H. B. 4089


(By Mr. Speaker, Mr. Kiss, and Delegates Staton, Amores, Manuel, Fahey, Brown and Webb)

[Introduced January 18, 2002 ; referred to the

Committee on the Judiciary then Finance.]




A BILL to amend chapter forty-nine of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new article, designated article eleven, relating to child product safety; pertaining to the identification and listing of unsafe children's products; prohibiting the sale and distribution of unsafe children's products by commercial users; establishing standards related to the sale and distribution of retrofitted unsafe children's products; prohibiting the use of unsafe children's products at child care facilities; establishing penalties and sanctions for the violations of this article.

Be it enacted by the Legislature of West Virginia:
That chapter forty-nine of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding thereto a new article, designated article eleven, to read as follows:
CHAPTER 49. CHILD WELFARE.

ARTICLE 11. CHILD PRODUCT SAFETY ACT.
§ 49-11-1. Short title.
This article shall be known and cited as "The Children's Product Safety Act of West Virginia."
§ 49-11-2. Purpose.
The West Virginia Legislature finds that each year thousands of children in the United States were taken to emergency rooms for injuries associated with products for infants. Each year, the U.S. Consumer Products Safety Commission recalls 250 to 300 potentially hazardous products, including products for infants and children. By the time such recalls are issued, the products have already been introduced into the stream of commerce, and may already be in broad use. Even when recalled children's products are removed from retail shelves, recalled children's products can end up being donated or sold in the second-hand goods markets, including thrift stores. According to a 1999 study performed by the U.S. Consumer Products Safety Commission, thrift stores are likely to carry older children's products that do not meet current safety standards or that have been banned. A separate 1999 study of performed by the U.S. Consumer Products Safety Commission similarly confirmed the use of children's products in child care settings that do not meet current safety standards or that have been banned.
The West Virginia Legislature finds that it is in the public interest to insure that banned or unsafe children's products are removed from the stream of commerce by all commercial users, including retailers, thrift stores, hotels and motels, day care and child care facilities. The West Virginia Legislature also finds that it is in the public interest for the West Virginia Department of Health and Human Services to create and maintain a list of unsafe children's products for the education of the public, day care centers and child care providers, in order to protect West Virginia children from the dangers posed by unsafe products which are on the department's list. It is also the purpose of this act to add consumer fraud protection for consumers of children's products that will curtail the sale of unsafe children's products to unsuspecting consumers.
§ 49-11-3. Definitions.
As used in this article:
(a)"Child care facility" means and includes any residential child care facility, child-placing agency, day care center, family day care facility or family day care home that is required to obtain a statement of certification, certificate of registration or license from the state of West Virginia, pursuant to the provisions of section three, article two-b, chapter forty-nine of this code.
(b)"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 in a play yard, stationary activity center, carrier, stroller, walker, swing, 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 (6) years of age or is designed or intended for the care of or use by both children under six (6) years of age and children six (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:
Provided, that "children's product", as used in this article, shall not be interpreted to include a product that:
(1) May be used by or for the care of a child under six (6) years of age, but 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 for the care of a child; or
(2) Is a medication, drug, or food that is intended to be ingested;
(c) "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, including child care facilities, child care group homes licensed pursuant to this title, hotels and motels;
(d) "Crib" means a bed or containment designed to accommodate an infant;
(e) "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;
(f) "Infant" means any person less than thirty-five inches (35") inches tall and less than three (3) years of age;
(g) "Non-full-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 non-full-size cribs; and
(h) "Person" means a natural person, firm, corporation, limited liability company, or association, or an employee or agent of a natural person or an entity.
§ 49-11-4. Unsafe children's products; prohibited sale and distribution thereof; posting of unsafe children's products on the internet.

(a) On or after January 1, 2003, no commercial user shall remanufacture, retrofit, sell, contract to sell or resell, lease, sublet, or otherwise place in the stream of commerce a children's product that is unsafe.
(b) A children's product is unsafe for purposes of this act if it meets any of the following criteria:
(1) It does not conform to federal law and regulatory 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;
(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 unsafe if it does not conform to the standards set forth in parts 1303, 1508 or 1509 of Title 16 of the Code of Federal Regulations, or it does not comply with the design specifications set forth in ASTM F 966, ASTM F 1169 and ASTM F 18227, as issued by the American Society for Testing and Materials.
(d) No later than January 1, 2003, the Department of Health and Human Resources 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 subsection (b), and the Department of Health and Human Resources shall make the comprehensive list available to the public at no cost and shall post it on the internet, and encourage links from the internet site.
§ 49-11-5. Sale and use of retrofitted products.
(a) An unsafe children's product 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 warning.
(b) 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 (6) years of age.
(c) The notice under subsection b above shall include, at a minimum:
(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 (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.
(d) The commercial user is responsible for ensuring that the notice is present with the retrofitted product at the time of sale.
(e) A retrofit is exempt from the requirements of this section 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.
§ 49-11-6. Remedies and enforcement.
(a) Any act or practice which is a violation of this article shall constitute an unfair and deceptive act or practice under section one hundred four, article six, chapter forty-six a of this code.
(b) A commercial user who willfully and knowingly violates any provision of this article is guilty of a misdemeanor, and upon conviction thereof shall be fined not more than one thousand dollars, or confined in a county or regional jail not more than one year, or both fined and imprisoned.
(c) Nothing in this section limits the rights or remedies which are otherwise available to any person under any law.
§ 49-11-7. Notice and prohibited use of unsafe children's products at child care facilities.

(a) Beginning January 1, 2003, a child care facility may not use or have on the premises an unsafe children's product as described in this act: Provided, that this prohibition does 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 Health and Human Resources shall, within sixty (60) calendar days after the effective date of this article, send a letter to all child care facilities informing them of the provisions of this act and of their responsibilities under the provisions of this act.
(c) The Department of Health and Human Resources shall notify child care facilities of the provisions of this article and of unsafe children's products, as determined in accordance with this act, in plain, non-technical language that will enable each child care facility to effectively inspect children's products and identify unsafe children's products.
(d) The Department of Health and Human Resources may promulgate rules to carry out the provisions of this section.
(e) Each child care facility shall maintain a file containing all bulletins, notices, or both issued by the Department of Health and Human Resources 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 facility.
(f) Each child care facility shall, as part of the licensing, licensing renewal, registration, certification or periodic update process conducted by the Department of Health and Human Resources, certify in writing that it has reviewed each of the bulletins and notices issued by the Department of Health and Human Resources regarding unsafe children's products, and that there are no unsafe children's products in the facility.
(g) The Department of Health and Human Resources shall prepare a certification form, and the Department of Human Health and Human Resources shall require each facility to complete the certification form in the process of licensing, licensing renewal, registration, certification or periodic update.
(h) The Department of Health and Human Resources shall retain the certification form completed by each child care facility in each respective facility's licensing, certification or registration file.
§ 49-11-8. Revocation of child care facility certificates and

licenses.
The Department of Health and Human Resources may revoke or refuse to renew the license, registration or certificate of any child care facility or refuse to issue a full license, registration or certificate to the permit holder if the licensee or permit holder fails to comply with subsections (e) and (f) of section 7 of this article.