2017 ORS 431A.275¹
Civil penalty for violation of ORS 431A.258, 431A.260 or 431A.263

(1) Except as provided in subsection (5) of this section, the Oregon Health Authority may impose a civil penalty on a manufacturer of children’s products for a violation of any provision of ORS 431A.258 (Disclosure by manufacturers), 431A.260 (Requirement to remove or substitute high priority chemicals of concern) or 431A.263 (Process for substituting chemicals).

(2) For purposes of assessing civil penalties under this section, a violation consists of a single course of conduct with regard to an entire children’s product line that is sold or offered for sale in this state.

(3) The authority shall adopt by rule a schedule of civil penalties for violations of ORS 431A.258 (Disclosure by manufacturers), 431A.260 (Requirement to remove or substitute high priority chemicals of concern) and 431A.263 (Process for substituting chemicals). A civil penalty may not exceed $5,000 for the first violation. A civil penalty may not exceed $10,000 for the second and each subsequent violation.

(4) In imposing a penalty under subsection (1) or (5) of this section, the authority shall consider the following factors:

(a) The past history of the manufacturer incurring a penalty in taking all feasible steps or following all feasible procedures necessary or appropriate to correct any violation.

(b) Any prior violations of statutes, rules, orders or permits pertaining to high priority chemicals of concern for children’s health used in children’s products.

(c) The gravity and magnitude of the violation.

(d) Whether the violation was a sole event, repeated or continuous.

(e) Whether the violation was a result of an unavoidable accident, negligence or an intentional act.

(f) The violator’s cooperativeness and efforts to correct the violation.

(g) The economic and financial conditions of the manufacturer incurring a penalty.

(h) If a manufacturer asserts that a high priority chemical of concern for children’s health used in children’s products is present in a children’s product only as a contaminant, evidence that the manufacturer conducted a manufacturing control program for the contaminant that meets or exceeds the minimum requirements for a manufacturing control program adopted by rule by the authority under ORS 431A.258 (Disclosure by manufacturers) (5) and exercised due diligence.

(5)(a) If a manufacturer violates the notice requirement described in ORS 431A.258 (Disclosure by manufacturers) or 431A.263 (Process for substituting chemicals), the authority shall provide the manufacturer with written notice informing the manufacturer of the violation and stating that the manufacturer may avoid a civil penalty for the violation by providing the proper notice required under ORS 431A.258 (Disclosure by manufacturers) or 431A.263 (Process for substituting chemicals) within 90 days.

(b) If the manufacturer fails to cure the violation within 90 days, the authority may impose a civil penalty not to exceed $2,500. For a continuing violation, each 90-day period that the violation continues after the preceding imposition of a civil penalty is a separate offense subject to a separate civil penalty not to exceed $5,000. The authority is not required to provide the manufacturer with an opportunity to cure the continuing violation before imposing a civil penalty for the continuing violation.

(6) If the authority has reason to believe that a children’s product that contains a high priority chemical of concern for children’s health used in children’s products is being sold or offered for sale in this state in violation of ORS 431A.258 (Disclosure by manufacturers), 431A.260 (Requirement to remove or substitute high priority chemicals of concern) or 431A.263 (Process for substituting chemicals), the authority may request that the manufacturer provide a statement of compliance on a form provided by the authority. The manufacturer must submit the statement of compliance within 10 days after receipt of a request. To prove compliance with ORS 431A.258 (Disclosure by manufacturers), 431A.260 (Requirement to remove or substitute high priority chemicals of concern) and 431A.263 (Process for substituting chemicals), the manufacturer must:

(a) Show that the children’s product does not contain the high priority chemical of concern for children’s health used in children’s products;

(b) Show that the manufacturer has previously provided the authority with notice as required by ORS 431A.258 (Disclosure by manufacturers);

(c) Provide the authority with notice as required by ORS 431A.258 (Disclosure by manufacturers); or

(d) Provide the authority with documentation that the manufacturer has previously complied with ORS 431A.263 (Process for substituting chemicals).

(7) Civil penalties described in this section shall be imposed in the manner provided in ORS 183.745 (Civil penalty procedures).

(8) All civil penalties recovered under this section shall be paid into the High Priority Chemicals of Concern for Children’s Health Fund established under ORS 431A.278 (High Priority Chemicals of Concern for Children’s Health Fund). [2015 c.786 §11]

1 Legislative Counsel Committee, CHAPTER 431A—Public Health Programs and Activities, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors431A.­html (2017) (last ac­cessed Mar. 30, 2018).
 
2 OregonLaws.org contains the con­tents of Volume 21 of the ORS, inserted along­side the per­tin­ent statutes. See the preface to the ORS An­no­ta­tions for more information.
 
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent.