HBA-JEK H.B. 3602 77(R) BILL ANALYSIS Office of House Bill AnalysisH.B. 3602 By: Capelo Public Health 3/23/2001 Introduced BACKGROUND AND PURPOSE The Texas Department of Health estimates that 15,000 Texas children were injured by toys, games, and nursery products in 1999. In 1972, the Texas Legislature enacted legislation regarding hazardous substances to protect Texas consumers, particularly children, from unsafe consumer products. However, the Texas Department of Health (TDH) remains without clear authority to regulate certain hazardous consumer products, including children's toys, games, flammable clothing, and arts and crafts materials. House Bill 3602 expands TDH's authority regarding hazardous materials and substances. RULEMAKING AUTHORITY It is the opinion of the Office of House Bill Analysis that rulemaking authority is expressly delegated to the Texas Board of Health in SECTION 2 (Section 501.002, Health and Safety Code), SECTION 3 (Section 501.021, Health and Safety Code), SECTION 4 (Section 501.022, Health and Safety Code), SECTION 6 (Section 501.0231-501.0233, Health and Safety Code), SECTION 7 (Section 501.024, Health and Safety Code), SECTION 8 (Section 501.025, Health and Safety Code), and SECTION 9 (Section 501.026, Health and Safety Code) of this bill. ANALYSIS House Bill 3602 amends the Health and Safety Code to provide that the Texas Board of Health (TBH) by rule define a substance as extremely flammable or combustible (Sec. 501.002). The bill requires TBH to establish by rule flammability standards for solids, fabrics, children's clothing, household furnishings, and the contents of self-pressurized containers (Sec. 501.021). The bill authorizes TBH to designate by rule any article that is not properly packaged rather than only clothing intended for use by children as a banned hazardous substance (Sec. 501.022). The bill requires toys, games, and parts of toys and games intended for use by children, including latex balloons, small balls, marbles, and any toy or game containing one of these items to be labeled in the manner required by TBH rule (Sec. 501.0231). The bill also requires art materials to be reviewed by a toxicologist and labeled in the manner required by TBH rule (Sec. 501.0232). H.B. 3602 requires hazardous substances to be packaged in the manner required by special packaging rules adopted by TBH (Sec. 501.0233). The bill authorizes TBH to adopt reasonable rules necessary for the efficient administration of hazardous substances provisions, and provides that the rules regarding the administration and enforcement of hazardous substance provisions must conform with applicable regulations adopted under the Federal Hazardous Substances Act, the federal Consumer Product Safety Act, the federal Flammable Fabrics Act, and the federal Poison Prevention Packaging Act of 1970 unless TBH determines that the health, safety, and welfare of persons in this state requires a deviation from federal regulations. The bill requires flammability, packaging, and labeling standards to be consistent with federal regulations as of September 1, 2001 until TBH adopts rules regarding such standards (Secs. 501.021, 502.0231-501.0233, and 501.025). H.B. 3602 sets forth registration requirements and provides for the assessment of fees for individuals who distribute or import for distribution a hazardous substance in this state. The bill prohibits a person who fails to properly register with the Texas Department of Health (TDH) from manufacturing, importing, or repacking a hazardous substance that is to be distributed in this state, and provides that a substance that is not properly registered is subject to seizure and disposition. The bill authorizes TDH to cancel, revoke, suspend, or refuse to register the registration of a person who fails to comply with the hazardous materials provisions (Secs. 501.024, 501.026, and 501.034). H.B. 3602 authorizes an officer, employee, or agent of TDH to obtain samples of any finished product for examination or investigation, and removes the provision that requires an officer, employee, or agent to pay or offer to pay the owner, operator, or agent in charge for a sample (Sec. 501.031). The bill prohibits a person from packaging a hazardous substance in a new or reused food, drug, or cosmetic container that is identifiable as a food, drug, or cosmetic container by its labeling or other identification (Sec. 501.034). H.B. 3602 establishes that a violation of a hazardous substances provision is a Class A misdemeanor. The bill removes the stipulation that the violation must be intentional, knowing, or reckless (Sec. 501.035). The bill authorizes the commissioner of public health (commissioner) to request the attorney general or another appropriate person to institute a civil suit if it appears that there is a violation of a hazardous substances provision or a rule adopted under a hazardous substances provision (Sec. 501.036). H.B. 3602 authorizes the commissioner to issue a recall order for a banned or misbranded hazardous substance in conjunction with its detention. The bill specifies that the commissioner's recall may require the articles to be removed to one or more secure areas, and provides that the recall order must be in writing and signed by the commissioner. The bill sets forth the expiration date for a recall order and requires the claimant of the articles or the claimant's agent to pay the removal and storage costs for the articles and, if applicable, the costs of the recall. The bill authorizes the commissioner to request the attorney general to bring an action in a district court of Travis County to recover costs of the recall (Sec. 501.037). EFFECTIVE DATE September 1, 2001.