CHAPTER 128

An Act to amend the Code of Virginia by adding in Title 8 a new chapter
numbered 12.1, consisting of sections numbered 8-208.48 through 8-
208.59, to regulate the distribution and sale of packages of hazardous
substances intended or suitable for household use. rH 138)

Approved March 2, 1964

Be it enacted by the General Assembly of Virginia:

1. That the Code of Virginia be amended by adding in Title 3 thereof a
new chapter numbered 12.1, consisting of sections numbered 3-208.48
through 3-208.59, as follows:

CHAPTER 12.1

§ 3-208.48. The following words and phrases when used in this
chapter shall have the meanings respectively ascribed to them except in
those instances in which the context clearly indicates a different meaning:

(a) “Department” means the Department of Agriculture and Immi-
gration of the State of Virginia.

(b) “Board” means the Board of Agriculture and Immigration of the
State of Virginia.

(c) “Commissioner” means the Commissioner of Agriculture and Im-
migration of the State of Virginia.

(d) “Person” includes any individual, firm, partnership, corporation,
association, or organized group of persons whether incorporated or not.

(e) “Sell” or “Sale” includes barter and exchange.

(f) “Offer for Sale” includes holding, keeping, exposing, offering for
sale or commercial application.

(zg) “Hazardous substance” means:

1. (A) Any substance or mixture of substances which (1) is toxic,
(2) is corrosive, (3) is an irritant, (4) is a strong sensitizer, (5) is flam-
mable, or (6) 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 reason-
ably foreseeable ingestion by children.

B) Any radioactive substance, which, as used in a particular class
or article or as packaged, the Board finds and declares by regulation to re-
quire labeling under this chapter to protect the public safety.

2. “Hazardous substance” shall not apply to economic poisons subject
to the Virginia Insecticide, Fungicide and Rodenticide Law, nor to drugs
and cosmetics as defined herein, nor to substances intended for use as
fuels when stored in containers and used in the heating, cooking or refrig-
eration system of a house.

3. “Hazardous substance” shall not include any source material, spe-
cial nuclear material, or byproduct material as defined in the Atomic Ener-
gy Act of 1954, as amended, and regulations issued pursuant thereto by
the Atomic Energy Commission.

(h) “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.

(i) (1) “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 ad-
ministered; 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 hun-
dred 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 1s
likely to be encountered by man when the substance is used in any reason-
ably 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 ad-
ministered by continuous contact with the bare skin for twenty-four hours
or less.

(2) If the Board 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 data pertaining to humans
shall take precedence. _

(j) “Corrosive” means any substance which in contact with living
tissue will cause destruction of tissue by chemical action; but shall not
apply to action on inanimate surfaces.

(k) “Irritant” means any substance not corrosive within the mean-
ing of subparagraph (j) which on immediate, prolonged, or repeated con-
tact with normal living tissue will induce a local inflammatory reaction.

(1) “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 Board. Before designating any substance as a
strong sensitizer, the Board, upon consideration of the frequency of occur-
rence and severity of the reaction, shall find that the substance has a
significant potential for causing hypersensitivity.

(m) “Extremely flammable” shall apply to any substance which has
a flash point at or below twenty degrees Fahrenheit as determined by the
Tagliabue Open Cup Tester, and the term “flammable” shall apply to any
substance which has a flash point of above twenty degrees to and including
eighty degrees Fahrenheit, as determined by the Tagliabue Open Cup
Tester; except that the flammability of solids and of the contents of self-
pressurized containers shall be determined by methods found by the Board
to be generally applicable to such materials or containers, respectively,
and established by regulations issued by it, which regulations shall also
define the terms “flammable” and “extremely flammable” in accord with
such methods.

(n) “Radioactive substance” means a substance which emits ionizing
radiation.

(o) “Label” means a display of written, printed, or graphic matter
upon the immediate container of any substance. Any requirement made by
or under authority of this chapter that any word, statement or other
information appear on the label shall not be deemed 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.

(p) “Immediate container” does not include package liners.

(q) “‘Misbranded package” or “misbranded package of a hazardous
substance” means a hazardous substance in a container intended or suitable
for household use which, except as otherwise provided by or pursuant to
§ 3-208.49, 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 sub-
stantially to its hazard, unless the Board by regulation permits or requires
the use of a recognized generic name; (C) the signal word “DANGER”
un 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”, “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 Board pursuant to
§ 8-208.49; (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 (i); (I) instructions for handling
and storage of packages which require special care in handling or storage;
and (J) the statement “Keep out of the reach of children’, or its practical
equivalent, 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 topography, layout, or color
with other printed matter on the label.

r) “Food” means (1) articles used for food or drink for man or
other animals, (2) chewing gum, and (3) articles used for components of
any such articles.

(s) “Drug” means (1) articles recognized in the official United States
Pharmacopoeia, official Homeopathic Pharmacopoeia of the United States,
or official National Formulary, or any supplement to any of them; and (2)
articles intended for use in the diagnosis, cure, mitigation, treatment or
prevention of disease in man or other animals; and (3) articles (other than
food) intended to affect the structure or any function of the body of man
or other animals; and (4) articles intended for use as a component of any
articles specified in clause (1), (2), or (3).

(t) “Cosmetic” means (1) articles intended to be rubbed, poured,
sprinkled, or sprayed on, introduced into, or otherwise applied to the body,
or any part thereof, of man or other animals for cleansing, beautifying,
promoting attractiveness, or altering the appearance, and (2) articles
intended for use as a component of any such articles; except that such
term shall not include soap.

§ 3-208.49. (a) The Board may, but is not required to, declare by
regulation to be a hazardous substance any substance or mixture of sub
stances which it finds meets the requirements in subsection (g) (1) (A) 0!
§ 8-208.48; but no hazardous substance as defined in subsection (g) (1)
(A) of § 3208.48 shall be deemed to be excluded from the operation of
this chapter because of the Board’s failure to act under this subsection.

(b) If the Board finds that the requirements of § 3-208.48 (q) (1) are
not adequate for the protection of the public safety in view of the specia
hazard presented by any particular hazardous substance, it may by regu.
lation establish such reasonable variations or additional label requirements
as it finds necessary for the protection of the public; and any containe1
of such hazardous substance, intended or suitable for household use, whick
fails to bear a label in accordance with such regulations shall be deemec
to be a misbranded package of a hazardous substance.

(c) If the Board finds that, because of the size of the package in.
volved or because of the minor hazard presented by the substance containec
therein, or for other good and sufficient reasons, full compliance with th
labeling requirements otherwise applicable under this chapter is imprac
ticable or is not necessary for the adequate protection of the public, the
Board shall promulgate regulations exempting such substance from thes,
requirements to the extent it determines to be consistent with adequat
protection of the public.

(d) The Board may exempt from the requirements established by or
pursuant to this chapter any container of a hazardous substance with
respect to which it finds that adequate requirements satisfying the pur-
poses of this chapter have been established by or pursuant to any other
laws of this State.

§ 3-208.50. The following acts and the causing thereof are hereby
prohibited :

(a) The introduction or delivery for introduction into intrastate com-
merce of any misbranded package of a hazardous substance.

(b) The alteration, mutilation, destruction, obliteration, or removal
of the whole or any part of the label of, or the doing of any other act with
respect to, a hazardous substance, if such act is done while the substance
is in intrastate commerce, or while the substance is held for sale (whether
or not the first sale) after shipment in intrastate commerce, and results
in the hazardous substance being in a misbranded package.

(c) The receipt in intrastate commerce of any misbranded package
of a hazardous substance and the delivery or proferred delivery thereof
for pay or otherwise.

(d) The giving of a guaranty referred to in § 3-208.51 (b) (2) or
§ 3-208.51 (c) which guaranty is false, except by a person who relied upon
a guaranty or undertaking to the same effect signed by, and containing the
name and address of, the person residing in the United States from whom
he received in good faith the hazardous substance.

(e) The failure to permit entry or inspection as authorized by
§ 3-208.56 (b) or to permit access to any copying of any record as
authorized by § 3-208.57.

(f) The introduction or delivery for introduction into intrastate
commerce, or the receipt in intrastate commerce and subsequent delivery
or proferred delivery for pay or otherwise, of a hazardous substance in a
reused food, drug, or cosmetic container or in a container which, though
not a reused container, is identifiable as a food, drug, or cosmetic container
by its labeling or by other identification. The reuse of a food, drug, or
cosmetic container as a container for a hazardous substance shall be
deemed to be an act which results in the hazardous substance being in a
misbranded package.

(z) The manufacture of a misbranded package of a hazardous sub-
stance within the State of Virginia.

(h) The use by any person to his own advantage, or revealing other
than to the Commissioner, or to employees of the Department, or to the
courts when relevant to any judicial proceeding under this chapter, of
any information acquired under authority of § 3-208.56 concerning any
method of process which as a trade secret is entitled to protection.

§ 3-208.51. (a) Any person violating any provision of this chapter
or the rules and regulations issued thereunder shall be guilty of a misde-
meanor and upon conviction shall be punished as provided by law.

(b) No person shall be subject to the penalties of subsection (a) of
this section, (1) for having violated § 3-208.50 (c), if the receipt, delivery
or proferred delivery of the hazardous substance was made in good faith,
unless he refuses to furnish, on request of an agent or employee duly
designated by the Commissioner, the name and address of the person from
whom he purchased or received such hazardous substance, and copies of
all documents, if any there be, pertaining to the delivery of the hazardous
substance to him; or (2) for having violated § 3-208.50 (a), if he estab-
lishes a guaranty signed by, and containing the name and address of, the
person residing in the United States from whom he received in good faith
the hazardous substance, to the effect that the hazardous substance is not
in misbranded packages within the meaning of that term in this chapter;
or (3) for having violated subsections (a), ‘(c), or (g) of § 3-208.50 in
respect of any hazardous substance shipped or delivered for export to any
foreign country, in a package marked for export on the outside of the
shipping container and labeled in accordance with the specifications of the
foreign purchaser, and in accordance with the laws of the foreign country,
but if such hazardous substance is sold or offered for sale in domestic
commerce, this clause shall not apply.

(c) The term “good faith” as used in clause (1) of subsection (b)
of this section shall include, but not be limited to, reliance upon a guaranty
signed by, and containing the name and address of, the person residing in
the United States from whom the hazardous substance was received in
good faith, to the effect that the hazardous substance is not in misbranded
packages within the meaning of that term in this chapter.

§ 3-208.52. (a) The Commissioner may issue and enforce a written
or printed “stop sale, use or removal” order directed to the owner or cus-
todian of any lot of hazardous substance or misbranded packages of a
hazardous substance, requiring him to hold it at a designated place, when
the Commissioner has reasonable cause to believe that a violation of any
of the provisions of this chapter involving such hazardous substance or
misbranded packages of a hazardous substance is occurring or is about
to occur, until the law has been complied with and the lot is released in
writing by the Commissioner, or the violation has been otherwise dis-
posed of by written authority; provided that the owner or custodian of
such lot of hazardous substance or misbranded packages of a hazardous
substance shall have the right to appeal from such order to a court of
competent jurisdiction in the county or city where the hazardous sub-
stance or misbranded packages of a hazardous substance are found, pray-
ing for judgment as to the justification of such order and for the dis-
charge of such hazardous substance or misbranded packages of a hazard-
ous substance from the order prohibiting the sale in accordance with the
findings of the court; and provided further, that the provisions of this
section shall not be construed as limiting the right of the Commissioner
to proceed as authorized by other provisions of this chapter. The Com-
missioner shall release the hazardous substance or misbranded packages
of a hazardous substance so withdrawn when the requirements of the pro-
visions of this chapter have been complied with and upon payment of all
costs and expenses incurred in connection with the withdrawal.

(b) This section shall not apply to a hazardous substance intended
for expurt to any foreign country if it (1) is in a package branded in
accordance with the specifications of the foreign purchaser; (2) is labeled
in accordance with the laws of the foreign country, and (3) is labeled on
the outside of the shipping package to show that it is intended for export,
and (4) is so exported.

§ 3-208.53. Any lot of hazardous substance not labeled in compliance
with the provisions of this chapter shall be subject to seizure on complaint
of the Commissioner to a court of competent jurisdiction in the area in
which said hazardous substance is located. In the event the court finds the
hazardous substance to be in a misbranded package within the meaning of
that term in this chapter and orders the condemnation of said hazardous
substance, it shall be disposed of in any manner consistent with the
quality of the hazardous substance and the laws of the State: Provided,
that in no instance shall the disposition of said hazardous substance be
ordered by the court without first giving the claimant an opportunity to
apply to the court for the release of said hazardous substance or for per-
mission to process or relabel said product to bring it into compliance with
this chapter.

§ 3-208.54. The Commissioner shall report violations of this chapter
to the proper prosecuting authorities.
Each attorney for the Commonwealth to whom the Commissioner
reports any violation of such sections shall institute appropriate proceed-
ings in any court of competent jurisdiction without delay. Before any such
violation is reported to any such attorney for the institution of criminal
proceedings, the person against whom the proceeding is contemplated
shall be given appropriate notice and an opportunity to present his views
before the Commissioner either orally or in writing, in person or by attor-
ney, with regard to such contemplated proceeding.

This section shall not require the Commissioner to report, for the
institution of prosecution, minor violations of this chapter if he believes the
public interest will be adequately served by a suitable written notice of
warning.

In all prosecutions under this chapter involving the composition of a
hazardous substance, a certified copy of the official analysis signed by the
analyst shall be accepted as prima facie evidence of the composition, pro-
hii the defendant has been furnished a copy thereof in advance of the
trial.

In addition to the remedies otherwise provided, the Commissioner
is authorized to apply to any court of record having jurisdiction in this
State for, and such court shall have jurisdiction upon hearing and for
cause shown to grant, a temporary or permanent injunction restraining
any person from violating any provisions of this chapter irrespective of
whether or not there exists an adequate remedy at law.

§ 3-208.55. The authority to promulgate rules and regulations for
the efficient enforcement of this chapter is hereby vested in the Board. The
provisions of Chapter 1.1 of Title 9 of the Code shall apply to the promul-
gation of such rules and regulations. Such rules and regulations shall have
the force and effect of law.

§ 3-208.56. (a) The Commissioner shall administer this chapter.
All authority vested in the Commissioner by virtue of the provisions of
this chapter may with like force and effect be executed by such employees
of the Department as the Commissioner may from time to time designate
for said purpose. The Commissioner is authorized to conduct examinations,
inspections, and investigations for the purposes of this chapter.

(b) For purposes of enforcement of this chapter, officers or employees
duly designated by the Commissioner, upon presenting appropriate creden-
tials to the owner, operator or agent in charge, are authorized (1) to
enter, at reasonable times, any factory, warehouse, or establishment in
which hazardous substances are manufactured, processed, packed, or held
for introduction into intrastate commerce or are held after such introduc-
tion, or to enter any vehicle being used to transport or hold such hazard-
ous substances in intrastate commerce; (2) to inspect, at reasonable
times and within reasonable limits and in a reasonable manner, such
factory, warehouse, establishment, or vehicle, and all pertinent equipment,
finished and unfinished materials, and labeling therein; and (3) to obtain
samples of such materials or packages thereof, or of such labeling. A
written notice on forms authorized by the Commissioner shall be delivered
to the owner, operator or agent in charge at the time of making each
such entry, inspection or sampling. Such notice shall state the time, date,
and purpose of each such inspection, entry or sampling and the name of
the officer or employee making the same.

(c) If the officer or employee obtains any sample, prior to leaving
the premises, he shall give to the owner, operator or agent in charge a
receipt describing the samples obtained. If an analysis is made of such
sample, a copy of the results of such analysis shall be furnished promptly
to the owner, operator or agent in charge upon request.

(d) It shall be the duty of the Department to make such chemical and
physical analyses as may be necessary for carrying out the provisions of
this chapter.

§ 3-208.57. For the purpose of enforcing the provisions of this
chapter, carriers engaged in intrastate commerce, and persons receiving
hazardous substances in intrastate commerce or holding such hazardous
substances so received shall, upon the request of an employee duly desig-
nated by the Commissioner, permit such employee, at reasonable times, to
have access to and to copy all records showing the movement in intrastate
commerce of any such hazardous substances, or the holding thereof during
or after such movement, and the quantity, shipper and consignee thereof ;
and it shall be unlawful for any such carrier or person to fail to permit
such access to and copying of any record so requested when such request
is accompanied by a statement in writing specifying the nature or kind
of such hazardous substances to which such request relates: Provided, that
evidence obtained under this section shall not be used in a criminal prosecu-
tion of the person from whom obtained; Provided further, that carriers
shall not be subject to the other provisions of this chapter by reason of
their receipt, carriage, holding, or delivery of hazardous substances in the
usual course of business as carriers.

§ 3-208.58. (a) The Commissioner may cause to be published from
time to time reports summarizing any judgments, decrees, or court orders
which have been rendered under this chapter, including the nature of the
charge and the disposition thereof.

(b) The Commissioner may also cause to be disseminated information
regarding hazardous substances in situations involving, in the opinion of
the Commissioner, imminent danger to public welfare. Nothing in this
section shall be construed to prohibit the Commissioner from collecting,
reporting and illustrating the results of the investigations of the Depart-
ment.

§ 3-208.59. All other general or special laws, or parts thereof, in-

consistent herewith, are hereby declared to be inapplicable to the provisions
of this chapter.
2. If any provision of this chapter or the application thereof to any per-
son or circumstance is held invalid, such invalidity shall not affect other
provisions or applications of the chapter which can be given effect without
the invalid provisions or application, and to this end the provisions of this
chapter are declared to be severable.