§ 68-131-102 — Part definitions

As used in this part, unless the context otherwise requires: (1) "Antifreeze" means any substance or preparation sold, distributed or intended for use as the cooling liquid or to be added to the cooling liquid in the cooling system of internal combustion engines of motor vehicles to prevent freezing of the cooling liquid or to lower its freezing point. (2) (A) "Banned hazardous substance" means: (i) Any toy or other article intended for use by children, that: (a) Is a hazardous substance; (b) Bears or contains a hazardous substance in such manner as to be susceptible of access by a child to whom such toy or other article is entrusted; or (c) Is otherwise hazardous because it presents electrical, mechanical or thermal hazards; or (ii) Any hazardous substance intended or packaged in a form suitable for use in household, that the commissioner by regulation classifies as a banned hazardous substance on the basis of a finding that, notwithstanding such cautionary labeling as is or may be required under this part for that substance, the degree or nature of the hazard involved in the presence or use of such substance in households is such that the objective of the protection of the public health and safety can be adequately served only by keeping such substance, when so intended or packaged, out of the channels of commerce; provided, that the commissioner, by regulation: (a) Shall exempt from subdivision (2)(A)(i) articles, such as chemical sets, that by reason of their functional purpose require the inclusion of the hazardous substance involved, and that 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 such directions and warnings; and (b) Shall exempt from subdivision (2)(A)(i), and provide for the labeling of common fireworks, including toy paper caps, cone fountains, cylinder fountains, whistles without report, and sparklers, to the extent that the commissioner determines that such articles can be adequately labeled to protect the purchasers and users of the articles; (B) Proceedings for the issuance, amendment, or repeal of regulations pursuant to subdivision (2)(A)(ii) shall be governed by § 68-131-103 ; (C) If any substance or article is determined to be a banned hazardous substance after the sale of such substance or article by a manufacturer or a distributor to a distributor or a dealer and prior to the sale of such substance or article by such distributor or dealer, the distributor shall immediately repurchase such substance or article at the price paid by such dealer, plus the transportation charges involved, and the manufacturer shall immediately repurchase from the distributor, or from the dealer if there is no distributor, such substance or article unsold or repurchased at the price paid, plus all transportation charges involved; (3) "Bittering agent" means denatonium benzoate; (4) "Commerce" means any and all commerce within the state of Tennessee and subject to the jurisdiction of the state of Tennessee, and includes the operation of any business or service establishment; (5) "Commissioner" means the commissioner of agriculture or the commissioner's legally authorized representative or agent; (6) "Corrosive" means any substance that, in contact with living tissue, will cause destruction of tissue by chemical action, but does not refer to action on inanimate surfaces; (7) "Department" means the Tennessee department of agriculture; (8) "Electrical" means of or pertaining to the flow of an electrical charge or to electrons in motion; an article may be determined to present an "electrical hazard," if, in normal use or when subjected to reasonably foreseeable damage or abuse, its design or manufacture may cause personal injury or illness by electric shock resulting from current leakage, inadequate insulation, accessibility of live parts, or other conditions; (9) "Extremely flammable" applies to any substance that has a flash point at or below twenty degrees Fahrenheit (20° F), as determined by the Tagliabue Open Cup Tester and "combustible" applies to any substance that has a flash point above eighty degrees Fahrenheit (80° F), to and including one hundred fifty degrees Fahrenheit (150° F), as determined by the Tagliabue Open Cup Tester; and "flammable" applies to any substance that has a flash point above twenty degrees Fahrenheit (20° F), to and including eighty degrees Fahrenheit (80° F), as determined by the Tagliabue Open Cup Tester; except that the flammability or combustibility of solids and of the contents of self-pressurized containers shall be determined by methods found by the commissioner to be generally applicable to such materials or containers, respectively, and established by regulations issued by the commissioner, which regulations shall also define the terms "flammable," "combustible" and "extremely flammable" in accordance with such methods; (10) (A) "Hazardous substance" means: (i) Any substance or mixture of substances that: (a) Is toxic; (b) Is corrosive; (c) Is an irritant; (d) Is a strong sensitizer; (e) Is flammable or combustible; or (f) 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 reasonably foreseeable ingestion by children; (ii) Any substances that the commissioner by regulation finds, pursuant to § 68-131-103(a) , meet the requirements of subdivision (10)(A)(i); (iii) Any radioactive substance, if, with respect to such substance as used in a particular class of article or as packaged, the commissioner determines by regulation that the substance is sufficiently hazardous to require labeling in accordance with this part in order to protect the public health; (iv) Any toy or other article intended for use by children that the commissioner finds, pursuant to § 68-131-103(e) , meets the requirements of subdivision (10)(A)(i) (d) ; (B) "Hazardous substance" does not apply to economic poisons subject to the Federal Insecticide, Fungicide, and Rodenticide Act ( 7 U.S.C. §§ 135-135R ) or the Tennessee Insecticide, Fungicide, and Rodenticide Act, compiled in title 43, chapter 8, nor to foods, drugs, and cosmetics subject to the Tennessee Food, Drug, and Cosmetic Act, compiled in title 53, chapter 1, nor to substances intended for use as fuels when stored in containers and used in the heating, cooking, or refrigeration system of a house, but "hazardous substance" does apply to any article that is not itself an economic poison within the meaning of the Federal Insecticide, Fungicide, and Rodenticide Act or the Tennessee Insecticide, Fungicide, and Rodenticide Act, but that is a hazardous substance within the meaning of subdivision (10)(A) by reason of bearing or containing such an economic poison; and (C) "Hazardous substance" does not include any source material, special nuclear material, or by-product material as defined in the Atomic Energy Act of 1954 ( 42 U.S.C. § 2011 et seq.) and regulations issued pursuant to that act by the atomic energy commission; (11) (A) "Highly toxic" means any substance that falls within any of the following categories: (i) Produces death within fourteen (14) days in one-half (1/2) or more than one-half (1/2) of a group of ten (10) or more laboratory white rats, each weighing between two hundred (200) and three hundred (300) grams, at a single dose of fifty (50) milligrams or less per kilogram of body weight, when orally administered; (ii) Produces death within fourteen (14) days in one-half (1/2) or more than one-half (1/2) of a group of ten (10) or more laboratory white rats, each weighing between two hundred (200) and three hundred (300) grams, when inhaled continuously for a period of one (1) hour or less at an atmosphere concentration of two hundred (200) parts per million (1,000,000) by volume or less of gas or vapor or two (2) milligrams per liter by volume or less of mist or dust; provided, that such concentration is likely to be encountered by a person when the substance is used in any reasonably foreseeable manner; or (iii) Produces death within fourteen (14) days in one-half (1/2) or more than one-half (1/2) of a group of ten (10) or more rabbits tested in a dosage of two hundred (200) milligrams or less per kilogram of body weight, when administered by continuous contact with the bare skin for twenty-four (24) hours or less; (B) If the commissioner finds that available data on human experience with any substance indicate results different from those obtained on animals in the dosages or concentrations provided for in subdivision (11)(A), the human data shall take precedence; (12) "Immediate container" does not include package liners; (13) "Irritant" means any substance not corrosive within the meaning of subdivision (6), which on immediate, prolonged, or repeated contact with normal living tissue will induce a local inflammatory reaction; (14) "Label" means a display of written, printed, or graphic matter upon the immediate container of any substance, or in the case of an article that is unpackaged or is not packaged in an immediate container intended or suitable for delivery to the ultimate consumer, a display of such matter directly upon the article involved or upon a tag or other suitable material affixed to the article, and a requirement made by or under authority of this part that any word, statement, or other information appearing on the label shall not be considered to be complied with, unless such word, statement, or other information also appears: (A) On the outside container or wrapper, if any there be, unless it is easily legible through the outside container or wrapper; and (B) On all accompanying literature where there are directions for use, written or otherwise; (15) "Mechanical" means of or pertaining to the design, construction or structure of a substance; an article may be determined to present a "mechanical hazard," if, in normal use or when subjected to reasonably foreseeable damage or abuse, its design or manufacture presents an unreasonable risk of personal injury or illness by strangulation, suffocation, asphyxiation, fragmentation, explosion, puncture, or other mechanical means; (16) "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 such manner as to be susceptible of access by a child to whom such toy or other article is entrusted, intended or packaged in a form suitable for use in the household or by children, which substance, except as otherwise provided by or pursuant to § 68-131-103 , fails to bear a label: (A) That states conspicuously: (i) The name and place of business of the manufacturer, packer, distributor, or seller; (ii) 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 that contributes substantially to its hazard, unless the commissioner by regulation permits or requires the use of a recognized generic name; (iii) The signal word "DANGER" on substances that are extremely flammable, corrosive, or highly toxic; (iv) The signal word "WARNING" or "CAUTION" on all other hazardous substances; (v) An affirmative statement of the principal hazard or hazards, such as "Flammable," "Combustible," "Vapor Harmful," "Causes Burns," "Absorbed Through Skin," or similar wording descriptive of the hazard; (vi) Precautionary measures describing the action to be followed or avoided, except when modified by regulation of the commissioner pursuant to § 68-131-103 ; (vii) Instruction, when necessary or appropriate, for first aid treatment; (viii) The word "poison" for any hazardous substance that is defined as "highly toxic" by subdivision (11); (ix) Instructions for handling and storage of bulk shipments and packages that require special care in handling or storage; and (x) The statement: (a) "Keep out of the reach of children" or its practical equivalent; or (b) 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; and (B) On which any statements required under subdivision (16)(A) are located prominently and are in the English language in conspicuous and legible type in contrast by typography, layout, or color with other printed matter on the label; (17) "Person" includes an individual, partnership, corporation, or association, or the person's legal representative or agent; (18) "Radioactive substance" means a substance that emits ionizing radiation; (19) "Strong sensitizer" means a substance that will cause on normal living tissue, through an allergic or photodynamic process, a hypersensitivity that becomes evident on reapplication of the same substances and that is designated as such by the commissioner. Before designating any substance as a strong sensitizer, the commissioner, upon consideration of the frequency of occurrence and severity of the reaction, shall find that the substance has a significant potential for causing hypersensitivity; (20) "Thermal" means of or pertaining to the transfer or manifestation of heat energy; an article may be determined to present a "thermal hazard" if it has surfaces or parts normally touched, handheld, or grasped that exceed a temperature of one hundred thirteen degrees Fahrenheit (113° F), or one hundred forty degrees Fahrenheit (140° F) in the case of surfaces other than metal, or if it has surfaces or parts exceeding one hundred forty degrees Fahrenheit (140° F), in normal use or when subjected to reasonably foreseeable damage or abuse, that may be touched accidentally, causing personal injury or illness. However, articles that have parts or surfaces exceeding a temperature of one hundred forty degrees Fahrenheit (140° F) that may be touched accidentally and are not normally touched, handheld, or grasped shall not be found to present a thermal hazard, if the following three (3) conditions are met: (A) The article requires such surfaces or parts in order to perform the normal function or purpose of the article; (B) The article bears labeling giving directions and warnings for safe use; and (C) Because of such labeling and warnings or other factors, the article is likely to be used only by children who will comprehend the warning and use the toy safely. Temperature tests shall be made at an ambient room temperature of seventy-seven degrees Fahrenheit (77° F) (25° C); and (21) "Toxic" applies to any substance, other than a radioactive substance, that has the capacity to produce personal injury or illness to a human through ingestion, inhalation or absorption through any body surface.

Legislative History

Acts 1970, ch. 356, § 2; 1976, ch. 498, § 1; T.C.A., §§ 53-3713, 68-27-102; Acts 2008 , ch. 1111, § 2.