108040-108050
HEALTH AND SAFETY CODE
SECTION 108040-108050
108040. This chapter shall be known, and may be cited, as the
Product Recall Safety and Protection Act.
108042. As used in this chapter, the following terms have the
following meanings:
(a) "Commercial dealer" means any person who deals in products or
who otherwise by his or her occupation holds himself or herself out
as having knowledge or skill peculiar to products, or any person who
is in the business of remanufacturing, retrofitting, selling,
leasing, subletting, or otherwise placing into the stream of
commerce, a product.
(b) "Distributor" and "wholesaler" means any person, other than a
manufacturer or retailer, who sells or resells, or otherwise places
into the stream of commerce, a product.
(c) "End consumer" means a person who purchases a product for any
purpose other than resale.
(d) "First seller" means any retailer selling a product that has
not been used or has not previously been owned. A first seller does
not include an entity such as a secondhand retail dealer, thrift
shop, resale store, or any other establishment or individual, agent,
or employee thereof that sells, distributes, rents, or leases
products of any kind.
(e) "Importer" means any person who brings into this country, and
places into the stream of commerce, a product.
(f) "Manufacturer" means any person who makes, and places into the
stream of commerce, a product.
(g) "Person" means a natural person, firm, corporation, limited
liability company, or association, or an employee or agent thereof.
(h) "Product" means any article, or component part thereof,
produced or distributed (1) for sale to a consumer for use in or
around a permanent or temporary household or residence, a school, in
recreation, or otherwise, or (2) for personal use, consumption, or
enjoyment of a consumer in or around a permanent or temporary
household or residence, a school, in recreation, or otherwise.
"Product" does not include food, drugs, cosmetics, pesticides (as
defined by the Federal Insecticide, Fungicide, and Rodenticide Act (7
U.S.C. Sec. 136 et seq.)), medical devices, firearms and ammunition,
boats, motor vehicles, motor vehicle equipment, aircraft, or tobacco
and tobacco products.
(i) "Recall" means any repair, replacement, or refund program
implemented in accordance with the federal Consumer Product Safety
Act (15 U.S.C. Sec. 2051 et seq.) upon the determination of
commission staff that a consumer product violates a commission
statute or regulation, and notification to the product manufacturer,
importer, distributor, or retailer that corrective action to address
the violation is warranted. "Recall" includes a voluntary recall
where a product is returned to the manufacturer for repair or
replacement, usually due to defects or safety concerns, or public
notice that a product is defective and must be returned to the
manufacturer or retailer.
(j) "Retailer" means any person other than a manufacturer,
distributor, or wholesaler who sells, distributes, sublets, or leases
consumer goods of any kind.
(k) "Sell" or "sale" means a transfer for consideration of title
or of the right to use, by lease or sales contract, including, but
not limited to, transactions conducted through sales outlets,
catalogs, or the Internet or any other similar electronic means.
108044. (a) No commercial dealer, manufacturer, importer,
distributor, wholesaler, or retailer shall manufacture,
remanufacture, distribute, sell at wholesale or retail, contract to
sell or resell, lease, or sublet, or otherwise place into the stream
of commerce, a product that is unsafe, as defined in subdivision (b),
knowing that the product is unsafe.
(b) A product shall be deemed unsafe for purposes of this chapter
only if it meets one or both of the following criteria:
(1) The product has been recalled because it does not conform to
state or federal laws and regulations setting forth standards for the
product.
(2) The product has been recalled for any safety hazard reason in
cooperation with the federal Consumer Product Safety Commission or
its staff, or voluntarily recalled for any safety hazard reason by
the product's commercial dealer, manufacturer, importer, distributor,
or wholesaler, and the recall has not been rescinded.
(c) (1) An unsafe product, as determined pursuant to subdivision
(b), may be retrofitted if the retrofit has been approved by the
agency issuing the recall or warning, or the agency responsible for
approving the retrofit if it is different from the agency issuing the
recall or warning.
(2) A retrofitted product may be sold if it is accompanied at the
time of sale by a notice declaring that it is safe to use. The notice
shall include all of the following:
(A) A description of the original problem that made the recalled
product unsafe.
(B) A description of the retrofit that explains how the original
problem was eliminated and declaring that it is now safe to use.
(C) The name and address of the commercial dealer, manufacturer,
importer, distributor, or wholesaler who accomplished the retrofit,
certifying that the work was done, along with the name and model
number of the product retrofitted.
(3) The commercial dealer, manufacturer, importer, distributor, or
wholesaler is responsible for ensuring that the notice described in
paragraph (2) is present with the retrofitted product at the time of
sale. This paragraph and paragraph (2) shall not apply, and the
product may be sold, if either subparagraph (A) or (B) applies:
(A) The retrofit meets all of the following:
(i) The product requires assembly by the consumer.
(ii) The retrofit kit is provided with the product by the
commercial dealer, manufacturer, importer, distributor, or
wholesaler.
(iii) The retrofit kit is accompanied at the time of sale by
instructions explaining how to apply the retrofit.
(B) The seller of a previously unsold product or the entity to
whom unsold products had been returned under the terms of the recall
accomplishes the approved or recommended repair prior to sale.
108046. (a) A commercial dealer, manufacturer, importer,
distributor, or wholesaler that has placed into the stream of
commerce any unsafe product for which a recall or warning has
subsequently been issued, shall initiate the following steps within
24 hours after issuing or receiving the recall notice or warning:
(1) Contact all of its customers, other than end consumers, to
whom it sold, leased, sublet, or transferred that particular product.
The contact shall be made to a person designated for that product by
the customer and shall include a copy of the recall notice or
warning.
(2) If the commercial dealer, manufacturer, importer, distributor,
or wholesaler maintains an Internet Web site, the entity shall place
prominently on the homepage or first point of entry of its Web site,
a link to recall or warning information that contains the specific
recall notice or warning that was issued for the product in question.
The recall or warning information shall include a description of the
product, the reason for the recall or warning, a picture of the
product, and instructions on how to participate in the recall or
warning. The information shall include only the product recall or
warning information and shall not include sales or marketing
information on that product or any other product, excluding return
and exchange policies. The recall or warning information shall permit
participation in the recall or warning through the Web site of the
commercial dealer, manufacturer, importer, distributor, or
wholesaler.
(b) (1) The manufacturer of the product shall provide for the safe
return of the product to the manufacturer or the appropriate
disposal of the product in the manner required pursuant to paragraph
(2) at no cost to the end consumer or retailer.
(2) The manufacturer shall properly dispose of the product in a
manner that is in compliance with all applicable federal, state, and
local laws, regulations, and ordinances, and shall not export the
product, or permit it to be exported, for disposal in a manner that
poses a significant risk to the public health or the environment.
(3) The manufacturer or retailer may provide a corrective action
or retrofit onsite at the consumer's home or premises for any product
for which a recall or warning has been issued.
(c) If a retailer receives notice of a recall or warning regarding
a product from a commercial dealer, manufacturer, importer,
distributor, wholesaler, or state or federal agency, and if the
retailer during the previous 18 months offered the product for sale,
then the retailer shall do the following:
(1) Within three days after receiving the notice or warning by the
person designated by the retailer, the retailer shall remove the
product from the shelves of its stores or program its registers to
ensure that the item cannot be sold.
(2) If the product was sold through the retailer's Internet Web
site, then within three days after receiving the notice or warning by
the person designated by the retailer, the retailer shall remove the
product from the Web site or remove the ability to purchase the
product through the Web site.
(3) Within three days after receiving the recall notice or warning
by the person designated by the retailer, the retailer shall post in
paper form or electronically in a prominent location in each retail
store the recall notice or warning. The notice or warning shall
remain posted for at least 60 days.
(4) If the product for which a recall or warning was issued was
sold on the retailer's Internet Web site, the retailer shall, within
three days after receiving the recall notice or warning by the person
designated by the retailer, post on the homepage or first point of
entry of its Web site a link to recall or warning information that
contains the specific recall notice or warning that was issued for
the product in question. The recall or warning information shall
include a description of the product, the reason for the recall or
warning, a picture of the product, if one was provided, and
instructions on how to participate in the recall or warning. The
information shall include only the product recall or warning
information and shall not include sales or marketing information on
that product or any other product, excluding return and exchange
policies.
(5) A retailer who is not a first seller shall comply with this
subdivision, except that the retailer has five days to comply with
paragraphs (1) and (2).
(6) A retailer who is a first seller shall accept any recalled
product for the purpose of returning it to the manufacturer or
distributor.
(d) A commercial dealer, manufacturer, importer, wholesaler, or
distributor who is also a retailer shall comply with subdivisions
(a), (b), and (c), as applicable.
108048. Nothing in this chapter relieves a commercial dealer,
manufacturer, importer, distributor, wholesaler, or retailer from
compliance with stricter requirements that may be imposed by an
agency of the federal government.
108050. (a) Any violation of this chapter shall be subject to a
civil penalty of up to one thousand dollars ($1,000) for each
occurrence, up to a maximum of twenty thousand dollars ($20,000).
(b) The remedies under this section are in addition to, and do not
supersede or limit, any and all other remedies, civil or criminal.