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NEW JERSEY REGISTER
VOLUME 39, ISSUE 12
ISSUE DATE: JUNE 18, 2007
RULE PROPOSALS
LAW AND PUBLIC SAFETY
DIVISION OF CONSUMER AFFAIRS

39 N.J.R. 2321(a)

Proposed Amendments: N.J.A.C. 13:45A-4.1, 4.2 and 24.3

Click here to view Interested Persons Statement

Banned Hazardous Products; Toy Recall Notices

Authorized By: Stephen B. Nolan, Acting Director, Division of Consumer Affairs.

Authority: N.J.S.A. 56:8-4.

Calendar Reference: See Summary below for explanation of exception to calendar requirement.

Proposal Number: PRN 2007-198.

Submit written comments by August 17, 2007 to:

Stephen B. Nolan, Acting Director
Office of the Director
New Jersey Division of Consumer Affairs
124 Halsey Street
P.O. Box 45027
Newark, NJ 07101

The agency proposal follows:

Summary

N.J.A.C. 13:45A-24.3 requires that a retail seller of toys who is notified by the Consumer Product Safety Commission (CPSC) or a manufacturer that a toy or other item intended for use by children is defective or hazardous must display the notification in the store where it is sold. Some retailers have taken advantage of the language of the existing rule to place the notifications in the customer service area, to which shoppers go only if they are returning merchandise, questioning a bill, or have other business that is handled at the customer service area. The Division of Consumer Affairs (Division) is proposing to amend N.J.A.C. 13:45A-24.3(d) to require that the notifications be posted in the area of the store where the item is displayed or where it was displayed if no longer sold, as well as the customer service area. The Division believes that this change is necessary to help consumers obtain meaningful exposure to recall notices.

Inasmuch as the Division is proposing amendments to Subchapter 4 that regulate advertising or sale of certain hazardous products, rather than ban the products outright, the Division proposed to amend the subchapter heading to reflect that fact. The Division believes that consumers also should be made aware of toys or children's items as to which safety warnings have been issued, but which have not been recalled, and other consumer products as to which warnings or recalls have been issued. The Division is proposing to amend N.J.A.C. 13:45A-4.1 to require that a person advertising a consumer product that has been the subject of a warning or a recall disclose the warning or recall and the nature of the hazard that prompted it. Some products are inherently dangerous and would not be subject to CPSC review. The Legislature may determine that a product is so dangerous that it should be illegal to be used, except by a person who is, by experience or training, competent to handle the product.

N.J.S.A. 21:3-1 et seq., for example, makes it unlawful for a person to possess or use fireworks within the State without a permit. Nevertheless, sellers of fireworks located outside the State continue to entice New Jersey consumers to purchase fireworks, particularly to use to celebrate the Forth of July. Fireworks are advertised for sale on the New Jersey side of the border on radio and television broadcasts from or by way of stations located in New Jersey; by direct mail to New Jersey residents; in print advertising in New Jersey newspapers; on New Jersey cable television stations; on the Internet at sellers' websites providing maps, directions and mileage from points in New Jersey to the seller's place of business located outside the State; and on billboards just inside New Jersey.

The possession and use of fireworks were made illegal because they represent a threat to health and safety. Generally consumers do not have the expertise to handle fireworks and may not be aware that they have been made illegal because of the risks involved in their use, especially if their sale is openly advertised. A report on fireworks-related deaths and emergency room-treated injuries during 2005, published by the Consumer Product Safety Commission in June 2006, states that four deaths associated with fireworks were reported to the CPSC in 2005. According to the report, during the one-month period between June 18, 2005 and July 18, 2005, an estimated 6,500 fireworks-related injuries were treated in U.S. hospital emergency departments. Children under the age of 15 accounted for 45 percent of the estimated injuries. Between June 28, 2006 and July 1, 2006, the Division and the New Jersey State Police deployed a joint task force to determine whether in fact consumers who had purchased fireworks in a neighboring state where fireworks were advertised for sale were entering New Jersey with fireworks in their possession in violation of N.J.S.A. 21:3-1 et seq. During those four days, 48 people were arrested carrying over a ton of fireworks in the aggregate.

The Division believes that, inasmuch as a product represents a threat to public health and safety and has therefore been made illegal to use without a permit, the advertising of those products in a manner calculated to entice New Jersey residents to go to another state to purchase them, without disclosing that they are illegal to possess or use in New Jersey without a permit, is an unconscionable practice. The Division proposes to amend N.J.A.C. 13:45A-4.1 by adding a subsection (b) that makes it an unconscionable commercial practice for a person to advertise to a resident of New Jersey a consumer product that is illegal to possess or use in this State or that may be possessed or used only by a person who has obtained a permit, where a violator may be subject to criminal prosecution, without disclosing that fact.

Some consumer products are not illegal to possess or use in New Jersey, but use is restricted by law. For example, gas motor scooters are not illegal to sell, but their use is restricted under P.L. 2005, c. 159. They are not permitted to be operated on any public street, highway, or sidewalk in New Jersey. They can be used on other municipal property where their use is permitted by ordinance or on other county property where use is permitted by resolution. Gas scooters may also be operated on private property with the consent of the owner. Everyone, regardless of age, is required to wear a helmet when operating a motorized scooter.

New Jersey consumers who purchase products whose use in the State is restricted by law but are advertised for sale without disclosure of the restriction get unanticipated limited use out of the products. Moreover, the restrictions are placed on the use of the products because they represent a potential threat to the health and safety of the user and others.

The Division believes that advertising and the offer and sale of those products without disclosing that their use is restricted is an unconscionable commercial practice. The Division proposes to amend N.J.A.C. 13:45A-4.1 by adding subsection (c) to make it an unconscionable commercial practice for a person to advertise, offer or sell to a resident of New Jersey a motor vehicle that is not required to be registered with any state or Federal agency, whose use, without a permit is restricted, or whose use is subject to restrictions specific to the product, without disclosing the restrictions. The Division is proposing to add a definition of motor vehicle to N.J.A.C. 13:45A-4.2 and therefore proposes to change the section heading to reflect that more than one term is defined. Since the defined terms are used in more than one section of the subchapter, the Division is proposing to amend the language introducing the definitions to make it clearer that the definitions are applicable wherever they are used in the subchapter. The Division is proposed to recodify the section to eliminate the subsection (a) denomination, as subsection codifications are not used in definitions sections. The Division is also proposing to amend the definition of consumer product in N.J.A.C. 13:45A-4.2 to provide a clarifying technical change. The Division has determined that the comment period for this proposal shall be 60 days. Therefore, pursuant to N.J.A.C. 1:30-3.3(a)5, this proposal is excepted from the rulemaking calendar requirement.

Social Impact

The public will benefit from the proposed amendments to N.J.A.C. 13:45A-4.1. The amendment to N.J.A.C. 13:45A-4.1(a) will result in consumers being alerted about products that can pose a hazard under certain circumstances and how and what to do to use the products safely. Proposed new subsection (b) would result in fewer consumers buying dangerous products, such as fireworks, and bringing them into the State where the purchaser might be subject to criminal prosecution and the products confiscated, but more importantly, where the use of the products might injure the purchaser or bystanders. Proposed new subsection (c) would result in consumers being alerted to restrictions on the use of products before the products are purchased so that the consumers are able to make an informed decision about whether to purchase the product despite the restrictions on their use. Consumers will benefit from the proposed amendment to N.J.A.C. 13:45A-24.3(d), as it requires that notices of recall be placed where they are more likely to be seen by consumers.

Economic Impact

The proposed amendments may have an adverse economic impact on out-of-State sellers of products whose use is illegal or restricted in New Jersey or sellers of products that are subject to a warning about their safety. Such sellers may lose sales to New Jersey consumers who may not purchase the products in light of the restrictions on their use. The Division cannot estimated the amount of the impact.

Federal Standards Statement

A Federal standards analysis is not required because the proposed amendments are not subject to any Federal standards or requirements. The proposed amendments would require the dissemination of information about safety advisories or warnings issued by the CPSC.

Jobs Impact

The Division does not anticipate that the proposed amendments will increase or decrease jobs in the State.

Agriculture Industry Impact

The proposed amendments will have no impact on the agriculture industry in the State.

Regulatory Flexibility Analysis

The proposed amendments place restrictions and impose disclosure requirements on advertisers and sellers of certain consumer products, some of whom may be small businesses under the Regulatory Flexibility Act, N.J.S.A. 52:14B-16 et seq. (Act). The proposed amendments do not impose reporting or recordkeeping requirements, but do impose other compliance requirements on sellers of consumer products that have been the subject of safety warnings or recalls, some of which may be small businesses under the Act. These restrictions and compliance requirements are discussed in the Summary above. The economic impact of the restrictions and compliance requirements are discussed in the Summary and Economic Impact above. Professional services are not required for compliance. The health and safety interests of consumers sought to be protected by the proposed amendments are the same regardless of the size of the business and, therefore, affected businesses of all sizes are subject to the same requirements.

Smart Growth Impact

The Division does not believe that the proposed amendments will have any impact upon the achievement of smart growth or upon the implementation of the State Development and Redevelopment Plan.

Full text of the proposal follows (additions indicated in boldface thus; deletions indicated in brackets [thus]):

SUBCHAPTER 4. [BANNED] RULES CONCERNING HAZARDOUS PRODUCTS

13:45A-4.1 Unconscionable commercial practice

(a) It shall be an unconscionable commercial practice for any person, including any business entity, to manufacture, distribute, sell or offer for sale any consumer product contrary to any order of the Consumer Product Safety Commission, pursuant to 15 U.S.C. 2051 et seq. or to advertise a consumer product that has been the subject of a safety advisory, warning, or recall issued by any governmental agency or the manufacturer of the product, without clearly and conspicuously disclosing in the advertisement, at the place in the store where the product is or, if the product is no longer sold, where it was displayed, and at the customer service area, that the product is the subject of a safety advisory, warning, or recall and the general nature of the safety hazard that prompted the advisory, warning, or recall.

(b) It shall be an unconscionable practice for any person, including any business entity, to advertise or market to, or otherwise solicit the sale from, a resident of this State, a consumer product that is illegal to possess or use in this State or a consumer product that is illegal to possess or use in this State without a valid permit or license, where the possession or use, or the possession or use without a valid permit or license, would subject the person possessing or using the product to criminal prosecution, without clearly and conspicuously disclosing that the product is illegal to possess or use in this State, or to possess or use in this State without a valid permit or license, as the case may be.

(c) It shall be an unconscionable practice for any person, including any business entity, to advertise or market to, or otherwise solicit the sale from, a resident of this State or to expose for sale, offer for sale, or sell in this State, a consumer product consisting of a motor vehicle that is not required to be registered with any state or Federal agency, whose possession or use in this State is subject to restrictions or limitations, including mandated safety devices, specific to such product imposed by State law or rule, without clearly and conspicuously disclosing that the product is subject to restrictions or limitations imposed by State law or rule and the general nature of such restrictions or limitations.

13:45A-4.2 [Consumer product defined] Definitions

The following words and terms, when used in this subchapter, have the following meanings, unless the context clearly requires otherwise:

[(a) For purposes of this rule, the term "consumer] "Consumer product" means any article or component part thereof, produced or distributed:

1. (No change.)

2. For the personal use, consumption or enjoyment [of] by a consumer in or around a permanent or temporary household or residence, a school, in recreation or otherwise.

"Motor vehicle" means a vehicle propelled otherwise than by muscular power, in, upon or by which a person or property is or may be transported upon land.

13:45A-24.3 Toy recall notices

(a)-(c) (No change.)

(d) A dealer who is notified by a manufacturer, a distributor, or the U.S. Consumer Product Safety Commission of a defective or hazardous toy or other article intended for use by children shall, if the dealer has carried or normally carries such item, prominently display that notification for at least 120 days after its receipt on each premises where the toy or article was sold or would normally be sold, as follows:

1. Each notification shall be displayed at the [principal entrance of the store, or in the cash register area, or in a location elsewhere that is readily accessible to the public] place in the store where the product is or, if the product is no longer sold, where it was, displayed, and at the customer service area. Notifications shall be placed so that they can be easily read by adult persons of average height and normal vision. No structures, furniture, boxes, merchandise, packaging material, etc., shall impede access to the display of notifications.

(e)-(f) (No change.)



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