§ 1274. — Remedies respecting banned hazardous substances.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 15USC1274]
TITLE 15--COMMERCE AND TRADE
CHAPTER 30--HAZARDOUS SUBSTANCES
Sec. 1274. Remedies respecting banned hazardous substances
(a) Notice to protect public; form and contents
If any article or substance sold in commerce is defined as a banned
hazardous substance (whether or not it was such at the time of its sale)
and the Commission determines (after affording interested persons,
including consumers and consumer organizations, an opportunity for a
hearing) that notification is required to adequately protect the public
from such article or substance, the Commission may order the
manufacturer or any distributor or dealer or the article or substance to
take any one or more of the following actions:
(1) To give public notice that the article or substance is a
banned hazardous substance.
(2) To mail such notice to each person who is a manufacturer,
distributor, or dealer of such article or substance.
(3) To mail such notice to every person to whom the person
giving the notice knows such article or substance was delivered or
sold.
An order under this subsection shall specify the form and content of any
notice required to be given under the order.
(b) Order of Commission; repair, replacement, or refund
If any article or substance sold in commerce is defined as a banned
hazardous substance (whether or not it was such at the time of its sale)
and the Commission determines (after affording interested persons,
including consumers and consumer organizations, an opportunity for a
hearing) that action under this subsection is in the public interest,
the Consumer Product Safety Commission may order the manufacturer,
distributor, or dealer to take whichever of the following actions the
person to whom the order is directed elects:
(1) If repairs to or changes in the article or substance may be
made so that it will not be a banned hazardous substance, to make
such repairs or changes.
(2) To replace such article or substance with a like or
equivalent article or substance which is not a banned hazardous
substance.
(3) To refund the purchase price of the article or substance
(less a reasonable allowance for use, if the article or substance
has been in the possession of the consumer for one year or more--
(A) at the time of public notice under subsection (a) of
this section, or
(B) at the time the consumer receives actual notice that the
article or substance is a banned hazardous substance,
whichever first occurs).
An order under this subsection may also require the person to whom it
applies to submit a plan, satisfactory to the Commission, for taking the
action which such person has elected to take. The Commission shall
specify in the order the persons to whom refunds must be made if the
person to whom the order is directed elects to take the action described
in paragraph (3). If an order under this subsection is directed to more
than one person, the Commission shall specify which person has the
election under this subsection. An order under this subsection may
prohibit the person to whom it applies from manufacturing for sale,
offering for sale, distributing in commerce, or importing into the
customs territory of the United States (as defined in general note 2 of
the Harmonized Tariff Schedule of the United States), or from doing any
combination of such actions, with respect to the article or substance
with respect to which the order was issued.
(c) Discretionary remedial activities available to Commission; orders;
contents
(1) If the Commission determines (after affording interested
persons, including consumers and consumer organizations, an opportunity
for a hearing in accordance with subsection (e) of this section) that
any toy or other article intended for use by children that is not a
banned hazardous substance contains a defect which creates a substantial
risk of injury to children (because of the pattern of defect, the number
of defective toys or such articles distributed in commerce, the severity
of the risk, or otherwise) and that notification is required to protect
adequately the public from such toy or article, the Commission may order
the manufacturer or any distributor or dealer of such toy or article to
take any one or more of the following actions:
(A) To give public notice that such defective toy or article
contains a defect which creates a substantial risk of injury to
children.
(B) To mail such notice to each person who is a manufacturer,
distributor, or dealer of such toy or article.
(C) To mail such notice to every person to whom the person
giving notice knows such toy or article was delivered or sold.
An order under this paragraph shall specify the form and content of any
notice required to be given under the order.
(2) If the Commission determines (after affording interested
persons, including consumers and consumer organizations, an opportunity
for a hearing in accordance with subsection (e) of this section) that
any toy or other article intended for use by children that is not a
banned hazardous substance contains a defect which creates a substantial
risk of injury to children (because of the pattern of defect, the number
of defective toys or such articles distributed in commerce, the severity
of the risk, or otherwise) and that action under this paragraph is in
the public interest, the Commission may order the manufacturer,
distributor, or dealer to take whichever of the following actions the
person to whom the order is directed elects:
(A) If repairs to or changes in the toy or article can be made
so that it will not contain a defect which creates a substantial
risk of injury to children, to make such repairs or changes.
(B) To replace such toy or article with a like or equivalent toy
or article which does not contain a defect which creates a
substantial risk of injury to children.
(C) To refund the purchase price of such toy or article (less a
reasonable allowance for use, if such toy or article has been in the
possession of the consumer for 1 year or more (i) at the time of
public notice under paragraph (1)(A), or (ii) at the time the
consumer receives actual notice that the toy or article contains a
defect which creates a substantial risk of injury to children,
whichever first occurs).
An order under this paragraph may also require the person to whom it
applies to submit a plan, satisfactory to the Commission, for taking the
action which such person has elected to take. The Commission shall
specify in the order the person to whom refunds must be made if the
person to whom the order is directed elects to take the action described
in subparagraph (C). If an order under this paragraph is directed to
more than one person, the Commission shall specify which person has the
election under this paragraph. An order under this paragraph may
prohibit the person to whom it applies from manufacturing for sale,
offering for sale, distributing in commerce, or importing into the
customs territory of the United States (as defined in general note 2 of
the Harmonized Tariff Schedule of the United States), or from doing any
combination of such actions, with respect to the toy or article with
respect to which the order was issued.
(d) Charge for remedy; reimbursement for expenses
(1) No charge shall be made to any person (other than a
manufacturer, distributor, or dealer) who avails himself of any remedy
provided under an order issued under subsection (b) or (c) of this
section, and the person subject to the order shall reimburse each person
(other than a manufacturer, distributor, or dealer) who is entitled to
such a remedy for any reasonable and foreseeable expenses incurred by
such person in availing himself of such remedy.
(2) An order issued under subsection (a), (b), or (c) of this
section with respect to a toy, article or substance may require any
person who is a manufacturer, distributor, or dealer of the toy, article
or substance to reimburse any other person who is a manufacturer,
distributor, or dealer of such toy, article or substance for such other
person's expenses in connection with carrying out the order, if the
Commission determines such reimbursement to be in the public interest.
(e) Hearing; representative of class
An order under subsection (a), (b), or (c) of this section may be
issued only after an opportunity for a hearing in accordance with
section 554 of title 5, except that, if the Commission determines that
any person who wishes to participate in such hearing is a part of a
class or participants who share an identity of interest, the Commission
may limit such person's participation in such hearing to participation
through a single representative designated by such class (or by the
Commission if such class fails to designate such a representative).
(f) ``Manufacturer'' defined
For purposes of this section (1) the term ``manufacturer'' includes
an importer for resale, and (2) a dealer who sells at wholesale an
article or substance shall with respect to that sale be considered the
distributor of that article or substance.
(g) Cost-benefit analysis of notification or other action not required
Nothing in this section shall be construed to require the
Commission, in determining that an article or substance distributed in
commerce presents a substantial product hazard and that notification or
other action under this section should be taken, to prepare a comparison
of the costs that would be incurred in providing notification or taking
other action under this section with the benefits from such notification
or action.
(Pub. L. 86-613, Sec. 15, as added Pub. L. 91-113, Sec. 4(a), Nov. 6,
1969, 83 Stat. 189; amended Pub. L. 97-35, title XII, Sec. 1211(f)(1),
Aug. 13, 1981, 95 Stat. 721; Pub. L. 97-414, Sec. 9(l), Jan. 4, 1983, 96
Stat. 2065; Pub. L. 98-491, Sec. 2, Oct. 17, 1984, 98 Stat. 2269; Pub.
L. 100-418, title I, Sec. 1214(c), Aug. 23, 1988, 102 Stat. 1156; Pub.
L. 101-608, title I, Sec. 111(b), Nov. 16, 1990, 104 Stat. 3114.)
References in Text
The Harmonized Tariff Schedule of the United States, referred to in
subsecs. (b) and (c)(2), is not set out in the Code. See Publication of
Harmonized Tariff Schedule note set out under section 1202 of Title 19,
Customs Duties.
Amendments
1990--Subsec. (g). Pub. L. 101-608 added subsec. (g).
1988--Subsecs. (b), (c)(2). Pub. L. 100-418 substituted ``general
note 2 of the Harmonized Tariff Schedule of the United States'' for
``general headnote 2 to the Tariff Schedules of the United States''.
1984--Subsec. (c). Pub. L. 98-491, Sec. 2(a)(2), added subsec. (c).
Former subsec. (c) redesignated (d).
Subsec. (d). Pub. L. 98-491, Sec. 2(a)(1), redesignated subsec. (c)
as (d). Former subsec. (d) redesignated (e).
Subsec. (d)(1). Pub. L. 98-491, Sec. 2(b), inserted ``or (c)'' after
``subsection (b)''.
Subsec. (d)(2). Pub. L. 98-491, Sec. 2(c), (d), substituted ``a toy,
article'' for ``an article'', ``toy, article'' for ``article'' in two
places, and ``subsection (a), (b), or (c)'' for ``subsection (a) or
(b)''.
Subsec. (e). Pub. L. 98-491, Sec. 2(a)(2), (d), redesignated subsec.
(d) as (e) and substituted ``subsection (a), (b), or (c)'' for
``subsection (a) or (b)''. Former subsec. (e) redesignated (f).
Subsec. (f). Pub. L. 98-491, Sec. 2(a)(1), redesignated subsec. (e)
as (f).
1983--Subsec. (e). Pub. L. 97-414 added subsec. (e).
1981--Pub. L. 97-35 revised section generally and substituted
provisions authorizing the Commission to require the manufacturers,
distributors, or dealers as the case may be to notify the public that
the article or substance was a banned hazardous one, and to repair,
replace or refund the purchase price, when the Commission determines
after providing the manufacturer, distributor, or dealer an opportunity
for a hearing that banned hazardous substances were sold for provisions
requiring the manufacturer, distributor or dealer to repurchase the
banned hazardous article or substance.
Effective Date of 1988 Amendment
Amendment by Pub. L. 100-418 effective Jan. 1, 1989, and applicable
with respect to articles entered on or after such date, see section
1217(b)(1) of Pub. L. 100-418, set out as an Effective Date note under
section 3001 of Title 19, Customs Duties.
Effective Date of 1981 Amendment
Amendment by Pub. L. 97-35 effective Aug. 13, 1981, see section 1215
of Pub. L. 97-35, set out as a note under section 2052 of this title.
Effective Date
Section effective on sixtieth day following Nov. 6, 1969, see
section 5 of Pub. L. 91-113, set out as an Effective Date of 1969
Amendment note under section 1261 of this title.
Section Referred to in Other Sections
This section is referred to in section 1263 of this title.
