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.
TWENTY-SECOND LEGISLATURE, 2004
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 under the current law, children are inadequately protected from the sale or lease of unsafe or recalled children's products. The legislature further finds that other states such as Arkansas, Illinois, Louisiana, Michigan, Rhode Island, and Vermont have enacted the Children's Product Safety Act to protect children from dangerous products by holding accountable commercial users and child care providers who expose children to such dangerous products. In addition, Arizona, California, Colorado, Oregon, Pennsylvania, and Washington have passed the Infant Crib Safety Act that includes language similar to the Children's Product Safety Act, applicable to cribs only.
The purpose of this Act is to enact the Children's Product Safety Act in Hawaii to ensure that our children will be protected from the use of unsafe children's products.
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 act
§ -1 Short title. This Act may be cited as the "Children's Product Safety Act."
§ -2 Definitions. As used in this chapter, unless otherwise noted:
"Children's product" means a product, including a full-size crib, non-full-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 one's occupation holds oneself out as having knowledge or skill specific to children's products, or any person who is in the business of remanufacturing, retrofitting, selling, leasing, subletting, or otherwise placing children's products in the stream of commerce.
"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.
"Non-full-size crib" means a non-full-size crib as defined in 16 Code of Federal Regulations section 1509.2, regarding the requirements for non-full-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 a product.
§ -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 chapter, 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 presumed 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 966-90 (corner post standard);
(B) ASTM F 1169-88 (structural integrity of full-size baby cribs); and
(C) ASTM F 1822-97 (non-full-size cribs).
(d) Cribs that are unsafe shall include cribs that have any of the following dangerous features or characteristics;
(1) Corner posts that extend more than one-sixteenth of an inch;
(2) Spaces between side slats more than 2.375 inches;
(3) Mattress support that can be easily dislodged from any point of the crib. A mattress segment can be easily dislodged if it cannot withstand at least twenty-five pounds of upward force from underneath the crib;
(4) Cutout designs on the end panels;
(5) Rail height dimensions that do not conform to both of the following:
(A) The height of the rail and end panel as measured from the top of the rail or panel in its lowest position to the top of the mattress support in its highest position is at least nine inches; and
(B) The height of the rail and end panel as measured from the top of the rail or panel in its highest position to the top of the mattress support in its lowest position is at least twenty-six inches;
(6) Any screws, bolts, or hardware that are loose and not secured;
(7) Sharp edges, points, or rough surfaces, or any wood surfaces that are not smooth and free from splinters, splits, or cracks;
(8) Tears in mesh or fabric sides in a non-full-size crib;
(9) A non-full-size crib that folds in a "V" shape design does not have top rails that automatically lock into place when the crib is fully set up; and
(10) The mattress pad in a non-full-size mesh or fabric crib exceeds one inch.
§ -4 List of unsafe children's products. (a) The department of health shall create, maintain, and update a comprehensive list of children's products that have been identified as meeting any of the criteria set forth in section -3.
(b) The department of health shall make the comprehensive list available to the public at no cost and shall post it on the Internet, and encourage links.
§ -5 Unsafe children's products; child care. (a) A child care facility may not use or have on the premises, on or after the effective date of this chapter, an unsafe children's product as described in section -3. This subsection shall not apply to an antique or collectible children's product if it is not used by, or accessible to, any child in the child care facility.
(b) The department of human services shall notify child care facilities, on an ongoing basis, of the provisions of this chapter and of unsafe children's products, as determined in accordance with this chapter, in plain, non-technical language that will enable each child care facility to effectively inspect children's products and identify unsafe children's products.
(c) The department of human services shall adopt rules in accordance with chapter 91 to implement this chapter.
(d) Each child care facility, as part of the licensing, licensing renewal, or periodic update process conducted by the department of human services, shall certify in writing that it has reviewed each of the bulletins and notices issued by the department of health regarding unsafe children's products, and that there are no unsafe products in the facility.
(e) The department of health shall prepare a certification form, and the department of human services shall require each facility to complete the certification form in the process of licensing, renewal, or periodic update. The department of human services shall retain the certification form completed by each facility in each respective facility's licensing file.
(f) Each child care facility shall maintain a file containing all bulletins, notices, or both, issued by the department of health regarding unsafe children's products, and shall make the file accessible to the facility staff members and to parents of the children who attend the faculty.
(g) The department of human services may revoke or refuse to renew the license of any child care facility or refuse to issue a full license to the holder of a permit if the licensee or holder of a permit fails to comply with any provisions of this chapter.
§ -6 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 is 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 which made the recalled product unsafe;
(2) A description of the retrofit which 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, the approved retrofit is provided with the product by the commercial user, and the retrofit is accompanied at the time of sale by instructions explaining how to apply the retrofit; or
(2) The seller of a previously unsold product accomplishes the repair, approved or recommended by an agency of the federal government, prior to sale.
§ -7 Exception. The commercial user shall not be found noncompliant if the specific recalled product sold was not included on the department of health's list on the day before the sale.
§ -8 Penalty. A commercial user who knowingly violates section -5 shall be guilty of a misdemeanor.
§ -9 Enforcement. Any person, including the attorney general, may bring an action in the name of the State to enforce this chapter.
§ -10 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 upon its approval.