US Laws, Codes, Statutes & Cases

Chapter 453 — Hazardous Substances; Radiation Sources

 

2007 EDITION

 

HAZARDOUS SUBSTANCES; RADIATION SOURCES

 

PUBLIC HEALTH AND SAFETY

 

GENERAL PROVISIONS

 

453.001     Definitions for ORS 453.001 to 453.185 and 453.605 to 453.807

 

HAZARDOUS SUBSTANCES

 

(Generally)

 

453.005     Definitions for ORS 453.005 to 453.135

 

453.015     Application

 

453.025     Certain practices not affected by ORS 453.005 to 453.135

 

(Regulation; Prohibited Acts)

 

453.035     Standards for labeling of hazardous substances

 

453.045     Poison registers; contents

 

453.055     Hazardous, banned hazardous, misbranded hazardous substances; declaration; removal from commerce

 

453.065     Detention of suspected substances; petition for label of condemnation; judgment, relabeling or destruction of substances; expenses

 

453.075     Repurchase of banned hazardous substances previously sold; refund of purchase price

 

453.085     Prohibited acts

 

(Administration)

 

453.095     Rules; determination of combustibility, flammability; designating strong sensitizers

 

(Enforcement)

 

453.105     Authority to enter premises; inspections; taking samples; payment

 

453.115     Access to records of persons carrying, receiving or storing in commerce; use as evidence limited; exemption for carriers

 

453.125     Enjoining violations

 

453.135     Notice required prior to institution of criminal proceedings

 

(Miscellaneous)

 

453.175     Necessity for poison label; content

 

453.185     False representation by purchaser prohibited

 

ART AND CRAFT MATERIALS

 

(General Provisions)

 

453.205     Definitions for ORS 453.205 to 453.275

 

453.215     Legislative findings

 

(Regulation; Prohibited Acts)

 

453.225     When presumption of toxic ingredient arises

 

453.235     Distribution of material containing toxic substances; warnings required; exemptions

 

453.245     Order or purchase by school of material considered to contain toxic substance prohibited; exceptions

 

(Information; Labeling)

 

453.255     List of authorized art and craft materials; distribution of lists; information about and disposal of toxic materials

 

453.265     Filing of formulation information with poison control centers required; labeling

 

(Civil Penalty)

 

453.275     Civil penalty

 

COMMUNITY INFORMATION ON HAZARDOUS SUBSTANCES

 

453.307     Definitions for ORS 453.307 to 453.414

 

453.312     Legislative findings

 

453.317     Hazardous substance survey; rules; information to be supplied

 

453.322     Retention of information; distribution of and access to information

 

453.327     Public access; identity of requester

 

453.332     When disclosure of identity may be withheld

 

453.337     When disclosure of identity of hazardous substance required

 

453.342     When incident of injury to be reported; summary of injuries

 

453.347     Emergency response planning

 

453.352     Exemption from reporting requirements; rules

 

453.357     Civil penalty

 

453.362     Department of Consumer and Business Services to supply employers’ names; reimbursement

 

453.367     Rules

 

453.370     Limitations on local community right to know regulatory programs; local fees

 

453.372     Short title

 

453.374     Hazardous material emergency response system; implementation; contents; rules; fees

 

453.376     Disclosure of information to State Fire Marshal; entry onto premises

 

453.378     Disclosure of information to local government official; entry onto premises

 

453.380     Regional hazardous material response team; use

 

453.382     Cost of responding to emergency; responsibility; billing; recovery

 

453.384     Immunity of team members from liability

 

453.386     Equipment and personnel; loaning; grants

 

453.388     Contracts for equipment, personnel loans or equipment purchases; provisions; rules

 

453.390     Revolving fund; use

 

453.396     Definitions for ORS 453.396 to 453.414

 

453.398     Purpose

 

453.400     Possession of hazardous substance; fee

 

453.402     Fees; statement; schedules; uses; collection; local hazardous substance fees

 

453.404     Extension of payment date

 

453.406     Records of hazardous substance possessed; examinations

 

453.408     Rules

 

453.410     Application of ORS chapters 305 and 314

 

453.412     Deposit and distribution of moneys received from fees

 

453.414     Exemption for local government; circumstances allowing

 

453.520     State Fire Marshal as state emergency response commission

 

RADIATION SOURCES

 

(Generally)

 

453.605     Definitions for ORS 453.605 to 453.800

 

453.615     Statement of policy

 

453.625     Purpose of ORS 453.605 to 453.800

 

453.635     State Radiation Control Agency; duties; applicability of ORS 453.605 to 453.800

 

453.645     Radiation Advisory Committee; composition; compensation and expenses

 

453.655     License or registration required for radiation source

 

453.665     Licenses; application; modifications; exemptions; rules

 

453.675     State assumption of federal responsibility for radiation sources; effect of federal licenses

 

453.685     Entry on property for inspection purposes; issuance of warrant; liability for entry

 

453.695     Records concerning radiation source; notice of exposure to radiation source

 

453.705     Impounding radiation source upon violation

 

453.715     Injunction against violation

 

453.735     ORS 453.605 to 453.800 and rules supersede contrary laws or regulations

 

453.745     Intergovernmental cooperation to control radiation sources

 

(X-ray Machines)

 

453.752     X-ray machine registration; inspection and testing requirements; evidence of registration

 

453.754     Application for X-ray machine registration; renewal notice

 

453.757     X-ray machine biennial registration fee; annual license fees; use of fees; rules

 

453.761     X-ray machine registration period; denial, conditioning, suspension or revocation of registration; termination

 

453.766     Prohibited conduct

 

453.771     Imposition of civil penalty for X-ray machine registration violations

 

453.775     Duties of Department of Human Services pertaining to X-ray machines

 

(Radiology Inspectors)

 

453.780     Radiology inspectors; license; minimum qualifications

 

453.785     Accreditation; renewal

 

453.790     Authority of Department of Human Services to condition, suspend, revoke or refuse to renew radiology inspector accreditation

 

453.795     Duties of Department of Human Services pertaining to accreditation of radiology inspectors; rules

 

453.800     X-ray Machine Inspection Account; sources; use of moneys in account

 

453.805     Elimination of radiation source danger; compelling compliance

 

453.807     When hearing required; procedure; rules

 

TRANSPORTATION OF HAZARDOUS SUBSTANCES AND RADIOACTIVE MATERIALS

 

453.825     Department of Transportation plan for regulating transport of hazardous substances and radioactive waste

 

453.835     Report to legislative committee

 

CLEANUP OF TOXIC CONTAMINATION FROM ILLEGAL DRUG MANUFACTURING

 

453.855     Purpose

 

453.858     Definitions for ORS 453.855 to 453.912

 

453.861     Applicability

 

453.864     Rules

 

453.867     Restriction on transfer of property used as illegal drug manufacturing site; contracts voidable

 

453.870     Transfer allowed after full disclosure

 

453.873     Entry onto property; purposes; inspection

 

453.876     Determination that property is not fit for use; appeal; notice to local residents

 

453.879     Director of the Department of Consumer and Business Services to be notified of determination

 

453.882     Contaminated property as public nuisance

 

453.885     Decontamination of property; certification process

 

453.886     Notice by county or local government required before incurring costs; owner’s or lienholder’s proposal for decontamination and certification; injunction to prevent use of property; priority for liens for costs incurred

 

453.888     License required to perform decontamination; procedure; grounds for denial, revocation or suspension of license; civil penalty; rules

 

453.891     Department of Human Services to provide information to licensed contractors and those planning to become licensed

 

453.894     Licensing fees; rules

 

453.897     Lists of licensed contractors to be made available

 

453.900     Inspection of decontamination work; contracts to perform

 

453.903     Evaluation of decontamination projects; civil penalty

 

453.906     Condemnation or demolition of property; standards; rules

 

453.909     Authority of counties and cities

 

453.912     Governmental immunity from liability

 

PENALTIES

 

453.990     Criminal penalties

 

453.995     Civil penalties

 

GENERAL PROVISIONS

 

      453.001 Definitions for ORS 453.001 to 453.185 and 453.605 to 453.807. As used in ORS 453.001 to 453.185 and 453.605 to 453.807, unless the context requires otherwise:

      (1) “Department” means the Department of Human Services.

      (2) “Director” means the Director of Human Services. [1973 c.829 §15b; 2001 c.900 §200]

 

HAZARDOUS SUBSTANCES

 

(Generally)

 

      453.005 Definitions for ORS 453.005 to 453.135. As used in ORS 453.005 to 453.135 unless the context requires otherwise:

      (1) “Combustible” means any substance that has a flash point above 80 degrees Fahrenheit to and including 140 degrees, as determined by the Tagliabue Open Cup Tester.

      (2) “Commerce” means any and all commerce within the State of Oregon and subject to the jurisdiction thereof and includes the operation of any business or service establishment.

      (3) “Corrosive” means any substance that in contact with living tissue will cause destruction of tissue by chemical action, but does not refer to action on inanimate surfaces.

      (4) “Electrical hazard” means an article that because of its design or manufacture may cause personal injury or illness by electric shock when in normal use or when subjected to reasonably foreseeable damage or abuse.

      (5) “Extremely flammable” means any substance that has a flash point at or below 20 degrees Fahrenheit as determined by the Tagliabue Open Cup Tester.

      (6) “Flammable” means any substance that has a flash point of above 20 degrees to and including 80 degrees Fahrenheit, as determined by the Tagliabue Open Cup Tester.

      (7) “Hazardous substance” means:

      (a) Any substance that is toxic, corrosive, an irritant, a strong sensitizer, flammable, combustible, or generates pressure through decomposition, heat or other means, if such substance or mixture of substances may cause substantial personal injury or substantial illness during or as a proximate result of any customary or reasonably foreseeable handling or use, including reasonably foreseeable ingestion by children, or any substance that the Director of Human Services finds, pursuant to the provisions of ORS 453.005 to 453.135, comes within the definition of this paragraph.

      (b) Any radioactive substance, if, with respect to such substance as used in a particular class of article or as packaged, the director determines that the substance is sufficiently hazardous to require labeling in accordance with ORS 453.005 to 453.135 in order to protect the public health. However, “hazardous substance” does not include any source material, special nuclear material, or by-product material as defined in the Atomic Energy Act of 1954, as amended, and regulations issued pursuant thereto by the Atomic Energy Commission.

      (c) Any toy or other article intended for use by children that the director determines in accordance with ORS 453.055 presents an electrical, thermal or mechanical hazard.

      (d) Any article that is not pesticide within the meaning of the Federal Insecticide, Fungicide, and Rodenticide Act or regulated under ORS 616.335 to 616.385, but that is a hazardous substance within the meaning of paragraph (a) of this subsection by reason of bearing or containing pesticide.

      (e) The following brominated flame retardant chemicals:

      (A) Pentabrominated diphenyl ether; and

      (B) Octabrominated diphenyl ether.

      (8) “Highly toxic” means any substance that falls within any of the following categories:

      (a) Produces death within 14 days in one-half or more of a group of 10 or more laboratory white rats each weighing between 200 and 300 grams, at a single dose of 50 milligrams or less per kilogram of body weight, when orally administered;

      (b) Produces death within 14 days in one-half or more of a group of 10 or more laboratory white rats each weighing between 200 and 300 grams, when inhaled continuously for a period of one hour or less at an atmosphere concentration of 200 parts per million by volume or less of gas or vapor or two milligrams per liter by volume or less of mist or dust, provided such concentration is likely to be encountered by humans when the substance is used in any reasonably foreseeable manner; or

      (c) Produces death within 14 days in one-half or more of a group of 10 or more rabbits tested in a dosage of 200 milligrams or less per kilogram of body weight, when administered by continuous contact with the bare skin for 24 hours or less.

      (9) “Immediate container” does not include package liners.

      (10) “Irritant” means any substance not corrosive within the meaning of subsection (3) of this section, but that on immediate, prolonged, or repeated contact with normal living tissue will induce a local inflammatory reaction.

      (11) “Label” means a display of written, printed, or graphic matter upon the immediate container of any substance, or in the case of an article that is unpackaged or is not packaged in an immediate container intended or suitable for delivery to the ultimate consumer, a display of such matter directly on the article involved or on a tag or other suitable material affixed thereto, and a requirement made by or under authority of ORS 453.005 to 453.135 that any word, statement, or other information appearing on the label shall not be considered to be complied with unless such word, statement, or other information also appears on the outside container or wrapper, if any, unless it is easily legible through the outside container or wrapper and on all accompanying literature where there are directions for use, written or otherwise.

      (12) “Mechanical hazard” means an article that in normal use or when subjected to reasonably foreseeable damage or abuse presents an unreasonable risk of personal injury or illness, by its design or manufacture:

      (a) From fracture, fragmentation, or disassembly of the article;

      (b) From propulsion of the article or any part or accessory thereof;

      (c) From points or other protrusions, surfaces, edges, openings, or closures;

      (d) From moving parts;

      (e) From lack or insufficiency of controls to reduce or stop motion;

      (f) As a result of self-adhering characteristics of the article;

      (g) Because the article or any part or accessory thereof may be aspirated or ingested;

      (h) Because of instability; or

      (i) Because of any other aspect of the article’s design or manufacture.

      (13) “Misbranded hazardous substance” means a hazardous substance that does not meet the labeling requirements of ORS 453.035.

      (14) “Poison” means:

      (a) Arsenic and its preparations;

      (b) Corrosive sublimate;

      (c) Cyanides and preparations, including hydrocyanic acid;

      (d) Hydrochloric acid and any preparation containing free or chemically unneutralized hydrochloric acid (HCl) in a concentration of 10 percent or more;

      (e) Nitric acid or any preparation containing free or chemically unneutralized nitric acid (HNO₃) in a concentration of five percent or more;

      (f) Strychnine;

      (g) Sulfuric acid and any preparation containing free or chemically unneutralized sulfuric acid (H₂SO₄) in a concentration of 10 percent or more;

      (h) Solution of ammonia, U.S.P. 28 percent; or

      (i) Carbolic acid.

      (15) “Radioactive substance” means a substance that emits ionizing radiation.

      (16) “Strong sensitizer” means a substance that will cause on normal living tissue, through an allergic or photodynamic process, a hypersensitivity that becomes evident on reapplication of the same substances and that is designated as such by the Director of Human Services.

      (17) “Thermal hazard” means an article that, in normal use or when subjected to reasonably foreseeable damage or abuse, because of its design or manufacture presents an unreasonable risk of personal injury or illness because of heat as from heated parts, substances or surfaces.

      (18) “Toxic substance” means any substance, other than radioactive substance, that has the capacity to produce personal injury or illness to humans through ingestion, inhalation, or absorption through any body surface. [1971 c.409 §1; 1993 c.18 §111; 2005 c.496 §1]

 

      453.010 [Amended by 1969 c.631 §1; repealed by 1971 c.409 §16]

 

      453.015 Application. ORS 453.005 to 453.135 and 453.990 (2) do not apply to:

      (1) Articles such as chemical sets which by reason of functional purpose require the inclusion of the hazardous substance involved or necessarily present an electrical, mechanical or thermal hazard, and which bear labeling giving adequate directions and warnings for safe use, and are intended for use by children who have attained sufficient maturity and may reasonably be expected to read and heed these directions and warnings.

      (2) Common fireworks regulated under ORS 480.110 to 480.165.

      (3) Pesticides subject to the Federal Insecticide, Fungicide and Rodenticide Act or regulated by ORS 616.335 to 616.385.

      (4) Substances intended for use as fuels when stored in containers and used in the heating, cooking or refrigeration system of a house.

      (5) Foods or drugs otherwise regulated by this state.

      (6) Poisons sold to the ultimate consumer for agricultural or industrial uses in amounts of 10 pounds or more.

      (7) Any substance for use in a scientific laboratory. [1971 c.409 §3]

 

      453.020 [Amended by 1953 c.64 §2; 1969 c.514 §50; renumbered 689.865]

 

      453.025 Certain practices not affected by ORS 453.005 to 453.135. (1) Nothing in ORS 453.005 to 453.135 and 453.990 (2) is intended to interfere with or prevent the legitimate sale of completely denatured alcohol or methyl alcohol (methanol) by garages and filling stations, when used for antifreeze purposes and poured directly into the radiator of any automobile or motor vehicle by the seller thereof.

      (2) Stores and shops other than pharmacies may sell completely denatured alcohol or methyl alcohol (methanol) in quantities of not less than one gallon only in original containers and only when properly labeled by distiller or wholesale distributor and bearing also seller’s label. The name and address of seller must be applied by label on the container. The record of such wholesale quantities must be kept by the seller and information including date, means of identification and purported use must also be kept.

      (3) Sellers of denatured alcohol or methyl alcohol (methanol) only are not required to obtain a shopkeepers’ license under ORS 689.305.

      (4)(a) Subject to the exemption under paragraph (b) of this subsection, retail sales of completely denatured alcohol, methyl alcohol (methanol), heating fuel mixtures and other forms of denatured alcohol except heating fuel mixtures and other forms of denatured alcohol containing less than five percent methanol by weight and containing additives that render them unpalatable for human consumption, in quantities of less than one gallon, shall be confined to pharmacists and registration of the sales must be made in their poison register.

      (b) Hotel, restaurant or food catering wholesalers or suppliers of heating fuel mixtures and other forms of denatured alcohol are exempt from paragraph (a) of this subsection when the supplying of these products is restricted for use solely in the preparation of commercially prepared foods in businesses supplying food needs directly to the public for immediate consumption. Products so classified when purchased shall be used only for this specified purpose and shall not be resold, given away or in any way made available to the public.

      (5) Distributors and transporters, stores and shops, other than pharmacies, may deliver, or sell carbolic acid (phenol), for commercial use only in quantities of at least one pound but only when the container is properly labeled by the manufacturer or wholesaler and also bears a label containing the name and address of the seller or deliverer. Record of sales or deliveries of quantities of one pound or more of carbolic acid (phenol) shall be kept by the seller and deliverer. The record shall contain information, including the date, name of purchaser or person receiving the delivery and purported use.

      (6) A distributor, transporter, store or shop shall not by reason of the delivery or sale of carbolic acid (phenol) in quantities of at least one pound be required to obtain a shopkeepers’ license under ORS 689.305. Retail sales of carbolic acid (phenol) in quantities of less than one pound shall be confined to pharmacies and registration of such sales shall be made on their poison register.

      (7) Except as specifically provided by law, the provisions of laws governing the sale and distribution of poisons do not apply to the sale or distribution of compounds, preparations or remedies which do not contain more than two grains of opium, or more than one-fourth grain of morphine, or more than one-eighth grain of heroin, or more than one grain of codeine, or any salt or derivative of any of them in one fluid ounce, or, if solid or semisolid preparations, in one avoirdupois ounce; or to liniments, ointments or other preparations which are prepared for external use only, when sold or distributed for use as medicines.

      (8)(a) Whenever poisons are dispensed in accordance with a written prescription by a practitioner, and such written prescription is filed and retained by the pharmacist as required by law, all of the requirements of ORS 453.005 to 453.135 and 453.990 (2) are satisfied.

      (b) A pharmacist shall affix a poison label to a prescription when the prescribing practitioner so directs.

      (9) Nothing in ORS 453.005 to 453.135 and 453.990 (2) applies to the manufacture or wholesale of any poisons. However, each box, vessel or package, other than prescriptions, in which any poison is contained must be labeled as provided in ORS 453.035. [1971 c.409 §4; 1977 c.785 §4; 1979 c.777 §48]

 

      453.030 [Amended by 1969 c.631 §2; renumbered 453.175]

 

(Regulation; Prohibited Acts)

 

      453.035 Standards for labeling of hazardous substances. (1) The Director of Human Services shall adopt standards for the labeling of hazardous substances. The director may permit or require the use of a recognized generic name or may require the common or usual name or the chemical name, if there is no common or usual name, of the hazardous substance or of each component which the director finds contributes substantially to its hazard.

      (2) The director shall require:

      (a) The word “Danger” on substances which are extremely flammable, corrosive or highly toxic;

      (b) The word “Warning” or “Caution” on other hazardous substances;

      (c) An affirmative statement of the principal hazard or hazards, such as “Flammable,” “Combustible,” “Vapor Harmful,” “Causes Burns,” “Absorbed Through Skin,” or similar wording descriptive of the hazard;

      (d) Precautionary measures describing the action to be followed or avoided, except when modified by rule of the director pursuant to subsection (4) of this section;

      (e) Instruction, when necessary or appropriate, for first-aid treatment;

      (f) The word “Poison” for any hazardous substance which is defined as “highly toxic” in ORS 453.005;

      (g) Instructions for handling and storage of packages which require special care in handling or storage;

      (h) Adequate directions for the protection of children from the hazard if the article is intended for use by children and is not a banned hazardous substance, or the statement “Keep out of the reach of children,” or its practical equivalent, if the article is not intended for use by children; and

      (i) The name and place of business of the manufacturer, packer, distributor or seller.

      (3) Any statement required by this section must be in the English language, located prominently and in conspicuous and legible type in contrast by typography, layout or color with other printed matter on the label.

      (4) If the director finds that, because of the size of the package involved or because of the minor hazard presented by the substance contained therein, or for other good and sufficient reasons, full compliance with the labeling requirements otherwise applicable under ORS 453.005 to 453.135 and 453.990 (2) is impracticable or is not necessary for the adequate protection of the public health and safety, the director may authorize the exemption of such substance from the requirements, to an extent consistent with adequate protection of the public health and safety. [1971 c.409 §5]

 

      453.040 [Amended by 1969 c.631 §3; repealed by 1971 c.409 §16]

 

      453.045 Poison registers; contents. (1) Every person who purchases poison shall be registered in a poison register, kept solely for that purpose, stating the date and hour of the sale, the name and address and the signature of the purchaser, the kind and quantity of the poison sold, a statement by the purchaser of the purpose for which it is required, and the name of the dispenser, who must be a pharmacist.

      (2) Official poison registers shall be furnished by the State Board of Pharmacy only to pharmacists and shall be in the form of columns with the following headings:

      (a) Date and hour.

      (b) Name of purchaser.

      (c) Residence address.

      (d) Kind and quantity.

      (e) Purpose of use.

      (f) Means of identification.

      (g) Signature of purchaser.

      (h) Signature of pharmacist.

      (3) Each official poison register shall be open for inspection by the proper authorities at all times and shall be preserved for at least five years after the date of the last entry therein. [1971 c.409 §14]

 

      453.050 [Amended by 1969 c.631 §4; repealed by 1971 c.409 §16]

 

      453.055 Hazardous, banned hazardous, misbranded hazardous substances; declaration; removal from commerce. (1) The Director of Human Services shall declare to be a hazardous substance any substance or mixture of substances which the director finds to be within the definition of hazardous substance in ORS 453.005.

      (2) If the director finds that any hazardous substance is a misbranded hazardous substance, the director shall require such reasonable variations or labeling requirements in addition to those required by ORS 453.035 as the director finds necessary for the protection of the public health and safety. However, if the director finds that any hazardous substance cannot be labeled adequately to protect the public health and safety, or the article presents an imminent danger to the public health and safety, the director may declare the article to be a banned hazardous substance and require its removal from commerce.

      (3) If the director finds that a toy or other article intended for use by children is a hazardous substance, bears or contains a hazardous substance in a manner as to be susceptible of access by a child to whom the toy or other article is entrusted or presents an electrical, mechanical or thermal hazard, the director shall declare a toy or other article to be a banned hazardous substance and require its removal from commerce.

      (4) If the director finds that any hazardous substance intended, or packaged in a form suitable, for use in a household, notwithstanding cautionary labeling as required under ORS 453.005 to 453.135 and 453.990 (2), involves a degree or nature of the hazard by its presence or use in households that the protection of the public health and safety can be adequately served only by keeping the substance out of the channels of commerce, the director shall declare the hazardous substance to be a banned hazardous substance and require its removal from commerce.

      (5) Any hazardous substance intended, or packaged in a form suitable for use in the household or by children, which fails to bear a label in accordance with ORS 453.035 and the standards of the director shall be deemed to be a misbranded hazardous substance.

      (6) Any hazardous substance contained in a reused food, drug or cosmetic container is a misbranded hazardous substance. [1971 c.409 §6]

 

      453.060 [Amended by 1969 c.631 §5; repealed by 1971 c.409 §16]

 

      453.065 Detention of suspected substances; petition for label of condemnation; judgment, relabeling or destruction of substances; expenses. (1) Whenever the Director of Human Services or a designated representative finds or has probable cause to believe that any hazardous household substance is misbranded, or is a banned hazardous substance, the director or designated representative shall affix to such article a tag or other appropriate marking, giving notice that such article is or is suspected of being misbranded or is a banned hazardous substance, and has been detained or embargoed, and warning all persons not to remove or dispose of such article by sale or otherwise until permission for removal or disposal is given by such agent or the court.

      (2) When an article detained or embargoed under subsection (1) of this section has been found to be misbranded or a banned hazardous substance, the director shall petition the circuit court of the county within which the article is detained or embargoed for a label of condemnation of such article. However, if the director or a designated representative finds that an article so detained or embargoed is not misbranded or a banned hazardous substance, the director or designated representative shall remove the tag or other marking.

      (3) If the court finds that a detained or embargoed article is misbranded