and no regulation under
subsection (e) of this section may be proposed by
the Commission unless, not less than 60 days after
publication of the notice required in subsection
(f), the Commission publishes in the Federal
Register the text of the proposed rule, including
any alternatives which the Commission proposes to
promulgate, together with a preliminary regulatory
analyisis containing--
(1) a preliminary description of the potential
benefits and potential costs of the proposed
regulation, including any benefits or costs that
cannot be quantified in monetary terms, and an
identification of those likely to receive the
benefits and bear the costs;
(2) a discussion of the reasons any standard
or portion of a standard submitted to the
Commission under subsection (f)(5) was not
published by the Commission as the proposed
regulation or part of the proposed regulation;
(3) a discussion of the reasons for the
Commission's preliminary determination that
efforts proposed under subsection (f)(6) and
assisted by the Commission as required by
section 5(a)(3) of the Consumer Product Safety
Act would not, within a reasonable period of
time, be likely to result in the development of
a voluntary standard that would eliminate or
adequately reduce the risk of injury identified
in the notice provided under subsection (f)(1);
and
(4) a description of any reasonable
alternatives to the proposed regulation,
together with a summary description of their
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potential costs and benefits, and a brief
explanation of why such alternatives should not
be published as a proposed regulation.
The Commission shall transmit such notice within 10
calendar days to the Committee on Commerce, Science,
and Transportation of the Senate and the Committee
on Energy and Commerce {now Committee on Commerce}
of the House of Representatives.
(i)(1) The Commission shall not promulgate a
regulation under section 2(q)(1) classifying an
article or substance as a banned hazardous substance
or a regulation under subsection (e) of this section
unless it has prepared a final regulatory analysis
of the regulation containing the following
information:
(A) A description of the potential benefits
and potential costs of the regulation, including
costs and benefits that cannot be quantified in
monetary terms, and the identification of those
likely to receive the benefits and bear the
costs.
(B) A description of any alternatives to the
final regulation which were considered by the
Commission, together with a summary description
of their potential benefits and costs and a
brief explanation of the reasons why these
alternatives were not chosen.
(C) A summary of any significant issues raised
by the comments submitted during the public
comment period in response to the preliminary
regulatory analysis, and a summary of the
assessment by the Commission of such issues.
The Commission shall publish its final regulatory
analysis with the regulation.
(2) The Commission shall not promulgate a
regulation under section 2(q)(1) classifying an
article or substance as a banned hazardous substance
or a regulation under subsection (e) of this section
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unless it finds (and includes such finding in the
regulation)--
(A) in the case of a regulation which relates
to a risk of injury with respect to which
persons who would be subject to such regulation
have adopted and implemented a voluntary
standard, that--
(i) compliance with such voluntary
standard is not likely to result in the
elimination or adequate reduction of such
risk of injury; or
(ii) it is unlikely that there will be
substantial compliance with such voluntary
standard;
(B) that the benefits expected from the
regulation bear a reasonable relationship to its
costs; and
(C) that the regulation imposes the least
burdensome requirement which prevents or
adequately reduces the risk of injury for which
the regulation is being promulgated.
(3)(A) Any regulatory analysis prepared under
subsection (h) or paragraph (1) shall not be subject
to independent judicial review, except that when an
action for judicial review of a regulation is
instituted, the contents of any such regulatory
analysis shall constitute part of the whole
rulemaking record of agency action in connection
with such review.
(B) The provisions of subparagraph (A) shall not
be construed to alter the substantive or procedural
standards otherwise applicable to judicial review of
any action by the Commission.
(j) The Commission shall grant, in whole or in
part, or deny any petition under section 553(e) of
title 5, United States Code, requesting the
Commission to initiate a rulemaking, within a
reasonable time after the date on which such
petition is filed. The Commission shall state the
reasons for granting or denying such petition. The
Commission may not deny any such petition on the
basis of a voluntary standard unless the voluntary
standard is in existence at the time of the denial
of the petition, the Commission has determined that
the voluntary standard is likely to result in the
elimination or adequate reduction of the risk of
injury identified in the petition, and it is likely
that there will be substantial compliance with the
standard.
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PROHIBITED ACTS
SEC. 4. [15 U.S.C. 1263]
The following acts and the causing thereof are
hereby prohibited:
(a) The introduction or delivery for introduction
into interstate commerce of any misbranded hazardous
substance or banned hazardous substance.
(b) The alteration, mutilation, destruction,
obliteration, or removal of the whole or any part of
the label of, or the doing of any other act with
respect to, a hazardous substance, if such act is
done while the substance is in interstate commerce,
or while the substance is held for sale (whether or
not the first sale) after shipment in interstate
commerce, and results in the hazardous substance
being a misbranded hazardous substance or banned
hazardous substance.
(c) The receipt in interstate commerce of any
misbranded hazardous substance or banned hazardous
substance and the delivery or proffered delivery
thereof for pay or otherwise.
(d) The giving of a guarantee or undertaking
referred to in section 5(b)(2) which guarantee or
undertaking is false, except by a person who relied
upon a guarantee or undertaking to the same effect
signed by, and containing the name and address of,
the person residing in the United States from whom
he received in good faith the hazardous substance.
(e) The failure to permit entry or inspection as
authorized by section 11(b) or to permit access to
and copying of any record as authorized by section
12.
(f) The introduction or delivery for introduction
into interstate commerce, or the receipt in
interstate commerce and subsequent delivery or
proffered delivery for pay or otherwise, of a
hazardous substance in a reused food, drug, or
cosmetic container or in a container which, though
not a reused container, is identifiable as a food,
drug, or cosmetic container by its labeling or by
other identification. The reuse of a food, drug, or
cosmetic container as a container for a hazardous
substance shall be deemed to be an act which results
in the hazardous substance being a misbranded
hazardous substance. As used in this paragraph, the
terms ``food'', ``drug'', and ``cosmetic'' shall
have the same meaning as in the Federal Food, Drug,
and Cosmetic Act.
(g) The manufacture of a misbranded hazardous
substance or banned hazardous substance within the
Page 20
District of Columbia or within any territory not
organized with a legislative body.
(h) The use by any person to his own advantage, or
revealing other than to the Secretary or officers or
employees of the Department, or to the courts when
relevant in any judicial proceeding under this Act,
of any information acquired under authority of
section 11 concerning any method of process which as
a trade secret is entitled to protection.
(i) The failure to notify the Consumer Product
Safety Commission with respect to exports, pursuant
to section 14(d).
(j) The failure to comply with an order issued
under section 15.
(k) The introduction or delivery for introduction
into interstate commerce of any lead solder which
has a lead content in excess of 0.2 percent which
does not prominently display a warning label stating
the lead content of the solder and warning that the
use of such solder in the making of joints and
fittings in any private or public potable water
supply is prohibited.
PENALTIES
SEC. 5. [15 U.S.C. 1264]
(a) Any person who violates any of the provisions
of section 4 shall be guilty of a misdemeanor and
shall on conviction thereof be subject to a fine of
not more than $500 or to imprisonment for not more
than ninety days, or both;
{Modified by 18 U.S.C. 3571 as follows--
Organizations -- Not more than $10,000.
Individuals -- Not more than $5,000.}
but for offenses committed with intent to defraud or
mislead, or for second and subsequent offenses, the
penalty shall be imprisonment for not more than one
year, or a fine of not more than $3,000, or both
such imprisonment and fine.
{Modified by 18 U.S.C. 3571 as follows--
Organizations:
Not more than $200,000 if the offense does not
result in death.
Not more than $500,000 if the offense results in
death.
Individuals:
Not more than $100,000 if the offense does not
result in death.
Not more than $250,000 if the offense results in
death.}
Page 21
(b) No person shall be subject to the penalties of
subsection (a) of this section, (1) for having
violated section 4(c), if the receipt, delivery, or
proffered delivery of the hazardous substance was
made in good faith, unless he refuses to furnish on
request of an officer or employee duly designated by
the Secretary, the name and address of the person
from whom he purchased or received such hazardous
substance, and copies of all documents, if any there
be, pertaining to the delivery of the hazardous
substance to him; or (2) for having violated section
4(a), if he establishes a guarantee or undertaking
signed by, and containing the name and address of,
the person residing in the United States from whom
he received in good faith the hazardous substance,
to the effect that the hazardous substance is not a
misbranded hazardous substance or a banned hazardous
substance within the meaning of those terms in this
Act; or (3) for having violated subsection (a) or
(c) of section 4 with respect to any hazardous
substance shipped or delivered for shipment for
export to any foreign country, in a package marked
for export on the outside of the shipping container
and labeled in accordance with the specifications of
the foreign purchaser and in accordance with the
laws of the foreign country, but if such hazardous
substance is sold or offered for sale in domestic
commerce or if the Consumer Product Safety
Commission determines that exportation of such
substance presents an unreasonable risk of injury to
persons residing within the United States, this
clause shall not apply.
(c)(1) Any person who knowingly violates section 4
shall be subject to a civil penalty not to exceed
$5,000 for each such violation. Subject to
paragraph (2), a violation of subsections (a), (b),
(c), (d), (f), (g), (i), (j), and (k) of section 4
shall constitute a separate offense with respect to
each substance involved, except that the maximum
civil penalty shall not exceed $1,250,000 for any
related series of violations. A violation of
section 4(e) shall constitute a separate violation
with respect to each failure or refusal to allow or
perform an act required by section 4(e); and, if
such violation is a continuing one, each day of such
violation shall constitute a separate offense,
except that the maximum civil penalty shall not
exceed $1,250,000 for any related series of
violations.
(2) The second sentence of paragraph (1) of this
subsection shall not apply to violations of
Page 22
subsection (a) or (c) of section 4--
(A) if the person who violated such subsection
is not the manufacturer, importer, or private
labeler or a distributor of the substance
involved; and
(B) if such person did not have either (i)
actual knowledge that such person's distribution
or sale of the substance violated such
subsection, or (ii) notice from the Commission
that such distribution or sale would be a
violation of such subsection.
(3) In determining the amount of any penalty to be
sought upon commencing an action seeking to assess a
penalty for a violation of section 4, the Commission
shall consider the nature of the substance, the
severity of the risk of injury, the occurrence or
absence of injury, the amount of the substance
distributed, and the appropriateness of such penalty
in relation to the size of the business of the
person charged.
(4) Any civil penalty under this subsection may be
compromised by the Commission. In determining the
amount of such penalty or whether it should be
remitted or mitigated, and in what amount, the
Commission shall consider the appropriateness of
such penalty to the size of the business of the
persons charged, the nature of the substance
involved, the severity of the risk of injury, the
occurrence or absence of injury, and the amount of
the substance distributed. The amount of such
penalty when finally determined, or the amount
agreed on compromise, may be deducted from any sums
owing by the United States to the person charged.
(5) As used in the first sentence of paragraph
(1), the term ``knowingly'' means (A) having actual
knowledge, or (B) the presumed having of knowledge
deemed to be possessed by a reasonable person who
acts in the circumstances, including knowledge
obtainable upon the exercise or due care to
ascertain the truth of representations.
(6)(A) The maximum penalty amounts authorized in
paragraph (1) shall be adjusted for inflation as
provided in this paragraph.
(B) Not later than December 1, 1994, and
December 1 of each fifth calendar year
thereafter, the Commission shall prescribe and
publish in the Federal Register a schedule of
maximum authorized penalties that shall apply
for violations that occur after January 1 of the
year immediately following such publication.
(C) The schedule of maximum authorized
Page 23
penalties shall be prescribed by increasing each
of the amounts referred to in paragraph (1) by
the cost-of-living adjustment for the preceding
five years. Any increase determined under the
preceding sentence shall be rounded to--
(i) in the case of penalties greater than
$1,000 but less than or equal to $10,000, the
nearest multiple of $1,000;
(ii) in the case of penalties greater than
$10,000 but less than or equal to $100,000, the
nearest multiple of $5,000;
(iii) in the case of penalties greater than
$100,000 but less than or equal to $200,000, the
nearest multiple of $10,000; and
(iv) in the case of penalties greater than
$200,000, the nearest multiple of $25,000.
(D) For purposes of this subsection:
(i) The term ``Consumer Price Index'' means
the Consumer Price Index for all-urban consumers
published by the Department of Labor.
(ii) The term ``cost-of-living adjustment for
the preceding five years'' means the percentage
by which--
(I) the Consumer Price Index for the month
of June of the calendar year preceding the
adjustment; exceeds
(II) the Consumer Price Index for the
month of June preceding the date on which
the maximum authorized penalty was last
adjusted.
(d) In the case of an attorney general of a State
alleging a violation that affects or may affect such
State or its residents, such attorney general may
bring a civil action for an injunction to enforce
any requirements of this Act relating to misbranded
or banned hazardous substances. The procedural
requirements of section 24 of the Consumer Product
Safety Act shall apply to any such action.
SEIZURES
SEC. 6. [15 U.S.C. 1265]
(a) Any misbranded hazardous substance or banned
hazardous substance when introduced into or while in
interstate commerce or while held for sale (whether
or not the first sale) after shipment in interstate
commerce, or which may not, under the provisions of
section 4(f), be introduced into interstate
commerce, or which has been manufactured in
violation of section 4(g), shall be liable to be
proceeded against while in interstate commerce or at
Page 24
any time thereafter, on libel of information and
condemned in any district court in the United States
within the jurisdiction of which the hazardous
substance is found: Provided, That this section
shall not apply to a hazardous substance intended
for export to any foreign country if it (1) is in a
package branded in accordance with the
specifications of the foreign purchaser, (2) is
labeled in accordance with the laws of the foreign
country, and (3) is labeled on the outside of the
shipping package to show that it is intended for
export, and (4) is so exported.
(b) Such hazardous substance shall be liable to
seizure by process pursuant to the libel, and the
procedure in cases under this section shall conform,
as nearly as may be, to the procedure in admiralty;
except that on demand of either party any issue of
fact joined in any such case shall be tried by jury.
When libel for condemnation proceedings under this
section, involving the same claimant and the same
issues of misbranding, are pending in two or more
jurisdictions, such pending proceedings, upon
application of the United States or the claimant
seasonably made to the court of one such
jurisdiction, shall be consolidated for trial by
order of such court, and tried in (1) any district
selected by the applicant where one of such
proceedings is pending; or (2) a district agreed
upon by stipulation between the parties. If no order
for consolidation is so made within a reasonable
time, the United States or the claimant may apply to
the court of one such jurisdiction, and such court
(after giving the other party, the claimant, or the
United States attorney for such district, reasonable
notice and opportunity to be heard) shall by order,
unless good cause to the contrary is shown, specify
a district of reasonable proximity to the claimant's
principal place of business, in which all such
pending proceedings shall be consolidated for trial
and tried. Such order of consolidation shall not
apply so as to require the removal of any case the
date for trial of which has been fixed. The court
granting such order shall give prompt notification
thereof to the other courts having jurisdiction of
the cases covered thereby.
(c) Any hazardous substance condemned under this
section shall, after entry of the decree, be
disposed of by destruction or sale as the court may,
in accordance with the provisions of this section,
direct and the proceeds thereof, if sold, less the
legal costs and charges, shall be paid into the
Page 25
Treasury of the United States; but such hazardous
substance shall not be sold under such decree
contrary to the provisions of this Act or the laws
of the jurisdiction in which sold: Provided, That,
after entry of the decree and upon payment of the
costs of such proceedings and the execution of a
good and sufficient bond conditioned that such
hazardous substance shall not be sold or disposed of
contrary to the provisions of this Act or the laws
of any State or territory in which sold, the court
may by order direct that such hazardous substance be
delivered to the owner thereof to be destroyed or
brought into compliance with the provisions of this
Act under the supervision of an officer or employee
duly designated by the Secretary, and the expense of
such supervision shall be paid by the person
obtaining release of the hazardous substance under
bond.
(d) When a decree of condemnation is entered
against the hazardous substance, court costs and
fees, and storage and other proper expenses, shall
be awarded against the person, if any, intervening
as claimant of the hazardous substance.
(e) In the case of removal for trial of any case
as provided by subsection (b)--
(1) the clerk of the court from which removal
is made shall promptly transmit to the court in
which the case is to be tried all records in the
case necessary in order that such court may
exercise jurisdiction;
(2) the court to which such case is removed
shall have the powers and be subject to the
duties, for purposes of such case, which the
court from which removal was made would have
had, or to which such court would have been
subject, if such case had not been removed.
EXAMINATIONS AND INVESTIGATIONS
SEC. 11. [15 U.S.C. 1270]
(a) The Secretary is authorized to conduct
examinations, inspections, and investigations for
the purposes of this Act through officers and
employees of the Department or through any health
officer or employee of any State, territory, or
political subdivision thereof, duly commissioned by
the Secretary as an officer of the Department.
(b) For purposes of enforcement of this Act,
officers or employees duly designated by the
Secretary, upon presenting appropriate credentials
and a written notice to the owner, operator, or
agent in charge, are authorized (1) to enter, at
reasonable times, any factory, warehouse, or
establishment in which hazardous substances are
manufactured, processed, packed, or held for
introduction into interstate commerce or are held
after such introduction, or to enter any vehicle
being used to transport or hold such hazardous
substances in interstate commerce; (2) to inspect,
at reasonable times and within reasonable limits and
in a reasonable manner, such factory, warehouse,
establishment, or vehicle, and all pertinent
equipment, finished and unfinished materials, and
labeling therein; and (3) to obtain samples of such
materials or packages thereof, or of such labeling.
A separate notice shall be given for each such
inspection, but a notice shall not be required for
each entry made during the period covered by the
inspection. Each such inspection shall be commenced
and completed with reasonable promptness.
(c) If the officer or employee obtains any sample,
prior to leaving the premises, he shall give to the
owner, operator, or agent in charge a receipt
describing the samples obtained. If an analysis is
made of such sample, a copy of the results of such
analysis shall be furnished promptly to the owner,
operator, or agent in charge.
IMPORTS AND EXPORTS
SEC. 14. [15 U.S.C. 1273]
(a) The Secretary of the Treasury shall deliver to
the Secretary of Health, Education, and Welfare,
upon his request, samples of hazardous substances
which are being imported or offered for import into
the United States, giving notice thereof to the
owner or consignee, who may appear before the
Secretary of Health, Education, and Welfare and have
the right to introduce testimony. If it appears from
the examination of such samples or otherwise that
such hazardous substance is a misbranded hazardous
Page 29
substance or banned hazardous substance or in
violation of section 4(f), then such hazardous
substance shall be refused admission, except as
provided in subsection (b) of this section. The
Secretary of the Treasury shall cause the
destruction of any such hazardous substance refused
admission unless such hazardous substance is
exported, under regulations prescribed by the
Secretary of the Treasury, within ninety days of the
date of notice of such refusal or within such
additional time as may be permitted pursuant to such
regulations.
(b) Pending decision as to the admission of a
hazardous substance being imported or offered for
import, the Secretary of the Treasury may authorize
delivery of such hazardous substance to the owner or
consignee upon the execution by him of a good and
sufficient bond providing for the payment of such
liquidated damages in the event of default as may be
required pursuant to regulations of the Secretary of
the Treasury. If it appears to the Secretary of
Health, Education, and Welfare that the hazardous
substance can, by relabeling or other action, be
brought into compliance with this Act, final
determination as to admission of such hazardous
substance may be deferred and, upon filing of timely
written application by the owner or consignee and
the execution by him of a bond as provided in the
preceding provisions of this subsection, the
Secretary may, in accordance with regulations,
authorize the applicant to perform such relabeling
or other action specified in such authorization
(including destruction or export of rejected
hazardous substances or portions thereof, as may be
specified in the Secretary's authorization). All
such relabeling or other action pursuant to such
authorization shall, in accordance with regulations,
be under the supervision of an officer or employee
of the Department of Health, Education, and Welfare
designated by the Secretary, or an officer or
employee of the Department of the Treasury
designated by the Secretary of the Treasury.
(c) All expenses (including travel, per diem, or
subsistence, and salaries of officers or employees
of the United States) in connection with the
destruction provided for in subsection (a) of this
section and the supervision of the relabeling or
other action authorized under the provisions of
subsection (b) of this section, the amount of such
expenses to be determined in accordance with
regulations, and all expenses in connection with the
Page 30
storage, cartage, or labor with respect to any
hazardous substance refused admission under
subsection (a) of this section, shall be paid by the
owner or consignee and, in default of such payment,
shall constitute a lien against any future
importations made by such owner or consignee.
(d) Not less than thirty days before any person
exports to a foreign country any misbranded
hazardous substance or banned hazardous substance,
such person shall file a statement with the Consumer
Product Safety Commission (hereinafter in this
section referred to as the ``Commission'') notifying
the Commission of such exportation, and the
Commission, upon receipt of such statement, shall
promptly notify the government of such country of
such exportation and the basis upon which such
substance is considered misbranded or has been
banned under this Act. Any statement filed with the
Commission under the preceding sentence shall
specify the anticipated date of shipment of such
substance, the country and port of destination of
such substance, and the quantity of such substance
that will be exported, and shall contain such other
information as the Commission may by regulation
require. Upon petition filed with the Commission by
any person required to file a statement under this
subsection respecting an exportation, the Commission
may, for good cause shown, exempt such person from
the requirement of this subsection that such a
statement be filed no less than thirty days before
the date of the exportation, except that in no case
shall the Commission permit such a statement to be
filed later than the tenth day before such date.
NOTICE AND REPAIR, REPLACEMENT, OR REFUND
SEC. 15. [15 U.S.C. 1274]
(a) If any article or substance sold in commerce
is defined as a banned hazardous substance (whether
or not it was such at the time of its sale) and the
Commission determines (after affording interested
persons, including consumers and consumer
organizations, an opportunity for a hearing) that
notification is required to adequately protect the
public from such article or substance, the
Commission may order the manufacturer or any
distributor or dealer of the article or substance to
take any one or more of the following actions:
Page 31
(1) To give public notice that the article or
substance is a banned hazardous substance.
(2) To mail such notice to each person who is
a manufacturer, distributor, or dealer of such
article or substance.
(3) To mail such notice to every person to
whom the person giving the notice knows such
article or substance was delivered or sold.
An order under this subsection shall specify the
form and content of any notice required to be given
under the order.
(b) If any article or substance sold in commerce
is defined as a banned hazardous substance (whether
or not it was such at the time of its sale) and the
Commission determines (after affording interested
persons, including consumers and consumer
organizations, an opportunity for a hearing) that
action under this subsection is in the public
interest, the Consumer Product Safety Commission may
order the manufacturer, distributor, or dealer to
take whichever of the following actions the person
to whom the order is directed elects:
(1) If repairs to or changes in the article or
substance may be made so that it will not be a
banned hazardous substance, to make such repairs
or changes.
(2) To replace such article or substance with
a like or equivalent article or substance which
is not a banned hazardous substance.
(3) To refund the purchase price of the
article or substance (less a reasonable
allowance for use, if the article or substance
has been in the possession of the consumer for
one year or more--
(A) at the time of public notice under
subsection (a), or
(B) at the time the consumer receives
actual notice that the article or substance
is a banned hazardous substance, whichever
first occurs).
An order under this subsection may also require the
person to whom it applies to submit a plan,
satisfactory to the Commission, for taking the
action which such person has elected to take. The
Commission shall specify in the order the persons to
whom refunds must be made if the person to whom the
order is directed elects to take the action
described in paragraph (3). If an order under this
subsection is directed to more than one person, the
Commission shall specify which person has the
election under this subsection. An order under this
Page 32
subsection may prohibit the person to whom it
applies from manufacturing for sale, offering for
sale, distributing in commerce, or importing into
the customs territory of the United States (as
defined in general headnote 2 to the Tariff
Schedules of the United States), [19 U.S.C. 1202n2;
``includes only the States, the District of
Columbia, and Puerto Rico''] or from doing any
combination of such actions, with respect to the
article or substance with respect to which the order
was issued.
(c)(1) If the Commission determines (after
affording interested persons, including consumers
and consumer organizations, an opportunity for a
hearing in accordance with subsection (e) of this
section) that any toy or other article intended for
use by children that is not a banned hazardous
substance contains a defect which creates a
substantial risk of injury to children (because of
the pattern of defect, the number of defective toys
or such articles distributed in commerece, the
severity of the risk, or otherwise) and that
notification is required to protect adequately the
public from such toy or article, the Commission may
order the manufacturer or any distributor or dealer
of such toy or article to take any one or more of
the following actions:
(A) To give public notice that such
defective toy or article contains a defect
which creates a substantial risk of injury
to children.
(B) To mail such notice to each person who
is a manufacturer, distributor, or dealer of
such toy or article.
(C) To mail such notice to every person to
whom the person giving notice knows such toy
or article was delivered or sold.
An order under this paragraph shall specify the form
and content of any notice required to be given under
the order.
(2) If the Commission determines (after
affording interested persons, including
consumers and consumer organizations, an
opportunity for a hearing in accordance with
subsection (e) of this section) that any toy or
other article intended for use by children that
is not a banned hazardous substance contains a
defect which creates a substantial risk of
injury to children (because of the pattern of
defect, the number of defective toys or such
articles distributed in commerce, the severity
Page 33
of the risk, or otherwise) and that action under
this paragraph is in the public interest, the
Commission may order the manufacturer,
distributor, or dealer to take whichever of the
following actions the person to whom the order
is directed elects:
(A) If repairs to or changes in the toy or
article can be made so that it will not
contain a defect which creates a substantial
risk of injury to children, to make such
repairs or changes.
Page 34
(B) To replace such toy or article with a
like or equivalent toy or article which does
not contain a defect which creates a
substantial risk of injury to children.
(C) To refund the purchase price of such
toy or article (less a reasonable allowance
for use, if such toy or article has been in
the possession of the consumer for 1 year or
more (i) at the time of public notice under
paragraph (1)(A), or (ii) at the time the
consumer receives actual notice that the toy
or article contains a defect which creates a
substantial risk of injury to children,
whichever first occurs).
An order under this paragraph may also require the
person to whom it applies to submit a plan,
satisfactory to the Commission, for taking the
action which such person has elected to take. The
Commission shall specify in the order the person to
whom refunds must be made if the person to whom the
order is directed elects to take the action
described in subparagraph (C). If an order under
this paragraph is directed to more than one person,
the Commission shall specify which person has the
election under this paragraph. An order under this
paragraph may prohibit the person to whom it applies
from manufacturing for sale, offering for sale,
distributing in commerce, or importing into the
customs territory of the United States (as defined
in general headnote 2 to the Tariff Schedules of the
United States), [19 U.S.C. 1202] or from doing any
combination of such actions, with respect to the toy
or article with respect to which the order was
issued.
(d)(1) No charge shall be made to any person
(other than a manufacturer, distributor, or dealer)
who avails himself of any remedy provided under an
order issued under subsection (b) or (c), and the
person subject to the order shall reimburse each
person (other than a manufacturer, distributor, or
dealer) who is entitled to such a remedy for any
reasonable and foreseeable expenses incurred by such
person in availing himself of such remedy.
(2) An order issued under subsection (a), (b), or
(c) with respect to a toy, article or substance may
require any person who is a manufacturer,
distributor, or dealer of the toy, article or
substance to reimburse any other person who is a
manufacturer, distributor, or dealer of such toy,
article or substance for such other person's
expenses in connection with carrying out the order,
Page 35
if the Commission determines such reimbursement to
be in the public interest.
(e) An order under subsection (a), (b), or (c) may
be issued only after an opportunity for a hearing in
accordance with section 554 of title 5, United
States Code, except that, if the Commission
determines that any person who wishes to participate
in such hearing is a part of a class of participants
who share an identity of interest, the Commission
may limit such person's participation in such
hearing to participation through a single
representative designated by such class (or by the
Commission if such class fails to designate such a
representative).
(f) For purposes of this section (1) the term
``manufacturer'' includes an importer for resale,
and (2) a dealer who sells at wholesale an article
or substance shall with respect to that sale be
considered the distributor of that article or
substance.
(g) Nothing in this section shall be construed to
require the Commission, in determining that a
product or substance distributed in commerce
presents a substantial product hazard and that
notification or other action under this section
should be taken, to prepare a comparison of the
costs that would be incurred in providing
notification or taking other action under this
section with the benefits from such notification or
action.
EFFECT UPON FEDERAL AND STATE LAW
SEC. 18. [15 U.S.C. 1261n]
(a) Nothing in this Act shall be construed to
modify or affect the provisions of the Flammable
Fabrics Act, as amended (15 U.S.C. 1191-1200), or
any regulations promulgated thereunder; or of
chapter 39, title 18, United States Code, as amended
(18 U.S.C. 831 et seq.), or any regulations
promulgated thereunder, or under sections 204(a)(2)
and 204(a)(3) of the Interstate Commerce Act, as
amended [49 U.S.C. 304(a)(2), (3)] (relating to the
transportation of dangerous substances and
explosives by surface carriers); or of section 1716,
title 18, United States Code, or any regulations
promulgated thereunder (relating to mailing of
dangerous substances); or of section 902 or
regulations promulgated under section 601 of the
Federal Aviation Act of 1958 (relating to
transportation of dangerous substances and
explosives in aircraft); [49 U.S.C. 40113] or of the
Federal Food, Drug, and Cosmetic Act; [21 U.S.C. 301
et seq.] or of the Public Health Service Act; [42
U.S.C. 201 et seq.] or of the Federal Insecticide,
Fungicide, and Rodenticide Act; [7 U.S.C. 136 et
seq.] or of the Dangerous Drug Act for the District
of Columbia (70 Stat. 612), or the Act entitled ``An
Act to regulate the practice of pharmacy and the
sale of poisons in the District of Columbia, and for
other purposes'', approved May 7, 1906 (34 Stat.
175), as amended; [42 U.S.C. 257, 260, 260a] or of
any other Act of Congress, except as specified in
section 19.
(b)(1)(A) Except as provided in paragraphs (2) and
(3), if a hazardous substance or its packaging is
subject to a cautionary labeling requirement under
section 2(p) or 3(b) designed to protect against a
risk of illness or injury associated with the
substance, no State or political subdivision of a
Page 37
State may establish or continue in effect a
cautionary labeling requirement applicable to such
substance or packaging and designed to protect
against the same risk of illness or injury unless
such cautionary labeling requirement is identical to
the labeling requirement under section 2(p) or 3(b).
(B) Except as provided in paragraphs (2), (3), and
(4), if under regulations of the Commission
promulgated under or for the enforcement of section
2(q) a requirement is established to protect against
a risk of illness or injury associated with a
hazardous substance, no State or political
subdivision of a State may establish or continue in
effect a requirement applicable to such substance
and designed to protect against the same risk of
illness or injury unless such requirement is
identical to the requirement established under such
regulations.
(2) The Federal Government and the government of
any State or political subdivision of a State may
establish and continue in effect a requirement
applicable to a hazardous substance for its own use
(or to the packaging of such a substance) which
requirement is designed to protect against a risk of
illness or injury associated with such substance and
which is not identical to a requirement described in
paragraph (1) applicable to such substance (or
packaging) and designed to protect against the same
risk of illness or injury if the Federal, State, or
political subdivision requirement provides a higher
degree of protection from such risk of illness or
injury than the requirement described in paragraph
(1).
(3)(A) Upon application of a State or political
subdivision of a State, the Commission may, by
regulation promulgated in accordance with
subparagraph (B), exempt from paragraph (1), under
such conditions as may be prescribed in such
regulation, any requirement of such State or
political subdivision designed to protect against a
risk of illness or injury associated with a
hazardous substance if--
(i) compliance with the requirement would not
cause the hazardous substance (or its packaging)
to be in violation of the applicable requirement
described in paragraph (1), and
(ii) the State or political subdivision
requirement (I) provides a significantly higher
degree of protection from such risk of illness
or injury than the requirement described in
paragraph (1), and (II) does not unduly burden
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interstate commerce.
In determining the burden, if any, of a State or
political subdivision requirement on interstate
commerce the Commission shall consider and make
appropriate (as determined by the Commission in its
discretion) findings on the technological and
economic feasibility of complying with such
requirement, the cost of complying with such
requirement, the geographic distribution of the
substance to which the requirement would apply, the
probability of other States or political
subdivisions applying for an exemption under this
paragraph for a similar requirement, and the need
for a national, uniform requirement under this Act
for such substance (or its packaging).
(B) A regulation under subparagraph (A) granting
an exemption for a requirement of a State or
political subdivision of a State may be promulgated
by the Commission only after it has provided, in
accordance with section 553(b) of title 5, United
States Code, notice with respect to the promulgation
of the regulation and has provided opportunity for
the oral presentation of views respecting its
promulgation.
(4) Paragraph (1)(B) does not prohibit a State or
a political subdivision of a State from establishing
or continuing in effect a requirement which is
designed to protect against a risk of illness or
injury associated with fireworks devices or
components thereof and which provides a higher
degree of protection from such risk of illness or
injury than a requirement in effect under a
regulation of the Commission described in such
paragraph.
(5) As used in this subsection, the term
``Commission'' means the Consumer Product Safety
Commission.
REQUIREMENTS FOR LABELING CERTAIN TOYS AND GAMES.
SEC. 24. [15 U.S.C. 1278]
(a) Toys or Games for Children Who Are at Least
3.--
(1) Requirement.--The packaging of any toy or
game intended for use by children who are at
least 3 years old but not older than 6 years (or
such other upper age limit as the Commission may
determine, which may not be less than 5 years
old), any descriptive material which accompanies
such toy or game, and, in the case of bulk sales
of such toy or game when unpackaged, any bin,
container for retail display, or vending machine
from which the unpackaged toy or game is
dispensed shall bear or contain the cautionary
statement described in paragraph (2) if the toy
or game--
(A) is manufactured for sale, offered for
sale, or distributed in commerce in the
United States, and
(B) includes a small part, as defined by
the Commission.
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(2) Label.--The cautionary statement required
by paragraph (1) for a toy or game shall be as
follows:
{warning triangle, and "WARNING: choking
hazard--small parts. Not for children under 3
yrs."}
(b) Balloons, Small Balls, and Marbles.--
(1) Requirement.--In the case of any latex
balloon, any ball with a diameter of 1.75 inches
or less intended for children 3 years of age or
older, any marble intended for children 3 years
of age or older, or any toy or game which
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contains such a balloon, ball, or marble, which
is manufactured for sale, offered for sale, or
distributed in commerce in the United States--
(A) the packaging of such balloon, ball,
marble, toy, or game,
(B) any descriptive material which
accompanies such balloon, ball, marble, toy,
or game, and
(C) in the case of bulk sales of any such
product when unpackaged, any bin, container
for retail display, or vending machine from
which such unpackaged balloon, ball, marble,
toy, or game is dispensed,
shall bear or contain the cautionary statement
described in paragraph (2).
(2) Label.--The cautionary statement required
under paragraph (1) for a balloon, ball, marble,
toy, or game shall be as follows:
(A) Balloons.--In the case of balloons, or
toys or games that contain latex balloons,
the following cautionary statement applies:
{warning triangle, and "WARNING: choking
hazard--children under 8 yrs can choke or
suffocate on uninflated or broken balloons.
Adult supervision required. Keep uninflated
balloons from children. Discard broken
balloons at once."}
(B) Balls.--In the case of balls, the
following cautionary statement applies:
{warning triangle, and "Choking hazard--This
toy is a small ball. Not for children under
3 yrs."}
(C) Marbles.--In the case of marbles, the
following cautionary statement applies:
{warning triangle, and "Choking hazard--This
toy is a marble. Not for children under 3
yrs."}
(D) Toys and games.--In the case of toys
or games containing balls, the following
cautionary statement applies:
{warning triangle, and "WARNING: choking
hazard--Toy contains a small ball. Not for
children under 3 yrs"}
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In the case of toys or games containing
marbles, the following cautionary statement
applies:
{warning triangle, and "WARNING: choking
hazard--Toy contains a marble. Not for
children under 3 yrs"}
(c) General Labeling Requirements.--
(1) In general.--Except as provided in
paragraphs (2) and (3), any cautionary statement
required under subsection (a) or (b) shall be--
(A) displayed in its entirety on the
principal display panel of the product's
package, and on any descriptive material
which accompanies the product, and, in the
case of bulk sales of such product when
unpackaged, on the bin, container for retail
display of the product, and any vending
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machine from which the unpackaged product is
dispensed, and
(B) displayed in the English language in
conspicuous and legible type in contrast by
typography, layout, or color with other
printed matter on such package, descriptive
materials, bin, container, and vending
machine, and in a manner consistent with
part 1500 of title 16, Code of Federal
Regulations (or successor regulations
thereto).
(2) Exception for products manufactured
outside United States.--In the case of a product
manufactured outside the United States and
directly shipped from the manufacturer to the
consumer by United States mail or other delivery
service, the accompanying material inside the
package of the product may fail to bear the
required statement if other accompanying
material shipped with the product bears such
statement.
(3) Special rules for certain packages.--(A) A
cautionary statement required by subsection (a)
or (b) may, in lieu of display on the principal
display panel of the product's package, be
displayed on another panel of the package if--
(i) the package has a principal display
panel of 15 square inches or less and the
required statement is displayed in three or
more languages; and
(ii) the statement specified in
subparagraph (B) is displayed on the
principal display panel and is accompanied
by an arrow or other indicator pointing
toward the place on the package where the
statement required by subsection (a) or (b)
appears.
(B)(i) In the case of a product to which
subsection (a), subsection (b)(2)(B), subsection
(b)(2)(C), or subsection (b)(2)(D) applies, the
statement specified by this subparagraph is as
follows:
{warning triangle, and "Safety warning"}
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(ii) In the case of a product to which
subsection (b)(2)(A) applies, the statement
specified by this subparagraph is as follows:
{warning triangle, and "Warning--choking
hazard"}
(d) Treatment as Misbranded Hazardous
Substance.--A balloon, ball, marble, toy, or game,
that is not in compliance with the requirements of
this subsection shall be considered a misbranded
hazardous substance under section 2(p).