Products Liability; Children
Prohibits the use of unsafe children's products. Prohibits child care facilities from using or having on the facility premises unsafe children's products. (HB1902 HD1)
HOUSE OF REPRESENTATIVES
TWENTY-FIRST LEGISLATURE, 2002
STATE OF HAWAII
A BILL FOR AN ACT
RELATING TO CHILDREN'S PRODUCT SAFETY.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. The legislature finds that current laws are inadequate to protect children from the sale or leasing of unsafe or recalled children's products. The legislature further finds that a children's product safety law is necessary to protect children from dangerous products by holding commercial users and child care providers accountable for the products they expose to children.
The purpose of this Act is to enact the Children's Product Safety Act in Hawaii.
SECTION 2. The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:
CHILDREN'S PRODUCT SAFETY
§ -1 Short title. This Act may be cited as the "Children's Product Safety Act".
§ -2 Definitions. As used in this chapter, unless the context otherwise requires:
"Children's product" means a product, including a full-size crib, nonfull-size crib, toddler bed, bed, car seat, chair, high chair, booster chair, hook-on chair, bath seat, gate, or other enclosure for confining a child, play yard, stationary activity center, carrier, stroller, walker, swing, or toy or play equipment, that meets the following criteria:
(1) The product is designed or intended for the care of, or use by, children under six years of age or is designed or intended for the care of, or use by, both children under six years of age and children six years of age or older; and
(2) The product is designed or intended to come into contact with the child while the product is used.
(3) Notwithstanding any other provision of this section, a product is not a "children's product" for purposes of this chapter if:
(A) It may be used by or for the care of a child under six years of age, but it is designed or intended for use by the general population or segments of the general population and not solely or primarily for use by or the care of a child; or
(B) It is a medication, drug, or food or is intended to be ingested.
"Commercial user" means any person who deals in children's products or who otherwise by the person's occupation holds the person out as having knowledge or skill peculiar to children's products, or any person who is in the business of remanufacturing, retrofitting, selling, leasing, subletting, or otherwise placing in the stream of commerce children's products.
"Crib" means a bed or containment designed to accommodate an infant.
"Full-size crib" means a full-size crib as defined in 16 Code of Federal Regulations section 1508.3 regarding the requirements for full-size cribs.
"Infant" means any person less than thirty-five inches tall and less than three years of age.
"Nonfull-size crib" means a nonfull-size crib as defined in 16 Code of Federal Regulations section 1509.2 regarding the requirements for nonfull-size cribs.
"Person" means a natural person, firm, corporation, limited liability company, or association, or an employee or agent of a natural person or an entity included in this definition.
"Place in the stream of commerce" means to sell, offer for sale, give away, offer to give away, or allow the use of.
§ -3 Unsafe children's products; prohibition. (a) No commercial user may remanufacture, retrofit, sell, contract to sell or resell, lease, sublet, or otherwise place in the stream of commerce, on or after the effective date of this Act, a children's product that is unsafe.
(b) A children's product is deemed to be unsafe for purposes of this chapter if it meets any of the following criteria:
(1) It does not conform to all federal laws and regulations setting forth standards for the children's product;
(2) It has been recalled for any reason by an agency of the federal government or the product's manufacturer, distributor, or importer, and the recall has not been rescinded; or
(3) An agency of the federal government has issued a warning that a specific product's intended use constitutes a safety hazard and the warning has not been rescinded.
(c) A crib is deemed to be unsafe for purposes of this chapter if it does not conform to the standards endorsed or established by the Consumer Product Safety Commission, including Title 16 of the Code of Federal Regulations, and the American Society for Testing and Materials, as follows:
(1) 16 Code of Federal Regulations part 1508;
(2) 16 Code of Federal Regulations part 1509;
(3) 16 Code of Federal Regulations part 1303; and
(4) The following standards and specifications of the American Society for Testing Materials for corner posts of baby cribs and structural integrity of baby cribs:
(A) ASTM F 966 (corner post standard);
(B) ASTM F 1169 (structural integrity of full-size baby cribs); and
(C) ASTM F 1822 (nonfull-size cribs).
§ -4 Unsafe children's products; child care. (a) The department of human services shall adopt rules under chapter 91 to protect children in child care facilities from unsafe children's products.
(b) The department of human services shall develop a checklist of guidelines regarding unsafe children's products that shall be reviewed by the child care licensing staff together with child care providers during the licensing and relicensing process.
(c) The department of human services shall publish and distribute to licensed child care providers the list and description of products of most concern to the safety of children that is developed by the United States Consumer Products Safety Commission.
§ -5 Retrofits. (a) An unsafe children's product, as determined pursuant to section -3, may be retrofitted if the retrofit has been approved by the agency of the federal government issuing the recall or warning, or the agency responsible for approving the retrofit, if different from the agency issuing the recall or warning. A retrofitted children's product may be sold if it is accompanied at the time of sale by a notice declaring that it is safe to use for a child under six years of age. The commercial user is responsible for ensuring that the notice is present with the retrofitted product at the time of sale. The notice shall include:
(1) A description of the original problem that made the recalled product unsafe;
(2) A description of the retrofit that explains how the original problem was eliminated and declaring that it is now safe to use for a child under six years of age; and
(3) The name and address of the commercial user who accomplished the retrofit, certifying that the work was done, along with the name and model number of the product retrofitted.
(b) A retrofit is exempt from this chapter if:
(1) The retrofit is for a children's product that requires assembly by the consumer, has been approved or recommended by an agency of the federal government, is provided with the product by the commercial user, and is accompanied at the time of sale by instructions explaining how to apply the retrofit; or
(2) The retrofit is of a previously unsold product, has been approved or recommended by an agency of the federal government, and the seller accomplishes the retrofit prior to sale.
§ -6 Exception. Before a commercial user is found in noncompliance with this chapter, the specific recalled product sold by the commercial user shall have been included on the department of health's list on the day before the sale.
§ -7 Penalty. A commercial user who knowingly violates section -4 is guilty of a misdemeanor.
§ -8 Enforcement. Any person, including the attorney general, may bring an action in the name of the State to enforce this chapter.
§ -9 Remedies. Remedies available under this chapter are in addition to any other remedies or procedures under any other provision of law that may be available to an aggrieved party."
SECTION 3. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun, before its effective date.
SECTION 4. This Act shall take effect on July 1, 2004.