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AB-682 Tanning facilities: Nonionizing Radiation Protection Act.(2017-2018)



SECTION 1.
 The Legislature finds and declares all of the following:
(a) In May of 2014, the federal Food and Drug Administration issued a final order reclassifying sunlamp products and ultraviolet (UV) lamps intended for use in sunlamp products from low-risk (class I) to moderate-risk (class II) devices, requiring that sunlamp products carry a visible black-box warning on the device that explicitly states that the sunlamp product should not be used on a person under 18 years of age, and requiring that marketing materials for sunlamp products and UV lamps include additional and specific warning statements and contraindications.
(b) The public health interest requires that the people of this state be protected from excessive and improper exposure to nonionizing radiation.
(c) In order to provide that protection, it is necessary to require inspections and calibration of tanning devices that are located in tanning parlors, fitness facilities, and any other setting.
(d) It is the purpose of the act to establish tanning equipment inspection and safety standards and standards of education, training, and experience for persons who use nonionizing radiation on human beings, and to prescribe means for ensuring that these standards are met.

SEC. 2.

 Article 12.5 (commencing with Section 7414.1) of Chapter 10 of Division 3 of the Business and Professions Code is repealed.

SEC. 3.

 Chapter 23 (commencing with Section 22700) of Division 8 of the Business and Professions Code is repealed.

SEC. 4.

 Chapter 6.5 (commencing with Section 119200) is added to Part 15 of Division 104 of the Health and Safety Code, to read:

CHAPTER  6.5. Tanning Facilities
119200.
 (a) This chapter shall be known, and may be cited, as the Nonionizing Radiation Protection Act.
(b) The Legislature finds and declares all of the following:
(1) Many physicians and scientists now warn that the risks associated with suntanning are greater when tanning with artificial ultraviolet light.
(2) These risks include, but are not limited to, sunburn, premature aging, skin cancer, retinal damage, formation of cataracts, suppression of the immune system, and damage to the vascular system.
(3) Certain medications, cosmetics, and foods are “photosensitizing,” which means that in some people they react unfavorably with ultraviolet light to produce skin rashes or burns.
(4) Sunlamps and other artificial sources of ultraviolet light are known to intensify the effects of photosensitizing.
(5) The creation of state law to protect and promote the public health, safety, and welfare is needed concerning tanning with artificial ultraviolet light.
119201.
 For purposes of this chapter, the following definitions shall apply:
(a) “Department” means the State Department of Public Health.
(b) “Owner” means either of the following:
(1) The person or persons whose name or names appear on the health permit, business license, property deed, or rental agreement of the tanning facility.
(2) A person, acting as a principal of a corporation or partnership, who employs one or more tanning device operators or who operates tanning devices themselves at the tanning facility.
(c) “Phototherapy device” means equipment that emits ultraviolet radiation used by a health care professional in the treatment of disease.
(d) “Tanning device” means an ultraviolet tanning device and accompanying equipment, including, but not limited to, protective eyewear, timers, and handrails.
(e) “Tanning device operator” means a person who is designated by the owner of a tanning facility to operate, or assist and instruct a customer in the operation and use of, the tanning facility or a tanning device. “Tanning device operator” includes, but is not limited to, a person who conducts one or more of the following activities:
(1) Determines the customer’s skin type.
(2) Determines the suitability of prospective customers for tanning device use.
(3) Informs the customer of the dangers of ultraviolet radiation exposure, including photoallergic reactions and photosensitizing agents.
(4) Ensures that the customer reads and properly signs all forms required pursuant to this chapter.
(5) Maintains required customer exposure records.
(6) Recognizes and reports consumer injuries or alleged injuries to the owner of the tanning facility.
(7) Determines the customer’s exposure schedule.
(8) Sets timers that control the duration of exposure.
(9) Instructs the customer in the proper use of protective eyewear.
(f) “Tanning facility” means a location, place, area, structure, or business that provides a person access to a tanning device.
(g) “Ultraviolet tanning device” means equipment that emits electromagnetic radiation with wavelengths in the air between 200 and 400 nanometers used for tanning of the skin, including, but not limited to, a sunlamp, tanning booth, or tanning bed.
119202.
 This chapter does not apply to a phototherapy device used by, or under the direct supervision of, a licensed physician who is trained in the use of phototherapy devices.
119203.
 A tanning device used by a tanning facility shall comply with all applicable state and federal laws and regulations.
119204.
 (a) The owner of a tanning facility shall require that each customer read a copy of the warning required by this section and sign a statement that the information has been read and understood. For illiterate or visually impaired customers, the warning statement shall be read by the tanning device operator, in the presence of a witness, and the witness and the tanning device operator, and the customer, if possible, shall sign the statement. The warning shall be presented to the customer prior to the customer’s use of an ultraviolet tanning device and shall include all of the following warnings:
(1) Not wearing the eye protection provided to the customer by the tanning facility may cause damage to the eyes.
(2) Overexposure causes burns.
(3) Repeated exposure may cause premature aging of the skin and skin cancer.
(4) Abnormal skin sensitivity or burning may be caused by any of the following:
(A) Certain foods.
(B) Cosmetics.
(C) Medications, including, but not limited to, the following:
(i) Tranquilizers.
(ii) Diuretics.
(iii) Antibiotics.
(iv) High blood pressure medicines.
(v) Birth control pills.
(5) A person taking a prescription or over-the-counter drug should consult a physician before using an ultraviolet tanning device.
(6) A person with skin that burns easily should avoid using an ultraviolet tanning device.
(7) A person with a family history or past medical history of skin cancer should avoid using an ultraviolet tanning device.
(8) The federal Food and Drug Administration classifies tanning devices, including those used in the tanning facility, as class II devices that may contribute to skin cancer linked to radiation-emitting devices.
(b) The owner shall conspicuously post a warning sign in the tanning facility in any area where an ultraviolet tanning device is used that is readily visible to a person using an ultraviolet tanning device. The sign shall read as follows:
DANGER: ULTRAVIOLET (UV) RADIATION
1. The federal Food and Drug Administration states that people repeatedly exposed to UV radiation should be regularly evaluated for skin cancer and that the use of indoor tanning devices:
(a) Is prohibited for use on persons under 18 years of age.
(b) Must not be used if skin lesions or open wounds are present.
(c) Should not be used on people who have skin cancer or who have a family history of skin cancer.
2. Avoid too frequent or too lengthy exposure. As with natural sunlight, exposure can cause eye and skin injury and allergic reactions. Repeated exposure may cause chronic sun damage, characterized by wrinkling, dryness, fragility, and bruising of the skin, and skin cancer.
3. Wear protective eyewear.
FAILURE TO USE PROTECTIVE EYEWEAR MAY RESULT IN SEVERE BURNS OR LONG-TERM INJURY TO THE EYES.
4. Ultraviolet radiation from sunlamps will aggravate the effects of the sun. Therefore, do not sunbathe before or after exposure to ultraviolet radiation.
5. Medications or cosmetics may increase your sensitivity to ultraviolet radiation. Consult a physician before using a sunlamp if you are using medications, have a history of skin problems, or believe you are especially sensitive to sunlight. Pregnant women or women on birth control pills who use this product may develop discolored skin.
IF YOU DO NOT TAN IN THE SUN YOU WILL NOT TAN FROM USE OF THIS DEVICE.
(c) The following statement may be included in the warning sign described in subdivision (b): “Spray on tans and other sunless tanning products are not subject to the same effects as ultraviolet tanning devices.”
(d) The owner or employees of a tanning facility shall not claim, or distribute promotional materials that claim, that using an ultraviolet tanning device is safe or free from risk or that indoor tanning has any known health benefits.
(e) The liability of the owner of a tanning facility or a manufacturer of an ultraviolet tanning device is not changed by giving the warning required by this section.
119205.
 (a) The owner of a tanning facility shall do all of the following:
(1) Register with the department before commencing operation or on or before July 1, 2018, if the business was providing tanning services as of January 1, 2018. The department may charge a fee for each tanning device on the premises at the time of registration. The fee shall be set by the department at an amount not to exceed the amount necessary, but that is sufficient, to cover the actual reasonable costs of administration of the program.
(2) Have a tanning device operator present during operating hours who is sufficiently knowledgeable in the correct operation of the tanning devices used at the facility so that he or she is able to inform and assist each customer in the proper use of the tanning devices.
(3) Commencing January 1, 2019, certify to the department that every tanning device operator in the facility’s employ is over 18 years of age and has completed the training requirements developed by the department pursuant to Section 119207. The owner shall maintain a record of each employed tanning device operator’s training.
(4) Maintain a record of each customer’s total number of tanning visits, including dates and duration of tanning exposures.
(5) Make available to all customers, upon request, copies of all of the following documents:
(A) The owner’s business license.
(B) Proof that all tanning device operators are 18 years of age or older and have completed the required training.
(C) Self-certification and knowledge of, and commitment to meet, all state laws and relevant local regulations pertaining to the operation of tanning devices.
(D) The business address and the address at which activities regulated by this chapter are to be performed.
(b) The owner of a tanning facility shall do, or ensure that his or her employees do, all of the following:
(1) Ensure that an individual under 18 years of age does not use a tanning device.
(2) Ensure that every customer using an ultraviolet tanning device has complied with the provisions of Section 119206.
(3) Before each use of an ultraviolet tanning device, provide the customer with properly sanitized protective eyewear that protects the eye from ultraviolet radiation and allows adequate vision to maintain balance.
(4) Ensure that each person using an ultraviolet tanning device uses the provided protective eyewear.
(5) Show each customer how to use suitable physical aids, such as handrails and markings on the floor, to maintain proper exposure distance as recommended by the manufacturer.
(6) Use a timer on an ultraviolet tanning device that has an accuracy of plus or minus 10 percent of any selected timer interval. The timer shall also be remotely located so that customers cannot set their own exposure time.
(7) Limit each customer using an ultraviolet tanning device to the maximum exposure time as recommended by the manufacturer.
(8) Control the interior temperature of the tanning facility so that it does not exceed 100 degrees Fahrenheit.
(9) Replace defective or burned out lamps, bulbs, or filters with a type intended for use in the tanning device, as specified by the manufacturer’s product label, including ensuring that a certified equivalent lamp having the same spectral distribution is used.
(10) Replace ultraviolet lamps and bulbs that are not otherwise defective or damaged at a frequency or after a reasonable duration of use recommended by the manufacturer of the lamps or bulbs.
119206.
 (a) Every person who uses a tanning device shall sign a written statement acknowledging that he or she has read and understood the warnings before using the device and that he or she agrees to use the protective eyewear that the tanning facility provides. The statement of acknowledgment shall be retained at the tanning facility until the end of the calendar year, at which time each person who is a current customer of the facility shall be required to renew that acknowledgment.
(b) Whenever using a tanning device, a person shall use the protective eyewear that the tanning facility provides.
(c) (1) Persons under 18 years of age shall not be allowed to use an ultraviolet tanning device.
(2) Proof of age shall be satisfied with a driver’s license or other government issued identification containing the date of birth and a photograph of the individual.
119207.
 (a) On or before July 1, 2018, the department shall adopt regulations that establish training requirements for tanning device operators by contractors approved by the department. At a minimum, the training requirements shall include all of the following:
(1) Procedures for the correct operation of the tanning facility and tanning devices.
(2) The tanning device manufacturer’s procedures for operation and maintenance of the tanning device.
(3) The determination of a customer’s skin type and the appropriate duration of exposure to a tanning device.
(4) Recognition of injury resulting from overexposure to ultraviolet radiation.
(5) Emergency procedures to be followed in case of injury resulting from overexposure to ultraviolet radiation.
(b) A person who has not completed the training requirements in subdivision (a) shall not operate a tanning device.
119208.
 (a) The department, and its authorized representatives, may disseminate information to tanning facilities regarding compliance with this chapter.
(b) The department shall inspect each tanning facility on a schedule determined feasible by the department, but in no case less frequently than once every four years. The department may inspect a tanning facility upon receipt of a complaint or a report of injury pursuant to Section 119209.
119209.
 (a) If a patron is injured to the point that he or she must seek medical attention, the owner of the tanning facility shall do all of the following:
(1) Report the injury to the department.
(2) Send a copy of the injury report to the person who is injured.
(3) Send a copy of the injury report to the federal Food and Drug Administration.
(b) In addition to the requirements of subdivision (a), the owner of the tanning facility shall submit to the department a written report of any injury resulting from overexposure to ultraviolet radiation for which medical attention was sought or obtained resulting from the use of an ultraviolet tanning device. This report shall be submitted within five days of the injury and shall include all of the following information:
(1) The name of the injured individual.
(2) The name and location of the tanning facility involved.
(3) The nature of the actual or alleged injury.
(4) The date and duration of exposure.
(5) Documentation of medical attention sought or obtained by the customer.
(6) Any other information relevant to the actual or alleged injury.
(c) The department shall set a length of time for which injury report records are required to be maintained at a tanning facility.
119210.
 (a) A violation of this chapter is an infraction. Each day the violation continues is a separate infraction.
(b) Each violation of this chapter after the first violation is a misdemeanor. Each day a subsequent violation continues is a separate misdemeanor.
(c) The owner of a tanning facility that has violated this chapter shall be liable for a civil penalty not to exceed two thousand five hundred dollars ($2,500) per day, in addition to any other penalty provided by law.
119211.
 (a) All records required by law to be kept at tanning facilities subject to this chapter, including, but not limited to, records relating to written warning statements, the sign required to be posted, the qualifications of tanning device operators, statements of acknowledgment, and injury reports, shall be open to inspection by the department, or its authorized representatives, during an inspection, or investigation initiated in response to a complaint that the tanning facility has violated any provision of this chapter. A copy of those records shall be provided to the department, or its authorized representatives, immediately upon request.
(b) A representative of the department shall have the authority to issue a written notice to appear in court pursuant to Chapter 5C (commencing with Section 853.5) of Title 3 of Part 2 of the Penal Code. Representatives so designated are not peace officers and are not entitled to safety member retirement benefits, as a result of that designation. Except as otherwise provided, the representative’s authority is limited to the issuance of written notices to appear for infraction violations of the chapter and only when the violation is committed in the presence of the representative.
(c) There shall be no civil liability on the part of, and no cause of action shall arise against, a representative, acting pursuant to subdivision (a) and within the scope of his or her authority, for false arrest or false imprisonment arising out of a lawful arrest or an arrest that the representative, at the time of the arrest, had reasonable cause to believe was lawful.
119212.
 The department may adopt regulations concerning the operation of tanning facilities and the use of tanning devices regulated pursuant to this chapter.
SEC. 5.
 No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution.