BP BHEAD INT H

AN ACT Relating to toxic household products; amending RCW 70.106.010 and 70.106.030; reenacting and amending RCW 42.17.310 and 42.17.310; adding new sections to chapter 70.106 RCW; creating a new section; repealing RCW 70.106.040, 70.106.050, 70.106.060, 70.106.070, 70.106.080, and 70.106.090; prescribing penalties; providing effective dates; and providing an expiration date.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION. Sec. 1. The legislature finds that:

(1) Many poisonings involve children under six years of age.

(2) The federal poison prevention packaging act of 1970 requires child-resistant safety packaging for various toxic household products in order to inhibit a child's ability to access poisonous substances. This effort, in conjunction with the formation of poison control centers, education efforts, availability of ipecac syrup for home treatment, and labeling requirements, has significantly reduced the number of poisonings. However, most poisonings occur while the product is in use, rather than when stored, and many toxic household products remain exempt from the child-resistant safety packaging laws.

(3) The national safety council, the American medical association, and the American association of poison control centers have noted that the addition of nontoxic aversive agents to toxic household products may make these products so unpalatable that many children reject the products upon, or shortly after, tasting them. These organizations have urged manufacturers of toxic household products to add nontoxic aversive agents to their products in addition to child-resistant closures in order that ingestion of these products may be reduced, thus providing another means to prevent or mitigate severe poisonings.

(4) Aversive agents are currently being used in various household products to mitigate child poisonings.

Sec. 2. RCW 70.106.010 and 1974 ex.s. c 49 s 1 are each amended to read as follows:

The purpose of this chapter is to provide for special packaging and other preventive measures to protect children from personal injury, serious illness or death resulting from handling, using or ingesting household substances, and to provide penalties.

Sec. 3. RCW 70.106.030 and 1974 ex.s. c 49 s 3 are each amended to read as follows:

The definitions in ((~~RCW 70.106.040 through 70.106.090~~)) this section, unless the context otherwise requires, shall govern the construction of this chapter.

(1) "Director" means the director of the department of agriculture of the state of Washington, or his or her duly authorized representative.

(2) "Household substance" means a substance that is customarily produced or distributed for sale for consumption or use, or customarily stored, by individuals in or about the household and that is:

(a) A "hazardous substance," which means (i) a substance or mixture of substances or product that (A) is toxic, (B) is corrosive, (C) is an irritant, (D) is a strong sensitizer, (E) is flammable or combustible, or (F) 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 a customary or reasonably foreseeable handling or use, including reasonably foreseeable ingestion by children; (ii) a substance that the director by rule finds to meet the requirements of (a)(i) of this subsection; (iii) a radioactive substance, if, with respect to such substance as used in a particular class of article or as packaged, the director determines by rule that the substance is sufficiently hazardous to require labeling in accordance with this chapter in order to protect the public health, safety or welfare; and (iv) a toy or other article intended for use by children that the director by rule determines presents an electrical, mechanical, or thermal hazard;

(b) A pesticide as defined in the Washington Pesticide Control Act, chapter 15.58 RCW;

(c) A food, drug, or cosmetic as those terms are defined in the Uniform Washington Food, Drug and Cosmetic Act, chapter 69.04 RCW;

(d) A substance intended for use as fuel when stored in portable containers and used in the heating, cooking, or refrigeration system of a house; or

(e) Any other substance that the director may declare to be a household substance subsequent to a hearing as provided for under the provisions of chapter 34.05 RCW, the Administrative Procedure Act, for the adoption of rules.

(3) "Labeling" means all labels and other written, printed, or graphic matter upon any household substance or its package, or accompanying such substance.

(4) "Package" means the immediate container or wrapping in which any household substance is contained for consumption, use, or storage by individuals in or about the household, and, for purposes of RCW 70.106.110(1)(b), also means an outer container or wrapping used in the retail display of the substance to consumers. The term does not include:

(a) A shipping container or wrapping used solely for the transportation of a household substance in bulk or in quantity to manufacturers, packers, or processors, or to wholesale or retail distributors thereof; or

(b) A shipping container or outer wrapping used by retailers to ship or deliver a household substance to consumers unless it is the only container or wrapping.

(5) "Sale" means to sell, offer for sale, hold for sale, handle or use as an inducement in the promotion of a household substance or the sale of another article or product.

(6) "Special packaging" means packaging that is designed or constructed to be significantly difficult for children under five years of age to open or obtain a toxic or harmful amount of the substance contained therein within a reasonable time and not difficult for normal adults to use properly, but does not mean packaging which all such children cannot open or obtain a toxic or harmful amount within a reasonable time.

(7) "Toxic household product" means:

(a) Antifreeze containing ten percent or more ethylene glycol by weight.

(b) Windshield washer fluid containing four percent or more methyl alcohol (methanol) by weight.

NEW SECTION. Sec. 4. A toxic household product manufactured on or after July 1, 1995, and offered for sale in this state, shall include an aversive agent approved by the poison prevention task force within the product in a concentration so as to render the product unpalatable.

NEW SECTION. Sec. 5. (1) The poison prevention task force is created within the department of health and shall consist of six members as follows:

(a) The medical director of the poison information center or designee, who shall serve as chair;

(b) A designee of the state emergency medical services and trauma care steering committee;

(d) A chemist from an academic institution, appointed by the governor;

(e) A representative of a manufacturer of toxic household products, appointed by the governor; and

(f) A public representative.

(2) Each member shall serve without compensation but shall be reimbursed for travel expenses as provided in RCW 43.03.050 and 43.03.060.

(3) The task force shall meet as considered necessary by the chair or on the call of three members of the task force.

(4) The task force shall review, grant, or deny requests for exemptions from and extensions to the requirements of this chapter and shall establish approved aversive agents required by section 4 of this act.

NEW SECTION. Sec. 6. Not later than April 1, 1995, a manufacturer may apply to the poison prevention task force for an extension of time to comply with the requirements of this chapter. The task force may grant an extension for one hundred twenty days and may grant an extension for a longer period of time if the manufacturer demonstrates to the satisfaction of the task force the need for a longer extension of time.

NEW SECTION. Sec. 7. (1) A manufacturer may apply to the poison prevention task force on or before April 1, 1995, for an exemption from the requirements of this chapter for a toxic household product that cannot be produced in a way that is compatible with the addition of an aversive agent.

(2) The task force may grant an exemption if the manufacturer demonstrates to the task force, and the task force finds, that the toxic household product meets the exemption criteria described in subsection (1) of this section.

NEW SECTION. Sec. 8. (1) The poison prevention task force may request efficacy and toxicity data, or other pertinent data it considers necessary, from the manufacturer of any toxic household product. The information shall be made available by the manufacturer to the task force upon request and shall remain confidential under RCW 42.17.310, if so requested.

(2) The task force may request data from and use the technical expertise of other state agencies and health care providers to evaluate the incidence and severity of poisoning, drug overdose, and toxic exposure.

NEW SECTION. Sec. 9. Every two years the task force shall evaluate state-wide poisoning incidence and severity data for the prior two years. Based on this and other relevant information, the task force shall recommend to the governor and appropriate standing committees of the legislature appropriate changes to the list of substances defined as toxic household products in RCW 70.106.030(7). The task force shall also report to the appropriate standing committees of the legislature additional measures that the task force concludes will reduce the incidence and severity of poisoning, including poison prevention education activities, and child-resistant closure effectiveness.

NEW SECTION. Sec. 10. (1) It is unlawful for a person to distribute or sell a toxic household product or cause a toxic household product to be distributed or sold in this state if it does not meet the requirements of this chapter.

(2) The prohibition contained in subsection (1) of this section does not apply to a person engaged in the business of wholesale or retail distribution of a toxic household product, unless the person is engaged in the manufacture of the product, or has knowledge that a toxic household product that the person is distributing or selling is in violation of this chapter.

(3) A distributor of a house brand is not considered a manufacturer for purposes of filing an application for an extension under section 6 of this act or for an exemption under section 7 of this act. Nothing in this subsection is intended to exempt a distributor of a house brand from other provisions of this chapter.

NEW SECTION. Sec. 11. (1) A person may bring a civil action in a court of competent jurisdiction to enforce the requirements of this chapter. The court may grant injunctive relief in an action brought under this section.

(2) If the person bringing an action under this section is the prevailing party, the person shall be awarded reasonable attorneys' fees and costs by the court.

NEW SECTION. Sec. 12. A person who violates any provision of this chapter shall be liable for a civil penalty not to exceed five thousand dollars for each day of violation, which shall be assessed and recovered in a civil action brought by the department of health.

NEW SECTION. Sec. 13. All civil penalties collected under section 13 of this act shall be deposited in the general fund.

NEW SECTION. Sec. 14. Sections 4 through 13 of this act are each added to chapter 70.106 RCW.

NEW SECTION. Sec. 15. The following acts or parts of acts are each repealed:

(1) RCW 70.106.040 and 1974 ex.s. c 49 s 4;

(2) RCW 70.106.050 and 1974 ex.s. c 49 s 5;

(3) RCW 70.106.060 and 1974 ex.s. c 49 s 6;

(4) RCW 70.106.070 and 1974 ex.s. c 49 s 7;

(5) RCW 70.106.080 and 1974 ex.s. c 49 s 8; and

(6) RCW 70.106.090 and 1974 ex.s. c 49 s 9.

Sec. 16. RCW 42.17.310 and 1993 c 360 s 2 and 1993 c 320 s 9 are each reenacted and amended to read as follows:

(1) The following are exempt from public inspection and copying:

(a) Personal information in any files maintained for students in public schools, patients or clients of public institutions or public health agencies, or welfare recipients.

(b) Personal information in files maintained for employees, appointees, or elected officials of any public agency to the extent that disclosure would violate their right to privacy.

(c) Information required of any taxpayer in connection with the assessment or collection of any tax if the disclosure of the information to other persons would (i) be prohibited to such persons by RCW 82.32.330 or (ii) violate the taxpayer's right to privacy or result in unfair competitive disadvantage to the taxpayer.

(d) Specific intelligence information and specific investigative records compiled by investigative, law enforcement, and penology agencies, and state agencies vested with the responsibility to discipline members of any profession, the nondisclosure of which is essential to effective law enforcement or for the protection of any person's right to privacy.

(e) Information revealing the identity of persons who are witnesses to or victims of crime or who file complaints with investigative, law enforcement, or penology agencies, other than the public disclosure commission, if disclosure would endanger any person's life, physical safety, or property. If at the time a complaint is filed the complainant, victim or witness indicates a desire for disclosure or nondisclosure, such desire shall govern. However, all complaints filed with the public disclosure commission about any elected official or candidate for public office must be made in writing and signed by the complainant under oath.

(f) Test questions, scoring keys, and other examination data used to administer a license, employment, or academic examination.

(g) Except as provided by chapter 8.26 RCW, the contents of real estate appraisals, made for or by any agency relative to the acquisition or sale of property, until the project or prospective sale is abandoned or until such time as all of the property has been acquired or the property to which the sale appraisal relates is sold, but in no event shall disclosure be denied for more than three years after the appraisal.

(h) Valuable formulae, designs, drawings, and research data obtained by any agency within five years of the request for disclosure when disclosure would produce private gain and public loss.

(i) Preliminary drafts, notes, recommendations, and intra-agency memorandums in which opinions are expressed or policies formulated or recommended except that a specific record shall not be exempt when publicly cited by an agency in connection with any agency action.

(j) Records which are relevant to a controversy to which an agency is a party but which records would not be available to another party under the rules of pretrial discovery for causes pending in the superior courts.

(k) Records, maps, or other information identifying the location of archaeological sites in order to avoid the looting or depredation of such sites.

(l) Any library record, the primary purpose of which is to maintain control of library materials, or to gain access to information, which discloses or could be used to disclose the identity of a library user.

(m) Financial information supplied by or on behalf of a person, firm, or corporation for the purpose of qualifying to submit a bid or proposal for (i) a ferry system construction or repair contract as required by RCW 47.60.680 through 47.60.750 or (ii) highway construction or improvement as required by RCW 47.28.070.

(n) Railroad company contracts filed prior to July 28, 1991, with the utilities and transportation commission under RCW 81.34.070, except that the summaries of the contracts are open to public inspection and copying as otherwise provided by this chapter.

(o) Financial and commercial information and records supplied by private persons pertaining to export services provided pursuant to chapter 43.163 RCW and chapter 53.31 RCW.

(p) Financial disclosures filed by private vocational schools under chapter 28C.10 RCW.

(q) Records filed with the utilities and transportation commission or attorney general under RCW 80.04.095 that a court has determined are confidential under RCW 80.04.095.

(r) Financial and commercial information and records supplied by businesses during application for loans or program services provided by chapter 43.163 RCW and chapters 43.31, 43.63A, 43.160, and 43.168 RCW.

(s) Membership lists or lists of members or owners of interests of units in timeshare projects, subdivisions, camping resorts, condominiums, land developments, or common-interest communities affiliated with such projects, regulated by the department of licensing, in the files or possession of the department.

(t) All applications for public employment, including the names of applicants, resumes, and other related materials submitted with respect to an applicant.

(u) The residential addresses and residential telephone numbers of employees or volunteers of a public agency which are held by the agency in personnel records, employment or volunteer rosters, or mailing lists of employees or volunteers.

(v) The residential addresses and residential telephone numbers of the customers of a public utility contained in the records or lists held by the public utility of which they are customers.

(w)(i) The federal social security number of individuals governed under chapter 18.130 RCW maintained in the files of the department of health, except this exemption does not apply to requests made directly to the department from federal, state, and local agencies of government, and national and state licensing, credentialing, investigatory, disciplinary, and examination organizations; (ii) the current residential address and current residential telephone number of a health care provider governed under chapter 18.130 RCW maintained in the files of the department, if the provider requests that this information be withheld from public inspection and copying, and provides to the department an accurate alternate or business address and business telephone number. On or after January 1, 1995, the current residential address and residential telephone number of a health care provider governed under RCW 18.130.140 maintained in the files of the department shall automatically be withheld from public inspection and copying if the provider has provided the department with an accurate alternative or business address and telephone number.

(x) Information obtained by the board of pharmacy as provided in RCW 69.45.090.

(y) Information obtained by the board of pharmacy or the department of health and its representatives as provided in RCW 69.41.044, 69.41.280, and 18.64.420.

(z) Financial information, business plans, examination reports, and any information produced or obtained in evaluating or examining a business and industrial development corporation organized or seeking certification under chapter 31.24 RCW.

(aa) Financial and commercial information supplied to the state investment board by any person when the information relates to the investment of public trust or retirement funds and when disclosure would result in loss to such funds or in private loss to the providers of this information.

(bb) Financial and valuable trade information under RCW 51.36.120.

(cc) Client records maintained by an agency that is a domestic violence program as defined in RCW 70.123.020 or a rape crisis center as defined in RCW 70.125.030.

(dd) Information that identifies a person who, while an agency employee: (i) Seeks advice, under an informal process established by the employing agency, in order to ascertain his or her rights in connection with a possible unfair practice under chapter 49.60 RCW against the person; and (ii) requests his or her identity or any identifying information not be disclosed.

(ee) Business related information protected from public inspection and copying under RCW 15.86.110.

(ff) Data provided to the poison prevention task force under section 8 of this act.

(2) Except for information described in subsection (1)(c)(i) of this section and confidential income data exempted from public inspection pursuant to RCW 84.40.020, the exemptions of this section are inapplicable to the extent that information, the disclosure of which would violate personal privacy or vital governmental interests, can be deleted from the specific records sought. No exemption may be construed to permit the nondisclosure of statistical information not descriptive of any readily identifiable person or persons.

(3) Inspection or copying of any specific records exempt under the provisions of this section may be permitted if the superior court in the county in which the record is maintained finds, after a hearing with notice thereof to every person in interest and the agency, that the exemption of such records is clearly unnecessary to protect any individual's right of privacy or any vital governmental function.

(4) Agency responses refusing, in whole or in part, inspection of any public record shall include a statement of the specific exemption authorizing the withholding of the record (or part) and a brief explanation of how the exemption applies to the record withheld.

Sec. 17. RCW 42.17.310 and 1993 c 360 s 2, 1993 c 320 s 9, and 1993 c 280 s 35 are each reenacted and amended to read as follows: