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Introduced Version House Bill 3044 History

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hb3044 intr
H. B. 3044


(By Delegates Hunt, Browning, Amores, Webster,

Wells, Perdue and R. Thompson)

[Introduced March 15, 2005; referred to the

Committee on Health and Human Resources then the Judiciary.]




A BILL to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated article §16-42-1, §16-42-2, §16-42-3, §16-42-4, §16-42-5, §16-42-6 and §16-42-7, all relating to unsafe children's products; defining certain terms; prohibiting remanufacturing, retrofitting, selling, contracting to sell or reselling, leasing, subletting or otherwise placing in the stream of commerce, unsafe children's products; requiring the Bureau of Public Health to create, maintain and update a comprehensive list of children's products considered to be unsafe; listing presumptions about certain children's products; providing penalties for violations; and providing remedies.

Be it enacted by the Legislature of West Virginia:

That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new article, designated §16-42-1, §16-42-2, §16-42-3, §16-42-4, §16-42-5, §16-42-6 and §16-42-7, all to read as
follows:
ARTICLE 42. Unsafe Children's Products.

§16-42-1. Short title.

This article may be cited as the "West Virginia Unsafe Children's Product Act".

§16-42-2. Definitions.

As used in this article:

(a) "Children's product" means a product, including, but not limited to, 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 6 years of age or is designed or intended for the care of, or use by, both children under 6 years of age and children 6 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.

Notwithstanding any other provision of this section, a product is not a "children's product" for purposes of this article if it may be used by or for the care of a child under 6 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 it is a medication, drug, or food or is intended to be ingested.
(b) "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 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.

(c) "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.

(d) "Infant" means any person less than thirty five inches tall and less than three years of age.

(e) "Crib" means a bed or containment designed to accommodate an infant.

(f) "Full-size crib" means a full-size crib as defined in Section 1508.3 of Title 16 of the Code of Federal Regulations regarding the requirements for full-size cribs.

(g) "Nonfull-size crib" means a non-full-size crib as defined in Section 1509.2 of Title 16 of the Code of Federal Regulations regarding the requirements for nonfull-size cribs.

§16-42-3. 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 first day of July, two thousand five, a children's product that is unsafe.
(b) A children's product is deemed to be unsafe for purposes of this article 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) The Bureau of Public 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 subdivisions (1) through (3) of subsection (b) of this section. The Bureau for Public Health shall make the comprehensive list available to the public at no cost and shall post it on the Internet, and encourage links.

(d) A crib is presumed to be unsafe for purposes of this article if it does not conform to the standards endorsed or established by the Consumer Product Safety Commission, including, but not limited to, Title 16 of the Code of Federal Regulations and the American Society for Testing and Materials, as follows:

(1) Part 1508 of Title 16 of the Code of Federal Regulations and any regulations adopted to amend or supplement the regulations.

(2) Part 1509 of Title 16 of the Code of Federal Regulations and any regulations adopted to amend or supplement the regulations.

(3) Part 1303 of Title 16 of the Code of Federal Regulations and any regulations adopted to amend or supplement the regulations.

(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).

(e) Cribs that are unsafe include, but are not limited to, 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 a 25-pound 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 9 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 26 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 nonfull-size crib.

(9) A nonfull-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.

(10) The mattress pad in a nonfull-size mesh/fabric crib exceeds one inch.

(f) An unsafe children's product, as determined pursuant to subdivisions (1), (2), and (3) of subsection (b) of this section, 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 6 years of age. 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 6 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. The commercial user is responsible for ensuring that the notice is present with the retrofitted product at the time of sale.
(g) A retrofit is exempt from this article 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.

§16-42-4. Exception.

A commercial user may not be found noncompliant if the specific recalled product sold was not included on the Bureau for
Public Health's list on the day before the sale.
§16-42-5. Penalty.

A commercial user who willfully and knowingly violates any of the provisions of section three of this article is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than one hundred dollars nor more than five hundred dollars. A commercial user who willfully and knowingly violates any of the provisions of section three of this article for a second or subsequent offense is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than five hundred dollars nor more than one thousand dollars.

§16-42-6. Enforcement.

The prosecuting attorney in the county in which a violation of this article occurred, may bring an action in the name of the people of this State of West Virginia to enforce the provisions of this article.

§16-42-7. Remedies.

Remedies available under this article are in addition to any other remedies or procedures under any other provision of law that may be available to an aggrieved party.




NOTE: The purpose of this article is to prohibit
any person who deals in children's products from remanufacturing, retrofitting, selling, contracting to sell or reselling, leasing, subletting or otherwise placing in the stream of commerce, unsafe children's products. Under the bill misdemeanor penalties are provided for violations and other remedies are made available to an aggrieved party.

This article is new; therefore, strike-throughs and underscoring have been omitted.
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