BILL NUMBER: AB 2901	CHAPTERED
	BILL TEXT

	CHAPTER  575
	FILED WITH SECRETARY OF STATE  SEPTEMBER 29, 2008
	APPROVED BY GOVERNOR  SEPTEMBER 29, 2008
	PASSED THE SENATE  AUGUST 22, 2008
	PASSED THE ASSEMBLY  AUGUST 28, 2008
	AMENDED IN SENATE  AUGUST 18, 2008
	AMENDED IN SENATE  JULY 2, 2008
	AMENDED IN SENATE  JUNE 10, 2008
	AMENDED IN ASSEMBLY  APRIL 3, 2008

INTRODUCED BY   Assembly Member Brownley

                        FEBRUARY 22, 2008

   An act to amend Sections 25214.1, 25214.2, 25214.3, 25214.4,
25214.4.2, 25214.12, 25214.13, 25214.14, 25214.15, 25214.17, and
25214.18 of, and to add Sections 25214.1.5, 25214.3.1, 25214.3.2,
25214.3.3, 25214.3.4, 25214.22, 25214.22.1, 25214.23, 25214.24, and
25214.26 to, the Health and Safety Code, relating to toxics.


	LEGISLATIVE COUNSEL'S DIGEST


   AB 2901, Brownley. Toxics: enforcement: lead jewelry: packaging.
   (1) Existing law prohibits, on and after March 1, 2008, the
manufacturing, shipping, selling, or offering for sale of jewelry, as
defined, for retail sale in the state, unless the jewelry is made
entirely from specified materials. Existing law also prohibits any
person, on and after September 1, 2007, from taking those actions
with regard to children's jewelry, as defined, unless the children's
jewelry is made entirely from certain specified materials.
   Existing law excludes a person who violates these prohibitions
from the criminal penalties otherwise imposed pursuant to the
hazardous waste control laws and instead provides that a person who
violates those prohibitions is liable for a civil penalty not to
exceed $2,500 per day for each violation, and a party to a consent
judgment entered in a specified consolidated action that contains
certain terms or the amended consent judgment is deemed to be in
compliance with the article. Existing law requires these collected
civil penalties to be deposited in the Hazardous Waste Control
Account, for expenditure by the Department of Toxic Substances
Control, upon appropriation by the Legislature, to implement and
enforce those prohibitions.
   Existing law specifies the testing methods and protocols for
determining compliance with these prohibitions and authorizes the
department to adopt regulations that modify these testing protocols.
   This bill would revise the definition of "jewelry" for purposes of
those prohibitions and would additionally prohibit a person from
offering for promotional purposes jewelry, including children's
jewelry, body piercing jewelry, and jewelry placed in the mouth for
display or ornament, for retail sale or promotional purposes in the
state unless it is made entirely from the specified materials.
   The bill would declare that the provisions regulating lead in
jewelry do not effect prescribed duties, requirements, obligations,
or legal actions.
   The bill would additionally subject a person who violates those
provisions to administrative or civil penalties and would provide for
the deposit of the collected administrative penalties into the
account. The bill would instead prohibit parties that are signatories
to the amended consent judgment or the consent judgment entered in a
specified consolidated action that contains certain terms from being
subject to enforcement pursuant to the article.
   The bill would allow an authorized representative of the
department to enter and inspect a factory, warehouse, or
establishment in which jewelry is manufactured, packed, held, or
sold, for the purpose of administering and enforcing these
provisions, upon obtaining consent or after obtaining an inspection
warrant. The bill would specify procedures for the securing of
samples and would additionally allow an authorized representative of
the department to have access to all records of a carrier in commerce
relating to the movement in commerce of jewelry.
   The bill would require a manufacturer or supplier of jewelry to
prepare and, at the request of the department, submit to the
department within 28 days after the date of the request, specified
technical documentation. A manufacturer or supplier would also be
required to provide a specified certification to a person who sells
or offers for sale that manufacturer's or supplier's jewelry, upon
the request of that person, or to display the certification
prominently on the shipping container or on the packaging of jewelry.

   The bill would provide that a manufacturer or supplier of jewelry
who knowingly and intentionally manufactures, ships, sells, offers
for sale, or offers for promotional purposes jewelry containing lead
in violation of those provisions is guilty of a misdemeanor
punishable by a specified fine or imprisonment or by both that fine
and imprisonment. The bill would also impose criminal penalties upon
a manufacturer or supplier of jewelry who knowingly and with intent
to deceive, falsifies any document or certificate required to be kept
or produced pursuant to those provisions.
   The bill would, except as specified, exempt a person who sells
jewelry at retail or offers jewelry for retail sale from the
administrative or civil penalties imposed by those provisions if the
person makes a specified demonstration.
   The bill would expand the testing protocols and require that the
test methods selected be those that best demonstrate they can achieve
total digestion of the sample material being analyzed. Test methods
would be prohibited from use if they are inconsistent with the
specified application of the test method or do not demonstrate the
best performance or proficiency for achieving total digestion of the
sample material.
   The bill would authorize the department to adopt regulations to
implement those provisions, including, but not limited to, adopting
regulations that modify the testing protocols. The bill would also
make technical and conforming changes regarding the provisions
regulating the components of jewelry.
   The bill would impose a state-mandated local program by creating
new crimes.
   (2) Existing law prohibits, on and after January 1, 2006, with
exceptions, a manufacturer or supplier from offering for sale or for
promotional purposes in this state a package or packaging component
that includes an intentionally introduced regulated metal, in the
package or in a packaging component. A manufacturer or supplier is
required to furnish to the purchaser a certificate of compliance
signed by an authorized official of the manufacturer or supplier. A
violation of the hazardous waste control laws, and any regulations
adopted pursuant to those laws, is a crime. A violation of the
provisions prohibiting regulated metal in a package or packaging
component, as part of the hazardous waste control laws, is a crime.
   Existing law requires the department to keep confidential
information submitted to the department by a manufacturer or supplier
that the manufacturer or supplier identifies as proprietary in
nature, including trade secrets. The department is required to make
available to the public any information that is not identified by the
manufacturer or supplier as proprietary in nature.
   This bill would, for purposes of those provisions regulating
certain metals in packaging, revise the definitions of "package" and
additionally define the term "authorized official." The bill would
revise the procedures for the handling of confidential information to
instead require the department to keep confidential any information
that is identified as a trade secret, in accordance with departmental
procedures, and that the department determines meets the definition
of a trade secret. The bill would instead require the department to
make available to the public any information that is not a trade
secret.
   The bill would allow an authorized representative of the
department to enter and inspect a factory, warehouse, or
establishment in which a package or packaging component is
manufactured, packed, held, or sold, and have access to specified
records, for the purpose of administering and enforcing these
provisions, upon obtaining consent or after obtaining an inspection
warrant. The bill would specify procedures for the securing of
samples.
   The bill would, except as specified, exempt a person who offers
for retail sale or promotional purposes a product in a package or a
packaging component from administrative or civil penalties if the
person makes a specified demonstration.
   The bill would provide that a manufacturer or supplier of a
package or packaging component who knowingly and intentionally offers
for sale or promotional purposes a package or packaging component
containing an intentionally introduced regulated metal in violation
of those provisions is guilty of a misdemeanor punishable by a
specified fine or imprisonment or by both that fine and imprisonment.
This bill would thereby impose a state-mandated local program by
creating a new crime.
   The bill would authorize the department to adopt regulations to
implement these provisions, as the department deems necessary to
further the purposes of these provisions. The bill would also make
technical and conforming changes regarding the provisions regulating
certain metals in packaging. Since a violation of these regulations
would be a crime, the bill would impose a state-mandated local
program.
   (3) The California Constitution requires the state to reimburse
local agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
   This bill would provide that no reimbursement is required by this
act for a specified reason.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

  SECTION 1.  Section 25214.1 of the Health and Safety Code is
amended to read:
   25214.1.  For purposes of this article, the following definitions
shall apply:
   (a) "Amended consent judgment" means the amended consent judgment
in the consolidated action entitled People vs. Burlington Coat
Factory Warehouse Corporation, et al. (Alameda Superior Court Lead
Case No. RG 04-162075) that was entered by the court on June 15,
2006.
   (b) "Body piercing jewelry" means any part of jewelry that is
manufactured or sold for placement in a new piercing or a mucous
membrane, but does not include any part of that jewelry that is not
placed within a new piercing or a mucous membrane.
   (c) "Children" means children aged six and younger.
   (d) "Children's jewelry" means jewelry that is made for, marketed
for use by, or marketed to, children. For purposes of this article,
children's jewelry includes, but is not limited to, jewelry that
meets any of the following conditions:
   (1) Represented in its packaging, display, or advertising, as
appropriate for use by children.
   (2) Sold in conjunction with, attached to, or packaged together
with other products that are packaged, displayed, or advertised as
appropriate for use by children.
   (3) Sized for children and not intended for use by adults.
   (4) Sold in any of the following:
   (A) A vending machine.
   (B) Retail store, catalogue, or online Web site, in which a person
exclusively offers for sale products that are packaged, displayed,
or advertised as appropriate for use by children.
   (C) A discrete portion of a retail store, catalogue, or online
Internet Web site, in which a person offers for sale products that
are packaged, displayed, or advertised as appropriate for use by
children.
   (e) (1) "Class 1 material" means any of the following materials:
   (A) Stainless or surgical steel.
   (B) Karat gold.
   (C) Sterling silver.
   (D) Platinum, palladium, iridium, ruthenium, rhodium, or osmium.
   (E) Natural or cultured pearls.
   (F) Glass, ceramic, or crystal decorative components, including
cat's eye, cubic zirconia, including cubic zirconium or CZ,
rhinestones, and cloisonne.
   (G) A gemstone that is cut and polished for ornamental purposes,
except as provided in paragraph (2).
   (H) Elastic, fabric, ribbon, rope, or string, unless it contains
intentionally added lead and is listed as a class 2 material.
   (I) All natural decorative material, including amber, bone, coral,
feathers, fur, horn, leather, shell, wood, that is in its natural
state and is not treated in a way that adds lead.
   (J) Adhesive.
   (2) The following gemstones are not class 1 materials: aragonite,
bayldonite, boleite, cerussite, crocoite, ekanite, linarite,
mimetite, phosgenite, samarskite, vanadinite, and wulfenite.
   (f) "Class 2 material" means any of the following materials:
   (1) Electroplated metal that meets the following standards:
   (A) On and before August 30, 2009, a metal alloy with less than 10
percent lead by weight that is electroplated with suitable under and
finish coats.
   (B) On and after August 31, 2009, a metal alloy with less than 6
percent lead by weight that is electroplated with suitable under and
finish coats.
   (2) Unplated metal with less than 1.5 percent lead that is not
otherwise listed as a class 1 material.
   (3) Plastic or rubber, including acrylic, polystyrene, plastic
beads and stones, and polyvinyl chloride (PVC) that meets the
following standards:
   (A) On and before August 30, 2009, less than 0.06 percent (600
parts per million) lead by weight.
   (B) On and after August 31, 2009, less than 0.02 percent (200
parts per million) lead by weight.
   (4) A dye or surface coating containing less than 0.06 percent
(600 parts per million) lead by weight.
   (g) "Class 3 material" means any portion of jewelry that meets
both of the following criteria:
   (1) Is not a class 1 or class 2 material.
   (2) Contains less than 0.06 percent (600 parts per million) lead
by weight.
   (h) "Component" means any part of jewelry.
   (i) "Jewelry" means any of the following:
   (1) Any of the following ornaments worn by a person:
   (A) An anklet.
   (B) Arm cuff.
   (C) Bracelet.
   (D) Brooch.
   (E) Chain.
   (F) Crown.
   (G) Cuff link.
   (H) Hair accessory.
   (I) Earring.
   (J) Necklace.
   (K) Pin.
   (L) Ring.
   (M) Body piercing jewelry.
   (N) Jewelry placed in the mouth for display or ornament.
   (2) Any bead, chain, link, pendant, or other component of an
ornament specified in paragraph (1).
   (3) A charm, bead, chain, link, pendant, or other attachment to
shoes or clothing that can be removed and may be used as a component
of an ornament specified in paragraph (1).
   (4) A watch in which a timepiece is a component of an ornament
specified in paragraph (1), excluding the timepiece itself if the
timepiece can be removed from the ornament.
   (j) (1) "Surface coating" means a fluid, semifluid, or other
material, with or without a suspension of finely divided coloring
matter, that changes to a solid film when a thin layer is applied to
a metal, wood, stone, paper, leather, cloth, plastic, or other
surface.
   (2) "Surface coating" does not include a printing ink or a
material that actually becomes a part of the substrate, including,
but not limited to, pigment in a plastic article, or a material that
is actually bonded to the substrate, such as by electroplating or
ceramic glazing.
  SEC. 1.5.  Section 25214.1.5 is added to the Health and Safety
Code, to read:
   25214.1.5.  (a) This article does not do any of the following:
   (1) Affect a duty or other requirement otherwise imposed under
federal or state law.
   (2) Alter or diminish a legal obligation otherwise required in
common law, by statute, or by regulation.
   (3) Create or enlarge a defense to an action to enforce a legal
obligation otherwise required in common law, by statute, or by
regulation.
   (b) The Legislature finds and declares that the addition of this
section during the 2007-08 Regular Session of the Legislature is
declaratory of existing law.
  SEC. 2.  Section 25214.2 of the Health and Safety Code is amended
to read:
   25214.2.  (a) On and after March 1, 2008, a person shall not
manufacture, ship, sell, offer for sale, or offer for promotional
purposes jewelry for retail sale or promotional purposes in the state
unless the jewelry is made entirely from a class 1, class 2, or
class 3 material, or any combination thereof.
   (b) Notwithstanding subdivision (a), on and after September 1,
2007, a person shall not manufacture, ship, sell, offer for sale, or
offer for promotional purposes children's jewelry for retail sale or
promotional purposes in the state unless the children's jewelry is
made entirely from one or more of the following materials:
   (1) A nonmetallic material that is a class 1 material and that
does not otherwise violate the requirements of paragraph (4).
   (2) A nonmetallic material that is a class 2 material.
   (3) A metallic material that is either a class 1 material or
contains less than 0.06 percent (600 parts per million) lead by
weight.
   (4) Glass or crystal decorative components that weigh in total no
more than one gram, excluding any glass or crystal decorative
component that contains less than 0.02 percent (200 parts per
million) lead by weight and has no intentionally added lead.
   (5) Printing ink or ceramic glaze that contains less than 0.06
percent (600 parts per million) lead by weight.
   (6) Class 3 material that contains less than 0.02 percent (200
parts per million) lead by weight.
   (c) Notwithstanding subdivision (a), on and after March 1, 2008, a
person shall not manufacture, ship, sell, offer for sale, or offer
for promotional purposes body piercing jewelry for retail sale or
promotional purposes in the state unless the body piercing jewelry is
made of one or more of the following materials:
   (1) Surgical implant stainless steel.
   (2) Surgical implant grade of titanium.
   (3) Niobium (Nb).
   (4) Solid 14 karat or higher white or yellow nickel-free gold.
   (5) Solid platinum.
   (6) A dense low-porosity plastic, including, but not limited to,
Tygon or Polytetrafluoroethylene (PTFE), if the plastic contains no
intentionally added lead.
  SEC. 3.  Section 25214.3 of the Health and Safety Code is amended
to read:
   25214.3.  (a) Except as provided in Sections 25214.3.3 and
25214.3.4, a person who violates this article shall not be subject to
criminal penalties imposed pursuant to this chapter and shall only
be subject to the administrative or civil penalty specified in
subdivision (b).
   (b) (1) A person who violates this article shall be liable for an
administrative or a civil penalty not to exceed two thousand five
hundred dollars ($2,500) per day for each violation. That
administrative or civil penalty may be assessed and recovered in an
administrative action filed with the Office of Administrative
Hearings or in a civil action brought in any court of competent
jurisdiction.
   (2) In assessing the amount of an administrative or a civil
penalty for a violation of this article, the presiding officer or the
court, as applicable, shall consider all of the following:
   (A) The nature and extent of the violation.
   (B) The number of, and severity of, the violations.
   (C) The economic effect of the penalty on the violator.
   (D) Whether the violator took good faith measures to comply with
this article and the time these measures were taken.
   (E) The willfulness of the violator's misconduct.
   (F) The deterrent effect that the imposition of the penalty would
have on both the violator and the regulated community as a whole.
   (G) Any other factor that justice may require.
   (c) Administrative and civil penalties collected pursuant to this
article shall be deposited in the Hazardous Waste Control Account,
for expenditure by the department, upon appropriation by the
Legislature, to implement and enforce this article.
   (d) (1) Notwithstanding subdivision (b), a party that is a
signatory to the amended consent judgment, or a party that is a
signatory to a consent judgment entered in the consolidated action
entitled People vs. Burlington Coat Factory Warehouse Corporation, et
al. (Alameda Superior Court Lead Case No. RG 04-162075) that
contains identical or substantially identical terms as provided in
Sections 2, 3, and 4 of the amended consent judgment, shall not be
subject to enforcement pursuant to this article, and an action
brought to enforce this article against the party shall be subject to
Section 4 of the amended consent judgment.
   (2) The Legislature finds and declares that the amendment of this
subdivision by the act amending this section during the 2007-08
Regular Session of the Legislature is declaratory of existing law.
   (e) (1) For the purpose of administering and enforcing this
article, an authorized representative of the department, upon
obtaining consent or after obtaining an inspection warrant pursuant
to Title 13 (commencing with Section 1822.50) of Part 3 of the Code
of Civil Procedure, may, upon presenting appropriate credentials and
at a reasonable time, do any of the following:
   (A) Enter a factory, warehouse, or establishment where jewelry is
manufactured, packed, held, or sold; enter a vehicle that is being
used to transport, hold, or sell jewelry; or enter a place where
jewelry is being held or sold.
   (B) Inspect a factory, warehouse, establishment, vehicle, or place
described in subparagraph (A), and all pertinent equipment, raw
material, finished and unfinished materials, containers, and labeling
in the factory, warehouse, establishment, vehicle, or place. In the
case of a factory, warehouse, or establishment where jewelry is
manufactured, packed, held, or sold, this inspection shall include
any record, file, paper, process, control, and facility that has a
bearing on whether the jewelry is being manufactured, packed, held,
transported, sold, or offered for sale or for promotional purposes in
violation of this article.
   (2) (A) An authorized representative of the department may secure
a sample of jewelry when taking an action authorized pursuant to this
subdivision. If the representative obtains a sample prior to leaving
the premises, he or she shall leave a receipt describing the sample
obtained.
   (B) The department shall return, upon request, a sample that is
not destroyed during testing when the department no longer has any
purpose for retaining the sample.
   (C) A sample that is secured in compliance with this section and
found to be in compliance with this article that is destroyed during
testing shall be subject to a claim for reimbursement.
   (3) An authorized representative of the department shall have
access to all records of a carrier in commerce relating to the
movement in commerce of jewelry, or the holding of that jewelry
during or after the movement, and the quantity, shipper, and
consignee of the jewelry. A carrier shall not be subject to the other
provisions of this article by reason of its receipt, carriage,
holding, or delivery of jewelry in the usual course of business as a
carrier.
   (4) An authorized representative of the department shall be deemed
to have received implied consent to enter a retail establishment,
for purposes of this section, if the authorized representative enters
the location of that retail establishment where the public is
generally granted access.
  SEC. 4.  Section 25214.3.1 is added to the Health and Safety Code,
to read:
   25214.3.1.  (a) A manufacturer or supplier of jewelry that is
sold, offered for sale, or offered for promotional purposes shall
prepare and, at the request of the department, submit to the
department no more than 28 days after the date of the request,
technical documentation or other information showing that the jewelry
is in compliance with the requirements of this article.
   (b) A manufacturer or supplier of jewelry sold or offered for sale
in this state shall do either of the following:
   (1) Provide a certification to a person who sells or offers for
sale that manufacturer's or supplier's jewelry, upon the request of
that person.
   (2) Display the certification prominently on the shipping
container or on the packaging of jewelry.
   (c) The certification required by subdivision (b) shall attest
that the jewelry does not contain a level of lead that would prohibit
the jewelry from being sold or offered for sale pursuant to this
article.
  SEC. 5.  Section 25214.3.2 is added to the Health and Safety Code,
to read:
   25214.3.2.  (a) Except as provided in subdivision (b), a person
who sells jewelry at retail or offers jewelry for retail sale shall
not be subject to an administrative or civil penalty for a violation
of this article if the person proves, by a preponderance of evidence,
all of the following:
   (1) The person received a certificate of compliance for the
jewelry from the manufacturer or supplier.
   (2) The certificate of compliance received pursuant to paragraph
(1) stated that the jewelry is in compliance with the requirements of
this article.
   (3) The person relied on the certificate of compliance and did not
know, and had no reason to know, that the jewelry was in violation
of this article.
   (4) Upon receiving a notice of violation from the department, the
person took corrective action by immediately removing the jewelry
from commerce.
   (b) The affirmative defense specified in subdivision (a) does not
apply to, and may not be raised by, a person who has been found in
violation of this article on at least two prior occasions in the
preceding three years from the filing date of the current action.
  SEC. 6.  Section 25214.3.3 is added to the Health and Safety Code,
to read:
   25214.3.3.  A manufacturer or supplier of jewelry who knowingly
and intentionally manufactures, ships, sells, offers for sale, or
offers for promotional purposes jewelry containing lead in violation
of this article is guilty of a misdemeanor punishable by a fine of
not less than five thousand dollars ($5,000) nor more than one
hundred thousand dollars ($100,000), by imprisonment in a county jail
for not more than one year, or by both that fine and imprisonment.
  SEC. 7.  Section 25214.3.4 is added to the Health and Safety Code,
to read:
   25214.3.4.  A manufacturer or supplier of jewelry who knowingly
and with intent to deceive, falsifies any document or certificate
required to be kept or produced pursuant to this article is subject
to a fine of not more than fifty thousand dollars ($50,000), by
imprisonment in a county jail for not more than one year, or by both
that fine and imprisonment.
  SEC. 8.  Section 25214.4 of the Health and Safety Code is amended
to read:
   25214.4.  The test methods for determining compliance with this
article shall be conducted using the EPA reference methods 3050B,
3051A, and 3052, as specified in EPA Test Methods for Evaluating
Solid Waste, Physical/Chemical Methods, SW-846 (Third Edition, as
currently updated) for the material being tested, except as otherwise
provided in Sections 24214.4.1 and 25214.4.2, and in accordance with
all of the following procedures:
   (a) When preparing a sample, the laboratory shall make every
effort to assure that the sample removed from a jewelry piece is
representative of the component to be tested, and is free of
contamination from extraneous dirt and material not related to the
jewelry component to be tested.
   (b) All jewelry component samples shall be washed prior to testing
using standard laboratory detergent, rinsed with laboratory reagent
grade deionized water, and dried in a clean ambient environment.
   (c) If a component is required to be cut or scraped to obtain a
sample, the metal snips, scissors, or other cutting tools used for
the cutting or scraping shall be made of stainless steel and washed
and rinsed before each use and between samples.
   (d) A sample shall be digested in a container that is known to be
free of lead and with the use of an acid that is not contaminated by
lead, including analytical reagent grade digestion acids and reagent
grade deionized water.
   (e) Method blanks, consisting of all reagents used in sample
preparation handled, digested, and made to volume in the same exact
manner and in the same container type as samples, shall be tested
with each group of 20 or fewer samples tested.
   (f) The results for the method blanks shall be reported with each
group of sample results, and shall be below the stated reporting
limit for sample results to be considered valid.
   (g) Test methods selected shall be those that best demonstrate
they can achieve total digestion of the sample material being
analyzed. Test methods shall not be used if they are inconsistent
with the specified application of the test method or do not
demonstrate the best performance or proficiency for achieving total
digestion of the sample material.
  SEC. 9.  Section 25214.4.2 of the Health and Safety Code is amended
to read:
   25214.4.2.  The department may adopt regulations to implement this
article, including, but not limited to, adopting regulations that
modify the testing protocols specified in Sections 25214.4 and
25214.4.1, as it deems necessary to further the purposes of this
article.
  SEC. 10.  Section 25214.12 of the Health and Safety Code is amended
to read:
   25214.12.  For purposes of this article, the following terms have
the following meanings:
   (a) "Authorized official" means a representative of a manufacturer
or supplier who is authorized pursuant to the laws of this state to
bind the manufacturer or supplier regarding the accuracy of the
content of a certificate of compliance.
   (b) "ASTM" means the American Society for Testing and Materials.
   (c) "Distribution" means the practice of taking title to a package
or a packaging component for promotional purposes or resale. A
person involved solely in delivering a package or a packaging
component on behalf of a third party is not engaging in distribution.

   (d) (1) "Intentional introduction" means the act of deliberately
utilizing a regulated metal in the formation of a package or
packaging component where its continued presence is desired in the
final package or packaging component to provide a specific
characteristic, appearance, or quality.
   (2) "Intentional introduction" does not include either of the
following:
   (A) The use of a regulated metal as a processing agent or
intermediate to impart certain chemical or physical changes during
manufacturing, where the incidental retention of a residue of that
metal in the final package or packaging component is not desired or
deliberate, if the final package or packaging component is in
compliance with subdivision (c) of Section 25214.13.
   (B) The use of recycled materials as feedstock for the manufacture
of new packaging materials, where some portion of the recycled
materials may contain amounts of a regulated metal, if the new
package or packaging component is in compliance with subdivision (c)
of Section 25214.13.
   (e) "Incidental presence" means the presence of a regulated metal
as an unintended or undesired ingredient of a package or packaging
component.
   (f) "Manufacturer" means any person, firm, association,
partnership, or corporation producing a package or packaging
component.
   (g) "Manufacturing" means the physical or chemical modification of
a material to produce packaging or a packaging component.
   (h) (1) Except as provided in paragraph (2) "package" means any
container, produced either domestically or in a foreign country,
providing a means of marketing, protecting, or handling a product
from its point of manufacture to its sale or transfer to a consumer,
including a unity package, an intermediate package or a shipping
container, as defined in the ASTM specification D 996. "Package" also
includes, but is not limited to, unsealed receptacles, including
carrying cases, crates, cups, pails, rigid foil and other trays,
wrappers and wrapping films, bags, and tubs.
   (2) "Package" does not include a reusable bag, as defined in
subdivision (d) of Section 42250 of the Public Resources Code.
   (i) "Packaging component" means any individual assembled part of a
package that is produced either domestically or in a foreign
country, including, but not necessarily limited to, any interior or
exterior blocking, bracing, cushioning, weatherproofing, exterior
strapping, coatings, closures, inks, labels, dyes, pigments,
adhesives, stabilizers, or any other additives. Tin-plated steel that
meets the ASTM specification A 623 shall be considered as a single
package component. Electrogalvanized coated steel and hot dipped
coated galvanized steel that meet the ASTM qualifications A 591, A
653, A 879, and A 924 shall be treated in the same manner as
tin-plated steel.
   (j) "Purchaser" means a person who purchases and takes title to a
package or a packaging component, from a manufacturer or supplier,
for the purpose of packaging a product manufactured, distributed, or
sold by the purchaser.
    (k) "Recycled material" means a material that has been separated
from solid waste for the purpose of recycling the material as a
secondary material feedstock. Recycled materials include paper,
plastic, wood, glass, ceramics, metals, and other materials, except
that recycled material does not include a regulated metal that has
been separated from other materials into its elemental or other
chemical state for recycling as a secondary material feedstock.
   (l) "Regulated metal" means lead, mercury, cadmium, or hexavalent
chromium.
   (m) (1) "Supplier" means a person who does or is one or more of
the following:
   (A) Sells, offers for sale, or offers for promotional purposes, a
package or packaging component that is used by any other person to
package a product.
   (B) Takes title to a package or packaging component, produced
either domestically or in a foreign country, that is purchased for
resale or promotional purposes.
   (C) Acts as an intermediary for the purchase of a package or
packaging component for resale from a manufacturer located in another
country to a purchaser located in this state, and who may receive a
commission or a fee on that sale.
   (D) Listed as the importer of record on a United States Customs
Service form for an imported package or packaging component.
   (2) "Supplier" does not include a person involved solely in
delivering a package or packaging component on behalf of a third
party.
   (n) "Toxics in Packaging Clearinghouse" means the Toxics in
Packaging Clearinghouse (TPCH) of the Council of State Governments.
  SEC. 11.  Section 25214.13 of the Health and Safety Code is amended
to read:
   25214.13.  (a) Except as provided in Section 25214.14, on and
after January 1, 2006, a manufacturer or supplier may not offer for
sale or for promotional purposes in this state a package or packaging
component that includes a regulated metal, in the package itself, or
in a packaging component, if the regulated metal has been
intentionally introduced into the package or packaging component
during manufacturing or distribution.
   (b) Except as provided in Section 25214.14, on and after January
1, 2006, a person may not offer for sale or for promotional purposes
in this state a product in a package that includes a regulated metal,
in the package itself, or in a packaging component, if the regulated
metal has been intentionally introduced into the package or
packaging component during manufacturing or distribution.
   (c) Except as provided in Section 25214.14, on and after January
1, 2006, a person may not offer for sale or for promotional purposes
in this state a package, packaging component, or product in a package
if the sum of the incidental total concentration levels of all
regulated metals present in a single-component package or in an
individual packaging component exceeds 100 parts per million by
weight.
  SEC. 12.  Section 25214.14 of the Health and Safety Code is amended
to read:
   25214.14.  A package or a packaging component is exempt from the
requirements of Section 25214.13, and shall be deemed in compliance
with this article, if the manufacturer or supplier complies with the
applicable documentation requirements specified in Section 25214.15
and the package or packaging component meets any of the following
conditions:
   (a) The package or packaging component is marked with a code
indicating a date of manufacture prior to January 1, 2006.
   (b) A regulated metal has been added to the package or packaging
component in the manufacturing, forming, printing, or distribution
process, to comply with the health or safety requirements of a
federal or state law.
   (c) (1) The package or packaging component contains no
intentionally introduced regulated metals, but exceeds the applicable
maximum concentration level set forth in subdivision (c) of Section
25214.13 only because of the addition of a recycled material.
   (2) This subdivision, and all exemptions provided pursuant to it,
expire on January 1, 2010.
   (d) (1) A regulated metal has been added to the package or
packaging component in the manufacturing, forming, printing, or
distribution process for a use for which there is no feasible
alternative.
   (2) For purposes of this subdivision, "a use for which there is no
feasible alternative" means a use, other than for purposes of
marketing, for which a regulated metal is essential to the
protection, safe handling, or function, of the package's contents,
and technical constraints preclude the substitution of other
materials.
   (e) (1) The package or packaging component is reused and contains
no intentionally introduced regulated metals, but exceeds the
applicable maximum concentration level set forth in subdivision (c)
of Section 25214.13, and all of the following apply:
   (A) The product being conveyed by the package, the package, or
packaging component is otherwise regulated under a federal or state
health or safety requirement.
   (B) The transportation of the packaged product is regulated under
federal or state transportation requirements.
   (C) The disposal of the package is otherwise performed according
to the requirements of this chapter or Chapter 8 (commencing with
Section 114960) of Part 9 of Division 104.
   (2) This subdivision, and all exemptions provided pursuant to it,
expire on January 1, 2010.
   (f) (1) The package or packaging component has a controlled
distribution and reuse and contains no intentionally introduced
regulated metals, but exceeds the applicable maximum concentration
level set forth in subdivision (c) of Section 25214.13.
   (2) This subdivision, and all exemptions provided pursuant to it,
expire on January 1, 2010.
   (g) (1) The packaging or packaging component is a glass or ceramic
package or packaging component that has a vitrified label, and that,
when tested in accordance with the Waste Extraction Test, described
in Appendix II of Chapter 11 (commencing with Section 66261.1) of
Division 4.5 of Title 22 of the California Code of Regulations does
not exceed 1.0 ppm for cadmium, 5.0 ppm for hexavalent chromium, or
5.0 ppm for lead. A glass or ceramic package or packaging component
containing mercury is not exempted pursuant to this subdivision.
   (2) A glass bottle package with paint or applied ceramic
decoration on the bottle does not qualify for an exemption pursuant
to this section, if the paint or applied ceramic decoration contains
lead or lead compounds in excess of 0.06 percent by weight.
   (3) This subdivision, and all exemptions provided pursuant to it,
expire on January 1, 2010.
  SEC. 13.  Section 25214.15 of the Health and Safety Code is amended
to read:
   25214.15.  (a) A package or packaging component qualifies for an
exemption pursuant to Section 25214.14 only if the manufacturer or
supplier prepares, retains, and biennially updates documentation
containing all of the following information for that package or
packaging component:
   (1) A statement that the documentation applies to an exemption
from the requirements of Section 25214.13.
   (2) The name, position, and contact information for the person who
is the manufacturer's or supplier's contact person on all matters
concerning the exemption.
   (3) An identification of the exemption and a reference to the
applicable subdivision in Section 25214.14 setting forth the
conditions for the exemption.
   (4) A description of the type of package or packaging component to
which the exemption applies.
   (5) Identification of the type and concentration of the regulated
metal or metals present in the package or packaging component, and a
description of the testing methods used to determine the
concentration.
   (6) An explanation of the reason for the exemption.
   (7) Supporting documentation that fully and clearly demonstrates
that the package or packaging component is eligible for the
exemption.
   (8) The documentation listed in subdivisions (b), (c), (d), (e),
(f), (g), or (h), whichever is applicable for the exemption.
   (b) In addition to the requirements specified in subdivision (a),
if an exemption is being claimed under subdivision (a) of Section
25214.14, the manufacturer or supplier shall prepare, retain, and
biennially update documentation containing all of the following
information for the package or packaging component to which the
exemption applies:
   (1) Date of manufacture.
   (2) Estimated time needed to exhaust current inventory.
   (3) Alternative package or packaging component that meets the
requirements of Section 25214.13.
   (c) In addition to the requirements specified in subdivision (a),
if an exemption is being claimed under subdivision (b) of Section
25214.14, the manufacturer or supplier shall prepare, retain, and
biennially update documentation that contains all of the following
information for each regulated metal intentionally introduced in the
package or packaging component to which the exemption applies:
   (1) Identification of the specific federal or state law requiring
the addition of the regulated metal to the package or packaging
component.
   (2) Detailed information that fully and clearly demonstrates that
the addition of the regulated metal to the package or packaging
component is necessary to comply with the law identified pursuant to
paragraph (1).
   (3) A description of past, current, and planned future efforts to
seek or develop alternatives to eliminate the use of the regulated
metal in the package or packaging component.
   (4) A description of all alternative measures that have been
considered, and, for each alternative, an explanation as to why the
alternative is not satisfactory for purposes of achieving compliance
with the law identified pursuant to paragraph (1).
   (d) In addition to the requirements specified in subdivision (a),
if an exemption is being claimed under subdivision (c) of Section
25214.14, the manufacturer or supplier shall prepare, retain, and
biennially update documentation containing all of the following
information for the package or packaging component to which the
exemption applies:
   (1) The type and percentage of recycled material or materials
added to the package or packaging component.
   (2) The type and concentration of each regulated metal contained
in each recycled material added to the package or packaging
component.
   (3) Efforts to minimize or eliminate the regulated metals in the
package or packaging component.
   (4) A description of past, current, and planned future efforts to
seek or develop alternatives to minimize or eliminate the use of the
regulated metal in the package or packaging component.
   (e) In addition to the requirements specified in subdivision (a),
if an exemption is being claimed under subdivision (d) of Section
25214.14, the manufacturer or supplier shall prepare, retain, and
biennially update documentation containing all of the following
information for each regulated metal intentionally introduced into
the package or packaging component to which the exemption applies:
   (1) Detailed information and evidence that fully and clearly
demonstrates how the regulated metal contributes to, and is essential
to, the protection, safe handling, or functioning of the package's
contents.
   (2) A description of past, current, and planned future efforts to
seek or develop alternatives to minimize or eliminate the use of the
regulated metal in the package or packaging component.
   (3) A description of all alternative measures that have been
considered, and, for each alternative, an explanation as to the
technical constraints that preclude substitution of the alternative
for the use of the regulated metal.
   (4) Documentation that the regulated metal is not being used for
the purposes of marketing.
   (f) In addition to the requirements specified in subdivision (a),
if an exemption is being claimed under subdivision (e) of Section
25214.14, the manufacturer or supplier shall prepare, retain, and
biennially update documentation containing all of the following
information for the package or packaging component to which the
exemption applies:
   (1) The percentage of reused materials.
   (2) Identification of the federal or state health or safety law
regulating the product being conveyed by the package, the package, or
the packaging component.
   (3) Identification of the federal or state transportation law
regulating the transportation of the packaged product.
   (4) Information demonstrating that the package is disposed of in
accordance with the requirements of this chapter or Chapter 8
(commencing with Section 114960) of Part 9 of Division 104.
   (5) A description of past, current, and planned future efforts to
seek or develop alternatives to minimize or eliminate the use of the
regulated metal in the package or packaging component.
   (g) In addition to the requirements specified in subdivision (a),
if an exemption is being claimed under subdivision (f) of Section
25214.14, the manufacturer or supplier shall prepare, retain, and
biennially update documentation containing all of the following
information for the package or packaging component to which the
exemption applies:
   (1) The percentage of reused materials.
   (2) Information and evidence that demonstrates that the
environmental benefit of the controlled distribution and reuse of the
package or packaging component is significantly greater, as compared
to the same package or packaging component manufactured in
compliance with the applicable maximum concentration level set forth
in subdivision (c) of Section 25214.13.
   (3) A means of identifying, in a permanent and visible manner, any
reusable package or packaging component containing a regulated metal
for which the exemption is sought.
   (4) A method of regulatory and financial accountability, so that a
specified percentage of the reusable packages or packaging
components that are manufactured and distributed to other persons are
not discarded by those persons after use, but are returned to the
manufacturer or identified designees.
   (5) A system of inventory and record maintenance to account for
reusable packages or packaging components placed in, and removed
from, service.
   (6) A means of transforming returned packages or packaging
components that are no longer reusable into recycled materials for
manufacturing, or a means of collecting and managing returned
packages or packaging components as waste in accordance with
applicable federal and state law.
   (7) A description of past, current, and planned future efforts to
seek or develop alternatives to minimize or eliminate the use of the
regulated metal in the package or packaging component.
   (h) In addition to the requirements specified in subdivision (a),
if an exemption is being claimed under subdivision (g) of Section
25214.14, the manufacturer or supplier shall prepare, retain, and
biennially update the following documentation for the package or
packaging component to which the exemption applies:
   (1) Applicable test data.
   (2) A description of past, current, and planned future efforts to
seek or develop alternatives to minimize or eliminate the use of the
regulated metal in the package or packaging component.
   (i) A manufacturer or supplier shall submit the documentation
required pursuant to subdivisions (a) to (h), inclusive, to the
department, as follows:
   (1) Upon receipt of a written request from the department, the
manufacturer or supplier shall, on or before 30 calendar days after
the date of receipt, do one of the following:
   (A) Submit the required documentation to the department.
   (B) Submit a letter to the department indicating the date by which
the documentation shall be submitted, which may be no more than 90
calendar days after the date of receipt of the department's request.
   (2) If the department finds that the documentation supplied
pursuant to paragraph (1) is incomplete or incorrect, the department
shall notify the manufacturer or supplier that the documentation is
incomplete or incorrect, and the manufacturer or supplier shall
submit complete and correct documentation to the department within 60
calendar days after the date of receipt of the notification.
   (j) If a manufacturer or supplier fails to comply with subdivision
(i) by any of the specified dates in that subdivision, the
manufacturer or supplier shall, with respect to the package or
packaging component to which the documentation request applies,
comply with one of the following:
   (1) Immediately cease to offer the package or packaging component
for sale or for promotional purposes in this state.
   (2) Replace the package or packaging component with a package or
packaging component that conforms with the regulated metals
limitations specified in Section 25214.13, in accordance with a
schedule approved in writing by the department.
   (3) Submit complete and correct documentation for the package or
packaging component, in accordance with a schedule approved in
writing by the department.
  SEC. 14.  Section 25214.17 of the Health and Safety Code is amended
to read:
   25214.17.  (a) Except as provided in subdivision (b), the
department, pursuant to the California Public Records Act (Chapter
3.5 (commencing with Section 6250) of Division 7 of Title 1 of the
Government Code), shall provide the public with access to all
information relating to a package or packaging component that has
been submitted to the department by a manufacturer or supplier of a
package or packaging component pursuant to this article.
   (b) (1) The department shall keep confidential any information
identified by the manufacturer or supplier, pursuant to paragraph
(2), as a trade secret, as defined in Section 25173, in accordance
with departmental procedures that have been adopted pursuant to
Section 25173, if the department determines that this information
meets that definition of a trade secret.
   (2) A manufacturer or supplier providing information to the
department pursuant to this article shall, at the time of submission,
identify all information that the manufacturer or supplier believes
is a trade secret. The department shall make available to the public
any information that is not a trade secret.
  SEC. 15.  Section 25214.18 of the Health and Safety Code is amended
to read:
   25214.18.  If the department determines that other substances
contained in packaging should be added as regulated metals to the
list set forth in subdivision (l) of Section 25214.12 in order to
further reduce the toxicity of packaging waste, the department may
submit recommendations to the Governor and the Legislature for
additions to the list, along with a description of the nature of the
substitutes used in lieu of the recommended additions to the list.
  SEC. 16.  Section 25214.22 is added to the Health and Safety Code,
to read:
   25214.22.  (a) Except as provided in subdivision (b), a person who
offers for retail sale or for promotional purposes a product in a
package or in a packaging component that includes a regulated metal
shall not be subject to any administrative or civil penalty for a
violation of this article, if the person proves, by a preponderance
of evidence, all of the following:
   (1) The person received a certificate of compliance for the
package or packaging component from the manufacturer or supplier.
   (2) The certificate of compliance received pursuant to paragraph
(1) stated that the package or packaging component is in compliance
with the requirements of this article.
   (3) The person relied on the certificate of compliance and did not
know or had no reason to know that the package or packaging
component was in violation of this article.
   (4) Upon receiving a notice of violation from the department, the
person took corrective action by immediately removing the package or
packaging component from commerce.
   (b) The affirmative defense specified in subdivision (a) does not
apply to, and may not be raised by, a person who has been found to be
in violation of this article on at least two prior occasions in the
preceding three years from the filing date of the current action.
  SEC. 17.  Section 25214.22.1 is added to the Health and Safety
Code, to read:
   25214.22.1.  A manufacturer or supplier of a package or packaging
component who knowingly and intentionally offers for sale or for
promotional purposes a package or packaging component in violation of
this article is guilty of a misdemeanor punishable by a fine of not
less than five thousand dollars ($5,000) nor more than one hundred
thousand dollars ($100,000), by imprisonment in a county jail for not
more than one year, or by both the fine and imprisonment.
  SEC. 18.  Section 25214.23 is added to the Health and Safety Code,
to read:
   25214.23.  (a) For the purpose of administering and enforcing this
article, an authorized representative of the department, upon
obtaining consent or after obtaining an inspection warrant pursuant
to Title 13 (commencing with Section 1822.50) of Part 3 of the Code
of Civil Procedure, may, upon presenting appropriate credentials and
at a reasonable time, do any of the following:
   (1) Enter a factory, warehouse, or establishment in which a
package or packaging component is manufactured, packed, held, or
sold; enter a vehicle that is being used to transport, hold, or sell
the package or packaging component; or enter a place where a package
or packaging component is suspected of being held or sold in
violation of this article.
   (2) Inspect a factory, warehouse, establishment, vehicle, or place
described in paragraph (1), and all pertinent equipment, raw
material, finished and unfinished materials, containers, and labeling
in the factory, warehouse, establishment, vehicle, or place. In the
case of a factory, warehouse, or establishment in which a package or
packaging component is manufactured, packed, held, or sold,
inspection shall include any record, file, paper, process, control,
and facility that has a bearing on whether the package, packaging
component, or product in a package is being manufactured, packed,
held, transported, sold, offered for sale, or offered for promotional
purposes in violation of this article.
   (3) Have access to all records of a carrier in commerce relating
to the movement in commerce of a package or packaging component, or
the holding of that package or packaging component during or after
the movement, and the quantity, shipper, and consignee of the package
or packaging component. A carrier shall not be subject to the other
provisions of this article by reason of its receipt, carriage,
holding, or delivery of a product in a package or packaging component
in the usual course of business as a carrier.
   (b) An authorized representative of the department shall be deemed
to have received implied consent to enter a retail establishment,
for purposes of this section if the authorized representative enters
the location of that retail establishment where the public is
generally granted access.
  SEC. 19.  Section 25214.24 is added to the Health and Safety Code,
to read:
   25214.24.  (a) When taking an action authorized pursuant to
Section 25214.23, an authorized representative of the department may
secure a sample of a package, packaging component, or product in a
package. If the representative obtains a sample prior to leaving the
premises, he or she shall leave a receipt describing the sample
obtained.
   (b)  The department shall return, upon request, a sample that is
not destroyed during testing when the department no longer has any
purpose for retaining the sample.
   (c) A sample that is secured in compliance with this section and
found to be in compliance with this article that is destroyed during
testing shall be subject to a claim for reimbursement.
   SEC. 20.  Section 25214.26 is added to the Health and Safety Code,
to read:
   25214.26.  The department may adopt regulations to implement this
article, as deemed necessary to further the purposes of this article.

   SEC. 21.  No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.