15 U.S.C. § 1261 (COMMERCE AND TRADE)
§ 1261. Definitions
For the purposes of this chapter—
(a) The term “territory” means any territory or possession of the United States, including the District of Columbia and the Commonwealth of Puerto Rico but excluding the Canal Zone.
(b) The term “interstate commerce” means (1) commerce between any State or territory and any place outside thereof, and (2) commerce within the District of Columbia or within any territory not organized with a legislative body.
(c) The term “Commission” means the Consumer Product Safety Commission.
(d) Repealed. Pub. L. 110–314, title II, § 204(b)(4)(A), Aug. 14, 2008, 122 Stat. 3041
(e) The term “person” includes an individual, partnership, corporation, and association.
(f) The term “hazardous substance” means:
(1)
(A) Any substance or mixture of substances which (i) is toxic, (ii) is corrosive, (iii) is an irritant, (iv) is a strong sensitizer, (v) is flammable or combustible, or (vi) 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 any customary or reasonably foreseeable handling or use, including reasonably foreseeable ingestion by children.
(B) Any substances which the Commission by regulation finds, pursuant to the provisions of section 1262(a) of this title, meet the requirements of subparagraph (1)(A) of this paragraph.
(C) Any radioactive substance, if, with respect to such substance as used in a particular class of article or as packaged, the Commission determines by regulation that the substance is sufficiently hazardous to require labeling in accordance with this chapter in order to protect the public health.
(D) Any toy or other article intended for use by children which the Commission by regulation determines, in accordance with section 1262(e) of this title, presents an electrical, mechanical, or thermal hazard.
(E) Any solder which has a lead content in excess of 0.2 percent.
(2) The term “hazardous substance” shall not apply to pesticides subject to the Federal Insecticide, Fungicide, and Rodenticide Act [7 U.S.C. 136 et seq.], nor to foods, drugs and cosmetics subject to the Federal Food, Drug, and Cosmetic Act [21 U.S.C. 301 et seq.], nor to substances intended for use as fuels when stored in containers and used in the heating, cooking, or refrigeration system of a house, nor to tobacco and tobacco products, but such term shall apply to any article which is not itself a pesticide within the meaning of the Federal Insecticide, Fungicide, and Rodenticide Act but which is a hazardous substance within the meaning of subparagraph (1) of this paragraph by reason of bearing or containing such a pesticide.
(3) The term “hazardous substance” shall not include any source material, special nuclear material, or byproduct material as defined in the Atomic Energy Act of 1954, as amended [42 U.S.C. 2011 et seq.], and regulations issued pursuant thereto by the Atomic Energy Commission.
(g) The term “toxic” shall apply to any substance (other than a radioactive substance) which has the capacity to produce personal injury or illness to man through ingestion, inhalation, or absorption through any body surface.
(h)
(1) The term “highly toxic” means any substance which falls within any of the following categories: (a) Produces death within fourteen days in half or more than half of a group of ten or more laboratory white rats each weighing between two hundred and three hundred grams, at a single dose of fifty milligrams or less per kilogram of body weight, when orally administered; or (b) produces death within fourteen days in half or more than half of a group of ten or more laboratory white rats each weighing between two hundred and three hundred grams, when inhaled continuously for a period of one hour or less at an atmospheric concentration of two hundred parts per million by volume or less of gas or vapor or two milligrams per liter by volume or less of mist or dust, provided such concentration is likely to be encountered by man when the substance is used in any reasonably foreseeable manner; or (c) produces death within fourteen days in half or more than half of a group of ten or more rabbits tested in a dosage of two hundred milligrams or less per kilogram of body weight, when administered by continuous contact with the bare skin for twenty-four hours or less.
(2) If the Commission finds that available data on human experience with any substance indicate results different from those obtained on animals in the above-named dosages or concentrations, the human data shall take precedence.
(i) The term “corrosive” means any substance which in contact with living tissue will cause destruction of tissue by chemical action; but shall not refer to action on inanimate surfaces.
(j) The term “irritant” means any substance not corrosive within the meaning of subparagraph (i) of this section which on immediate, prolonged, or repeated contact with normal living tissue will induce a local inflammatory reaction.
(k) The term “strong sensitizer” means a substance which will cause on normal living tissue through an allergic or photodynamic process a hypersensitivity which becomes evident on reapplication of the same substance and which is designated as such by the Commission. Before designating any substance as a strong sensitizer, the Commission, upon consideration of the frequency of occurrence and severity of the reaction, shall find that the substance has a significant potential for causing hypersensitivity.
(l)
(1) The terms “extremely flammable”, “flammable”, and “combustible” as applied to any substance, liquid, solid, or the content of a self-pressurized container shall be defined by regulations issued by the Commission.
(2) The test methods found by the Commission to be generally applicable for defining the flammability or combustibility characteristics of any such substance shall also be specified in such regulations.
(3) In establishing definitions and test methods related to flammability and combustibility, the Commission shall consider the existing definitions and test methods of other Federal agencies involved in the regulation of flammable and combustible substances in storage, transportation and use; and to the extent possible, shall establish compatible definitions and test methods.
(4) Until such time as the Commission issues a regulation under paragraph (1) defining the term “combustible” as applied to liquids, such term shall apply to any liquid which has a flash point above eighty degrees Fahrenheit to and including one hundred and fifty degrees, as determined by the Tagliabue Open Cup Tester.
(m) The term “radioactive substance” means a substance which emits ionizing radiation.
(n) The term “label” means a display of written, printed, or graphic matter upon the immediate container of any substance or, in the case of an article which is unpackaged or is not packaged in an immediate container intended or suitable for delivery to the ultimate consumer, a display of such matter directly upon the article involved or upon a tag or other suitable material affixed thereto; and a requirement made by or under authority of this chapter that any word, statement, or other information appear on the label shall not be considered to be complied with unless such word, statement, or other information also appears (1) on the outside container or wrapper, if any there be, unless it is easily legible through the outside container or wrapper and (2) on all accompanying literature where there are directions for use, written or otherwise.
(o) The term “immediate container” does not include package liners.
(p) The term “misbranded hazardous substance” means a hazardous substance (including a toy, or other article intended for use by children, which is a hazardous substance, or which bears or contains a hazardous substance in such manner as to be susceptible of access by a child to whom such toy or other article is entrusted) intended, or packaged in a form suitable, for use in the household or by children, if the packaging or labeling of such substance is in violation of an applicable regulation issued pursuant to section 1472 or 1473 of this title or if such substance, except as otherwise provided by or pursuant to section 1262 of this title, fails to bear a label—
(1) which states conspicuously (A) the name and place of business of the manufacturer, packer, distributor or seller; (B) the common or usual name or the chemical name (if there be no common or usual name) of the hazardous substance or of each component which contributes substantially to its hazard, unless the Commission by regulation permits or requires the use of a recognized generic name; (C) the signal word “DANGER” on substances which are extremely flammable, corrosive, or highly toxic; (D) the signal word “WARNING” or “CAUTION” on all other hazardous substances; (E) an affirmative statement of the principal hazard or hazards, such as “Flammable”, “Combustible”, “Vapor Harmful”, “Causes Burns”, “Absorbed Through Skin”, or similar wording descriptive of the hazard; (F) precautionary measures describing the action to be followed or avoided, except when modified by regulation of the Commission pursuant to section 1262 of this title; (G) instruction, when necessary or appropriate, for first-aid treatment; (H) the word “poison” for any hazardous substance which is defined as “highly toxic” by subsection (h) of this section; (I) instructions for handling and storage of packages which require special care in handling or storage; and (J) the statement (i) “Keep out of the reach of children” or its practical equivalent, or, (ii) if the article is intended for use by children and is not a banned hazardous substance, adequate directions for the protection of children from the hazard, and
(2) on which any statements required under subparagraph (1) of this paragraph are located prominently and are in the English language in conspicuous and legible type in contrast by typography, layout, or color with other printed matter on the label.
The term “misbranded hazardous substance” also includes a household substance as defined in section 1471(2)(D) 1 of this title if it is a substance described in paragraph (1) of subsection (f) of this section and its packaging or labeling is in violation of an applicable regulation issued pursuant to section 1472 or 1473 of this title.
(q)
(1) The term “banned hazardous substance” means (A) any toy, or other article intended for use by children, which is a hazardous substance, or which bears or contains a hazardous substance in such manner as to be susceptible of access by a child to whom such toy or other article is entrusted; or (B) any hazardous substance intended, or packaged in a form suitable, for use in the household, which the Commission by regulation classifies as a “banned hazardous substance” on the basis of a finding that, notwithstanding such cautionary labeling as is or may be required under this chapter for that substance, the degree or nature of the hazard involved in the presence or use of such substance in households is such that the objective of the protection of the public health and safety can be adequately served only by keeping such substance, when so intended or packaged, out of the channels of interstate commerce: Provided, That the Commission, by regulation, (i) shall exempt from clause (A) of this paragraph articles, such as chemical sets, which by reason of their functional purpose require the inclusion of the hazardous substance involved or necessarily present an electrical, mechanical, or thermal hazard, and which bear labeling giving adequate directions and warnings for safe use and are intended for use by children who have attained sufficient maturity, and may reasonably be expected, to read and heed such directions and warnings, and (ii) shall exempt from clause (A), and provide for the labeling of, common fireworks (including toy paper caps, cone fountains, cylinder fountains, whistles without report, and sparklers) to the extent that it determines that such articles can be adequately labeled to protect the purchasers and users thereof.
(2) Proceedings for the issuance, amendment, or repeal of regulations pursuant to clause (B) of subparagraph (1) of this paragraph shall be governed by the provisions of subsections (f) through (i) of section 1262 of this title, except that if the Commission finds that the distribution for household use of the hazardous substance involved presents an imminent hazard to the public health, it may by order published in the Federal Register give notice of such finding, and thereupon such substance when intended or offered for household use, or when so packaged as to be suitable for such use, shall be deemed to be a “banned hazardous substance” pending the completion of proceedings relating to the issuance of such regulations.
(r) An article may be determined to present an electrical hazard if, in normal use or when subjected to reasonably foreseeable damage or abuse, its design or manufacture may cause personal injury or illness by electric shock.
(s) An article may be determined to present a mechanical hazard if, in normal use or when subjected to reasonably foreseeable damage or abuse, its design or manufacture presents an unreasonable risk of personal injury or illness (1) from fracture, fragmentation, or disassembly of the article, (2) from propulsion of the article (or any part or accessory thereof), (3) from points or other protrusions, surfaces, edges, openings, or closures, (4) from moving parts, (5) from lack or insufficiency of controls to reduce or stop motion, (6) as a result of self-adhering characteristics of the article, (7) because the article (or any part or accessory thereof) may be aspirated or ingested, (8) because of instability, or (9) because of any other aspect of the article’s design or manufacture.
(t) An article may be determined to present a thermal hazard if, in normal use or when subjected to reasonably foreseeable damage or abuse, its design or manufacture presents an unreasonable risk of personal injury or illness because of heat as from heated parts, substances, or surfaces.
(Pub. L. 86–613, § 2, July 12, 1960, 74 Stat. 372; Pub. L. 89–756, §§ 2(a)–(c), 3(a), Nov. 3, 1966, 80 Stat. 1303, 1304; Pub. L. 91–113, §§ 2(a), (c), (d), 3, Nov. 6, 1969, 83 Stat. 187–189; Pub. L. 91–601, § 6(a), formerly § 7(a), Dec. 30, 1970, 84 Stat. 1673, renumbered Pub. L. 97–35, title XII, § 1205(c), Aug. 13, 1981, 95 Stat. 716; Pub. L. 92–516, § 3(1), Oct. 21, 1972, 86 Stat. 998; Pub. L. 94–284, § 3(c), May 11, 1976, 90 Stat. 503; Pub. L. 95–631, § 9, Nov. 10, 1978, 92 Stat. 3747; Pub. L. 99–339, title I, § 109(d)(1), June 19, 1986, 100 Stat. 653; Pub. L. 110–314, title II, § 204(b)(2), (4)(A), (B), (D), Aug. 14, 2008, 122 Stat. 3041, 3042.)
heading: References in Text
text: This chapter, referred to in text, was in the original “this Act”, meaning Pub. L. 86–613. For complete classification of this Act to the Code, see Short Title note set out below and Tables.
For definition of Canal Zone, referred to in subsec. (a), see section 3602(b) of Title 22, Foreign Relations and Intercourse.
The Federal Insecticide, Fungicide, and Rodenticide Act, referred to in subsec. (f)(2), is act June 25, 1947, ch. 125, as amended generally by Pub. L. 92–516, Oct. 21, 1972, 86 Stat. 973, which is classified generally to subchapter II (§ 136 et seq.) of chapter 6 of Title 7, Agriculture. For complete classification of this Act to the Code, see Short Title note set out under section 136 of Title 7 and Tables.
The Federal Food, Drug, and Cosmetic Act, referred to in subsec. (f)(2), is act June 25, 1938, ch. 675, 52 Stat. 1040, as amended, which is classified generally to chapter 9 (§ 301 et seq.) of Title 21, Food and Drugs. For complete classification of this Act to the Code, see section 301 of Title 21 and Tables.
The Atomic Energy Act of 1954, as amended, referred to in subsec. (f)(3), is act Aug. 1, 1946, ch. 724, as added by act Aug. 30, 1954, ch. 1073, § 1, 68 Stat. 919, which is classified principally to chapter 23 (§ 2011 et seq.) of Title 42, The Public Health and Welfare. For complete classification of this Act to the Code, see Short Title note set out under section 2011 of Title 42 and Tables.
Section 1471(2)(D) of this title, referred to in subsec. (p), was redesignated section 1471(2)(C) by Pub. L. 94–284, § 3(a)(2), May 11, 1976, 90 Stat. 503.
heading: Amendments
text: 2008—Subsec. (c). Pub. L. 110–314, § 204(b)(4)(A), added subsec. (c) and struck out former subsec. (c) which read as follows: “The term ‘Department’ means the Department of Health, Education, and Welfare.”
Subsec. (d). Pub. L. 110–314, § 204(b)(4)(A), struck out subsec. (d) which read as follows: “The term ‘Secretary’ means the Secretary of Health, Education, and Welfare.”
Subsecs. (f)(1)(B) to (D), (h)(2), (k), (p)(1). Pub. L. 110–314, § 204(b)(4)(B), substituted “Commission” for “Secretary” wherever appearing.
Subsec. (q). Pub. L. 110–314, § 204(b)(4)(B), (D), substituted “Commission” for “Secretary” wherever appearing and “it” for “he” in two places.
Subsec. (q)(2). Pub. L. 110–314, § 204(b)(2), substituted “Proceedings for the issuance, amendment, or repeal of regulations pursuant to clause (B) of subparagraph (1) of this paragraph shall be governed by the provisions of subsections (f) through (i) of section 1262 of this title, except that if” for “Proceedings for the issuance, amendment, or repeal of regulations pursuant to clause (B) of paragraph (1) of this subsection shall be governed by the provisions of sections 371(e), (f), and (g) of title 21: Provided, That if”.
1986—Subsec. (f)(1)(E). Pub. L. 99–339 added subpar. (E).
1978—Subsec. (l). Pub. L. 95–631 transferred the duties hereunder to the Commission from the Secretary; incorporated in provisions designated par. (1) existing text, authorized regulations to be applicable to liquids, and struck out definition of “extremely flammable” as substance with flash point at or below twenty degrees Fahrenheit and “flammable” as substance with a flash point of above twenty degrees to and including eighty degrees Fahrenheit, as determined by the Tagliabue Open Cup Tester; incorporated in provisions designated par. (2) existing text extended to liquids covered in term “substance”; added par. (3); and incorporated in provisions designated par. (4) existing text applicable until superseded by regulation.
1976—Subsec. (f)(2). Pub. L. 94–284 inserted “nor to tobacco and tobacco products,” after “or refrigeration system of a house”.
1972—Subsec. (f)(2). Pub. L. 92–516 substituted “pesticides” for “economic poisons” and “a pesticide” for “an economic poison” wherever appearing.
1970—Subsec. (p). Pub. L. 91–601 substituted in text preceding par. (1) “if the packaging or labeling of such substance is in violation of an applicable regulation issued pursuant to section 1472 or 1473 of this title or if such substance” for “which substance” and inserted following and below par. (2) provision including in “misbranded hazardous substance” a household substance as defined in section 1471(2)(D) of this title if it is a substance described in par. (1) of subsec. (f) of this section and its packaging or labeling is in violation of an applicable regulation issued pursuant to section 1472 or 1473 of this title.
1969—Subsec. (f)(1)(A). Pub. L. 91–113, § 3(a), inserted “or combustible” after “is flammable”.
Subsec. (f)(1)(D). Pub. L. 91–113, § 2(a), added subsec. (f)(1)(D).
Subsec. (l). Pub. L. 91–113, § 3(b), inserted definition of term “combustible” and expanded references to “flammability” and “flammable” to include “combustibility” and “combustible”, respectively.
Subsec. (p)(1)(E). Pub. L. 91–113, § 3(c), inserted “Combustible” to the enumerated affirmative statements of the principal hazard or hazards required to be stated on the label of a hazardous substance.
Subsec. (q)(1). Pub. L. 91–113, § 2(c), inserted “or necessarily present an electrical, mechanical, or thermal hazard” after “hazardous substance involved”.
Subsecs. (r) to (t). Pub. L. 91–113, § 2(d), added subsecs. (r) to (t).
1966—Subsec. (f). Pub. L. 89–756, § 2(a), provided that “hazardous substances” shall apply to any article which is not itself an economic poison within the meaning of the Federal Insecticide, Fungicide, and Rodenticide Act but which is a hazard substance within the meaning of par. (1) of this subsec. by reason of its bearing or containing an economic poison.
Subsec. (n). Pub. L. 89–756, § 2(b), enlarged term “label” to include, where the article is unpackaged or is packaged in an immediate container not intended or suitable for delivery to the ultimate consumer, a display of written, printed or graphic matter directly upon the article involved or upon a tag or other suitable material affixed thereto.
Subsec. (p). Pub. L. 89–756, § 2(c), in introductory text preceding par. (1) substituted “misbranded hazardous substance” for “misbranded package” and “misbranded package of a hazardous substance” and as so retermed enlarged applicability to include toys and other articles intended for use by children, which are hazardous substances, or which bear or contain hazardous substances when susceptible of access by children, and in par. (1), clause (J) inserted further category of “misbranded hazardous substance” where the article is intended for use by children and is not a banned hazardous substance and fails to bear a label with adequate directions for the protection of children from the hazard.
Subsec. (q). Pub. L. 89–756, § 3(a), added subsec. (q).
heading: Effective Date of 1986 Amendment
text: Pub. L. 99–339, title I, § 109(d)(3), June 19, 1986, 100 Stat. 653, provided that: “The amendments made by this subsection [amending this section and section 1263 of this title] shall become effective 24 months after the enactment of this Act [June 19, 1986].”
heading: Effective Date of 1972 Amendment
text: Amendment by Pub. L. 92–516 effective at close of Oct. 21, 1972, except if regulations are necessary for the implementation of any provision that becomes effective on Oct. 21, 1972, and continuation in effect of subchapter I of chapter 6 of title 7, and regulations thereunder, relating to the control of economic poisons, as in existence prior to Oct. 21, 1972, until superseded by provisions of Pub. L. 92–516 and regulations thereunder, see section 4 of Pub. L. 92–516, set out as a note under section 136 of Title 7, Agriculture.
heading: Effective Date of 1970 Amendment
text: Amendment by Pub. L. 91–601 effective Dec. 30, 1970, and regulations establishing special packaging standards effective no sooner than 180 days or later than one year from date regulations are final, or an earlier date published in Federal Register, see section 8 of Pub. L. 91–601, set out as a note under section 1471 of this title.
heading: Effective Date of 1969 Amendment
text: Pub. L. 91–113, § 5, Nov. 6, 1969, 83 Stat. 190, provided that: “The amendments made by this Act [see Short Title of 1969 Amendment note below] shall take effect on the sixtieth day following the date of the enactment of this Act [Nov. 6, 1969].”
heading: Effective Date
text: Pub. L. 86–613, § 17, formerly § 16, July 12, 1960, 74 Stat. 380, renumbered Pub. L. 91–113, § 4(a), Nov. 6, 1969, 83 Stat. 189, and amended by Pub. L. 110–314, title II, § 204(b)(4)(B), Aug. 14, 2008, 122 Stat. 3041, provided that:
“This Act [enacting this chapter and repealing sections 401 to 411 of this title] shall take effect upon the date of its enactment [July 12, 1960]; but no penalty or condemnation shall be enforced for any violation of this Act which occurs—
“(a) prior to the expiration of the sixth calendar month after the month in which this Act is enacted [July 1960], or
“(b) prior to the expiration of such additional period or periods, ending not more than eighteen months after the month of enactment of this Act [July 1960], as the Commission may prescribe on the basis of a finding that conditions exist which necessitate the prescribing of such additional period or periods: Provided, That the Commission may limit the application of such additional period or periods to violations related to specified provisions of this Act, or to specified kinds of hazardous substances or packages thereof.”
heading: Short Title of 1994 Amendment
text: Pub. L. 103–267, § 1, June 16, 1994, 108 Stat. 722, provided that: “This Act [enacting sections 1278 and 6001 to 6006 of this title and provisions set out as notes under this section and sections 1278, 2064, and 6001 of this title] may be cited as the ‘Child Safety Protection Act’.”
heading: Short Title of 1984 Amendment
text: Pub. L. 98–491, § 1, Oct. 17, 1984, 98 Stat. 2269, provided: “That this Act [amending section 1274 of this title] may be cited as the ‘Toy Safety Act of 1984’.”
heading: Short Title of 1969 Amendment
text: Pub. L. 91–113, § 1, Nov. 6, 1969, 83 Stat. 187, provided that: “This Act [enacting section 1274 of this title, amending this section and section 1262 of this title, enacting provisions set out as notes under this section, and amending provisions set out as notes under this section and section 401 of this title] may be cited as the ‘Child Protection and Toy Safety Act of 1969’.”
heading: Short Title of 1966 Amendment
text: Pub. L. 89–756, § 1, Nov. 3, 1966, 80 Stat. 1303, provided that: “This title [probably means this “Act”, amending this section, sections 1262, 1263, 1264, 1265, 1273 of this title, and provisions set out as a note under this section] may be cited as the ‘Child Protection Act of 1966’.”
heading: Short Title
text: Pub. L. 86–613, § 1, July 12, 1960, 74 Stat. 372, as amended by Pub. L. 89–756, § 5, Nov. 3, 1966, 80 Stat. 1305, provided: “This Act [enacting this chapter, repealing sections 401 to 411 of this title, and enacting notes set out under this section] may be cited as the ‘Federal Hazardous Substances Act’.”
heading: Separability
text: Pub. L. 86–613, § 16, formerly § 15, July 12, 1960, 74 Stat. 380, renumbered Pub. L. 91–113, § 4(a), Nov. 6, 1969, 83 Stat. 189, provided that: “If any provision of this Act [enacting this chapter and repealing sections 401 to 411 of this title] is declared unconstitutional, or the applicability thereof to any person or circumstance is held invalid, the constitutionality of the remainder of the Act and the applicability thereof to other persons and circumstances shall not be affected thereby.”
heading: Transfer of Functions
text: Atomic Energy Commission abolished and functions transferred by sections 5814 and 5841 of Title 42, The Public Health and Welfare. See, also, Transfer of Functions notes set out under those sections.
heading: Effect Upon Federal and State Law
text: Pub. L. 86–613, § 18, formerly § 17, July 12, 1960, 74 Stat. 380, as amended by Pub. L. 89–756, § 4(a), Nov. 3, 1966, 80 Stat. 1305; renumbered and amended by Pub. L. 91–113, § 4(a), (b)(1), Nov. 6, 1969, 83 Stat. 189, 190; Pub. L. 94–284, § 17(a), May 11, 1976, 90 Stat. 510; Pub. L. 110–314, title II, § 204(b)(4)(J), Aug. 14, 2008, 122 Stat. 3042, provided that:
“(a) Nothing in this act [enacting this chapter and repealing sections 401 to 411 of this title] shall be construed to modify or affect the provisions of the Flammable Fabrics Act, as amended (15 U.S.C. 1191 to 1200) [sections 1191 to 1204 of this title], or any regulations promulgated thereunder; or of chapter 39, title 18, United States Code, as amended (18 U.S.C. 831 et seq.), or any regulations promulgated thereunder or under sections 204(a)(2) and 204(a)(3) of the Interstate Commerce Act, as amended [section 31502 of Title 49, Transportation] (relating to the transportation of dangerous substances and explosives by surface carriers); or of section 1716, title 18, United States Code, or any regulations promulgated thereunder (relating to mailing of dangerous substances); or of section 902 [section 1472 of former Title 49] or regulations promulgated under section 601 of the Federal Aviation Act of 1958 [section 1421 of former Title 49] (relating to transportation of dangerous substances and explosives in aircraft); or of the Federal Food, Drug, and Cosmetic Act [chapter 9 of Title 21, Food and Drugs]; or of the Public Health Service Act [chapter 6A of Title 42, The Public Health and Welfare]; or of the Federal Insecticide, Fungicide, and Rodenticide Act [section 136 et seq. of Title 7, Agriculture]; or of the Dangerous Drug Act for the District of Columbia (70 Stat. 612), or the Act entitled ‘An Act to regulate the practice of pharmacy and the sale of poisons in the District of Columbia, and for other purposes’, approved May 7, 1906 (34 Stat. 175), as amended; or of any other Act of Congress, except as specified in section 19 [set out as a note under sections 401 to 411 of this title].
“(b)
(1)
(A) Except as provided in paragraphs (2) and (3), if a hazardous substance or its packaging is subject to a cautionary labeling requirement under section 2(p) or 3(b) [subsec. (p) of this section or section 1262(b) of this title] designed to protect against a risk of illness or injury associated with the substance, no State or political subdivision of a State may establish or continue in effect a cautionary labeling requirement applicable to such substance or packaging and designed to protect against the same risk of illness or injury unless such cautionary labeling requirement is identical to the labeling requirement under section 2(p) or 3(b) [subsec. (p) of this section or section 1262(b) of this title].
“(B) Except as provided in paragraphs (2), (3), and (4), if under regulations of the Commission promulgated under or for the enforcement of section 2(q) [subsec. (q) of this section] a requirement is established to protect against a risk of illness or injury associated with a hazardous substance, no State or political subdivision of a State may establish or continue in effect a requirement applicable to such substance and designed to protect against the same risk of illness or injury unless such requirement is identical to the requirement established under such regulations.
“(2) The Federal Government and the government of any State or political subdivision of a State may establish and continue in effect a requirement applicable to a hazardous substance for its own use (or to the packaging of such a substance) which requirement is designed to protect against a risk of illness or injury associated with such substance and which is not identical to a requirement described in paragraph (1) applicable to such substance (or packaging) and designed to protect against the same risk of illness or injury if the Federal, State, or political subdivision requirement provides a higher degree of protection from such risk of illness or injury than the requirement described in paragraph (1).
“(3)
(A) Upon application of a State or political subdivision of a State, the Commission may, by regulation promulgated in accordance with subparagraph (B), exempt from paragraph (1), under such conditions as may be prescribed in such regulation, any requirement of such State or political subdivision designed to protect against a risk of illness or injury associated with a hazardous substance if—
“(i) compliance with the requirement would not cause the hazardous substance (or its packaging) to be in violation of the applicable requirement described in paragraph (1), and
“(ii) the State or political subdivision requirement (I) provides a significantly higher degree of protection from such risk of illness or injury than the requirement described in paragraph (1), and (II) does not unduly burden interstate commerce.
In determining the burden, if any, of a State or political subdivision requirement on interstate commerce the Commission shall consider and make appropriate (as determined by the Commission in its discretion) findings on the technological and economic feasibility of complying with such requirement, the cost of complying with such requirement, the geographic distribution of the substance to which the requirement would apply, the probability of other States or political subdivisions applying for an exemption under this paragraph for a similar requirement, and the need for a national, uniform requirement under this Act [this chapter] for such substance (or its packaging).
“(B) A regulation under subparagraph (A) granting an exemption for a requirement of a State or political subdivision of a State may be promulgated by the Commission only after it has provided, in accordance with section 553(b) of title 5, United States Code, notice with respect to the promulgation of the regulation and has provided opportunity for the oral presentation of views respecting its promulgation.
“(4) Paragraph (1)(B) does not prohibit a State or a political subdivision of a State from establishing or continuing in effect a requirement which is designed to protect against a risk of illness or injury associated with fireworks devices or components thereof and which provides a higher degree of protection from such risk of illness or injury than a requirement in effect under a regulation of the Commission described in such paragraph.”
[The provisions of section 18 of Pub. L. 86–613, set out above, establishing the extent to which the Federal Hazardous Substances Act [see Short Title note above] preempts, limits, or otherwise affects any other Federal, State, or local law, any rule, procedure, or regulation, or any cause of action under State or local law not to be expanded or contracted in scope, or limited, modified or extended in application, by any rule or regulation under the Federal Hazardous Substances Act, or by reference in any preamble, statement of policy, executive branch statements, or other matter associated with the publication of any such rule or regulation, see section 231 of Pub. L. 110–314, set out as a note under section 2051 of this title.]
heading: Small Balls as Banned Hazardous Substances
text: Pub. L. 103–267, title I, § 101(b), June 16, 1994, 108 Stat. 725, provided that:
“A small ball—
“(1) intended for children under the age of 3 years of age, and
“(2) with a diameter of 1.75 inches or less,
shall be considered a banned hazardous substance under section 2(q) of the Federal Hazardous Substances Act (15 U.S.C. 1261(q)).”
[Section 101(b) of Pub. L. 103–267, set out above, effective Jan. 1, 1995, see section 101(d) of Pub. L. 103–267, set out as an Effective Date note under section 1278 of this title.]