HBA-KMH S.B. 1533 76(R)    BILL ANALYSIS


Office of House Bill AnalysisS.B. 1533
By: Carona
Public Health
4/30/1999
Engrossed



BACKGROUND AND PURPOSE 

Current law requires the Texas Board of Health (board) to regulate
hazardous substances.  H.B. 2638 amends flammability standards set forth by
the board for certain products; provides for the labeling of certain toys
and games and art materials as hazardous substances; and provides special
packaging standards for hazardous substances.  This bill also provides
criminal, administrative, and civil penalties for violation of the law
regulating hazardous 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 3
(Section 501.021, Health and Safety Code) and SECTION 6 (Sections 501.0231,
501.0232, and 501.0233, Health and Safety Code) of this bill; and
rulemaking authority previously delegated to the Texas Board of Health is
modified in SECTION 7 (Section 501.024, Health and Safety Code)  and
SECTION 8 (Section 501.025, Health and Safety Code) of this bill. 

SECTION BY SECTION ANALYSIS

SECTION 1.  Amends Section 501.001, Health and Safety Code, to define
"commissioner" as the commissioner of public health.  Includes a hazardous
substance or a toy that is not properly packaged in the definition of
"misbranded hazardous substance."  Makes conforming changes. 

SECTION 2.  Amends Sections 501.002(a) and (d), Health and Safety Code, as
follows: 

(a) Includes a substance or mixture of substances that is extremely
flammable or combustible in the list of what is a hazardous substance. 

(d) Provides that a substance or article is extremely flammable, flammable
or combustible if it is defined as so by rule of the Texas Board of Health
(board).  Requires the board to define the terms as defined by the certain
federal law and regulations, unless it determines that the health, safety,
and welfare of persons in this state requires a different definition.
Provides that terms each have the meaning assigned by federal law and
regulation until the board adopts another definition. Deletes language
providing that a substance is flammable if it has a flash point of 80
degrees Fahrenheit or less, as determined by the Tagliabue Open Cup Tester. 

SECTION 3.  Amends Section 501.021, Health and Safety Code, as follows:

Sec. 501.021.  New Title: FLAMMABILITY STANDARDS; DETERMINATION OF
FLAMMABILITY.  Requires the board, by rule, to establish flammability
standards for solids, fabrics, children's clothing, household furnishings,
and the contents of selfpressurized containers.  Provides that the
standards  must conform to standards prescribed by certain federal law and
regulations, unless the board determines that the health, safety, and
welfare of persons in this state requires a different definition.  Provides
that the flammability standards are the standards prescribed by federal law
and regulations, until the board adopts different standards.   Authorizes
the Texas Department of Health (TDH) to obtain samples of the article
regulated by this section and determine the flammability of the articles
for  compliance with applicable standards.  Makes conforming changes. 

SECTION 4.  Amends Section 501.022(a), Health and Safety Code, to make
conforming changes. 

SECTION 5.  Amends the heading for Section 501.023, Health and Safety Code,
as follows: 

Sec. 501.023.  New Title:  GENERAL LABELING AND PACKAGING REQUIREMENTS.
Adds "general" and "and packaging requirements" to the title. 

SECTION 6.  Amends Subchapter B, Chapter 501, Health and Safety Code, by
adding Sections 501.0231-501.0233, as follows: 

Sec. 501.0231.  LABELING OF CERTAIN TOYS AND GAMES.  (a) Requires the
labeling of toys or games intended for use by children, including the parts
of those toys or games, in a the manner required by rule of the board.
Requires the consistency of the board's rules under this subsection with
certain federal guidelines and regulations,  unless the board determines
that the health, safety, and welfare of persons in this state requires a
deviation from federal standards. Requires the labeling to follow certain
federal guidelines and regulations, until the board adopts rules under this
subsection. 

(b) Requires the labeling of latex balloons, small balls, marbles, and any
toy or game that contains such a balloon, ball, or marble in a manner
required by rule of the board. Requires the consistency of the board's
rules under this subsection with certain federal guidelines and
regulations,  unless the board determines that the health, safety, and
welfare of persons in this state requires a deviation from federal
standards.  Requires the labeling to follow certain federal guidelines and
regulations, until the board adopts rules under this subsection. 

Sec. 501.0232.  REVIEW AND LABELING OF HAZARDOUS ART MATERIALS. Requires
the review of art materials by a toxicologist.  Requires art materials to
be labeled in the manner required by rule of the board.  Requires the
consistency of the board's rules under this subsection with certain federal
law and regulations, unless the board determines that the health, safety,
and welfare of persons in this state requires a deviation from federal
standards.  Requires that the labeling of art materials follow certain
federal law and regulations, until the board adopts rules under this
section. 

Sec. 501.0233.  PACKAGING OF HAZARDOUS SUBSTANCES.  Requires the packaging
of hazardous substances in the manner required by special packaging rules
adopted by the board.  Requires the consistency of the board's rules under
this subsection with certain federal law and regulations, unless the board
determines that the health, safety, and welfare of persons in this state
requires a deviation from federal standards.  Requires that the packaging
of hazardous substances follow certain federal law and regulations, until
the board adopts rules under this subsection.  

SECTION 7.  Amends Section 501.024, Health and Safety Code, to include
persons who import a hazardous substance in this state and persons who
distribute a hazardous substance in this state under the person's private
brand name among those persons who are required to have a registration
statement on file with TDH.  Requires the board, by rule, to detail the
registration requirements, in addition to prescribe the contents of the
registration statement.  Requires the person to file the registration
statement with TDH in each succeeding year the person continues business in
this state, not later than the anniversary of the initial filing, rather
than September 1 of each year after the initial filing.  Provides that the
registration fee is prescribed by the board, rather than $150.  Provides
that a hazardous substance is subject to seizure and disposition under
Section 501.033 if the person who manufactures, imports, repacts, or
distributes the hazardous substance does not, after notice by TDH, register
with TDH and make timely payment of the fee. Makes conforming changes. 

SECTION 8.  Amends Section 501.025, Health and Safety Code, to authorize
the board to adopt reasonable rules necessary for the efficient
administration, in addition to enforcement, of this chapter.  Makes
conforming changes. 
 
SECTION 9.  Amends Subchapter B, Chapter 501, Health and Safety Code, by
adding Section 501.026, as follows: 

Sec. 501.026.  FEES.  Requires the board, by rule, to set reasonable
registration fees in an amount designed to recover not more than the costs
to TDH of administering, monitoring compliance with, enforcing, and
conducting tests under this chapter. 

SECTION 10.  Amends Section 501.031(b), Health and Safety Code, to
authorize TDH to obtain, rather than pay for, samples of any materials,
packaging, labeling, or finished product. 

SECTION 11.  Amends Section 501.033(b), Health and Safety Code, to requires
TDH to petition a district court of Travis County or of the county, rather
than the district court of the county, in which the article is located to
authorize the destruction of the article. 

SECTION 12.  Amends Section 501.034, Health and Safety Code, by adding
Subsections (g) and (h), as follows: 

(g) Prohibits a person from manufacturing, importing, or repacking a
hazardous substance that is to be distributed in this state or otherwise
distribute a hazardous substance in this state without complying with
Section 501.024. 

(h) 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. 

SECTION 13.  Amends Sections 501.035(a) and (b), Health and Safety Code, to
provide that a person commits a Class A, rather than Class B, misdemeanor
if the person violates, rather than intentionally, knowingly, or recklessly
violates, this chapter (Hazardous Substances) or a rule adopted under this
chapter.  Deletes language providing that an offense under this chapter is
a Class A misdemeanor if it is shown on trial that the person's intent was
to defraud another. 

SECTION 14.  Amends Subchapter C, Chapter 501, Health and Safety Code, by
adding Sections 501.036-501.037, as follows:  

Sec. 501.036.  INJUNCTION. (a)  Authorizes the commissioner, if it appears
that a person has violated, is violating, or is threatening to violate this
chapter or a rule adopted or order issued under this chapter, to request
the attorney general or a district, county, or city attorney of the county
or municipality in which the violation has occurred, is occurring, or may
occur to institute certain civil  
action.  

(b) Provides that venue for a suit brought under this section is in the
county or municipality in which the violation occurred or in Travis County.
 
(c)  Authorizes the commissioner and either the attorney general or the
district, county, or city attorney, as appropriate, to each recover from
the violator reasonable expenses incurred in obtaining injunctive relief
under this section, including investigative costs, court costs, reasonable
attorney's fees, witness fees, and deposition expenses.  Authorizes the
appropriation of expenses recovered by the commissioner only to TDH to
administer and enforce this chapter.  Authorizes appropriation of expenses
recovered by the attorney general only to the attorney general.  
 
Sec. 501.037.  RECALL ORDERS. (a)  Authorizes the commissioner, in
conjunction with the detention of an article under Section 501.033, to
order that a hazardous substance be recalled from commerce. Sets forth
recall procedure.  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.  Authorizes the court, in a judgment in favor of the
state, to award costs, attorney's fees, and court costs related to the
recall together with interest on those costs from the time an expense was
incurred through the date TDH is reimbursed. 
 
 SECTION 15. Effective date: September 1, 1999.
 
SECTION 16. (a)  Makes application of a change in law made by this Act
relating to the criminal, civil, or administrative enforcement of Chapter
501, Health and Safety Code, prospective. 
  
SECTION 17.  Emergency clause.