In this chapter, unless the context or subject matter otherwise requires:
1. "Banned hazardous substance" means:
a. Any toy, or other article, intended for use by children, which is a hazardous
substance, or which bears or contains a hazardous substance in a manner so as
to be susceptible of access by a child to whom the toy, or other article, is
entrusted; or
b. Any hazardous substance intended, or packaged in a form suitable, for use in the
household, which the department, by regulation, classifies as a "banned
hazardous substance", on the basis of a finding that, notwithstanding cautionary
labeling as required under this chapter, the degree or nature of the hazard
involved in the presence or use of the substance in households is such that the
protection of the public health and safety can only be adequately served by
keeping the substance out of the channels of commerce.
Provided, the department, by regulation, shall exempt from subdivision a those
articles, such as chemical sets, which by reason of functional purpose require the
inclusion of the hazardous substance involved, and which bear labeling giving
adequate directions and warnings for safe use, and are intended for use by children
who have attained sufficient maturity and may reasonably be expected to read and
heed these directions and warnings.
2. "Corrosive" means any substance which in contact with living tissue will cause
destruction of tissue by chemical action, but does not refer to action on inanimate
surfaces.
3. "Department" means the department of health and human services.
4. "Extremely flammable" applies to any substance which has a flashpoint at or below
twenty degrees Fahrenheit [-6.67 degrees Celsius] as determined by the Tagliabue
open cup tester, and the term "flammable" applies to any substance which has a
flashpoint of above twenty degrees to and including eighty degrees Fahrenheit [-6.67
degrees to and including 26.67 degrees Celsius], 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 generally applicable to such materials or
containers, respectively, and established by regulations issued by the department,
which regulations must also define the terms "flammable" and "extremely flammable"
in accordance with such methods.
5. "Hazardous substance" means any substance, except drugs and medicines, or
mixture of substances, except drugs and medicines, which is toxic, corrosive, an
irritant, a strong sensitizer, flammable, or which generates pressure through
decomposition, heat, or other means, if such hazardous substance or mixture of
hazardous substances may cause substantial personal injury or illness during or as a
proximate result of any customary or reasonably anticipated handling or use; provided,
that the term "hazardous substance" does not include:
a. Substances stored in containers and intended for use as fuel in a heating,
cooking, or refrigeration system.
b. Economic poisons subject to the Federal or the North Dakota Insecticide,
Fungicide, and Rodenticide Act of 1947.
c. Any source material, special nuclear material, or byproduct material as defined in
the Atomic Energy Act of 1954, as amended, and regulations issued pursuant
thereto by the atomic energy commission.
The term "hazardous substance" applies to any article which is not an economic
poison within the meaning of the Federal or North Dakota Insecticide, Fungicide, and
Rodenticide Act of 1947, and which is a hazardous substance within the meaning of
this subsection by reason of bearing or containing an economic poison.
6. "Highly toxic" means any substance which falls within any of the following categories:
produces death within fourteen days in one-half or more than one-half of a group of
ten or more laboratory white rats each weighing between two hundred and three
hundred grams, at a single dose of fifty milligrams or less per kilogram of body weight,
when orally administered; or produces death within fourteen days in one-half or more
than one-half of a group of ten or more laboratory white rats each weighing between
two hundred and three hundred grams, when inhaled continuously for a period of one
hour or less at an atmospheric concentration of two hundred parts per million by
volume or less of gas, vapor, mist, or dust, provided such concentration is likely to be
encountered by man when the substance is used in any reasonably foreseeable
manner; or produces death within fourteen days in one-half or more than one-half of a
group of ten or more rabbits tested in a dosage of two hundred milligrams or less per
kilogram of body weight, when administered by continuous contact with the bare skin
for twenty-four hours or less. If the department finds that available data on human
experience with any substance indicate results different from those obtained on
animals in the above-named dosages or concentrations, the human data shall take
precedence.
7. "Immediate container" does not include package liners.
8. "Irritant" means any substance, not corrosive, which on immediate, prolonged, or
repeated contact with normal living tissue will induce a local inflammatory reaction.
9. "Label" means a display of written, printed, or graphic matter upon or attached to the
immediate package or container of any hazardous 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; and a
requirement made by or under authority of this chapter that any word, statement, or
other information appearing on the label may not be considered to be in compliance
with this chapter unless such word, statement, or other information also appears on
the outside container or wrapper, if any there be, unless it is easily legible through the
outside container or wrapper, and unless it appears on all accompanying literature
where there are directions for use, written or otherwise.
10. "Misbranded hazardous substance" means a hazardous substance, including a toy or
other article intended for use by children which is a hazardous substance, or which
bears or contains a hazardous substance in a manner so as to be susceptible of
access by a child to whom the toy or other article is entrusted, which is intended, or
packaged in a form suitable for household use, or use by children, which, unless
exempted by regulation, fails to bear a label:
a. Which states conspicuously the name and place of business of the manufacturer,
packer, or distributor; the common usual name, or the chemical name, or the
recognized generic name, not trade name only, of the hazardous substance or of
each component which contributes substantially to its hazard; the signal word
"DANGER" on substances which are extremely flammable, corrosive, or highly
toxic; the signal word "WARNING" or "CAUTION" on all other hazardous
substances; 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; precautionary
measures describing the action to be followed or avoided; instructions, when
necessary, for the first-aid treatment in case of contact or exposure, if the
substance is hazardous through contact or exposure; the word "POISON" for any
hazardous substance which is defined as "HIGHLY TOXIC" by this section;
instructions for handling and storage of packages which require special care in
handling or storage; and the statement "KEEP OUT OF REACH OF CHILDREN",
or its practical equivalent or, if the article is intended for use by children and is not
a banned hazardous substance, adequate directions for the protection of children
from the hazard.
b. On which any statements required under this subsection are located prominently
and are in the English language in legible type in contrast by typography, layout,
or color with other printed matter on the label; provided, that the department shall,
by regulations, provide for minimum information which must appear on the labels
for small packages, which labels need not include all of the information required
by this subsection; provided, further, that the department may permit less than the
foregoing statement of the hazard or precautionary measures for labels of
hazardous substances presenting only minor hazards; and the term "misbranded
hazardous substance" does not apply to packages of economic poisons so
labeled that if introduced in interstate commerce, it would be in compliance with
the Federal Insecticide, Fungicide, and Rodenticide Act, nor to packages of
foods, drugs, and cosmetics so labeled that if introduced in interstate commerce,
it would be in compliance with the Federal Food, Drug, and Cosmetic Act, nor to
any package of a hazardous substance so labeled that if introduced into
interstate commerce, it would be in compliance with the Federal Hazardous
Substances Act and rules and regulations promulgated pursuant to that Act.
11. "Person" includes an individual, partnership, corporation, limited liability company, and
association.
12. "Radioactive substance" means a substance which emits ionizing radiation.
13. "Strong sensitizer" means any substance which will cause, on normal living tissue
through an allergic or photodynamic process, a hypersensitivity which becomes
evident on reapplication of the same hazardous substance and which is designated as
such by the department. Before designating any substance as a strong sensitizer, the
department shall, after public hearing, following due notice, find that the frequency of
occurrence and severity of the reaction indicate a significant potential for causing
hypersensitivity.
14. "Toxic" applies to any substance, other than a radioactive substance, which has the
inherent capacity to produce bodily injury to man through ingestion, inhalation, or
absorption through any body surface.