§ 23-24-3. Regulations declaring hazardous substances and establishing variations and exemptions. (a)(1) Whenever in the judgment of the consumer protection unit an action will promote the objectives of this chapter by avoiding or resolving uncertainty as to its application, the consumer protection unit may by regulation declare to be a hazardous substance, for the purposes of this chapter, any substance or mixture of substances which it finds meets the requirements of § 23-24-2(6)(i)(A).

(2) Proceedings for the issuance, amendment, or repeal of regulations under this subsection and the admissibility of the record of those proceedings in other proceedings shall be governed by the provisions of § 42-35-3; except that:

(i) The consumer protection unit's order after public hearing (acting upon objections filed to an order prior to hearing) shall be subject to the requirements of § 42-35-3;

(ii) The scope of judicial review of the order shall be in accordance with §§ 42-35-15 and 42-35-16.

(b) If the consumer protection unit finds that the requirements of § 23-24-2(1)(i) are not adequate for the protection of the public health and safety in view of the special hazard presented by any particular hazardous substance, it may by regulation establish any reasonable variations or additional label requirements as it finds necessary for the protection of the public health and safety; provided, that the consumer protection unit shall consult with the department of health before adopting those regulations. Any hazardous substance intended, or packaged in a form suitable, for use in the household or by children, which fails to bear a label in accordance with those regulations shall be deemed to be a misbranded hazardous substance.

(c) If the consumer protection unit finds that, because of the size of the package involved or because of the minor hazard presented by the substance contained in the package, or for other good and sufficient reasons, full compliance with the labeling requirements otherwise applicable under this chapter is impracticable or is not necessary for the adequate protection of the public health and safety, the consumer protection unit shall promulgate regulations exempting that substance from these requirements to the extent it determines to be consistent with adequate protection of the public health and safety.

(d) The consumer protection unit may exempt from the requirements established by or pursuant to this chapter any hazardous substance or container of a hazardous substance with respect to which it finds that adequate requirements satisfying the purposes of this chapter have been established by or pursuant to any other act of the general assembly.

(e)(1) A determination by the consumer protection unit that a toy or other article intended for use by children presents an electrical, mechanical, or thermal hazard shall be made by regulation in accordance with the procedures prescribed by § 42-35-3 (other than subsection 42-35-3(b)).

(2) If, before or during a proceeding pursuant to subdivision (1) of this subsection, the consumer protection unit finds that, because of an electrical, mechanical, or thermal hazard, distribution of the toy or other article involved presents an imminent hazard to the public health, and it by order published in a daily newspaper with statewide circulation give notice of the finding, and that toy or other article shall be deemed to be a banned hazardous substance for purposes of this chapter until the proceeding has been completed. If not yet initiated when the order is published, a proceeding shall be initiated as promptly as possible.

(3)(i) In the case of any toy or other article intended for use by children which is determined by the consumer protection unit, in accordance with § 42-35-3, to present an electrical, mechanical, or thermal hazard, any person who will be adversely affected by that determination may, at any time prior to the sixtieth (60th) day after the regulation making the determination is issued by the consumer protection unit, file a petition with the superior court for the district in which the person resides or has his or her principal place of business, or if the person is a nonresident or has no principal place of business within this state or if the superior court shall not be in session in the counties applicable as provided, then in the superior court of Providence County, for a judicial review of that determination. A copy of the petition shall be immediately transmitted by the clerk of the court to the consumer protection unit. The consumer protection unit shall file in the court the record of the proceedings on which the consumer protection unit based its determination, as provided in § 42-35-15(a);

(ii) If the petitioner applies to the court for leave to adduce additional evidence, and shows to the satisfaction of the court that the additional evidence is material and that there was no opportunity to adduce that evidence in the proceeding before the consumer protection unit, the court may order the additional evidence (and evidence in rebuttal thereof) to be taken before the consumer protection unit in a hearing or in any other manner, and upon the terms and conditions, as to the court may seem proper. The consumer protection unit may modify its findings as to the facts, or make new findings, by reason of the additional evidence so taken and it shall file the modified or new findings, and its recommendation, if any, for the modification or setting aside of its original determination, with the return of the additional evidence;

(iii) Upon the filing of the petition under this paragraph, the court shall have jurisdiction to review the determination of the consumer protection unit in accordance with § 42-35-15(g)(2).

(iv) If the court ordered additional evidence to be taken under subdivision (3)(ii), the court shall also review the consumer protection unit determination to determine if, on the basis of the entire record before the court pursuant to subdivisions (3)(i) and (3)(ii), it is supported by substantial evidence. If the court finds the determination is not supported, the court may set it aside. With respect to any determination reviewed under this subdivision, the court may grant appropriate relief pending conclusion of the review proceedings, as provided in § 42-35-15(c);

(v) The judgment of the court affirming or setting aside, in whole or in part, any determination of the consumer protection unit shall be final, subject to review by the supreme court upon certiorari or certification, as provided in § 42-35-16.

History of Section. (P.L. 1977, ch. 90, § 2: G.L. 1956, § 23-38.1-3; P.L. 1979, ch. 39, § 1.)