108875. The department is responsible for the administration and
enforcement of this chapter. The department, upon request, shall
report to the Legislature concerning the number and findings of
inspections performed and samples taken to determine compliance with
this chapter.
108880. (a) For fiscal years 1991-92 and 1992-93, the department
shall levy a fee of five hundred dollars ($500) for each
manufacturer, importer, and distributor of tableware sold in this
state to be used for the implementation of this chapter, except that
the department shall levy a fee of one hundred fifty dollars ($150)
for small businesses. A penalty of 10 percent per month shall be
added to any fee that is not paid when due. The fee shall not exceed
the costs of administering and enforcing this chapter for the 1991-92
and 1992-93 fiscal years.
No later than July 1993, the department shall establish and
implement a fee schedule that assesses an annual fee upon
manufacturers, importers, and distributors of tableware sold in
California. The fees shall be based on the reasonable anticipated
costs that will be incurred by the department, and by local health
officers if an agreement is executed pursuant to Section 108885, to
implement and enforce this chapter. In calculating the necessary
fees, the department shall include any civil penalties generated
pursuant to Section 100425. Commencing in fiscal year 1993-94, the
fee established pursuant to this subdivision shall be adjusted
pursuant to Section 100425 and shall further be adjusted annually by
reducing the fee by an amount equal to the total amount of civil
penalties collected pursuant to Section 108900 during the previous
calendar year, divided by the total number of manufacturers,
importers, and distributors having paid fees during the previous
calendar year. The fee collected pursuant to subdivision (a) shall
terminate upon implementation of the fee schedule developed pursuant
to this subdivision. The fee schedule shall provide for the recovery
of all costs of implementing this chapter, including the cost of
establishing the fee schedule as prescribed in this section. In the
event that the department's reasonable costs in any one fiscal year
exceed the available fees for that year, the department shall, as
necessary, delay any activities in administering this chapter that
will incur costs exceeding available fees until the following year.
All moneys collected as fees pursuant to this section shall be
expended in carrying out this chapter.
108885. The department and a health officer, as defined in Section
111015, may enter into an agreement designating the local health
department of a city, county, city and county, or local health
district as the department's authorized agent for the purposes of
enforcing this chapter. If an agreement is executed pursuant to this
section, the department shall make fee revenues available to the
health officer for performing duties relating to enforcing this
chapter.
108890. (a) For the purposes of enforcing this chapter, any
authorized agent of the department may, upon presenting credentials
showing that he or she is an authorized agent of the department and
at a reasonable time, do any of the following:
(1) Enter any factory, warehouse, or establishment in which any
tableware is manufactured, held, distributed, used, or sold.
(2) Enter any vehicle that is being used to transport or hold
tableware.
(3) Enter any place where any tableware is suspected of being held
or sold in violation of this chapter.
(4) Inspect any factory, warehouse, establishment, vehicle, or
place in which any tableware is manufactured, held, transported,
distributed, used, or sold, and all equipment, raw materials,
finished and unfinished materials, containers, and tableware therein.
The inspection shall include any record, file, paper, process,
control, and facility that has a bearing on whether the tableware
complies with this chapter.
(5) Secure any sample or specimen of any tableware or of any
release of lead or cadmium from tableware. If the agent obtains any
samples prior to leaving the premises, he or she shall leave a
receipt describing any sample obtained. The department shall secure
only the quantity of tableware that is reasonably necessary to
conduct the tests to determine the release of lead or cadmium as
determined appropriate by the department.
(6) Have access to all records of carriers in commerce relating to
the movement in commerce of any tableware, or the holding for sale
of the tableware, and the quantity, shipper, and consignee.
(b) It is unlawful for any person to refuse to permit entry or
inspection, the taking of samples or other evidence, including
photographs, or access to copying of any record as authorized by this
chapter, or to conceal the samples or evidence, or withhold evidence
concerning them.
108895. The department may publish or publicly distribute any
information regarding tableware, including results of tests and
investigations, after assuring the accuracy of those tests and
investigations, as the department considers necessary for the
protection of public health and safety of the consumer or for the
protection of the consumer from fraud.
108900. (a) The department may impose a civil penalty payable to
the department upon any person who violates this chapter or any
regulation adopted pursuant to this chapter in the amount of not more
than five thousand dollars ($5,000) per day. Each day a violation
continues shall be considered a separate violation.
(b) If, after examination of a possible violation and the facts
surrounding that possible violation, the department concludes that a
violation has occurred, the department may issue a complaint to the
person charged with the violation. The complaint shall allege the
acts or failures to act that constitute the basis for the violation
and the amount of the penalty. The complaint shall be served by
personal service or by certified mail and shall inform the person so
served of the right to a hearing.
(c) Any person served with a complaint pursuant to subdivision (c)
may, within 20 days after service of the complaint, request a
hearing by filing with the department a notice of defense. A notice
of defense is deemed to have been filed within the 20-day period if
it is postmarked within the 20-day period. If a hearing is requested
by the person, it shall be conducted within 90 days after the receipt
by the department of the notice of defense. If no notice of defense
is filed within 20 days after service of the complaint, the
department shall issue an order setting the penalty as proposed in
the complaint unless the department and the person have entered into
a settlement agreement, in that case the department shall issue an
order setting the penalty in the amount specified in the settlement
agreement. When the person has not filed a notice of defense or where
the department and the person have entered into a settlement
agreement, the order shall not be subject to review by any court or
agency.
(d) Any hearing required under this section shall be conducted
pursuant to Section 100171, except to the extent that the procedures
specified in Section 100171 are inconsistent with this section.
(e) Orders setting civil penalties under this section shall become
effective and final upon issuance thereof, and payment shall be made
within 30 days of issuance. A copy of the order shall be served by
personal service or by certified mail upon the person served with the
complaint.
(f) Within 30 days after service of a copy of a decision issued by
the director after a hearing, any person so served may file with the
superior court a petition for writ of mandate for review of the
decision. Any person who fails to file the petition within this
30-day period may not challenge the reasonableness or validity of the
decision or order of the director in any judicial proceeding brought
to enforce the decision or order or for other remedies. Section
1094.5 of the Code of Civil Procedure shall govern any proceedings
conducted pursuant to this subdivision. In all proceedings pursuant
to this subdivision, the court shall uphold the decision of the
director if the decision is based upon substantial evidence in the
whole record. The filing of a petition for writ of mandate shall not
stay any corrective action required pursuant to this chapter or the
accrual of any penalties assessed pursuant to this section. This
subdivision does not prohibit the court from granting any appropriate
relief within its jurisdiction.
(g) The remedies under this section are in addition to, and do not
supersede or limit, any and all other remedies, civil or criminal.
(h) If the violation is committed after a previous imposition of a
penalty under this section that has become final, if the violation
is committed with intent to mislead or defraud, or if the violation
concerns tableware primarily used by children or marketed for
children, the person shall be subject to imprisonment for not more
than one year in the county jail or imprisonment in state prison, by
a fine of not more than ten thousand dollars ($10,000), or by both
the imprisonment and fine.
108905. (a) Whenever an authorized agent of the department finds,
or has probable cause to believe, that any tableware has the
potential to release amounts of lead or cadmium in violation of this
chapter, he or she shall affix to the tableware a detention tag,
embargo tag, or other similar marking, as determined appropriate by
the authorized agent. The tag or other marking shall give notice that
the tableware is suspected of releasing amounts of lead or cadmium
in violation of this chapter and that no person shall remove or
dispose of the tableware by sale or otherwise until permission for
removal or disposal is given by an authorized agent of the department
or the court.
(b) For the purposes of this section, an authorized agent has
probable cause to believe that tableware has the potential to release
amounts of lead or cadmium in violation of this chapter when, but
not limited to instances when, the tableware tests positive for lead
or cadmium release using the field test described in the document
published by the United States Food and Drug Administration entitled
Analytical Letters Vol. 21, 1988, pages 2145 to 2154, inclusive, or
any other test for lead release subsequently approved for field use
by the United States Food and Drug Administration and determined by
the department to be at least as effective a test for lead or cadmium
release as the test described in this subdivision.
(c) If a field test conducted pursuant to subdivision (b) tests
positive for lead release, the department shall use the Association
of Official Analytical Chemists/American Society for Testing and
Material 24-hour test method, or any other test subsequently approved
by the federal Food and Drug Administration determined by the
department to be at least as effective a test for lead or cadmium
release as the test described in this subdivision. The department
shall conduct or obtain those tests within a reasonable time after
embargoing affected tableware, and shall release any tableware found
not to violate the standards of this chapter within a reasonable time
after the laboratory test has been completed. For any food
establishment, as defined in Section 113780, the department shall
conduct or obtain those tests within a reasonable time, not to exceed
10 days, after embargoing affected tableware, and shall release any
tableware found not to violate the standards of this chapter within
96 hours after the laboratory test has been conducted.
(d) If an item of tableware is found to violate this chapter, the
manufacturer, importer, retailer, and distributor shall, at the
option of the holder of the tableware, either provide the holder of
the tableware with comparable replacement tableware acceptable to the
holder or be liable to the holder of the tableware for the cost of
purchasing comparable replacement tableware.
(e) No person shall remove, sell, or dispose of detained or
embargoed tableware without permission of an authorized agent of the
department or a court.
108910. Any tableware that violates this chapter shall also be
governed by the procedures set forth in Sections 111875, 111880,
111885, 111895, 111900, 111910, and 111915. Except for use of the
procedures set forth in those sections, nothing in this section shall
be interpreted as making this chapter part of Part 5 (commencing
with Section 109875).
108915. This chapter shall become operative on July 1, 1991.
108875. The department is responsible for the administration and
enforcement of this chapter. The department, upon request, shall
report to the Legislature concerning the number and findings of
inspections performed and samples taken to determine compliance with
this chapter.
108880. (a) For fiscal years 1991-92 and 1992-93, the department
shall levy a fee of five hundred dollars ($500) for each
manufacturer, importer, and distributor of tableware sold in this
state to be used for the implementation of this chapter, except that
the department shall levy a fee of one hundred fifty dollars ($150)
for small businesses. A penalty of 10 percent per month shall be
added to any fee that is not paid when due. The fee shall not exceed
the costs of administering and enforcing this chapter for the 1991-92
and 1992-93 fiscal years.
No later than July 1993, the department shall establish and
implement a fee schedule that assesses an annual fee upon
manufacturers, importers, and distributors of tableware sold in
California. The fees shall be based on the reasonable anticipated
costs that will be incurred by the department, and by local health
officers if an agreement is executed pursuant to Section 108885, to
implement and enforce this chapter. In calculating the necessary
fees, the department shall include any civil penalties generated
pursuant to Section 100425. Commencing in fiscal year 1993-94, the
fee established pursuant to this subdivision shall be adjusted
pursuant to Section 100425 and shall further be adjusted annually by
reducing the fee by an amount equal to the total amount of civil
penalties collected pursuant to Section 108900 during the previous
calendar year, divided by the total number of manufacturers,
importers, and distributors having paid fees during the previous
calendar year. The fee collected pursuant to subdivision (a) shall
terminate upon implementation of the fee schedule developed pursuant
to this subdivision. The fee schedule shall provide for the recovery
of all costs of implementing this chapter, including the cost of
establishing the fee schedule as prescribed in this section. In the
event that the department's reasonable costs in any one fiscal year
exceed the available fees for that year, the department shall, as
necessary, delay any activities in administering this chapter that
will incur costs exceeding available fees until the following year.
All moneys collected as fees pursuant to this section shall be
expended in carrying out this chapter.
108885. The department and a health officer, as defined in Section
111015, may enter into an agreement designating the local health
department of a city, county, city and county, or local health
district as the department's authorized agent for the purposes of
enforcing this chapter. If an agreement is executed pursuant to this
section, the department shall make fee revenues available to the
health officer for performing duties relating to enforcing this
chapter.
108890. (a) For the purposes of enforcing this chapter, any
authorized agent of the department may, upon presenting credentials
showing that he or she is an authorized agent of the department and
at a reasonable time, do any of the following:
(1) Enter any factory, warehouse, or establishment in which any
tableware is manufactured, held, distributed, used, or sold.
(2) Enter any vehicle that is being used to transport or hold
tableware.
(3) Enter any place where any tableware is suspected of being held
or sold in violation of this chapter.
(4) Inspect any factory, warehouse, establishment, vehicle, or
place in which any tableware is manufactured, held, transported,
distributed, used, or sold, and all equipment, raw materials,
finished and unfinished materials, containers, and tableware therein.
The inspection shall include any record, file, paper, process,
control, and facility that has a bearing on whether the tableware
complies with this chapter.
(5) Secure any sample or specimen of any tableware or of any
release of lead or cadmium from tableware. If the agent obtains any
samples prior to leaving the premises, he or she shall leave a
receipt describing any sample obtained. The department shall secure
only the quantity of tableware that is reasonably necessary to
conduct the tests to determine the release of lead or cadmium as
determined appropriate by the department.
(6) Have access to all records of carriers in commerce relating to
the movement in commerce of any tableware, or the holding for sale
of the tableware, and the quantity, shipper, and consignee.
(b) It is unlawful for any person to refuse to permit entry or
inspection, the taking of samples or other evidence, including
photographs, or access to copying of any record as authorized by this
chapter, or to conceal the samples or evidence, or withhold evidence
concerning them.
108895. The department may publish or publicly distribute any
information regarding tableware, including results of tests and
investigations, after assuring the accuracy of those tests and
investigations, as the department considers necessary for the
protection of public health and safety of the consumer or for the
protection of the consumer from fraud.
108900. (a) The department may impose a civil penalty payable to
the department upon any person who violates this chapter or any
regulation adopted pursuant to this chapter in the amount of not more
than five thousand dollars ($5,000) per day. Each day a violation
continues shall be considered a separate violation.
(b) If, after examination of a possible violation and the facts
surrounding that possible violation, the department concludes that a
violation has occurred, the department may issue a complaint to the
person charged with the violation. The complaint shall allege the
acts or failures to act that constitute the basis for the violation
and the amount of the penalty. The complaint shall be served by
personal service or by certified mail and shall inform the person so
served of the right to a hearing.
(c) Any person served with a complaint pursuant to subdivision (c)
may, within 20 days after service of the complaint, request a
hearing by filing with the department a notice of defense. A notice
of defense is deemed to have been filed within the 20-day period if
it is postmarked within the 20-day period. If a hearing is requested
by the person, it shall be conducted within 90 days after the receipt
by the department of the notice of defense. If no notice of defense
is filed within 20 days after service of the complaint, the
department shall issue an order setting the penalty as proposed in
the complaint unless the department and the person have entered into
a settlement agreement, in that case the department shall issue an
order setting the penalty in the amount specified in the settlement
agreement. When the person has not filed a notice of defense or where
the department and the person have entered into a settlement
agreement, the order shall not be subject to review by any court or
agency.
(d) Any hearing required under this section shall be conducted
pursuant to Section 100171, except to the extent that the procedures
specified in Section 100171 are inconsistent with this section.
(e) Orders setting civil penalties under this section shall become
effective and final upon issuance thereof, and payment shall be made
within 30 days of issuance. A copy of the order shall be served by
personal service or by certified mail upon the person served with the
complaint.
(f) Within 30 days after service of a copy of a decision issued by
the director after a hearing, any person so served may file with the
superior court a petition for writ of mandate for review of the
decision. Any person who fails to file the petition within this
30-day period may not challenge the reasonableness or validity of the
decision or order of the director in any judicial proceeding brought
to enforce the decision or order or for other remedies. Section
1094.5 of the Code of Civil Procedure shall govern any proceedings
conducted pursuant to this subdivision. In all proceedings pursuant
to this subdivision, the court shall uphold the decision of the
director if the decision is based upon substantial evidence in the
whole record. The filing of a petition for writ of mandate shall not
stay any corrective action required pursuant to this chapter or the
accrual of any penalties assessed pursuant to this section. This
subdivision does not prohibit the court from granting any appropriate
relief within its jurisdiction.
(g) The remedies under this section are in addition to, and do not
supersede or limit, any and all other remedies, civil or criminal.
(h) If the violation is committed after a previous imposition of a
penalty under this section that has become final, if the violation
is committed with intent to mislead or defraud, or if the violation
concerns tableware primarily used by children or marketed for
children, the person shall be subject to imprisonment for not more
than one year in the county jail or imprisonment in state prison, by
a fine of not more than ten thousand dollars ($10,000), or by both
the imprisonment and fine.
108905. (a) Whenever an authorized agent of the department finds,
or has probable cause to believe, that any tableware has the
potential to release amounts of lead or cadmium in violation of this
chapter, he or she shall affix to the tableware a detention tag,
embargo tag, or other similar marking, as determined appropriate by
the authorized agent. The tag or other marking shall give notice that
the tableware is suspected of releasing amounts of lead or cadmium
in violation of this chapter and that no person shall remove or
dispose of the tableware by sale or otherwise until permission for
removal or disposal is given by an authorized agent of the department
or the court.
(b) For the purposes of this section, an authorized agent has
probable cause to believe that tableware has the potential to release
amounts of lead or cadmium in violation of this chapter when, but
not limited to instances when, the tableware tests positive for lead
or cadmium release using the field test described in the document
published by the United States Food and Drug Administration entitled
Analytical Letters Vol. 21, 1988, pages 2145 to 2154, inclusive, or
any other test for lead release subsequently approved for field use
by the United States Food and Drug Administration and determined by
the department to be at least as effective a test for lead or cadmium
release as the test described in this subdivision.
(c) If a field test conducted pursuant to subdivision (b) tests
positive for lead release, the department shall use the Association
of Official Analytical Chemists/American Society for Testing and
Material 24-hour test method, or any other test subsequently approved
by the federal Food and Drug Administration determined by the
department to be at least as effective a test for lead or cadmium
release as the test described in this subdivision. The department
shall conduct or obtain those tests within a reasonable time after
embargoing affected tableware, and shall release any tableware found
not to violate the standards of this chapter within a reasonable time
after the laboratory test has been completed. For any food
establishment, as defined in Section 113780, the department shall
conduct or obtain those tests within a reasonable time, not to exceed
10 days, after embargoing affected tableware, and shall release any
tableware found not to violate the standards of this chapter within
96 hours after the laboratory test has been conducted.
(d) If an item of tableware is found to violate this chapter, the
manufacturer, importer, retailer, and distributor shall, at the
option of the holder of the tableware, either provide the holder of
the tableware with comparable replacement tableware acceptable to the
holder or be liable to the holder of the tableware for the cost of
purchasing comparable replacement tableware.
(e) No person shall remove, sell, or dispose of detained or
embargoed tableware without permission of an authorized agent of the
department or a court.
108910. Any tableware that violates this chapter shall also be
governed by the procedures set forth in Sections 111875, 111880,
111885, 111895, 111900, 111910, and 111915. Except for use of the
procedures set forth in those sections, nothing in this section shall
be interpreted as making this chapter part of Part 5 (commencing
with Section 109875).
108915. This chapter shall become operative on July 1, 1991.
108875. The department is responsible for the administration and
enforcement of this chapter. The department, upon request, shall
report to the Legislature concerning the number and findings of
inspections performed and samples taken to determine compliance with
this chapter.
108880. (a) For fiscal years 1991-92 and 1992-93, the department
shall levy a fee of five hundred dollars ($500) for each
manufacturer, importer, and distributor of tableware sold in this
state to be used for the implementation of this chapter, except that
the department shall levy a fee of one hundred fifty dollars ($150)
for small businesses. A penalty of 10 percent per month shall be
added to any fee that is not paid when due. The fee shall not exceed
the costs of administering and enforcing this chapter for the 1991-92
and 1992-93 fiscal years.
No later than July 1993, the department shall establish and
implement a fee schedule that assesses an annual fee upon
manufacturers, importers, and distributors of tableware sold in
California. The fees shall be based on the reasonable anticipated
costs that will be incurred by the department, and by local health
officers if an agreement is executed pursuant to Section 108885, to
implement and enforce this chapter. In calculating the necessary
fees, the department shall include any civil penalties generated
pursuant to Section 100425. Commencing in fiscal year 1993-94, the
fee established pursuant to this subdivision shall be adjusted
pursuant to Section 100425 and shall further be adjusted annually by
reducing the fee by an amount equal to the total amount of civil
penalties collected pursuant to Section 108900 during the previous
calendar year, divided by the total number of manufacturers,
importers, and distributors having paid fees during the previous
calendar year. The fee collected pursuant to subdivision (a) shall
terminate upon implementation of the fee schedule developed pursuant
to this subdivision. The fee schedule shall provide for the recovery
of all costs of implementing this chapter, including the cost of
establishing the fee schedule as prescribed in this section. In the
event that the department's reasonable costs in any one fiscal year
exceed the available fees for that year, the department shall, as
necessary, delay any activities in administering this chapter that
will incur costs exceeding available fees until the following year.
All moneys collected as fees pursuant to this section shall be
expended in carrying out this chapter.
108885. The department and a health officer, as defined in Section
111015, may enter into an agreement designating the local health
department of a city, county, city and county, or local health
district as the department's authorized agent for the purposes of
enforcing this chapter. If an agreement is executed pursuant to this
section, the department shall make fee revenues available to the
health officer for performing duties relating to enforcing this
chapter.
108890. (a) For the purposes of enforcing this chapter, any
authorized agent of the department may, upon presenting credentials
showing that he or she is an authorized agent of the department and
at a reasonable time, do any of the following:
(1) Enter any factory, warehouse, or establishment in which any
tableware is manufactured, held, distributed, used, or sold.
(2) Enter any vehicle that is being used to transport or hold
tableware.
(3) Enter any place where any tableware is suspected of being held
or sold in violation of this chapter.
(4) Inspect any factory, warehouse, establishment, vehicle, or
place in which any tableware is manufactured, held, transported,
distributed, used, or sold, and all equipment, raw materials,
finished and unfinished materials, containers, and tableware therein.
The inspection shall include any record, file, paper, process,
control, and facility that has a bearing on whether the tableware
complies with this chapter.
(5) Secure any sample or specimen of any tableware or of any
release of lead or cadmium from tableware. If the agent obtains any
samples prior to leaving the premises, he or she shall leave a
receipt describing any sample obtained. The department shall secure
only the quantity of tableware that is reasonably necessary to
conduct the tests to determine the release of lead or cadmium as
determined appropriate by the department.
(6) Have access to all records of carriers in commerce relating to
the movement in commerce of any tableware, or the holding for sale
of the tableware, and the quantity, shipper, and consignee.
(b) It is unlawful for any person to refuse to permit entry or
inspection, the taking of samples or other evidence, including
photographs, or access to copying of any record as authorized by this
chapter, or to conceal the samples or evidence, or withhold evidence
concerning them.
108895. The department may publish or publicly distribute any
information regarding tableware, including results of tests and
investigations, after assuring the accuracy of those tests and
investigations, as the department considers necessary for the
protection of public health and safety of the consumer or for the
protection of the consumer from fraud.
108900. (a) The department may impose a civil penalty payable to
the department upon any person who violates this chapter or any
regulation adopted pursuant to this chapter in the amount of not more
than five thousand dollars ($5,000) per day. Each day a violation
continues shall be considered a separate violation.
(b) If, after examination of a possible violation and the facts
surrounding that possible violation, the department concludes that a
violation has occurred, the department may issue a complaint to the
person charged with the violation. The complaint shall allege the
acts or failures to act that constitute the basis for the violation
and the amount of the penalty. The complaint shall be served by
personal service or by certified mail and shall inform the person so
served of the right to a hearing.
(c) Any person served with a complaint pursuant to subdivision (c)
may, within 20 days after service of the complaint, request a
hearing by filing with the department a notice of defense. A notice
of defense is deemed to have been filed within the 20-day period if
it is postmarked within the 20-day period. If a hearing is requested
by the person, it shall be conducted within 90 days after the receipt
by the department of the notice of defense. If no notice of defense
is filed within 20 days after service of the complaint, the
department shall issue an order setting the penalty as proposed in
the complaint unless the department and the person have entered into
a settlement agreement, in that case the department shall issue an
order setting the penalty in the amount specified in the settlement
agreement. When the person has not filed a notice of defense or where
the department and the person have entered into a settlement
agreement, the order shall not be subject to review by any court or
agency.
(d) Any hearing required under this section shall be conducted
pursuant to Section 100171, except to the extent that the procedures
specified in Section 100171 are inconsistent with this section.
(e) Orders setting civil penalties under this section shall become
effective and final upon issuance thereof, and payment shall be made
within 30 days of issuance. A copy of the order shall be served by
personal service or by certified mail upon the person served with the
complaint.
(f) Within 30 days after service of a copy of a decision issued by
the director after a hearing, any person so served may file with the
superior court a petition for writ of mandate for review of the
decision. Any person who fails to file the petition within this
30-day period may not challenge the reasonableness or validity of the
decision or order of the director in any judicial proceeding brought
to enforce the decision or order or for other remedies. Section
1094.5 of the Code of Civil Procedure shall govern any proceedings
conducted pursuant to this subdivision. In all proceedings pursuant
to this subdivision, the court shall uphold the decision of the
director if the decision is based upon substantial evidence in the
whole record. The filing of a petition for writ of mandate shall not
stay any corrective action required pursuant to this chapter or the
accrual of any penalties assessed pursuant to this section. This
subdivision does not prohibit the court from granting any appropriate
relief within its jurisdiction.
(g) The remedies under this section are in addition to, and do not
supersede or limit, any and all other remedies, civil or criminal.
(h) If the violation is committed after a previous imposition of a
penalty under this section that has become final, if the violation
is committed with intent to mislead or defraud, or if the violation
concerns tableware primarily used by children or marketed for
children, the person shall be subject to imprisonment for not more
than one year in the county jail or imprisonment in state prison, by
a fine of not more than ten thousand dollars ($10,000), or by both
the imprisonment and fine.
108905. (a) Whenever an authorized agent of the department finds,
or has probable cause to believe, that any tableware has the
potential to release amounts of lead or cadmium in violation of this
chapter, he or she shall affix to the tableware a detention tag,
embargo tag, or other similar marking, as determined appropriate by
the authorized agent. The tag or other marking shall give notice that
the tableware is suspected of releasing amounts of lead or cadmium
in violation of this chapter and that no person shall remove or
dispose of the tableware by sale or otherwise until permission for
removal or disposal is given by an authorized agent of the department
or the court.
(b) For the purposes of this section, an authorized agent has
probable cause to believe that tableware has the potential to release
amounts of lead or cadmium in violation of this chapter when, but
not limited to instances when, the tableware tests positive for lead
or cadmium release using the field test described in the document
published by the United States Food and Drug Administration entitled
Analytical Letters Vol. 21, 1988, pages 2145 to 2154, inclusive, or
any other test for lead release subsequently approved for field use
by the United States Food and Drug Administration and determined by
the department to be at least as effective a test for lead or cadmium
release as the test described in this subdivision.
(c) If a field test conducted pursuant to subdivision (b) tests
positive for lead release, the department shall use the Association
of Official Analytical Chemists/American Society for Testing and
Material 24-hour test method, or any other test subsequently approved
by the federal Food and Drug Administration determined by the
department to be at least as effective a test for lead or cadmium
release as the test described in this subdivision. The department
shall conduct or obtain those tests within a reasonable time after
embargoing affected tableware, and shall release any tableware found
not to violate the standards of this chapter within a reasonable time
after the laboratory test has been completed. For any food
establishment, as defined in Section 113780, the department shall
conduct or obtain those tests within a reasonable time, not to exceed
10 days, after embargoing affected tableware, and shall release any
tableware found not to violate the standards of this chapter within
96 hours after the laboratory test has been conducted.
(d) If an item of tableware is found to violate this chapter, the
manufacturer, importer, retailer, and distributor shall, at the
option of the holder of the tableware, either provide the holder of
the tableware with comparable replacement tableware acceptable to the
holder or be liable to the holder of the tableware for the cost of
purchasing comparable replacement tableware.
(e) No person shall remove, sell, or dispose of detained or
embargoed tableware without permission of an authorized agent of the
department or a court.
108910. Any tableware that violates this chapter shall also be
governed by the procedures set forth in Sections 111875, 111880,
111885, 111895, 111900, 111910, and 111915. Except for use of the
procedures set forth in those sections, nothing in this section shall
be interpreted as making this chapter part of Part 5 (commencing
with Section 109875).
108915. This chapter shall become operative on July 1, 1991.
