Collapse to view only § 1264. Penalties; exceptions
- § 1261. Definitions
- § 1262. Declaration of hazardous substances
- § 1263. Prohibited acts
- § 1264. Penalties; exceptions
- § 1265. Seizures
- § 1266. Hearing before report of criminal violation
- § 1267. Injunctions; criminal contempt; trial by court or jury
- § 1268. Proceedings in name of United States; subpenas
- § 1269. Regulations
- § 1270. Examinations and investigations
- § 1271. Records of interstate shipment
- § 1272. Publicity; reports; dissemination of information
- § 1273. Imports
- § 1274. Remedies respecting banned hazardous substances
- § 1275. Toxicological Advisory Board
- § 1276. Congressional veto of hazardous substances regulations
- § 1277. Labeling of art materials
- § 1278. Requirements for labeling certain toys and games
- § 1278a. Children’s products containing lead; lead paint rule
§ 1261. DefinitionsFor the purposes of this chapter—
(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 “Commission” means the Consumer Product Safety Commission.
(d) Repealed. Pub. L. 110–314, title II, § 204(b)(4)(A), Aug. 14, 2008, 122 Stat. 3041
(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 Commission by regulation finds, pursuant to the provisions of section 1262(a) of this title, 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 Commission determines by regulation that the substance is sufficiently hazardous to require labeling in accordance with this chapter in order to protect the public health.
(D) Any toy or other article intended for use by children which the Commission by regulation determines, in accordance with section 1262(e) of this title, presents an electrical, mechanical, or thermal hazard.
(E) Any solder which has a lead span 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 et seq.], 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 [42 U.S.C. 2011 et seq.], and regulations issued pursuant thereto by the Atomic Energy Commission.
(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 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 Commission 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 Commission. Before designating any substance as a strong sensitizer, the Commission, 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 span of a self-pressurized container shall be defined by regulations issued by the Commission.
(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 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 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 chapter 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 1472 or 1473 of this title or if such substance, except as otherwise provided by or pursuant to section 1262 of this title, 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 Commission 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 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 Commission pursuant to
(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 1471(2)(D) 1
1 See References in Text note below.
of this title if it is a substance described in paragraph (1) of subsection (f) of this section and its packaging or labeling is in violation of an applicable regulation issued pursuant to section 1472 or 1473 of this title.(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 Commission 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 chapter 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 channels of interstate commerce: Provided, That the Commission, 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 it 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 subsections (f) through (i) of section 1262 of this title, except that if the Commission finds that the distribution for household use of the hazardous substance involved presents an imminent hazard to the public health, it 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 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.
(Pub. L. 86–613, § 2, July 12, 1960, 74 Stat. 372; Pub. L. 89–756, §§ 2(a)–(c), 3(a), Nov. 3, 1966, 80 Stat. 1303, 1304; Pub. L. 91–113, §§ 2(a), (c), (d), 3, Nov. 6, 1969, 83 Stat. 187–189; Pub. L. 91–601, § 6(a), formerly § 7(a), Dec. 30, 1970, 84 Stat. 1673, renumbered Pub. L. 97–35, title XII, § 1205(c), Aug. 13, 1981, 95 Stat. 716; Pub. L. 92–516, § 3(1), Oct. 21, 1972, 86 Stat. 998; Pub. L. 94–284, § 3(c), May 11, 1976, 90 Stat. 503; Pub. L. 95–631, § 9, Nov. 10, 1978, 92 Stat. 3747; Pub. L. 99–339, title I, § 109(d)(1), June 19, 1986, 100 Stat. 653; Pub. L. 110–314, title II, § 204(b)(2), (4)(A), (B), (D), Aug. 14, 2008, 122 Stat. 3041, 3042.)
§ 1262. Declaration of hazardous substances
(a) Rulemaking
(1) In general
(2) Procedure
(b) Reasonable variations or additional label requirements
(c) Exemption from requirements by regulation
(d) Exemption from requirements of this chapter of substances or containers adequately regulated by other provisions of law
(e) Regulation of toys or articles intended for use by children
(1) A determination by the Commission 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 unless the Commission elects the procedures prescribed by subsection (e) of section 371 of title 21, in which event such subsection and subsections (f) and (g) of such section 371 of title 21 shall apply to the making of such determination. If the Commission makes such election, it 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 Commission 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 it, 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 chapter 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.
(3)
(A) In the case of any toy or other article intended for use by children which is determined by the Commission, in accordance with section 553 of title 5, 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 Commission, 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 Commission or other officer designated by him 1
1 So in original. Probably should be “it”.
for that purpose. The Commission shall file in the court the record of the proceedings on which the Commission based its determination, as provided in section 2112 of title 28.(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 Commission, the court may order such additional evidence (and evidence in rebuttal thereof) to be taken before the Commission in a hearing or in such other manner, and upon such terms and conditions, as to the court may seem proper. The Commission may modify its findings as to the facts, or make new findings, by reason of the additional evidence so taken, and it shall file such modified or new findings, and its recommendation, if any, for the modification or setting aside of its 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 Commission in accordance with subparagraphs (A), (B), (C), and (D) of paragraph (2) of the second sentence of section 706 of title 5. If the court ordered additional evidence to be taken under subparagraph (B) of this paragraph, the court shall also review the Secretary’s 2
2 So in original. Probably should be “Commission’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 reviewed under this paragraph, the court may grant appropriate relief pending conclusion of the review proceedings, as provided in section 705 of title 5.(D) The judgment of the court affirming or setting aside, in whole or in part, any such determination of the Commission 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.
(f) Commencement of proceeding for promulgation of regulation; noticeA proceeding for the promulgation of a regulation under section 1261(q)(1) of this title classifying an article or substance as a banned hazardous substance or a regulation under subsection (e) of this section may 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 1261(q)(1) of this title 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 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 of the House of Representatives.
(g) Publication of standard; termination of proceeding for promulgation of regulation; monitoring of compliance
(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 1261(q)(1) of this title or subsection (e) of this section, as the case may be, would eliminate or adequately reduce the risk of injury identified in a 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 1261(q)(1) of this title 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 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) Publication of proposed rule together with preliminary regulatory analysisNo regulation under section 1261(q)(1) of this title 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 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 analysis 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 2054(a)(3) of this title 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 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 appropriate Congressional committees. Nothing in this subsection shall preclude any person from submitting an existing standard or portion of a standard as a proposed regulation.
(i) Publication of final regulatory analysis with regulation; required findings; judicial review
(1) The Commission shall not promulgate a regulation under section 1261(q)(1) of this title 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 1261(q)(1) of this title classifying an article or substance as a banned hazardous substance or a regulation under subsection (e) of this section 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) Petition to initiate rulemaking
(Pub. L. 86–613, § 3, July 12, 1960, 74 Stat. 374; Pub. L. 89–756, § 2(d), (e), Nov. 3, 1966, 80 Stat. 1303, 1304; Pub. L. 91–113, § 2(b), Nov. 6, 1969, 83 Stat. 187; Pub. L. 97–35, title XII, § 1203(b)(1), Aug. 13, 1981, 95 Stat. 708; Pub. L. 101–608, title I, §§ 107(b), 108(b), 110(b), Nov. 16, 1990, 104 Stat. 3112, 3113; Pub. L. 110–314, title II, § 204(b)(1), (3), (4)(B), (D), Aug. 14, 2008, 122 Stat. 3041, 3042.)
§ 1263. Prohibited acts
The following acts and the causing thereof are 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 1264(b)(2) of this title 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 1270(b) of this title or to permit access to and copying of any record as authorized by section 1271 of this title.
(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 meanings as in the Federal Food, Drug, and Cosmetic Act [21 U.S.C. 301 et seq.].
(g) The manufacture of a misbranded hazardous substance or banned hazardous substance within the 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 Commission or officers or employees of the Commission, or to the courts when relevant in any judicial proceeding under this chapter, of any information acquired under authority of section 1270 of this title concerning any method of process which as a trade secret is entitled to protection.
(i) The failure to notify the Commission with respect to exports, pursuant to section 1273(d) of this title.
(j) The failure to comply with an order issued under section 1274 of this title.
(k) The introduction or delivery for introduction into interstate commerce of any lead solder which has a lead span in excess of 0.2 percent which does not prominently display a warning label stating the lead span of the solder and warning that the use of such solder in the making of joints or fittings in any private or public potable water supply system is prohibited.
(Pub. L. 86–613, § 4, July 12, 1960, 74 Stat. 375; Pub. L. 89–756, §§ 2(f), 3(b), Nov. 3, 1966, 80 Stat. 1304, 1305; Pub. L. 95–631, § 7(a), Nov. 10, 1978, 92 Stat. 3745; Pub. L. 97–35, title XII, § 1211(f)(2), Aug. 13, 1981, 95 Stat. 723; Pub. L. 99–339, title I, § 109(d)(2), June 19, 1986, 100 Stat. 653; Pub. L. 110–314, title II, § 204(b)(4)(B), (C), (H), Aug. 14, 2008, 122 Stat. 3041, 3042.)
§ 1264. Penalties; exceptions
(a) Criminal penalties
(b) Exceptions
(c) Civil penalties
(1) Any person who knowingly violates section 1263 of this title shall be subject to a civil penalty not to exceed $100,000 for each such violation. Subject to paragraph (2), a violation of subsections (a), (b), (c), (d), (f), (g), (i), (j), and (k) of section 1263 of this title shall constitute a separate offense with respect to each substance involved, except that the maximum civil penalty shall not exceed $15,000,000 for any related series of violations. A violation of section 1263(e) of this title shall constitute a separate violation with respect to each failure or refusal to allow or perform an act required by section 1263(e) of this title; 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 $15,000,000 for any related series of violations.
(2) The second sentence of paragraph (1) of this subsection shall not apply to violations of subsection (a) or (c) of section 1263 of this title—
(A) if the person who violated such subsection is not the manufacturer, importer, or private labeler or a distributor of the substances 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 1263 of this title, the Commission shall consider the nature, circumstances, extent, and gravity of the violation, including the nature of the substance, the severity of the risk of injury, the occurrence or absence of injury, the amount of the substance distributed, the appropriateness of such penalty in relation to the size of the business of the person charged, including how to mitigate undue adverse economic impacts on small businesses, and such other factors as appropriate.
(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, including how to mitigate undue adverse economic impacts on small businesses, the nature, circumstances, extent, and gravity of the violation, including,1
1 So in original. The comma probably should not appear.
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, and such other factors as appropriate. 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 of 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, 2011, 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 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) Civil action for injunction
(Pub. L. 86–613, § 5, July 12, 1960, 74 Stat. 376; Pub. L. 89–756, §§ 2(g), 3(c), Nov. 3, 1966, 80 Stat. 1304, 1305; Pub. L. 95–631, § 7(b), Nov. 10, 1978, 92 Stat. 3745; Pub. L. 101–608, title I, §§ 115(b), 118(a), Nov. 16, 1990, 104 Stat. 3119, 3121; Pub. L. 110–314, title II, §§ 204(b)(4)(B), (H), 217(a)(2), (b)(1)(B), (c)(3), Aug. 14, 2008, 122 Stat. 3041, 3042, 3058, 3059, 3060.)
§ 1265. Seizures
(a) Grounds and jurisdiction
(b) Procedure; multiplicity of pending proceedings
(c) Disposition of goods after decree of condemnation
(d) Costs and fees
(e) Removal of case for trial
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.
(Pub. L. 86–613, § 6, July 12, 1960, 74 Stat. 376; Pub. L. 89–756, §§ 2(h), 3(d), Nov. 3, 1966, 80 Stat. 1304, 1305; Pub. L. 110–314, title II, § 204(b)(4)(B), Aug. 14, 2008, 122 Stat. 3041.)
§ 1266. Hearing before report of criminal violation
Before any violation of this chapter is reported by the Commission to any United States attorney for institution of a criminal proceeding, the person against whom such proceeding is contemplated shall be given appropriate notice and an opportunity to present his views, either orally or in writing, with regard to such contemplated proceeding.
(Pub. L. 86–613, § 7, July 12, 1960, 74 Stat. 377; Pub. L. 110–314, title II, § 204(b)(4)(B), Aug. 14, 2008, 122 Stat. 3041.)
§ 1267. Injunctions; criminal contempt; trial by court or jury
(a) Jurisdiction
(b) Trials
(Pub. L. 86–613, § 8, July 12, 1960, 74 Stat. 378.)
§ 1268. Proceedings in name of United States; subpenas
All criminal proceedings and all libel or injunction proceedings for the enforcement, or to restrain violations, of this chapter shall be by and in the name of the United States. Subpenas for witnesses who are required to attend a court of the United States in any district may run into any other district in any such proceeding.
(Pub. L. 86–613, § 9, July 12, 1960, 74 Stat. 378.)
§ 1269. Regulations
(a) Authority
(b) Joint regulations
(Pub. L. 86–613, § 10, July 12, 1960, 74 Stat. 378; Pub. L. 110–314, title II, § 204(b)(4)(B), (E), Aug. 14, 2008, 122 Stat. 3041, 3042.)
§ 1270. Examinations and investigations
(a) Authority to conduct
(b) Inspection; notice; samples
(c) Receipt for sample; results of analysis
(Pub. L. 86–613, § 11, July 12, 1960, 74 Stat. 378; Pub. L. 110–314, title II, § 204(b)(4)(B), (C), Aug. 14, 2008, 122 Stat. 3041, 3042.)
§ 1271. Records of interstate shipment
For the purpose of enforcing the provisions of this chapter, carriers engaged in interstate commerce, and persons receiving hazardous substances in interstate commerce or holding such hazardous substances so received shall, upon the request of an officer or employee duly designated by the Commission, permit such officer or employee, at reasonable times, to have access to and to copy all records showing the movement in interstate commerce of any such hazardous substance, or the hol
(Pub. L. 86–613, § 12, July 12, 1960, 74 Stat. 379; Pub. L. 91–452, title II, § 219, Oct. 15, 1970, 84 Stat. 929; Pub. L. 110–314, title II, § 204(b)(4)(B), Aug. 14, 2008, 122 Stat. 3041.)
§ 1272. Publicity; reports; dissemination of information
(a) Summaries of judgments, decrees, orders
(b) Information as to health dangers and investigations
(Pub. L. 86–613, § 13, July 12, 1960, 74 Stat. 379; Pub. L. 110–314, title II, § 204(b)(4)(B), (C), Aug. 14, 2008, 122 Stat. 3041, 3042.)
§ 1273. Imports
(a) Delivery of samples to Commission; examination; refusal of admission
(b) Disposition of refused articles
(c) Expenses in connection with refused articles
(d) Statement of exportation: filing period, information; notification of foreign country; petition for minimum filing period: good cause
(Pub. L. 86–613, § 14, July 12, 1960, 74 Stat. 379; Pub. L. 89–756, §§ 2(i), 3(e), Nov. 3, 1966, 80 Stat. 1304, 1305; Pub. L. 95–631, § 7(c), Nov. 10, 1978, 92 Stat. 3746; Pub. L. 110–314, title II, § 204(b)(4)(D), (F)–(I), Aug. 14, 2008, 122 Stat. 3042.)
§ 1274. Remedies respecting banned hazardous substances
(a) Notice to protect public; form and contentsIf 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:
(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 span of any notice required to be given under the order.
(b) Order of Commission; repair, replacement, or refundIf 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 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 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 note 2 of the Harmonized Tariff Schedule of the United States), or from doing any combination of such actions, with respect to the article or substance with respect to which the order was issued.
(c) Discretionary remedial activities available to Commission; orders; contents
(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 commerce, 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 span 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 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.
(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 note 2 of the Harmonized Tariff Schedule of the United States), or from doing any combination of such actions, with respect to the toy or article with respect to which the order was issued.
(d) Charge for remedy; reimbursement for expenses
(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, if the Commission determines such reimbursement to be in the public interest.
(e) Hearing; representative of class
(f) “Manufacturer” defined
(g) Cost-benefit analysis of notification or other action not required
(Pub. L. 86–613, § 15, as added Pub. L. 91–113, § 4(a), Nov. 6, 1969, 83 Stat. 189; amended Pub. L. 97–35, title XII, § 1211(f)(1), Aug. 13, 1981, 95 Stat. 721; Pub. L. 97–414, § 9(l), Jan. 4, 1983, 96 Stat. 2065; Pub. L. 98–491, § 2, Oct. 17, 1984, 98 Stat. 2269; Pub. L. 100–418, title I, § 1214(c), Aug. 23, 1988, 102 Stat. 1156; Pub. L. 101–608, title I, § 111(b), Nov. 16, 1990, 104 Stat. 3114; Pub. L. 110–314, title II, § 204(b)(4)(H), Aug. 14, 2008, 122 Stat. 3042.)
§ 1275. Toxicological Advisory Board
(a) Establishment; functions; review and recommendations
(1) Within 180 days after November 10, 1978, the Commission shall establish, in accordance with subsection (b), a Toxicological Advisory Board (hereinafter in this section referred to as the “Board”) to advise the Commission on precautionary labeling for hazardous substances. The Board shall provide scientific and technical advice to the Commission concerning—
(A) proper labeling under sections 1261(p)(1) and 1262(b) of this title, with special attention to—
(i) the description of precautionary measures required under section 1261(p)(1)(F) of this title;
(ii) the statement describing the hazards associated with a hazardous substance as required under section 1261(p)(1)(E) of this title; and
(iii) instructions for first-aid treatment under section 1261(p)(1)(G) of this title; and
(B) the exemption of certain substances from labeling requirements under this chapter as permitted under section 1262(c) of this title.
(2) In carrying out its duties under paragraph (1)(A), the Board shall review any labeling requirements or guidelines which have been established by the Commission under section 1261(p)(1) or 1262(b) of this title. Based upon its review the Board shall develop and submit to the Commission, within one year after the date that the Board is established, any recommendations for revisions in such labeling requirements or guidelines which the Board considers to be appropriate, including any general recommendations which may be of assistance to the Commission in carrying out its responsibilities under section 1261(p)(1) or 1262(b) of this title. The Board shall periodically review the labeling requirements and guidelines established by the Commission under such sections to determine whether such requirements and guidelines reflect relevant changes in scientific knowledge and shall revise any general recommendations submitted to the Commission under this paragraph to reflect such changes.
(b) Membership; appointment; qualifications; Chairman; term of office; reappointment; vacancies; meetings; compensation and travel expenses; Federal nonemployee status
(1) The Board shall be composed of nine members appointed by the Commission. Each member of the Board shall be qualified by training and experience in one or more fields applicable to the duties of the Board, and at least three of the members of the Board shall be members of the American Board of Medical Toxicology. The Chairman of the Board shall be elected by the Board from among its members.
(2) The members of the Board shall be appointed for terms of three years. Members of the Board may be reappointed.
(3) Any vacancy in the Board shall be filled in the same manner in which the original appointment was made. Any member appointed to fill a vacancy occurring before the expiration of the term for which his predecessor was appointed shall serve only for the remainder of such term.
(4) The Board shall meet at such times and places as may be designated by the Commission in consultation with the Chairman, but not less than two times each year.
(5) Members of the Board who are not officers or employees of the United States shall, while attending meetings or conferences of the Board or while otherwise engaged in the business of the Board, be entitled to receive compensation at a rate fixed by the Commission, not exceeding the daily equivalent of the annual rate of basic pay payable for grade GS–18 of the General Schedule under section 5332 of title 5. While away from their homes or regular places of business, such members may be allowed travel expenses, including per diem in lieu of subsistence, in the same manner as persons employed intermittently in the Government service are allowed under section 5703(b) 1
1 See References in Text note below.
of such title. Individuals serving as members on the Board shall not be considered officers or employees of the United States by reason of receiving payments under this paragraph.(c) Termination
(Pub. L. 86–613, § 20, as added Pub. L. 95–631, § 10, Nov. 10, 1978, 92 Stat. 3747; amended Pub. L. 110–314, title II, § 204(b)(4)(H), (I), Aug. 14, 2008, 122 Stat. 3042.)
§ 1276. Congressional veto of hazardous substances regulations
(a) Transmission to Congress
(b) Disapproval by concurrent resolution
Any regulation specified in subsection (a) shall not take effect if—
(1) within the ninety calendar days of continuous session of the Congress which occur after the date of the promulgation of such regulation, both Houses of the Congress adopt a concurrent resolution, the matter after the resolving clause of which is as follows (with the blank spaces appropriately filled): “That the Congress disapproves the regulation which was promulgated under the Federal Hazardous Substances Act by the Consumer Product Safety Commission with respect to and which was transmitted to the Congress on and disapproves the regulation for the following reasons: .”; or
(2) within the sixty calendar days of continuous session of the Congress which occur after the date of the promulgation of such regulation, one House of the Congress adopts such concurrent resolution and transmits such resolution to the other House and such resolution is not disapproved by such other House within the thirty calendar days of continuous session of the Congress which occur after the date of such transmittal.
(c) Presumptions from Congressional action or inaction
(d) Continuous session of Congress
For purposes of this section—
(1) continuity of session is broken only by an adjournment of the Congress sine die; and
(2) the days on which either House is not in session because of an adjournment of more than three days to a day certain are excluded in the computation of the periods of continuous session of the Congress specified in subsection (b).
(Pub. L. 86–613, § 21, as added Pub. L. 97–35, title XII, § 1207(c), Aug. 13, 1981, 95 Stat. 718; amended Pub. L. 110–314, title II, § 204(b)(4)(H), Aug. 14, 2008, 122 Stat. 3042.)
§ 1277. Labeling of art materials
(a) Regulation status of standard D–4236 of American Society for Testing and Materials
(b) Requirements applicable to standard D–4236The following shall apply with respect to the standard of the American Society for Testing and Materials referred to in subsection (a):
(1) The term “art material or art material product” shall mean any substance marketed or represented by the producer or repackager as suitable for use in any phase of the creation of any work of visual or graphic art of any medium. The term does not include economic poisons subject to the Federal Insecticide, Fungicide, and Rodenticide Act [7 U.S.C. 136 et seq.] or drugs, devices, or cosmetics subject to the Federal Food, Drug, and Cosmetics Act [21 U.S.C. 301 et seq.].
(2) The standard referred to in subsection (a) as modified by this subsection applies to art materials intended for users of any age.
(3) Each producer or repackager of art materials shall describe in writing the criteria used to determine whether an art material has the potential for producing chronic adverse health effects. Each producer or repackager shall be responsible for submitting to the Commission these criteria and a list of art materials that require hazard warning labels under this section.
(4) Upon the request of the Commission, a producer or repackager of art materials shall submit to the Commission product formulations and the criteria used to determine whether the art material or its ingredients have the potential for producing chronic adverse health effects.
(5) All art materials that require chronic hazard labeling pursuant to this section must include on the label the name and address of the producer or repackager of the art materials and an appropriate telephone number and a statement signifying that such art materials are inappropriate for use by children.
(6) If an art material producer or repackager becomes newly aware of any significant information regarding the hazards of an art material or ways to protect against the hazard, this new information must be incorporated into the labels of such art materials that are manufactured after 12 months from the date of discovery. If a producer or repackager reformulates an art material, the new formulation must be evaluated and labeled in accordance with the standard referred to in subsection (a) as modified by this subsection.
(7) If the Commission determines that an art material in a container equal to or smaller than one fluid ounce (30 ml) (if the product is sold by volume) or one ounce net weight (28 g) (if the product is sold by weight) has the potential for producing chronic adverse health effects with customary or reasonably foreseeable use despite its small size, the Commission may require the art material to carry a label which conveys all the information required under the standard referred to in subsection (a) as modified by this subsection for art materials in a container greater than one fluid ounce or one ounce net weight. If the information cannot fit on the package label, the Commission shall require the art material to have a package insert which conveys all this information. If the art material has a package insert, the label on the product shall include a signal word in conformance with paragraph 5 of the standard referred to in subsection (a), a list of potentially harmful or sensitizing components, and the statement “see package insert before use”. For purposes of this subsection, the term “package insert” means a display of written, printed, or graphic matter upon a leaflet or suitable material accompanying the art material. This requirement is in addition to, and is not meant to supersede, the requirement of paragraph 5.8 of the standard designated D–4236.
(8) In determining whether an art material has the potential for producing chronic adverse health effects, including carcinogenicity and potential carcinogenicity, a toxicologist shall take into account opinions of various regulatory agencies and scientific bodies.
(c) Revisions incorporated into standard D–4236; notice and hearing; amendment; opportunity for comment; transcript of proceedings
(d) Guidelines for determining chronically hazardous art materials; issuance; public hearing; scope of criteria; review; amendment
(1) Within 1 year of November 18, 1988, the Commission shall issue guidelines which specify criteria for determining when any customary or reasonably foreseeable use of an art material can result in a chronic hazard. In developing such guidelines the Commission shall conduct a public hearing and provide reasonable opportunity for the submission of comments.
(2) The guidelines established under paragraph (1) shall include—
(A) criteria for determining when art materials may produce chronic adverse health effects in children and criteria for determining when art materials may produce such health effects in adults,
(B) criteria for determining which substances contained in art materials have the potential for producing chronic adverse health effects and what those effects are,
(C) criteria for determining the bioavailability of chronically hazardous substances contained in art materials when the products are used in a customary or reasonably foreseeable manner, and
(D) criteria for determining acceptable daily intake levels for chronically hazardous substances contained in art materials.
Where appropriate, criteria used for assessing risks to children may be the same as those used for adults.
(3) The Commission shall periodically review the guidelines established under paragraph (1) to determine whether the guidelines reflect relevant changes in scientific knowledge and in the formulations of art materials, and shall amend the guidelines to reflect such changes.
(e) Informational and educational materials; development and distribution
(f) Injunctions
(Pub. L. 86–613, § 23, as added Pub. L. 100–695, Nov. 18, 1988, 102 Stat. 4568.)
§ 1278. Requirements for labeling certain toys and games
(a) Toys or games for children who are at least 3
(1) RequirementThe 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.
(2) Label
(b) Balloons, small balls, and marbles
(1) RequirementIn 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 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) LabelThe cautionary statement required under paragraph (1) for a balloon, ball, marble, toy, or game shall be as follows:
(A) Balloons
(B) Balls
(C) Marbles
(D) Toys and games
(c) Advertising
(1) Requirement
(A) Cautionary statement
(B) Application to retailers
(i) Requirement to inform
(ii) Retailer’s requirement to inquire
(C) DisplayThe cautionary statement required by subparagraph (A) shall be prominently displayed—
(i) in the primary language used in the advertisement;
(ii) in conspicuous and legible type in contrast by typography, layout, or color with other material printed or displayed in such advertisement; and
(iii) in a manner consistent with part 1500 of title 16, Code of Federal Regulations.
(D) DefinitionsIn this subsection:
(i) The terms “manufacturer”, “distributor”, and “private labeler” have the meaning given those terms in section 2052 of this title.
(ii) The term “retailer” has the meaning given that term in section 2052 of this title, but does not include an individual whose selling activity is intermittent and does not constitute a trade or business.
(2) Effective dateThe requirement in paragraph (1) shall take effect—
(A) with respect to advertisements on Internet websites, 120 days after August 14, 2008; and
(B) with respect to catalogues and other printed materials, 180 days after August 14, 2008.
(3) Rulemaking
(4) Enforcement
(d) General labeling requirements
(1) In generalExcept 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 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
(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:
(ii) In the case of a product to which subsection (b)(2)(A) applies, the statement specified by this subparagraph is as follows:
(e) Treatment as misbranded hazardous substance
(Pub. L. 86–613, § 24, as added Pub. L. 103–267, title I, § 101(a), June 16, 1994, 108 Stat. 722; amended Pub. L. 110–314, title I, § 105, Aug. 14, 2008, 122 Stat. 3031.)
§ 1278a. Children’s products containing lead; lead paint rule
(a) General lead ban
(1) Treatment as a banned hazardous substance
(2) Lead limit
(A) 600 parts per million
(B) 300 parts per million
(C) 100 parts per million
(D) Alternate reduction of limit
(E) Periodic review and further reductions
(3) Application
(b) Exclusion of certain materials or products and inaccessible component parts
(1) Functional purpose exception
(A) In generalThe Commission, on its own initiative or upon petition by an interested party, shall grant an exception to the limit in subsection (a) for a specific product, class of product, material, or component part if the Commission, after notice and a hearing, determines that—
(i) the product, class of product, material, or component part requires the inclusion of lead because it is not practicable or not technologically feasible to manufacture such product, class of product, material, or component part, as the case may be, in accordance with subsection (a) by removing the excessive lead or by making the lead inaccessible;
(ii) the product, class of product, material, or component part is not likely to be placed in the mouth or ingested, taking into account normal and reasonably foreseeable use and abuse of such product, class of product, material, or component part by a child; and
(iii) an exception for the product, class of product, material, or component part will have no measurable adverse effect on public health or safety, taking into account normal and reasonably foreseeable use and abuse.
(B) Measurement
(C) Procedures for granting exception
(i) Burden of proof
(ii) Grounds for decision
(iii) Admissible evidence
(iv) Scope of exception
(D) Limitation on exceptionIf the Commission grants an exception for a product, class of product, material, or component part under subparagraph (A), the Commission may, as necessary to protect public health or safety—
(i) establish a lead limit that such product, class of product, material, or component part may not exceed; or
(ii) place a manufacturing expiration date on such exception or establish a schedule after which the manufacturer of such product, class of product, material, or component part shall be in full compliance with the limit established under clause (i) or the limit set forth in subsection (a).
(E) Application of exception
(F) Previously submitted petitions
(2) Exception for inaccessible component parts
(A) In general
(B) Inaccessibility proceeding
(C) Application pending CPSC guidance
(3) Certain barriers disqualified
(4) Certain electronic devicesIf the Commission determines that it is not technologically feasible for certain electronic devices, including devices containing batteries, to comply with subsection (a), the Commission, by regulation, shall—
(A) issue requirements to eliminate or minimize the potential for exposure to and accessibility of lead in such electronic devices, which may include requirements that such electronic devices be equipped with a child-resistant cover or casing that prevents exposure to and accessibility of the parts of the product containing lead; and
(B) establish a schedule by which such electronic devices shall be in full compliance with the limits in subsection (a), unless the Commission determines that full compliance will not be technologically feasible for such devices within a schedule set by the Commission.
(5) Exception for off-highway vehicles
(A) In general
(B) Off-highway vehicle definedFor purposes of this section, the term “off-highway vehicle”—
(i) means any motorized vehicle—(I) that is manufactured primarily for use off public streets, roads, and highways;(II) designed to travel on 2, 3, or 4 wheels; and(III) that has either—(aa) a seat designed to be straddled by the operator and handlebars for steering control; or(bb) a nonstraddle seat, steering wheel, seat belts, and roll-over protective structure; and
(ii) includes a snowmobile.
(6) Bicycles and related products
(7) Exclusion of certain used children’s products
(A) General exclusion
(B) DefinitionIn this paragraph, the term “used children’s product” means a children’s product (as defined in section 3(a) of the Consumer Product Safety Act (15 U.S.C. 2052(a)) 1
1 So in original. Probably should be “2052(a)))”.
that was obtained by the seller for use and not for the purpose of resale or was obtained by the seller, either directly or indirectly, from a person who obtained such children’s product for use and not for the purpose of resale. Such term also includes a children’s product that was donated to the seller for charitable distribution or resale to support charitable purposes. Such term shall not include—(i) children’s metal jewelry;
(ii) any children’s product for which the donating party or the seller has actual knowledge that the product is in violation of the lead limits in this section; or
(iii) any other children’s product or product category that the Commission determines, after notice and a hearing.
For purposes of this definition, the term “seller” includes a person who lends or donates a used children’s product.
(8) Periodic review
(c) Application with ASTM F963
(d) Technological feasibility definedFor purposes of this section, a limit shall be deemed technologically feasible with regard to a product or product category if—
(1) a product that complies with the limit is commercially available in the product category;
(2) technology to comply with the limit is commercially available to manufacturers or is otherwise available within the common meaning of the term;
(3) industrial strategies or devices have been developed that are capable or will be capable of achieving such a limit by the effective date of the limit and that companies, acting in good faith, are generally capable of adopting; or
(4) alternative practices, best practices, or other operational changes would allow the manufacturer to comply with the limit.
(e) Pending rulemaking proceedings to have no effectThe pendency of a rulemaking proceeding to consider—
(1) a delay in the effective date of a limit or an alternate limit under this section related to technological feasibility,
(2) an exception for certain products or materials or inaccessibility guidance under subsection (b) of this section, or
(3) any other request for modification of or exemption from any regulation, rule, standard, or ban under this Act or any other Act enforced by the Commission,
shall not delay the effect of any provision or limit under this section nor shall it stay general enforcement of the requirements of this section.
(f) More stringent lead paint ban
(1) In general
(2) Periodic review and reduction
(3) Methods for screening lead in small painted areas
(4) Alternative methods of measuring lead in paint generally
(A) Study
(B) Rulemaking
(5) Periodic review
(6) No effect on legal limit
(7) Construction
(g) Treatment as a regulation under the FHSA
(Pub. L. 110–314, title I, § 101, Aug. 14, 2008, 122 Stat. 3017; Pub. L. 112–28, §§ 1, 10(b), Aug. 12, 2011, 125 Stat. 273, 283.)