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RULE §205.22Definitions

The definition of terms contained in the Act, §1, shall be applicable also to such terms when used in sections promulgated under the Act. The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise:

  (1) Act--Senate Bill 362, 62nd Legislature, and all amendments thereto (Texas Penal Code Article 726-3, §1-12).

  (2) Accompanying literature--Any placard, pamphlet, booklet, book, sign, or other written, printed, or graphic matter or visual device that provides directions for use, written or otherwise, and is used in connection with the display, sale, demonstration, or merchandising of a flammable substance intended for, or packaged in a form suitable for, use in the household or by children.

  (3) Banned hazardous substance--

    (A) Any article of clothing (other than diapers) intended for the use of children which is not in compliance with flammability standards for such clothing established by the department shall be declared to be a banned hazardous substance by the department. The determination by the department that the Articles of clothing of a specified range of sizes are intended for the use of a child 14 years or younger shall be conclusive.

    (B) Any toy or other article other than clothing intended for use by children, which is a hazardous substance, or which bears or contains a hazardous substance in a manner susceptible of access by a child to whom the toy or other article is entrusted, shall be declared to be a banned hazardous substance by the department.

    (C) Any hazardous substance intended, or packaged in a form suitable for use in a household, which, notwithstanding cautionary labeling required by this Act, is potentially so dangerous or hazardous when present or used in a household, that the protection of the public health and safety can be adequately served only by keeping the substance out of the channels of commerce, shall be declared to be a banned hazardous substance by the department.

    (D) Any article subject to the provisions of this Act which cannot be labeled adequately to protect the public health and safety, or which presents an imminent danger to the public health and safety, shall be declared a banned hazardous substance by the department.

    (E) The provisions of this section do not apply to any toy or article such as chemical sets which by reason of functional purpose requires the inclusion of a hazardous substance, and which bears labeling which in the judgment of the department gives adequate directions and warnings for safe use, and is intended for use by children who have attained sufficient maturity and may reasonably be expected to read and heed these directions and warnings; nor do the provisions of this section apply to the manufacture, sale, distribution, or use of fireworks of any class.

  (4) Children's clothing--Any article of clothing, unless otherwise excluded, up to and including size 14X.

  (5) Children's sleepwear--Any product of wearing apparel up to and including size 14X, such as nightgowns, pajamas, or similar or related items, such as robes, intended to be worn primarily for sleeping or activities related to sleeping. Diapers and underwear are excluded from this definition.

  (6) Commerce--Any and all commerce within the State of Texas and subject to the jurisdiction thereof; and includes the operation of any business or service establishment.

  (7) Department--The Texas Department of Health Resources.

  (8) Flammable mixture--A mixture of substances whose composite product displays flammable characteristics due to antagonistic reactions of the substances. The flammability of such mixtures shall be determined by tests of the mixture itself, using prescribed method of test, rather than tests of the component parts.

  (9) Hazardous substance--Any substance or mixture of substances which is toxic, corrosive, flammable, an irritant, a strong sensitizer, or generates pressure through decomposition, heat, or other means, if the substance or mixture of substances may cause substantial personal injury or substantial illness during or as a proximate result of any customary or reasonable foreseeable handling or use, including reasonable foreseeable ingestion by children, and any radioactive substance if with respect to the substance as used in a particular class of article or as packaged, the department finds by regulation that the substance is sufficiently hazardous to require labeling in accordance with the provisions of this Act in order to protect the public health. The term "hazardous substance' does not apply to economic pesticides subject to the State or Federal Insecticide, Fungicide, and Rodenticide Act nor to foods, drugs, and cosmetics subject to the Federal Food, Drug, and Cosmetic Act or to beverages complying with or subject to the Federal Alcohol Administration Act, or to the Texas Food, Drug, and Cosmetic Act, nor to substances intended for use as fuels when stored in containers and used in the heating, cooking or refrigeration system of a private residence, nor does it apply to or include any source material, special nuclear material, or byproduct material as defined in the Federal Atomic Energy Act of 1954, as amended, and regulations issued pursuant thereto by the Atomic Energy Commission.

  (10) Intended for, or packaged in a form suitable for, use in the household or by children--Any flammable substance, whether or not packaged, that under any customary or reasonably foreseeable condition of purchase, storage, or use may be brought into or around a house, apartment, or other place where people dwell, or in or around any related building or shed, including but not limited to a garage, carport or storage shed.

    (A) Exception: The term does not apply to small quantities of industrial supplies taken into a home temporarily by a repairman since such quantities may have been removed from a properly labeled bulk supply source.

    (B) Size of unit or container shall not be the only index of whether the article is suitable for use in or around the household. The test shall be whether under any reasonably foreseeable condition of purchase, storage, or use the article may be found in or around a dwelling.

  (11) Label--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 this matter directly on the article involved or on a tag or other suitable material affixed thereto.

  (12) Person--Includes any individual, partnership, corporation, or association, or legal representative or agent.

  (13) Prominently and conspicuously--Under customary conditions of purchase, storage, and use, the required information shall be visible, noticeable, and in clear and legible type, in the English language (unless otherwise stipulated per the Act, §2(b), and such type shall contrast in typography, layout, or color with other printed matter on any required label.

  (14) Proximate result--A result that follows in the course of events without unforeseeable, intervening, independent cause.

  (15) Reasonably foreseeable handling or use--Includes the reasonably foreseeable accidental handling or use, not only by the purchaser or intended user of the product, but by all others in a household, especially children.

  (16) Rule, rules, regulations, and rules and regulations--The rules and regulations prescribed by the department pursuant to the Act, §5(a). For purpose of use herein these terms shall be synonymous and may be used interchangeably.

  (17) Size 14X--The size defined as 14X in customary marketing and sizing practice or in the Department of Commerce Voluntary Product Standard, previously identified as Commercial Standard CS151-50 "Body Measurements for the Sizing of Apparel for Infants, Babies, Toddlers, and Children," where such standard is applicable.

  (18) Substantial personal injury or substantial illness--Any injury or illness of a significant nature. Such injury or illness need not be severe or serious, however, the term substantial shall exclude wholly insignificant or negligible injury or illness.

Source Note: The provisions of this §205.22 adopted to be effective January 1, 1976.

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