BILL REQ. #:  S-5092.1 

READ FIRST TIME 02/07/08.   

     AN ACT Relating to creating the children's product safety act; amending RCW 70.111.010, 70.111.020, 70.111.030, 70.111.060, 70.111.900, and 43.70.660; adding new sections to chapter 70.111 RCW; adding a new section to chapter 43.215 RCW; repealing RCW 70.111.040; prescribing penalties; and providing an effective date.

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

Sec. 1   RCW 70.111.010 and 1996 c 158 s 1 are each amended to read as follows:
     (1) The legislature finds all of the following:
     (a) The disability and death of children and infants resulting from injuries sustained in cribs ((accidents)) or from other unsafe children's products are a serious threat to the public health, welfare, and safety of the people of this state.
     (b) Children and infants are an especially vulnerable class of people which makes the recent numerous recalls regarding children's products, including cribs, particularly alarming.
     (c) The design and construction of a baby or portable crib must ensure that it is safe to leave an infant unattended for extended periods of time. A parent or caregiver has a right to believe that the crib in use is a safe place to leave an infant. A parent or caregiver should also expect that other children's products they use are safe for their intended use.
     (d) ((Over thirteen)) Almost ten thousand infants are injured in unsafe cribs every year. Over sixty thousand children under the age of four are rushed to the emergency room due to injuries from nursery products, and another two hundred thousand children are rushed to the emergency room due to toy injuries.
     (e) ((In the past decade, six hundred twenty-two infants died (a rate of sixty-two infants each year) from injuries sustained in unsafe cribs)) Approximately sixty-one children die each year from unsafe children's products, of which twenty-one are infants who die from injuries sustained from unsafe cribs.
     (f) The United States consumer product safety commission estimates that the cost to society resulting from injuries and death due to unsafe ((cribs is two hundred thirty-five million)) children's products exceeds five billion dollars per year.
     (g) Secondhand, hand-me-down, and heirloom cribs pose a special problem((. There were four million infants born in this country last year, but only one million new cribs sold. As many as)) given that three out of four infants are placed in secondhand, hand-me-down, or heirloom cribs.
     (h) ((Most injuries and deaths occur in secondhand, hand-me-down, or heirloom cribs.
     (i))) Existing state and federal legislation is inadequate to deal with ((this)) these hazards.
     (((j))) (i) Prohibiting the remanufacture, retrofit, sale, contracting to sell or resell, leasing, or subletting of unsafe ((cribs, particularly unsafe secondhand, hand-me-down, or heirloom cribs,)) children's products will prevent injuries and deaths caused by ((cribs)) children's products.
     (2) The purpose of this chapter is to prevent the occurrence of injuries and deaths to infants as a result of unsafe ((cribs)) children's products by making it illegal to remanufacture, retrofit, sell, contract to sell or resell, lease, sublet, or otherwise place in the stream of commerce, after ((June 6, 1996)) January 1, 2009, any unsafe children's product including, but not limited to, a full-size or nonfull-size crib that is unsafe for any infant using the crib.
     (3) It is the intent of the legislature to encourage public and private collaboration in disseminating materials relative to the safety of ((baby cribs)) children's products to parents, child care providers, and those who would be likely to place unsafe ((cribs)) children's products in the stream of commerce. The legislature also intends that informational materials regarding ((baby crib safety)) children's products and sleep safety information be available to consumers through the department of health.

Sec. 2   RCW 70.111.020 and 1996 c 158 s 3 are each amended to read as follows:
     Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter.
     (1) (("Infant" means any person less than thirty-five inches tall and less than three years of age.
     (2))) "Children's product" means a product including, but not limited to, a full-size crib, nonfull-size crib, toddler bed, bed, car seat, high chair, booster chair, hook-on chair, bath seat, gate or other enclosure for confining a child or infant, play yard, stationary activity center, carrier, stroller, walker, swing, or toy or play equipment that meets the following criteria:
     (a) The product is designed or intended for the care of, or use by, any child under the age of twelve; and
     (b) The product is designed or intended to come into contact with the child while the product is used.
     (c) A product is not a "children's product" under this chapter if:
     (i) It can be used for the care of, or use by, a child under the age of twelve, but it is designed or intended for use by the general population or segments of the general population and not solely or primarily for the care of, or use by, a child; or
     (ii) It is a medication, drug, or food, or is intended to be ingested.
     (2) "Commercial dealer" means any person who deals in children's products or who otherwise by one's occupation holds oneself out as having knowledge or skills 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.
     (3) "Crib" means a bed or containment designed to accommodate an infant.
     (((3))) (4) "Distributor" and "wholesaler" means any person, other than a manufacturer or retailer, who sells or resells or otherwise places into the stream of commerce a children's product.
     (5) "End consumer" means a person who purchases a children's product for any purpose other than resale.
     (6) "First seller" means any retailer selling a children's product that has not been used or has not been previously owned. A first seller does not include an entity such as a secondhand or resale store.
     (7) "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.
     (((4))) (8) "Importer" means any person who brings into this country and places into the stream of commerce a children's product.
     (9) "Infant" means any person less than thirty-five inches tall and less than three years of age.
     (10) "Manufacturer" means any person who makes any part of a children's product that is placed into the stream of commerce.
     (11) "Nonfull-size crib" means a nonfull-size crib as defined in Section 1509.2(b) of Title 16 of the Code of the Federal Regulations regarding the requirements for nonfull-size cribs.
     (((5))) (12) "Person" means any natural person, firm, corporation, limited liability company, association, or agent or employee thereof.
     (((6) "Commercial user" means any person who deals in full-size or nonfull-size cribs of the kind governed by this chapter or who otherwise by one's occupation holds oneself out as having knowledge or skill peculiar to the full-size or nonfull-size cribs governed by this chapter, including child care facilities and family child care homes licensed by the department of social and health services under chapter 74.15 RCW, or any person who is in the business of remanufacturing, retrofitting, selling, leasing, subletting, or otherwise placing in the stream of commerce full-size or nonfull-size cribs.))

NEW SECTION.  Sec. 3   A new section is added to chapter 70.111 RCW to read as follows:
     (1) A commercial dealer, manufacturer, importer, distributor, wholesaler, or retailer may not manufacture, remanufacture, retrofit, distribute, sell at wholesale or retail, contract to sell or resell, lease, or sublet, advertise or otherwise place in the stream of commerce a children's product that is unsafe.
     (2) A children's product is deemed to be unsafe under this chapter only if it meets any of the following criteria:
     (a) It does not conform to all federal laws and regulations setting forth standards for the children's product;
     (b) It has been recalled for any reason or in cooperation with an agency of the federal government or the product's manufacturer, wholesaler, distributor, or importer, and the recall has not been rescinded; or
     (c) An agency of the federal government or the product's manufacturer, wholesaler, distributor, or importer has issued a warning that a specific product's intended use constitutes a safety hazard and the warning has not been rescinded.
     (3) A commercial dealer, manufacturer, importer, distributor, wholesaler, or retailer who willfully and knowingly violates this section is guilty of a misdemeanor, punishable by a fine not exceeding one thousand dollars.

Sec. 4   RCW 70.111.030 and 2003 c 53 s 361 are each amended to read as follows:
     (1) ((No)) A commercial ((user)) dealer, manufacturer, importer, distributor, wholesaler, or retailer may not remanufacture, retrofit, sell, contract to sell or resell, lease, sublet, or otherwise place in the stream of commerce((, on or after June 6, 1996,)) a full-size or nonfull-size crib that is unsafe for any infant using the crib.
     (2) A crib is presumed to be unsafe pursuant to this chapter if it does not conform to all of the following:
     (a) Part 1508 (commencing with Section 1508.1) of Title 16 of the Code of Federal Regulations;
     (b) Part 1509 (commencing with Section 1509.1) of Title 16 of the Code of Federal Regulations;
     (c) Part 1303 (commencing with Section 1303.1) of Title 16 of the Code of Federal Regulations;
     (d) ((American Society for Testing Materials Voluntary Standards F966-90)) ASTM F966;
     (e) ((American Society for Testing Materials Voluntary Standards F1169.88)) ASTM F1169;
     (f) Any regulations that are adopted in order to amend or supplement the regulations described in (a) through (e) of this subsection.
     (3) Cribs that are unsafe or fail to perform as expected pursuant to subsection (2) of this section include, but are not limited to, cribs that have any of the following dangerous features or characteristics:
     (a) Corner posts that extend more than one-sixteenth of an inch;
     (b) Spaces between side slats more than two and three-eighths inches;
     (c) Mattress support than can be easily dislodged from any point of the crib. A mattress segment can be easily dislodged if it cannot withstand at least a twenty-five pound upward force from underneath the crib;
     (d) Cutout designs on the end panels;
     (e) Rail height dimensions that do not conform to the following:
     (i) 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;
     (ii) 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;
     (f) Any screws, bolts, or hardware that are loose and not secured;
     (g) Sharp edges, points, or rough surfaces, or any wood surfaces that are not smooth and free from splinters, splits, or cracks;
     (h) Nonfull-size cribs with tears in mesh or fabric sides.
     (4) ((On or after January 1, 1997,)) Any commercial ((user)) dealer, manufacturer, importer, distributor, wholesaler, or retailer who willfully and knowingly violates this section is guilty of a misdemeanor, punishable by a fine not exceeding one thousand dollars. ((Hotels, motels, and similar transient lodging, child care facilities, and family child care homes are not subject to this section until January 1, 1999.))

NEW SECTION.  Sec. 5   A new section is added to chapter 70.111 RCW to read as follows:
     (1) If a manufacturer, importer, wholesaler, or distributor of children's products has placed into the stream of commerce in Washington a children's product for which a recall or warning has subsequently been issued by either a manufacturer, importer, wholesaler, or distributor, or by a federal agency, the manufacturer, importer, wholesaler, or distributor must initiate the following steps within twenty-four hours after issuing or receiving the recall or warning:
     (a) Contact all of its commercial customers, other than end consumers, to whom it sold, leased, sublet, or transferred that particular children's product in Washington. This contact must include providing the recall notice or warning and must be made to the person designated by the retailer for that product;
     (b) If the manufacturer, importer, wholesaler, or distributor maintains a web site, it must place on the home page, or the first entry point, of its web site a link to recall or warning information that contains the specific recall notice or warning that was issued for the product in question. The recall or warning information must include a description of the product, the reason for the recall or warning, a picture of the product, and instructions on how to participate in the recall or warning. The information must include only the product recall information and not sales or marketing information on that product or any other product, excluding return and exchange policies. The recall or warning information must allow persons to participate in the recall through the web site of the manufacturer, importer, wholesaler, or distributor; and
     (c) If the manufacturer, importer, wholesaler, or distributor sold directly to a noncommercial consumer, and the consumer provided either a shipping address or e-mail address at the time of sale, the manufacturer, importer, wholesaler, or distributor must send a notice of the recall or warning to the consumer at either address provided. The notice must include a description of the product, the reason for the recall or warning, and instructions on how to participate in the recall or warning. The notice must include only the product recall information and not sales or marketing information on that product or any other product, excluding return and exchange policies.
     (2) If a retailer receives notice of a recall or warning regarding a children's product from a manufacturer, importer, wholesaler, or distributor or, in the case of an involuntary recall, from a federal agency, and if the retailer at any time offered the product for sale in Washington, then the retailer must:
     (a) Within seven business days after receiving the recall or warning from the manufacturer, importer, wholesaler, or distributor by a person designated by the retailer, the retailer must remove the children's product from the shelves of its stores or program its registers to ensure that the item cannot be sold.
     (b) If the children's product was sold through the retailer's web site, then within seven business days after receipt of the recall or warning by the person designated by the retailer, the retailer must remove the children's product from the web site or remove the ability of a consumer to purchase the children's product through the web site.
     (c) Within seven business days after receipt of the recall or warning by the person designated by the retailer from a manufacturer, importer, wholesaler, or distributor, or from a federal agency in the case of an involuntary recall, the retailer must post in a prominent location in each retail store the recall or warning notice. This notice must remain posted for ninety days.
     (d) If the children's product for which a recall or warning was issued was sold on the retailer's web site, the retailer must within seven business days post on the home page, or the first entry point, of its web site a link to recall or warning information that contains the specific recall notice or warning that was issued for the product in question. The recall or warning information must include a description of the product, the reason for the recall or warning, a picture of the product if one was provided, and instructions on how to participate in the recall or warning. The information must include only the product recall information and not sales or marketing information on that product or any other product, excluding return and exchange policies.
     (3) Within five business days after a recalled children's product is placed on the department of health's comprehensive list maintained under section 10 of this act, a retailer who is not a first seller must comply with subsection (2) of this section, except that the retailer has five business days to comply with subsections (1)(a) and (2)(b) of this section.
     (4) A manufacturer, importer, wholesaler, or distributor who is also a retailer must comply with subsections (1) and (2) of this section, except that a manufacturer, importer, wholesaler, or distributor who is also a retailer must, within twenty-four hours after issuing or receiving the recall or warning, post on the home page, or first entry point, of its web site a link to recall or warning information that contains the specific recall notice or warning that was issued for the product in question.

NEW SECTION.  Sec. 6   A new section is added to chapter 43.215 RCW to read as follows:
     (1) A child day care center or family day care provider shall not use or have on the premises an unsafe children's product as described in sections 3 and 4 of this act. This subsection 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 or home.
     (2) The department of early learning shall notify child care providers of, on an ongoing basis, this section and chapter 70.111 RCW and the list of unsafe children's products provided and maintained by the department of health.
     (3) Child care providers must place in prominent locations regularly visited by parents a written notification of the existence of the comprehensive list of unsafe children's products available on the internet.
     (4) The department of early learning shall adopt rules to carry out this section.

NEW SECTION.  Sec. 7   A new section is added to chapter 70.111 RCW to read as follows:
     A violation of this chapter constitutes an unfair or deceptive trade practice affecting the public interest under chapter 19.86 RCW. All private and public remedies provided under chapter 19.86 RCW are available to enforce this chapter.

Sec. 8   RCW 70.111.060 and 1996 c 158 s 7 are each amended to read as follows:
     Any person may maintain an action against any commercial ((user)) dealer, manufacturer, importer, distributor, wholesaler, or retailer who violates RCW 70.111.030 or section 3 of this act to enjoin the remanufacture, retrofit, sale, contract to sell, contract to resell, lease, or subletting of a ((full-size or nonfull-size crib)) children's product that is unsafe for any infant or child using the ((crib)) children's product, and for reasonable attorneys' fees and costs. ((This section does not apply to hotels, motels, and similar transient lodging, child care facilities, and family child care homes until January 1, 1999.))

Sec. 9   RCW 70.111.900 and 1996 c 158 s 2 are each amended to read as follows:
     This chapter may be known and cited as the ((infant crib)) children's product safety act.

Sec. 10   RCW 43.70.660 and 2001 c 257 s 2 are each amended to read as follows:
     (1) The legislature authorizes the secretary to establish and maintain a product safety education campaign to promote greater awareness of products designed to be used by infants and children((, excluding toys,)) that:
     (a) Are recalled by the United States consumer products safety commission;
     (b) Do not meet federal safety regulations and voluntary safety standards; or
     (c) Are unsafe or illegal to place into the stream of commerce under ((the infant crib safety act,)) chapter 70.111 RCW.
     (2) As part of the product safety education campaign, the department shall make a comprehensive list available to the public at no cost and post it on the internet. The internet posting must provide a link to http://www.recalls.gov or its successor web site and must otherwise make available a link to the specific recall notice or warning concerning the children's product that has been recalled or for which a warning has been issued. The department must also review and update these links on a regular basis.
     (3) The department shall make reasonable efforts to ensure that this infant and children product safety education campaign reaches the target population. The target population for this campaign includes, but is not limited to, parents, foster parents and other caregivers, child care providers, consignment and resale stores selling infant and child products, and charitable and governmental entities serving infants, children, and families.
     (((3))) (4) The secretary may utilize a combination of methods to achieve this outreach and education goal, including but not limited to print and electronic media. The secretary may operate the campaign or may contract with a vendor.
     (((4))) (5) The department shall coordinate this infant and children product safety education campaign with child-serving entities including, but not limited to, hospitals, birthing centers, midwives, pediatricians, obstetricians, family practice physicians, governmental and private entities serving infants, children, and families, and relevant manufacturers.
     (((5))) (6) The department shall coordinate with other agencies and entities to eliminate duplication of effort in disseminating infant and children consumer product safety information.
     (((6))) (7) The department may receive funding for this infant and children product safety education effort from federal, state, and local governmental entities, child-serving foundations, or other private sources.

NEW SECTION.  Sec. 11   RCW 70.111.040 (Exemption) and 1996 c 158 s 5 are each repealed.

NEW SECTION.  Sec. 12   If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.

NEW SECTION.  Sec. 13   This act takes effect January 1, 2009.