{DEFINITIONS}
SEC. 2. [15 U.S.C. 1471]
For the purpose of this Act--
(1) The term ``Secretary'' means the Secretary of
Health, Education, and Welfare. {now Health and
Human Services}
(2) The term ``household substance'' means any
substance which is customarily produced or
distributed for sale for consumption or use, or
customarily stored, by individuals in or about the
household and which is--
(A) a hazardous substance as that term is
defined in section 2(f) of the Federal Hazardous
Substances Act (15 U.S.C. 1261(f));
(B) a food, drug, or cosmetic as those terms
are defined in section 201 of the Federal Food,
Drug, and Cosmetic Act (21 U.S.C. 321); or
(C) a substance intended for use as fuel when
stored in a portable container and used in the
heating, cooking, or refrigeration system of a
house.
(3) The term ``package'' means the immediate
container or wrapping in which any household
substance is contained for consumption, use, or
storage by individuals in or about the household,
and, for purposes of section 4(a)(2) of this Act,
also means any outer container or wrapping used in
the retail display of any such substance to
consumers. Such term does not include--
(A) any shipping container or wrapping used
solely for the transportation of any household
substance in bulk or in quantity to
manufacturers, packers, or processors, or to
wholesale or retail distributors thereof, or
(B) any shipping container or outer wrapping
used by retailers to ship or deliver any
household substance to consumers unless it is
the only such container or wrapping.
(4) The term ``special packaging'' means packaging
that is designed or constructed to be significantly
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difficult for children under five years of age to
open or obtain a toxic or harmful amount of the
substance contained therein within a reasonable time
and not difficult for normal adults to use properly,
but does not mean packaging which all such children
cannot open or obtain a toxic or harmful amount
within a reasonable time.
(5) The term ``labeling'' means all labels and
other written, printed, or graphic matter (A) upon
any household substance or its package, or (B)
accompanying such substance.
{SPECIAL PACKAGING STANDARDS}
SEC. 3. [15 U.S.C. 1472]
(a) The Secretary, after consultation with the
technical advisory committee provided for in section
6 of this Act, may establish in accordance with the
provisions of this Act, by regulation, standards for
the special packaging of any household substance if
he finds that--
(1) the degree or nature of the hazard to
children in the availability of such substance,
by reason of its packaging, is such that special
packaging is required to protect children from
serious personal injury or serious illness
resulting from handling, using, or ingesting
such substance; and
(2) the special packaging to be required by
such standard is technically feasible,
practicable, and appropriate for such substance.
(b) In establishing a standard under this section,
the Secretary shall consider--
(1) the reasonableness of such standard;
(2) available scientific, medical, and
engineering data concerning special packaging
and concerning childhood accidental ingestions,
illness, and injury caused by household
substances;
(3) the manufacturing practices of industries
affected by this Act; and
(4) the nature and use of the household
substance.
(c) In carrying out this Act, the Secretary shall
publish his findings, his reasons therefor, and
citation of the sections of statutes which authorize
his action.
(d) Nothing in this Act shall authorize the
Secretary to prescribe specific packaging designs,
product content, package quantity, or, with the
exception of authority granted in section 4(a)(2) of
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this Act, labeling. In the case of a household
substance for which special packaging is required
pursuant to a regulation under this section, the
Secretary may in such regulation prohibit the
packaging of such substance in packages which he
determines are unnecessarily attractive to children.
{MARKETING OF NONCOMPLYING PACKAGES}
SEC. 4. [15 U.S.C. 1473]
(a) For the purpose of making any household
substance which is subject to a standard established
under section 3 readily available to elderly or
handicapped persons unable to use such substance
when packaged in compliance with such standard, the
manufacturer or packer, as the case may be, may
package any household substance, subject to such a
standard, in packaging of a single size which does
not comply with such standard if--
(1) the manufacturer (or packer) also supplies
such substance in packages which comply with
such standard; and
(2) the packages of such substance which do
not meet such standard bear conspicuous labeling
stating: ``This package for households without
young children''; except that the Secretary may
by regulation prescribe a substitute statement
to the same effect for packaging too small to
accommodate such labeling.
(b) In the case of a household substance which is
subject to such a standard and which is dispensed
pursuant to an order of a physician, dentist, or
other licensed medical practitioner authorized to
prescribe, such substance may be dispensed in
noncomplying packages only when directed in such
order or when requested by the purchaser.
(c) In the case of a household substance subject
to such a standard which is packaged under
subsection (a) in a noncomplying package, if the
Secretary determines that such substance is not also
being supplied by a manufacturer (or packer) in
popular size packages which comply with such
standard, he may, after giving the manufacturer (or
packer) an opportunity to comply with the purposes
of this Act, by order require such substance to be
packaged by such manufacturer (or packer)
exclusively in special packaging complying with such
standard if he finds, after opportunity for hearing,
that such exclusive use of special packaging is
necessary to accomplish the purposes of this Act.
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{PROCEEDINGS}
SEC. 5. [15 U.S.C. 1474]
(a) Proceedings to issue, amend, or repeal a
regulation prescribing a standard under section 3
shall be conducted in accordance with the procedures
prescribed by section 553 (other than paragraph
(3)(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 such proceedings. 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).
(b)(1) In the case of any standard prescribed by a
regulation issued in accordance with section 553 of
title 5 of the United States Code, any person who
will be adversely affected by such a standard may,
at any time prior to the 60th day after the
regulation prescribing such standard 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 standard. 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
standard, as provided in section 2112 of title 28 of
the United States Code.
(2) 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 standard, with the return of such
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additional evidence.
(3) Upon the filing of the petition under
paragraph (1) of this subsection the court shall
have jurisdiction to review the standard of the
Secretary in accordance with subparagraphs (A), (B),
(C), and (D) of paragraph (2) of section 706 of
title 5 of the United States Code. If the court
ordered additional evidence to be taken under
paragraph (2) of this subsection, the court shall
also review the Secretary's standard to determine
if, on the basis of the entire record before the
court pursuant to paragraphs (1) and (2) of this
subsection, it is supported by substantial evidence.
If the court finds the standard is not so supported,
the court may set it aside.
(4) With respect to any standard reviewed under
this subsection, the court may grant appropriate
relief pending conclusion of the review proceedings,
as provided in section 705 of such title 5.
(5) The judgment of the court affirming or setting
aside, in whole or in part, any such standard 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.
{AMENDMENTS TO OTHER ACTS}
SEC. 6. (a) Section 2(p) of the Federal Hazardous
Substances Act (15 U.S.C. 1261(p)) is amended--
(1) by striking out ``which substance'' in the
part preceding paragraph (1) and inserting in
lieu thereof ``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''; and
(2) by adding the following after and below
paragraph (2):
``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.''.
(b) Section 2z(2) of the Federal Insecticide,
Fungicide, and Rodenticide Act (7 U.S.C. 135(z)(2))
is amended by striking out the period at the end of
paragraph (h) of such section and inserting in lieu
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thereof ``; or'' and by adding at the end thereof a
new paragraph as follows:
``(i) if 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.''
(c) Section 403 of the Federal Food, Drug, and
Cosmetic Act (21 U.S.C. 343) is amended by adding at
the end thereof a new paragraph as follows:
``(n) If 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.''
(d) Section 502 of the Federal Food, Drug, and
Cosmetic Act (21 U.S.C. 352) is amended by adding at
the end thereof a new paragraph as follows:
``(p) If it is a drug 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.''
(e) Section 503(b)(2) of the Federal Food, Drug,
and Cosmetic Act (21 U.S.C. 353(b)(2)) is amended by
striking out ``and (h)'' and inserting in lieu
thereof ``, (h), and (p)''.
(f) Section 602 of the Federal Food, Drug, and
Cosmetic Act (21 U.S.C. 362) is amended by adding at
the end thereof a new paragraph as follows:
``(f) If 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.''
{PREEMPTION}
SEC. 7. [15 U.S.C. 1476]
(a) Except as provided in subsections (b) and (c),
whenever a standard established by the Secretary
under this Act applicable to a household substance
is in effect, no State or political subdivision
thereof shall have any authority either to establish
or continue in effect, with respect to such
household substance, any standard for special
packaging (and any exemption therefrom and
requirement related thereto) which is not identical
to the standard established under section 3 (and any
exemption therefrom and requirement related thereto)
of this Act.
(b) The Federal Government and the government of
any State or political subdivision of a State may
establish and continue in effect, with respect to a
household substance for its own use, a standard for
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special packaging or related requirement which is
designed to protect against a risk of illness or
injury with respect to which a standard for special
packaging or related requirement is in effect under
this Act and which is not identical to such standard
or requirement if the Federal, State, or political
subdivision standard or requirement provides a
higher degree of protection from such risk of
illness or injury than the standard or requirement
in effect under this Act.
(c)(1) Upon application of a State or political
subdivision of a State, the Commission may, by
regulation promulgated in accordance with paragraph
(2), exempt from subsection (a), under such
conditions as may be prescribed in such regulation,
any standard for special packaging or related
requirement of such State or political subdivision
applicable to a household substance subject to a
standard or requirement in effect under this Act
if--
(A) compliance with the State or political
subdivision standard or requirement would not
cause the household substance to be in violation
of the standard or requirement in effect under
this Act, and
(B) the State or political subdivision
standard or requirement (i) provides a
significantly higher degree of protection from
the risk of illness or injury with respect to
which the Federal standard or requirement is in
effect, and (ii) does not unduly burden
interstate commerce.
In determining the burden, if any, of a State or
political subdivision standard or 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 standard or requirement, the cost of
complying with such standard or requirement, the
geographic distribution of the household substance
to which the standard or requirement would apply,
the probability of other States or political
subdivisions applying for an exemption under this
subsection for a similar standard or requirement,
and the need for a national, uniform standard or
requirement under this Act for such household
substance.
(2) A regulation under paragraph (1) granting an
exemption for a standard or requirement of a State
or political subdivision of a State may be
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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.
{EFFECTIVE DATE}
SEC. 8. [15 U.S.C. 1471n]
This Act shall take effect on the date of its
enactment. [December 30, 1970] Each regulation
establishing a special packaging standard shall
specify the date such standard is to take effect
which date shall not be sooner than one hundred and
eighty days or later than one year from the date
such regulation is final, unless the Secretary, for
good cause found, determines that an earlier
effective date is in the public interest and
publishes in the Federal Register his reason for
such finding, in which case such earlier date shall
apply. No such standard shall be effective as to
household substances subject to this Act packaged
prior to the effective date of such final
regulation.