HBA-DMH S.B. 1045 77(R)    BILL ANALYSIS


Office of House Bill AnalysisS.B. 1045
By: Moncrief
Public Health
5/7/2001
Engrossed



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.
Senate Bill 1045 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 (Sections 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

Senate Bill 1045 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).  The bill requires hazardous
substances to be packaged in the manner required by special packaging rules
adopted by TBH (Sec. 501.0233).   

S.B. 1045 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.  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). 

S.B. 1045 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). 

S.B. 1045 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). 

S.B. 1045 establishes that an intentional, knowing, or reckless violation
of the hazardous substances provisions or rules is a Class A misdemeanor.
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).   

S.B. 1045 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.