Texas Attorney General Opinion: JC-93 Page: 2 of 8
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William R. Archer III, M.D. - Page 2
(d) The initial registration statement and each annual registration
statement must be accompanied by a fee of $150.
The Toy Manufacturers of America ("TMA"), an organization of manufacturers of small balls,
balloons, marbles, and other toys and games that contain small parts, contends that section 501.024
contravenes the Federal Constitution in two respects: 1) it is preempted by federal statute,
specifically 15 U.S.C. 1261, et seq., and thus invalid under the Supremacy Clause; and 2) it is
inconsistent with the Commerce Clause. We shall address these arguments in turn.
The Federal Hazardous Substances Act ("FHSA"), 15 U.S.C. 1261 - 1277 (1995), was
initially enacted in 1960 and has been extensively amended. See Federal Hazardous Substances Act
of 1960, Pub. L. No. 86-613, 74 Stat. 372 (1960). It provides in detail for the regulation of
"hazardous substances" by the Federal Consumer Product Safety Commission with particular regard
to labeling. The term "hazardous substance" is defined to include, inter alia,
Any toy or other article intended for use by children which the
Commission by regulation determines, in accordance with section
1262(e) of this title, presents an electrical, mechanical, or thermal
hazard.
15 U.S.C. 1261(f)(1)(D) (1995) (emphasis added). On the other hand, the Child Safety Protective
Act ("CSPA"), id. 1278, was enacted only in 1994, as another amendment to the FHSA. See Child
Safety Protective Act of 1994, Pub. L. No. 103-267, 108 Stat. 722 (1994). The CSPA is addressed,
not to children's toys or games that present an "electrical, mechanical, or thermal hazard," but to
those that pose a "choking hazard." It imposes extensive labeling requirements for toys or games
that constitute or contain small parts, balloons, small balls, or marbles, including labels warning that
certain items are "not for children under 3 years."
The Texas Hazardous Substances Act ("THSA"), chapter 501 of the Health and Safety Code,
was first enacted in 1971. Act of May 27, 1971, 62d Leg., R.S., ch. 1033, 1971 Tex. Gen. Laws
3372. It is clearly derived from the FHSA, and it defines "hazardous substance" with regard to toys
in language virtually identical to that of the federal statute:
a toy or other article, other than clothing, that is intended for use by
a child and that presents an electrical, mechanical, or thermal hazard.
TEX. HEALTH & SAFETY CODE ANN. 501.002(a)(2) (Vernon 1992). Texas has not, however,
adopted a statute in any way equivalent to the CSPA. Thus, the registration and fee requirements
of section 501.024-the subject of your inquiry-are applicable only to manufacturers and
distributors of toys that pose electrical, mechanical, or thermal problems.
Article VI of the United States Constitution provides that the laws of the United States "shall
be the supreme Law of the Land... any Thing in the Constitution or Laws of any State to the(JC-0093)
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Texas. Attorney-General's Office. Texas Attorney General Opinion: JC-93, text, August 11, 1999; (https://texashistory.unt.edu/ark:/67531/metapth274402/m1/2/: accessed April 25, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Government Documents Department.