(a) No commercial dealer, manufacturer, importer, distributor, wholesaler, or retailer shall manufacture, remanufacture, distribute, sell at wholesale or retail, contract to sell or resell, lease, or sublet, or otherwise place into the stream of commerce, a product that is unsafe, as defined in subdivision (b), knowing that the product is unsafe.

(b) A product shall be deemed unsafe for purposes of this chapter only if it meets one or both of the following criteria:

Terms Used In California Health and Safety Code 108044

  • Commercial dealer: means any person who deals in products or who otherwise by his or her occupation holds himself or herself out as having knowledge or skill peculiar to products, or any person who is in the business of remanufacturing, retrofitting, selling, leasing, subletting, or otherwise placing into the stream of commerce, a product. See California Health and Safety Code 108042
  • Contract: A legal written agreement that becomes binding when signed.
  • Importer: means any person who brings into this country, and places into the stream of commerce, a product. See California Health and Safety Code 108042
  • Lease: A contract transferring the use of property or occupancy of land, space, structures, or equipment in consideration of a payment (e.g., rent). Source: OCC
  • Manufacturer: means any person who makes, and places into the stream of commerce, a product. See California Health and Safety Code 108042
  • Product: means any article, or component part thereof, produced or distributed (1) for sale to a consumer for use in or around a permanent or temporary household or residence, a school, in recreation, or otherwise, or (2) for personal use, consumption, or enjoyment of a consumer in or around a permanent or temporary household or residence, a school, in recreation, or otherwise. See California Health and Safety Code 108042
  • Recall: includes a voluntary recall where a product is returned to the manufacturer for repair or replacement, usually due to defects or safety concerns, or public notice that a product is defective and must be returned to the manufacturer or retailer. See California Health and Safety Code 108042
  • Retailer: means any person other than a manufacturer, distributor, or wholesaler who sells, distributes, sublets, or leases consumer goods of any kind. See California Health and Safety Code 108042
  • sale: means a transfer for consideration of title or of the right to use, by lease or sales contract, including, but not limited to, transactions conducted through sales outlets, catalogs, or the Internet or any other similar electronic means. See California Health and Safety Code 108042
  • State: means the State of California, unless applied to the different parts of the United States. See California Health and Safety Code 23
  • wholesaler: means any person, other than a manufacturer or retailer, who sells or resells, or otherwise places into the stream of commerce, a product. See California Health and Safety Code 108042

(1) The product has been recalled because it does not conform to state or federal laws and regulations setting forth standards for the product.

(2) The product has been recalled for any safety hazard reason in cooperation with the federal Consumer Product Safety Commission or its staff, or voluntarily recalled for any safety hazard reason by the product’s commercial dealer, manufacturer, importer, distributor, or wholesaler, and the recall has not been rescinded.

(c) (1) An unsafe product, as determined pursuant to subdivision (b), may be retrofitted if the retrofit has been approved by the agency issuing the recall or warning, or the agency responsible for approving the retrofit if it is different from the agency issuing the recall or warning.

(2) A retrofitted product may be sold if it is accompanied at the time of sale by a notice declaring that it is safe to use. The notice shall include all of the following:

(A) A description of the original problem that made the recalled product unsafe.

(B) A description of the retrofit that explains how the original problem was eliminated and declaring that it is now safe to use.

(C) The name and address of the commercial dealer, manufacturer, importer, distributor, or wholesaler who accomplished the retrofit, certifying that the work was done, along with the name and model number of the product retrofitted.

(3) The commercial dealer, manufacturer, importer, distributor, or wholesaler is responsible for ensuring that the notice described in paragraph (2) is present with the retrofitted product at the time of sale. This paragraph and paragraph (2) shall not apply, and the product may be sold, if either subparagraph (A) or (B) applies:

(A) The retrofit meets all of the following:

(i) The product requires assembly by the consumer.

(ii) The retrofit kit is provided with the product by the commercial dealer, manufacturer, importer, distributor, or wholesaler.

(iii) The retrofit kit is accompanied at the time of sale by instructions explaining how to apply the retrofit.

(B) The seller of a previously unsold product or the entity to whom unsold products had been returned under the terms of the recall accomplishes the approved or recommended repair prior to sale.

(Added by Stats. 2008, Ch. 569, Sec. 2. Effective January 1, 2009.)

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