SB0526sam001 94TH GENERAL ASSEMBLY

Sen. Carol Ronen

Filed: 3/7/2005

09400SB0526sam001 LRB094 08995 DRJ 42996 a

AMENDMENT TO SENATE BILL 526

AMENDMENT NO. ______. Amend Senate Bill 526 by replacing everything after the enacting clause with the following:

"Section 5. The Children's Product Safety Act is amended by changing Sections 10, 15, 20, 25, and 30 and by adding Sections 17, 26, and 27 as follows:

(430 ILCS 125/10)

Sec. 10. Definitions. In this Act:

(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:

(i) the product is designed or intended for the care of, or use by, any child under age 9 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

(ii) 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 Act if:

(I) it may be used by or for the care of a child under age 9 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

(II) it is a medication, drug, or food or is intended to be ingested.

(b) "Commercial dealer 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.

(b-5) "Manufacturer" means any person who makes and places into the stream of commerce a children's product as defined by this Act.

(b-10) "Importer" means any person who brings into this country and places into the stream of commerce a children's product.

(b-15) "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.

(b-20) "Retailer" means any person other than a manufacturer, distributor, or wholesaler who sells, leases, or sublets children's products.

(b-25) "First seller" means any retailer selling a children's product that has not been used or has not previously been owned. A first seller does not include an entity such as a second-hand or resale store.

(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 35 inches tall and less than 3 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) "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.

(h) "End consumer" means a person who purchases a children's product for any purpose other than resale.

(Source: P.A. 91-413, eff. 1-1-00.)

(430 ILCS 125/15)

Sec. 15. Unsafe children's products; prohibition.

(a) On and after the effective date of this amendatory Act of the 94th General Assembly, no No commercial dealer, manufacturer, importer, distributor, wholesaler, or retailer user may manufacture, remanufacture, retrofit, distribute, sell at wholesale or retail, contract to sell or resell, lease, or sublet, or otherwise place in the stream of commerce, on or after January 1, 2000, a children's product that is unsafe.

(b) A children's product is deemed to be unsafe for purposes of this Act only if it meets any of the following criteria:

(1) It does not conform to all applicable federal laws and regulations setting forth standards for the children's product.

(2) It has been recalled for any reason by 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.

(3) 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.

(b-5) The Department of Public Health shall do the following:

(1) Maintain 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 this subsection (b).

(2) Update the comprehensive list within 24 hours after a children's product has been identified as meeting any of the criteria set forth in subsection (b).

(3) Make The Department of Public Health shall make the comprehensive list available to the public at no cost and shall post it on the Internet, and encourage links. The Internet posting shall provide a link to www.recalls.gov or its successor and shall 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 review and update these links on a regular basis.

(4) Include information regarding the comprehensive list of unsafe children's products maintained under this Section in regular publications or mailings such as those sent to persons including, but not limited to: pediatricians; Special Supplemental Nutrition Program for Women, Infants, and Children (WIC) clinics; and local health departments.

(c) A crib is presumed to be unsafe for purposes of this Act 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 standards endorsed or established by ASTM International 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 ASTM International the American Society for Testing Materials for corner posts of baby cribs and structural integrity of baby cribs:

(A) ASTM F 966 966-90 (corner post standard).

(B) ASTM F 1169 1169-88 (structural integrity of full-size baby cribs).

(C) ASTM F 406 1822-97 (non-full-size cribs).

The Department of Public Health shall make the requirements set forth in this subsection (c) available to the public.

(d) (Blank.) Cribs that are unsafe shall include, but not be 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.

(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 non-full-size crib.

(9) A non-full-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 non-full-size mesh/fabric crib exceeds one inch.

(e) An unsafe children's product, as determined pursuant to subdivisions (1), (2), and (3) of subsection (b) of this Section 15, 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 age 9 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 age 9 6 years of age; and (3) the name and address of the commercial dealer, manufacturer, importer, distributor, or wholesaler user who accomplished the retrofit certifying that the work was done along with the name and model number of the product retrofitted. The commercial dealer, manufacturer, importer, distributor, or wholesaler user is responsible for ensuring that the notice is present with the retrofitted product at the time of sale. A retrofit is exempt from this Act if:

(i) 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 dealer, manufacturer, importer, distributor, or wholesaler user, and the retrofit is accompanied at the time of sale by instructions explaining how to apply the retrofit; or

(ii) the seller of a previously unsold product accomplishes the repair, approved or recommended by an agency of the federal government, prior to sale.

(Source: P.A. 91-413, eff. 1-1-00.)

(430 ILCS 125/17 new)

Sec. 17. Product recalls.

(a) If a manufacturer, importer, wholesaler, or distributor of children's products has placed into the stream of commerce in Illinois a children's product for which a recall or warning has subsequently been issued by one of those entities or by an agency of the federal government, then the manufacturer, importer, wholesaler, or distributor must initiate the following steps within 24 hours after issuing or receiving the recall or warning:

(1) Contact all of its commercial customers, other than end consumers, to whom it sold, leased, sublet, or transferred that particular children's product in Illinois. This contact must include providing the recall notice or warning and must be made to the person designated by the retailer for that product.

(2) If the manufacturer, importer, wholesaler, or distributor maintains a web site, the entity 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 may include only the product recall information and may not include 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.

(3) If the manufacturer, importer, wholesaler, or distributor sold directly to a non-commercial consumer, and the consumer provided either a shipping address or e-mail address at the time of sale, then 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 may include only the product recall information and may not include sales or marketing information on that product or any other product, excluding return and exchange policies.

(b) 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 Illinois, then the retailer must do the following:

(1) Within 3 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.

(2) If the product was sold through the retailer's web site, then within 3 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.

(3) If an e-mail or shipping address was provided at the time a children's product, for which a recall or warning was subsequently issued, was purchased on the retailer's web site, the retailer must attempt to contact the purchaser at either address provided with the recall or warning information. The recall or warning information 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 information may include only the product recall information and may not include sales or marketing information on that product or any other product, excluding return and exchange policies. The retailer must comply with this paragraph (3) within 30 days after receiving the notice of the recall or warning from a manufacturer, importer, wholesaler, or distributor.

(4) Within 5 business days after receipt of the recall or warning by the person designated by the retailer from a manufacturer, importer, wholesaler, 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 120 days.

(5) 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 5 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 may include only the product recall information and may not include sales or marketing information on that product or any other product, excluding return and exchange policies.

(c) Within 5 business days after a recalled children's product is placed on the Department of Public Health's comprehensive list maintained under Section 15, a retailer who is not a first seller must comply with subsection (b) of Section 17, except that such a retailer has 5 business days to comply with both subdivision (b)(1) and subdivision (b)(2) of Section 17.

(d) A manufacturer, importer, wholesaler, or distributor who is also a retailer must comply with both subsection (a) and subsection (b) of Section 17, except that a manufacturer, importer, wholesaler, or distributor who is also a retailer must, within 24 hours after issuing or receiving the recall or warning, 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.

(430 ILCS 125/20)

Sec. 20. Exception. The commercial dealer, manufacturer, importer, distributor, wholesaler, or retailer user shall not be found in violation of Section 15 noncompliant if the specific recalled product sold was not included on the Department of Public Health's list on the day before the sale.

(Source: P.A. 91-413, eff. 1-1-00.)

(430 ILCS 125/25)

Sec. 25. Penalty. Except as provided in Section 20, a A commercial dealer, importer, distributor, wholesaler, or retailer user who willfully and knowingly violates this Act by failing to exercise reasonable care is subject to a civil penalty in an amount not to exceed $500 for each day that the violation continues Section 15 is guilty of a Class C misdemeanor.

(Source: P.A. 91-413, eff. 1-1-00.)

(430 ILCS 125/26 new)

Sec. 26. Issuance of recalls by other entities prohibited. Nothing in this Act shall be interpreted to allow a unit of State or local government or any other entity within the State to issue recalls.

(430 ILCS 125/27 new)

Sec. 27. Federal requirements. Nothing in this Act relieves a commercial dealer, manufacturer, importer, distributor, wholesaler, or retailer from compliance with stricter requirements that may be imposed by an agency of the federal government.

(430 ILCS 125/30)

Sec. 30. Enforcement.

(a) The Attorney General, or a State's Attorney in the county in which a violation of this Act occurred, may bring an action in the name of the People of the State of Illinois to enforce the provisions of this Act.

(b) When (i) it appears to the Attorney General that a commercial dealer, manufacturer, importer, distributor, wholesaler, or retailer has engaged in or is engaging in any practice declared to be in violation of this Act, or (ii) the Attorney General receives a written complaint from a consumer of the commission of a practice declared to be in violation of this Act, or (iii) the Attorney General believes it to be in the public interest that an investigation should be made to ascertain whether a person in fact has engaged in or is engaging in any practice declared to be in violation of this Act, the Attorney General may:

(1) Require that person to file, on terms that the Attorney General prescribes, a statement or report in writing under oath or otherwise, as to all information the Attorney General considers necessary.

(2) Examine under oath any person in connection with the conduct of any trade or commerce.

(3) Examine any merchandise or sample thereof, record, book, document, account, or paper the Attorney General considers necessary.

(4) Pursuant to an order of the circuit court, impound any record, book, document, account, paper, or sample of merchandise that is produced in accordance with this Act, and retain it in the Attorney General's possession until the completion of all proceedings in connection with which it is produced.

(c) In the administration of this Act, the Attorney General may accept an assurance of voluntary compliance with respect to any practice deemed to be a violation of this Act from any commercial dealer, manufacturer, importer, distributor, wholesaler, or retailer who has engaged in or is engaging in that practice. Evidence of the violation of an assurance of voluntary compliance shall be prima facie evidence of a violation of this Act in any subsequent proceeding brought by the Attorney General against the alleged violator with regard to the specific violation or violations addressed in the assurance of voluntary compliance.

(d) Whenever the Attorney General or a State's Attorney has reason to believe that any commercial dealer, manufacturer, importer, distributor, wholesaler, or retailer has engaged in or is engaging in any practice in violation of this Act and that proceedings would be in the public interest, he or she may bring an action in the name of the People of the State against that commercial dealer, manufacturer, importer, distributor, wholesaler, or retailer to restrain by preliminary or permanent injunction the use of that practice.

(e) Civil penalties paid under Section 25 shall be deposited into the Attorney General Court Ordered and Voluntary Compliance Payment Projects Fund. Moneys in the Fund shall be used, subject to appropriation, for the performance of any function pertaining to the exercise of the duties of the Attorney General, including, but not limited to, enforcement of any law of this State and conducting public education programs. Any moneys in the Fund that are required by the court or by an agreement to be used for a particular purpose must be used for that purpose, however.

(Source: P.A. 91-413, eff. 1-1-00.)

Section 99. Effective date. This Act takes effect upon becoming law, except that the amendatory changes to Sections 25 and 30 of the Children's Product Safety Act take effect January 1, 2006.".