Introduced Version






HOUSE BILL No. 1495

_____


DIGEST OF INTRODUCED BILL



Citations Affected: IC 16-18-2; IC 16-41-39.5.

Synopsis: Lead in children's products. Prohibits use of toxic substances in toys and child care articles. Requires the department of health to administer a program for the prohibition of toxic substances in toys and child care articles. Establishes civil penalties for violations. Requires a manufacturer to recall prohibited products. Creates the toxic substances in children's products fund (fund) to receive civil penalties assessed for the use of toxic substances in toys and child care articles. Provides that money in the fund is to be used for public awareness, prevention, toxic substance testing, and children's safety programs. Makes a continuous appropriation.

Effective: July 1, 2009.





VanDenburgh




    January 14, 2009, read first time and referred to Committee on Family, Children and Human Affairs.







Introduced

First Regular Session 116th General Assembly (2009)


PRINTING CODE. Amendments: Whenever an existing statute (or a section of the Indiana Constitution) is being amended, the text of the existing provision will appear in this style type, additions will appear in this style type, and deletions will appear in this style type.
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HOUSE BILL No. 1495



    A BILL FOR AN ACT to amend the Indiana Code concerning health and to make an appropriation.

Be it enacted by the General Assembly of the State of Indiana:

SOURCE: IC 16-18-2-54.3; (09)IN1495.1.1. -->     SECTION 1. IC 16-18-2-54.3 IS ADDED TO THE INDIANA CODE AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2009]: Sec. 54.3. "Child", for purposes of IC 16-41-39.5, has the meaning set forth in IC 16-41-39.5-1.
SOURCE: IC 16-18-2-54.4; (09)IN1495.1.2. -->     SECTION 2. IC 16-18-2-54.4 IS ADDED TO THE INDIANA CODE AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2009]: Sec. 54.4. "Child care article", for purposes of IC 16-41-39.5, has the meaning set forth in IC 16-41-39.5-2.
SOURCE: IC 16-18-2-69.1; (09)IN1495.1.3. -->     SECTION 3. IC 16-18-2-69.1 IS ADDED TO THE INDIANA CODE AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2009]: Sec. 69.1. "Consumer", for purposes of IC 16-41-39.5, has the meaning set forth in IC 16-41-39.5-3.
SOURCE: IC 16-18-2-143; (09)IN1495.1.4. -->     SECTION 4. IC 16-18-2-143, AS AMENDED BY P.L.102-2008, SECTION 5, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2009]: Sec. 143. (a) "Fund", for purposes of IC 16-26-2, has the meaning set forth in IC 16-26-2-2.
    (b) "Fund", for purposes of IC 16-31-8.5, has the meaning set forth in IC 16-31-8.5-2.
    (c) "Fund", for purposes of IC 16-41-39.4, refers to the childhood lead poisoning prevention fund established by IC 16-41-39.4-3.1.
    (d) "Fund", for purposes of IC 16-46-5, has the meaning set forth in IC 16-46-5-3.
    (e) "Fund", for purposes of IC 16-46-12, has the meaning set forth in IC 16-46-12-1.
    (f) "Fund", for purposes of IC 16-41-42.2, has the meaning set forth in IC 16-41-42.2-2.
     (g) "Fund", for purposes of IC 16-41-39.5, has the meaning set forth in IC 14-41-39.5-4.
SOURCE: IC 16-18-2-274; (09)IN1495.1.5. -->     SECTION 5. IC 16-18-2-274 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2009]: Sec. 274. (a) "Person" means, except as provided in subsections (b), (c), and (d), an individual, a firm, a partnership, an association, a fiduciary, an executor or administrator, a governmental entity, or a corporation.
    (b) "Person", for purposes of IC 16-25, has the meaning set forth in IC 16-25-1.1-8.
    (c) "Person", for purposes of IC 16-31, means an individual, a partnership, a corporation, an association, a joint stock association, or a governmental entity other than an agency or instrumentality of the United States.
    (d) "Person", for purposes of IC 16-42-10, has the meaning set forth in IC 16-42-10-3.
     (e) "Person", for purposes of IC 16-41-39.5, has the meaning set forth in IC 16-41-39.5-5.
SOURCE: IC 16-18-2-352.5; (09)IN1495.1.6. -->     SECTION 6. IC 16-18-2-352.5 IS ADDED TO THE INDIANA CODE AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2009]: Sec. 352.5. "Toxic substance", for purposes of IC 16-41-39.5, has the meaning set forth in IC 16-41-39.5-6.
SOURCE: IC 16-18-2-352.7; (09)IN1495.1.7. -->     SECTION 7. IC 16-18-2-352.7 IS ADDED TO THE INDIANA CODE AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2009]: Sec. 352.7. "Toy", for purposes of IC 16-41-39.5, has the meaning set forth in IC 16-41-39.5-7.
SOURCE: IC 16-41-39.5; (09)IN1495.1.8. -->     SECTION 8. IC 16-41-39.5 IS ADDED TO THE INDIANA CODE AS A NEW CHAPTER TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2009]:
     Chapter 39.5. Toxic Substances in Children's Products
    Sec. 1. As used in this chapter, "child" refers to an individual who is seven (7) years of age or younger.


    Sec. 2. As used in this chapter, "child care article" means a product designed or intended by the manufacturer to:
        (1) facilitate the sleep, relaxation, or feeding of a child; or
        (2) help a child with sucking or teething.
     Sec. 3. As used in this chapter, "consumer" has the meaning set forth in 15 U.S.C. 2051 through 2085.
     Sec. 4. As used in this chapter, "fund" refers to the toxic substances in children's products fund established by section 12 of this chapter.
     Sec. 5. As used in this chapter, "person" means:
        (1) an individual;
        (2) a partnership;
        (3) a corporation;
        (4) an association;
        (5) a governmental entity; or
        (6) another legal entity.

     Sec. 6. As used in this chapter, "toxic substance" means:
        (1) a substance:
            (A) that contains lead; and
            (B) that has a lead content that is more than six-hundredths percent (0.06%) of the total weight of the substance; or
        (2) a substance:
            (A) that is the coating on an item;
            (B) that contains lead; and
            (C) that has a lead content that is more than six-hundredths percent (0.06%) of the total weight of the substance.
    Sec. 7. As used in this chapter, "toy" means an article designed and made for the amusement of a child or for the child's use in play.

     Sec. 8. The department shall adopt rules under IC 4-22-2 to administer this chapter.
     Sec. 9. (a) A person may not:
        (1) use a toxic substance in making a toy or child care article; or
        (2) apply a toxic substance to a toy or child care article that has been made;
in Indiana.
    (b) A person may not:
        (1) sell;
        (2) offer for sale; or
        (3) transfer;
in Indiana a toy or child care article that contains a toxic substance.
    (c) This section does not apply to the sale of a collectible object that is not marketed or intended to be used by a child as a toy.

     Sec. 10. (a) The state department, in accordance with IC 4-21.5, may assess the following civil penalties against a person for a violation of this chapter:
        (1) If:
            (A) the person is not an individual consumer; and
            (B) the violation is the person's first violation of this chapter;
        a civil penalty of not more than one hundred dollars ($100) per item and a total penalty of not more than five hundred dollars ($500) per item.
        (2) If:
            (A) the person is not an individual consumer; and
            (B) the violation is the person's second violation of this chapter;
        a civil penalty of not less than five hundred dollars ($500) per item and a total penalty of not more than twenty-five thousand dollars ($25,000).
        (3) If:
            (A) the person is not an individual consumer; and
            (B) the violation is the person's third or subsequent violation of this chapter;
        a civil penalty of not more than one thousand dollars ($1,000) per item, and a total penalty of not more than fifty thousand dollars ($50,000).
        (4) If the person:
            (A) is not an individual consumer; and
            (B) knowingly violates this chapter;
        a civil penalty of not more than three (3) times the amount of one thousand dollars ($1,000) per item, and a total civil penalty of not more than three times the amount of fifty thousand dollars ($50,000).
        (5) If:
            (A) the person is the manufacturer of the product; and
            (B) the violation is the person's first violation of this chapter;
        a civil penalty of not more than five thousand dollars ($5,000)

for each violation.
        (6) If:
            (A) the person is the manufacturer of the product; and
            (B) the violation is the person's second or subsequent violation of this chapter;
        a civil penalty of not more than ten thousand dollars ($10,000).
    (b) A civil penalty that would otherwise be assessed against a person under this section may be waived by the state department if the state department determines that the person acted in good faith:
        (1) to comply with this chapter;
        (2) to pursue with due diligence compliance with this chapter; or
        (3) to promptly correct any noncompliance after the discovery of a violation of this chapter.
    (c) Money received by the state department under this section shall be deposited in the fund.
    Sec. 11. A person who manufactures, sells, or distributes a child care article or toy in violation of this chapter must recall the product and reimburse the:
        (1) retailer who sold the product to a consumer; or
        (2) consumer who purchased the product;
for the price of the product and any expenses incurred by the retailer or consumer in connection with the product.
    Sec. 12. (a) The toxic substances in children's products fund is established for:
        (1) the development of programs to promote public awareness of toxic substances in toys;
        (2) prevention;
        (3) toxic testing; and
        (4) the development of programs to promote children's safety.
The state department shall administer the fund.
    (b) The fund consists of the following:
        (1) Appropriations.
        (2) Civil penalties assessed under section 10 of this chapter.
        (3) Gifts.
        (4) Bequests.
        (5) Grants.
    (c) The expenses of administering the fund shall be paid from money in the fund.
    (d) The treasurer of state shall invest the money in the fund not

needed to meet the obligations of the fund in the same manner as other public money may be invested. Interest that accrues from these investments shall be deposited in the fund.
    (e) Money in the fund at the end of a state fiscal year does not revert to the state general fund.
    (f) Money in the fund is continuously appropriated to the state department for purposes set forth in subsection (a).