75th OREGON LEGISLATIVE ASSEMBLY--2009 Regular Session
Enrolled
Senate Bill 596
Sponsored by Senator HASS; Senators ATKINSON, BATES, BONAMICI,
DEVLIN, MONNES ANDERSON, WALKER, Representatives BAILEY, BRUUN,
GARRETT, GREENLICK, HOLVEY, READ, TOMEI
CHAPTER ................
AN ACT
Relating to decabrominated diphenyl ether; creating new
provisions; and amending ORS 453.005, 453.025 and 453.085.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 453.005 is amended to read:
453.005. As used in ORS 453.005 to 453.135 unless the context
requires otherwise:
(1) 'Combustible' means any substance that has a flash point
above 80 degrees Fahrenheit to and including 140 degrees, as
determined by the Tagliabue Open Cup Tester.
(2) 'Commerce' means any and all commerce within the State of
Oregon and subject to the jurisdiction thereof and includes the
operation of any business or service establishment.
(3) 'Corrosive' means any substance that in contact with living
tissue will cause destruction of tissue by chemical action, but
does not refer to action on inanimate surfaces.
(4) 'Electrical hazard' means an article that because of its
design or manufacture may cause personal injury or illness by
electric shock when in normal use or when subjected to reasonably
foreseeable damage or abuse.
(5) 'Extremely flammable' means any substance that has a flash
point at or below 20 degrees Fahrenheit as determined by the
Tagliabue Open Cup Tester.
(6) 'Flammable' means any substance that has a flash point of
above 20 degrees to and including 80 degrees Fahrenheit, as
determined by the Tagliabue Open Cup Tester.
(7) 'Hazardous substance' means:
(a) Any substance that is toxic, corrosive, an irritant, a
strong sensitizer, flammable, combustible, or generates pressure
through decomposition, heat or other means, if such substance or
mixture of substances may cause substantial personal injury or
substantial illness during or as a proximate result of any
customary or reasonably foreseeable handling or use, including
reasonably foreseeable ingestion by children, or any substance
that the Director of Human Services finds, pursuant to the
provisions of ORS 453.005 to 453.135, comes within the definition
of this paragraph.
(b) Any radioactive substance, if, with respect to such
substance as used in a particular class of article or as
packaged, the director determines that the substance is
sufficiently hazardous to require labeling in accordance with ORS
Enrolled Senate Bill 596 (SB 596-A) Page 1
453.005 to 453.135 in order to protect the public health.
However, ' hazardous substance' does not include any source
material, special nuclear material, or by-product material as
defined in the Atomic Energy Act of 1954, as amended, and
regulations issued pursuant thereto by the Atomic Energy
Commission.
(c) Any toy or other article intended for use by children that
the director determines in accordance with ORS 453.055 presents
an electrical, thermal or mechanical hazard.
(d) Any article that is not pesticide within the meaning of the
Federal Insecticide, Fungicide, and Rodenticide Act or regulated
under ORS 616.335 to 616.385, but that is a hazardous substance
within the meaning of paragraph (a) of this subsection by reason
of bearing or containing pesticide.
(e) The following brominated flame retardant chemicals:
(A) Pentabrominated diphenyl ether; { - and - }
(B) Octabrominated diphenyl ether { - . - } { + ; and
(C) Decabrominated diphenyl ether. + }
(8) 'Highly toxic' means any substance that falls within any of
the following categories:
(a) Produces death within 14 days in one-half or more of a
group of 10 or more laboratory white rats each weighing between
200 and 300 grams, at a single dose of 50 milligrams or less per
kilogram of body weight, when orally administered;
(b) Produces death within 14 days in one-half or more of a
group of 10 or more laboratory white rats each weighing between
200 and 300 grams, when inhaled continuously for a period of one
hour or less at an atmosphere concentration of 200 parts per
million by volume or less of gas or vapor or two milligrams per
liter by volume or less of mist or dust, provided such
concentration is likely to be encountered by humans when the
substance is used in any reasonably foreseeable manner; or
(c) Produces death within 14 days in one-half or more of a
group of 10 or more rabbits tested in a dosage of 200 milligrams
or less per kilogram of body weight, when administered by
continuous contact with the bare skin for 24 hours or less.
(9) 'Immediate container' does not include package liners.
(10) 'Irritant' means any substance not corrosive within the
meaning of subsection (3) of this section, but that on immediate,
prolonged, or repeated contact with normal living tissue will
induce a local inflammatory reaction.
(11) 'Label' means a display of written, printed, or graphic
matter upon the immediate container of any substance, or in the
case of an article that is unpackaged or is not packaged in an
immediate container intended or suitable for delivery to the
ultimate consumer, a display of such matter directly on the
article involved or on a tag or other suitable material affixed
thereto, and a requirement made by or under authority of ORS
453.005 to 453.135 that any word, statement, or other information
appearing on the label shall not be considered to be complied
with unless such word, statement, or other information also
appears on the outside container or wrapper, if any, unless it is
easily legible through the outside container or wrapper and on
all accompanying literature where there are directions for use,
written or otherwise.
(12) 'Mechanical hazard' means an article that in normal use or
when subjected to reasonably foreseeable damage or abuse presents
an unreasonable risk of personal injury or illness, by its design
or manufacture:
Enrolled Senate Bill 596 (SB 596-A) Page 2
(a) From fracture, fragmentation, or disassembly of the
article;
(b) From propulsion of the article or any part or accessory
thereof;
(c) From points or other protrusions, surfaces, edges,
openings, or closures;
(d) From moving parts;
(e) From lack or insufficiency of controls to reduce or stop
motion;
(f) As a result of self-adhering characteristics of the
article;
(g) Because the article or any part or accessory thereof may be
aspirated or ingested;
(h) Because of instability; or
(i) Because of any other aspect of the article's design or
manufacture.
(13) 'Misbranded hazardous substance' means a hazardous
substance that does not meet the labeling requirements of ORS
453.035.
(14) 'Poison' means:
(a) Arsenic and its preparations;
(b) Corrosive sublimate;
(c) Cyanides and preparations, including hydrocyanic acid;
(d) Hydrochloric acid and any preparation containing free or
chemically unneutralized hydrochloric acid (HCl) in a
concentration of 10 percent or more;
(e) Nitric acid or any preparation containing free or
chemically unneutralized nitric acid (HNO3) in a concentration of
five percent or more;
(f) Strychnine;
(g) Sulfuric acid and any preparation containing free or
chemically unneutralized sulfuric acid (H2SO4) in a concentration
of 10 percent or more;
(h) Solution of ammonia, U.S.P. 28 percent; or
(i) Carbolic acid.
(15) 'Radioactive substance' means a substance that emits
ionizing radiation.
(16) 'Strong sensitizer' means a substance that will cause on
normal living tissue, through an allergic or photodynamic
process, a hypersensitivity that becomes evident on reapplication
of the same substances and that is designated as such by the
Director of Human Services.
(17) 'Thermal hazard' means an article that, in normal use or
when subjected to reasonably foreseeable damage or abuse, because
of its design or manufacture presents an unreasonable risk of
personal injury or illness because of heat as from heated parts,
substances or surfaces.
(18) 'Toxic substance' means any substance, other than
radioactive substance, that has the capacity to produce personal
injury or illness to humans through ingestion, inhalation, or
absorption through any body surface.
SECTION 2. ORS 453.085 is amended to read:
453.085. A person may not perform any of the following acts:
(1) The introduction or delivery for introduction into commerce
of any misbranded hazardous substance or banned hazardous
substance.
(2) The alteration, mutilation, destruction, obliteration, or
removal of the whole or any part of the label of a hazardous
substance.
Enrolled Senate Bill 596 (SB 596-A) Page 3
(3) The performance of any act with respect to a hazardous
substance while the substance is in commerce, or while the
substance is held for sale or resale after shipment in commerce,
that results in the hazardous substance being a misbranded
hazardous substance or a banned hazardous substance.
(4) The receipt of or delivery into commerce of any misbranded
hazardous substance or banned hazardous substance for pay or
otherwise.
(5) The giving of a guarantee or undertaking that is false,
except as a person who relied upon a guarantee or undertaking to
the same effect signed by, and containing the name and address
of, a person residing in the United States from whom the person
received in good faith the hazardous substance.
(6) The failure to permit entry or inspection as authorized by
ORS 453.005 to 453.135 or to permit access to and copying of any
record as authorized by ORS 453.005 to 453.135.
(7) The introduction or delivery for introduction into
commerce, or the receipt in commerce and subsequent delivery or
proffered delivery for pay or otherwise, of a hazardous substance
in a reused food, drug or cosmetic container or in a container
that, though not a reused container, is identifiable as a food,
drug or cosmetic container by its labeling or by other
identification.
(8) The use by any person to the advantage of the person, or
the revealing other than to the Director of Human Services or the
authorized representative of the director or to a court of any
information acquired under authority of ORS 453.005 to 453.135
concerning any method or process that is a trade secret entitled
to protection.
(9) The sale or delivery of any poison to a minor under 18
years of age without the written order of a person 21 years of
age or over, which written order shall be retained in the records
of the seller and the poison register of the seller shall show by
the name of the purchaser the fact that the sale or delivery was
to a minor on order of an adult and show the adult's name and
address.
(10) The sale or delivery of completely denatured alcohol,
methyl alcohol (methanol), canned heat or other solidified forms
of denatured alcohol, or any preparation containing those
substances, to be used for beverage purposes.
(11) The sale or delivery of any poison without making or
causing to be made an entry in a poison register of the seller in
the manner required by law.
(12) The sale or delivery to any person of any poison without
having learned by due inquiry that such person is aware of the
poisonous character thereof and that it is desired for a lawful
purpose.
(13) The giving of a fictitious name or making any false
representations to the seller or dealer when buying any of the
poisons.
(14) The sale or delivery to any person by anyone other than a
pharmacist of a poison.
(15) The removal or disposal of any detained or embargoed
article without permission of the Director of Human Services or a
designated representative.
(16) The introduction or delivery for introduction into
commerce of any product containing more than one-tenth of one
percent by mass of pentabrominated diphenyl ether { + , + }
{ - or - } octabrominated diphenyl ether { + or decabrominated
diphenyl ether + }. This subsection does not apply to:
Enrolled Senate Bill 596 (SB 596-A) Page 4
(a) Used products; or
{ - (b) Replacement parts for products introduced into
commerce before January 1, 2006. - }
{ + (b) Replacement parts for products containing more than
one-tenth of one percent by mass of pentabrominated diphenyl
ether or octabrominated diphenyl ether introduced into commerce
before January 1, 2006, or replacement parts for products
containing more than one-tenth of one percent by mass of
decabrominated diphenyl ether introduced into commerce before
January 1, 2011. + }
SECTION 3. ORS 453.025 is amended to read:
453.025. (1) Nothing in ORS 453.005 to 453.135 and 453.990 (2)
is intended to interfere with or prevent the legitimate sale of
completely denatured alcohol or methyl alcohol (methanol) by
garages and filling stations, when used for antifreeze purposes
and poured directly into the radiator of any automobile or motor
vehicle by the seller thereof.
(2) Stores and shops other than pharmacies may sell completely
denatured alcohol or methyl alcohol (methanol) in quantities of
not less than one gallon only in original containers and only
when properly labeled by distiller or wholesale distributor and
bearing also seller's label. The name and address of seller must
be applied by label on the container. The record of such
wholesale quantities must be kept by the seller and information
including date, means of identification and purported use must
also be kept.
(3) Sellers of denatured alcohol or methyl alcohol (methanol)
only are not required to obtain a shopkeepers' license under ORS
689.305.
(4)(a) Subject to the exemption under paragraph (b) of this
subsection, retail sales of completely denatured alcohol, methyl
alcohol (methanol), heating fuel mixtures and other forms of
denatured alcohol except heating fuel mixtures and other forms of
denatured alcohol containing less than five percent methanol by
weight and containing additives that render them unpalatable for
human consumption, in quantities of less than one gallon, shall
be confined to pharmacists and registration of the sales must be
made in their poison register.
(b) Hotel, restaurant or food catering wholesalers or suppliers
of heating fuel mixtures and other forms of denatured alcohol are
exempt from paragraph (a) of this subsection when the supplying
of these products is restricted for use solely in the preparation
of commercially prepared foods in businesses supplying food needs
directly to the public for immediate consumption. Products so
classified when purchased shall be used only for this specified
purpose and shall not be resold, given away or in any way made
available to the public.
(5) Distributors and transporters, stores and shops, other than
pharmacies, may deliver, or sell carbolic acid (phenol), for
commercial use only in quantities of at least one pound but only
when the container is properly labeled by the manufacturer or
wholesaler and also bears a label containing the name and address
of the seller or deliverer. Record of sales or deliveries of
quantities of one pound or more of carbolic acid (phenol) shall
be kept by the seller and deliverer. The record shall contain
information, including the date, name of purchaser or person
receiving the delivery and purported use.
(6) A distributor, transporter, store or shop shall not by
reason of the delivery or sale of carbolic acid (phenol) in
quantities of at least one pound be required to obtain a
Enrolled Senate Bill 596 (SB 596-A) Page 5
shopkeepers' license under ORS 689.305. Retail sales of carbolic
acid (phenol) in quantities of less than one pound shall be
confined to pharmacies and registration of such sales shall be
made on their poison register.
(7) Except as specifically provided by law, the provisions of
laws governing the sale and distribution of poisons do not apply
to the sale or distribution of compounds, preparations or
remedies which do not contain more than two grains of opium, or
more than one-fourth grain of morphine, or more than one-eighth
grain of heroin, or more than one grain of codeine, or any salt
or derivative of any of them in one fluid ounce, or, if solid or
semisolid preparations, in one avoirdupois ounce; or to
liniments, ointments or other preparations which are prepared for
external use only, when sold or distributed for use as medicines.
(8)(a) Whenever poisons are dispensed in accordance with a
written prescription by a practitioner, and such written
prescription is filed and retained by the pharmacist as required
by law, all of the requirements of ORS 453.005 to 453.135 and
453.990 (2) are satisfied.
(b) A pharmacist shall affix a poison label to a prescription
when the prescribing practitioner so directs.
(9) Nothing in ORS 453.005 to 453.135 and 453.990 (2) applies
to the manufacture or wholesale of any poisons. However, each
box, vessel or package, other than prescriptions, in which any
poison is contained must be labeled as provided in ORS 453.035.
{ + (10) Nothing in ORS 453.005 to 453.135 and 453.990 (2)
applies to:
(a) The manufacture, sale, repair, distribution, maintenance,
refurbishment or modification of any new raw material or
component part used in a motor vehicle, as that term is defined
in ORS 801.360, or an airplane with component parts, including
but not limited to original spare parts, that contain
decabrominated diphenyl ether.
(b) The use of commercial decabrominated diphenyl ether in the
maintenance, refurbishment or modification of equipment used for
purposes related to transportation. + }
SECTION 4. { + Except as provided in section 5 of this 2009
Act, the amendments to ORS 453.005, 453.025 and 453.085 by
sections 1 to 3 of this 2009 Act become operative January 1,
2011. + }
SECTION 5. { + The Director of Human Services may adopt rules
before the operative date specified in section 4 of this 2009 Act
or take any action before that date that is necessary to carry
out the amendments to ORS 453.005, 453.025 and 453.085 by
sections 1 to 3 of this 2009 Act. + }
----------
Enrolled Senate Bill 596 (SB 596-A) Page 6
Passed by Senate March 24, 2009
...........................................................
Secretary of Senate
...........................................................
President of Senate
Passed by House June 18, 2009
...........................................................
Speaker of House
Enrolled Senate Bill 596 (SB 596-A) Page 7
Received by Governor:
......M.,............., 2009
Approved:
......M.,............., 2009
...........................................................
Governor
Filed in Office of Secretary of State:
......M.,............., 2009
...........................................................
Secretary of State
Enrolled Senate Bill 596 (SB 596-A) Page 8