By:  Armbrister                                        S.B. No. 558
       73R899 KLL-F
                                 A BILL TO BE ENTITLED
    1-1                                AN ACT
    1-2  relating to food labeling requirements under the Texas Food, Drug,
    1-3  and Cosmetic Act.
    1-4        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
    1-5        SECTION 1.  Section 431.002(14), Health and Safety Code, is
    1-6  amended to read as follows:
    1-7              (14)  "Drug" means articles recognized in the official
    1-8  United States Pharmacopoeia National Formulary, or any supplement
    1-9  to it, articles designed or intended for use in the diagnosis,
   1-10  cure, mitigation, treatment, or prevention of disease in man or
   1-11  other animals, articles, other than food, intended to affect the
   1-12  structure or any function of the body of man or other animals, and
   1-13  articles intended for use as a component of any article specified
   1-14  in this subdivision.  The term does not include devices or their
   1-15  components, parts, or accessories.  A food for which a claim is
   1-16  made in accordance with Section 403(r) of the federal Act, and for
   1-17  which the claim is approved by the secretary, is not a drug solely
   1-18  because the label or labeling contains such a claim.
   1-19        SECTION 2.  Section 431.060, Health and Safety Code, is
   1-20  amended to read as follows:
   1-21        Sec. 431.060.  Initiation of Proceedings.  (a)  The attorney
   1-22  general, or a district, county, or municipal attorney to whom the
   1-23  commissioner, an authorized agent, or a health authority reports a
   1-24  violation of this chapter, shall initiate and prosecute appropriate
    2-1  proceedings without delay.
    2-2        (b)  The commissioner, the commissioner's authorized agent,
    2-3  or the attorney general may, as authorized by Section 307 of the
    2-4  federal Act, bring in the name of this state a suit for civil
    2-5  penalties or to restrain a violation of Section 401 or Section
    2-6  403(b)-(i), (k), (q), or (r) of the federal Act if the food that is
    2-7  the subject of the proceedings is located in this state.
    2-8        (c)  The commissioner, the commissioner's authorized agent,
    2-9  or the attorney general may not bring a proceeding under Subsection
   2-10  (b):
   2-11              (1)  before the 31st day after the date on which the
   2-12  state has given notice to the secretary of its intent to bring a
   2-13  suit;
   2-14              (2)  before the 91st day after the date on which the
   2-15  state has given notice to the secretary of its intent to bring a
   2-16  suit if the secretary has, not later than the 30th day after
   2-17  receiving notice from the state, commenced an informal or formal
   2-18  enforcement action pertaining to the food that would be the subject
   2-19  of the suit brought by the state; or
   2-20              (3)  if the secretary is diligently prosecuting a suit
   2-21  in court pertaining to that food, has settled a suit pertaining to
   2-22  that food, or has settled the informal or formal enforcement action
   2-23  pertaining to that food.
   2-24        SECTION 3.  Section 431.082, Health and Safety Code, is
   2-25  amended to read as follows:
   2-26        Sec. 431.082.  Misbranded Food.  A food shall be deemed to be
   2-27  misbranded:
    3-1              (a)  if its labeling is false or misleading in any
    3-2  particular or fails to conform with the requirements of Section
    3-3  431.181;
    3-4              (b)  if, in the case of a food to which Section 411 of
    3-5  the federal Act applies, its advertising is false or misleading in
    3-6  a material respect or its labeling is in violation of Section
    3-7  411(b)(2) of the federal Act;
    3-8              (c)  if it is offered for sale under the name of
    3-9  another food;
   3-10              (d)  if it is an imitation of another food, unless its
   3-11  label bears, in prominent type of uniform size, the word
   3-12  "imitation" and immediately thereafter the name of the food
   3-13  imitated;
   3-14              (e)  if its container is so made, formed, or filled as
   3-15  to be misleading;
   3-16              (f)  if in package form unless it bears a label
   3-17  containing:
   3-18                    (1)  the name and place of business of the
   3-19  manufacturer, packer, or distributor; and
   3-20                    (2)  an accurate statement, in a uniform location
   3-21  on the principal display panel of the label, of the quantity of the
   3-22  contents in terms of weight, measure, or numerical count; provided,
   3-23  that under this subsection reasonable variations shall be
   3-24  permitted, and exemptions as to small packages shall be
   3-25  established, by rules adopted by the board;
   3-26              (g)  if any word, statement, or other information
   3-27  required by or under the authority of this chapter to appear on the
    4-1  label or labeling is not prominently placed thereon with such
    4-2  conspicuousness (as compared with other words, statements, designs,
    4-3  or devices in the labeling) and in such terms as to render it
    4-4  likely to be read and understood by the ordinary individual under
    4-5  customary conditions of purchase and use;
    4-6              (h)  if it purports to be or is represented as a food
    4-7  for which a definition and standard of identity has been prescribed
    4-8  by federal regulations or rules of the board as provided by Section
    4-9  431.245, unless:
   4-10                    (1)  it conforms to such definition and standard;
   4-11  and
   4-12                    (2)  its label bears the name of the food
   4-13  specified in the definition and standard, and, in so far as may be
   4-14  required by those regulations or rules, the common names of
   4-15  <optional> ingredients, other than spices, flavoring, and coloring,
   4-16  present in such food;
   4-17              (i)  if it purports to be or is represented as:
   4-18                    (1)  a food for which a standard of quality has
   4-19  been prescribed by federal regulations or rules of the board as
   4-20  provided by Section 431.245, and its quality falls below such
   4-21  standard unless its label bears, in such manner and form as those
   4-22  regulations or rules specify, a statement that it falls below such
   4-23  standard; or
   4-24                    (2)  a food for which a standard or standards of
   4-25  fill of container have been prescribed by federal regulations or
   4-26  rules of the board as provided by Section 431.245, and it falls
   4-27  below the standard of fill of container applicable thereto, unless
    5-1  its label bears, in such manner and form as those regulations or
    5-2  rules specify, a statement that it falls below such standard;
    5-3              (j)  <if it is not subject to the provisions of
    5-4  Subsection (h),> unless its label bears:
    5-5                    (1)  the common or usual name of the food, if
    5-6  any; and
    5-7                    (2)  in case it is fabricated from two or more
    5-8  ingredients, the common or usual name of each such ingredient, and
    5-9  if the food purports to be a beverage containing vegetable or fruit
   5-10  juice, a statement with appropriate prominence on the information
   5-11  panel of the total percentage of the fruit or vegetable juice
   5-12  contained in the food; except that spices, flavorings, and colors
   5-13  not required to be certified under Section 706(c) of the federal
   5-14  Act <colorings>, other than those sold as such, may be designated
   5-15  as spices, flavorings, and colors <colorings>, without naming each;
   5-16  provided that, to the extent that compliance with the requirements
   5-17  of this subdivision is impractical or results in deception or
   5-18  unfair competition, exemptions shall be established by rules of the
   5-19  board;
   5-20              (k)  if it purports to be or is represented for special
   5-21  dietary uses, unless its label bears such information concerning
   5-22  its vitamin, mineral, and other dietary properties as the board
   5-23  determines to be, and by rule prescribed, as necessary in order to
   5-24  fully inform purchasers as to its value for such uses;
   5-25              (l)  if it bears or contains any artificial flavoring,
   5-26  artificial coloring, or chemical preservative, unless it bears
   5-27  labeling stating that fact; provided that, to the extent that
    6-1  compliance with the requirements of this subsection is
    6-2  impracticable, exemptions shall be established by rules of the
    6-3  board.  The provisions of this subsection and Subsections (h) and
    6-4  (j) with respect to artificial coloring do not apply in the case of
    6-5  butter, cheese, and ice cream;
    6-6              (m)  if it is a raw agricultural commodity that is the
    6-7  produce of the soil and bears or contains a pesticide chemical
    6-8  applied after harvest, unless the shipping container of the
    6-9  commodity bears labeling that declares the presence of the chemical
   6-10  in or on the commodity and the common or usual name and the
   6-11  function of the chemical, except that the declaration is not
   6-12  required while the commodity, after removal from the shipping
   6-13  container, is being held or displayed for sale at retail out of the
   6-14  container in accordance with the custom of the trade;
   6-15              (n)  if it is a product intended as an ingredient of
   6-16  another food and if used according to the directions of the
   6-17  purveyor will result in the final food product being adulterated or
   6-18  misbranded;
   6-19              (o)  if it is a color additive, unless its packaging
   6-20  and labeling are in conformity with the packaging and labeling
   6-21  requirements applicable to the color additive as may be contained
   6-22  in regulations issued under Section 706 of the federal Act;
   6-23              (p)  if its packaging or labeling is in violation of an
   6-24  applicable regulation issued under Section 3 or 4 of the Federal
   6-25  Poison Prevention Packaging Act of 1970 (15 U.S.C. 1491 et seq.);
   6-26              (q)  if it contains saccharin, unless its label and
   6-27  labeling and retail display comply with the requirements of
    7-1  Sections 403(o) and 403(p) of the federal Act; <or>
    7-2              (r)  if it contains saccharin and is offered for sale,
    7-3  but not for immediate consumption, at a retail establishment,
    7-4  unless the retail establishment displays prominently, where the
    7-5  food is held for sale, notice that is provided by the manufacturer
    7-6  of the food under Section 403(o)(2) of the federal Act for
    7-7  consumers concerning the information required by Section 403(p) of
    7-8  the federal Act to be on food labels and labeling;
    7-9              (s)(1)  if it is a food intended for human consumption
   7-10  and is offered for sale, unless its label or labeling bears
   7-11  nutrition information that provides:
   7-12                          (A)(i)  the serving size that is an amount
   7-13  customarily consumed and that is expressed in a common household
   7-14  measure that is appropriate to the food; or
   7-15                                (ii)  if the use of the food is not
   7-16  typically expressed in a serving size, the common household unit of
   7-17  measure that expresses the serving size of the food;
   7-18                          (B)  the number of servings or other units
   7-19  of measure per container;
   7-20                          (C)  the total number of calories in each
   7-21  serving size or other unit of measure that are:
   7-22                                (i)  derived from any source; and
   7-23                                (ii)  derived from fat;
   7-24                          (D)  the amount of total fat, saturated
   7-25  fat, cholesterol, sodium, total carbohydrates, complex
   7-26  carbohydrates, sugar, dietary fiber, and total protein contained in
   7-27  each serving size or other unit of measure; and
    8-1                          (E)  any vitamin, mineral, or other
    8-2  nutrient required to be placed on the label and labeling of food
    8-3  under the federal Act; or
    8-4                    (2)(A)  if it is a food distributed at retail in
    8-5  bulk display cases, or a food received in bulk containers, unless
    8-6  it has nutrition labeling prescribed by the secretary; and
    8-7                          (B)  if the secretary determines it is
    8-8  necessary, nutrition labeling will be mandatory for raw fruits,
    8-9  vegetables, and fish, including freshwater or marine fin fish,
   8-10  crustaceans, mollusks including shellfish, amphibians, and other
   8-11  forms of aquatic animal life, except that:
   8-12                    (3)(A)  Subdivisions (1) and (2) do not apply to
   8-13  food:
   8-14                                (i)  that is served in restaurants or
   8-15  other establishments in which food is served for immediate human
   8-16  consumption or that is sold for sale or use in those
   8-17  establishments;
   8-18                                (ii)  that is processed and prepared
   8-19  primarily in a retail establishment, that is ready for human
   8-20  consumption, that is of the type described in Subparagraph (i),
   8-21  that is offered for sale to consumers but not for immediate human
   8-22  consumption in the establishment, and that is not offered for sale
   8-23  outside the establishment;
   8-24                                (iii)  that is an infant formula
   8-25  subject to Section 412 of the federal Act;
   8-26                                (iv)  that is a medical food as
   8-27  defined in Section 5(b) of the Orphan Drug Act (21 U.S.C. Section
    9-1  360ee(b)); or
    9-2                                (v)  that is described in Section
    9-3  405, clause (2), of the federal Act;
    9-4                          (B)  Subdivision (1) does not apply to the
    9-5  label of a food if the secretary determines by regulation that
    9-6  compliance with that subdivision is impracticable because the
    9-7  package of the food is too small to comply with the requirements of
    9-8  that subdivision and if the label of that food does not contain any
    9-9  nutrition information;
   9-10                          (C)  if the secretary determines that a
   9-11  food contains insignificant amounts of all the nutrients required
   9-12  by Subdivision (1) to be listed in the label or labeling of food,
   9-13  the requirements of Subdivision (1) do not apply to the food if the
   9-14  label, labeling, or advertising of the food does not make any claim
   9-15  with respect to the nutritional value of the food, provided that if
   9-16  the secretary determines that a food contains insignificant amounts
   9-17  of more than half the nutrients required by Subdivision (1) to be
   9-18  in the label or labeling of the food, the amounts of those
   9-19  nutrients shall be stated in a simplified form prescribed by the
   9-20  secretary;
   9-21                          (D)  if a person offers food for sale and
   9-22  has annual gross sales made or business done in sales to consumers
   9-23  that is not more than $500,000 or has annual gross sales made or
   9-24  business done in sales of food to consumers that is not more than
   9-25  $50,000, the requirements of this subsection do not apply to food
   9-26  sold by that person to consumers unless the label or labeling of
   9-27  food offered by that person provides nutrition information or makes
   10-1  a nutrition claim;
   10-2                          (E)  if foods are subject to Section 411 of
   10-3  the federal Act, the foods shall comply with Subdivisions (1) and
   10-4  (2) in a manner prescribed by the rules; and
   10-5                          (F)  if food is sold by a food distributor,
   10-6  Subdivisions (1) and (2) do not apply if the food distributor
   10-7  principally sells food to restaurants or other establishments in
   10-8  which food is served for immediate human consumption and the food
   10-9  distributor does not manufacture, process, or repackage the food it
  10-10  sells;
  10-11              (t)  if it is a food intended for human consumption and
  10-12  is offered for sale, and a claim is made on the label, labeling, or
  10-13  retail display relating to the nutrient content or a nutritional
  10-14  quality of the food to a specific disease or condition of the human
  10-15  body, except as permitted by Section 403(r) of the federal Act; or
  10-16              (u)  if it is a food intended for human consumption and
  10-17  its label, labeling, and retail display do not comply with the
  10-18  requirements of Section 403(r) of the federal Act pertaining to
  10-19  nutrient content and health claims.
  10-20        SECTION 4.  Section 431.083, Health and Safety Code, is
  10-21  amended by amending Subsection (a) and adding Subsection (c) to
  10-22  read as follows:
  10-23        (a)  Except as provided by Subsection (c), the <The> board
  10-24  shall adopt rules exempting from any labeling requirement of this
  10-25  chapter:
  10-26              (1)  small open containers of fresh fruits and fresh
  10-27  vegetables; and
   11-1              (2)  food that is in accordance with the practice of
   11-2  the trade, to be processed, labeled, or repacked in substantial
   11-3  quantities at establishments other than those where originally
   11-4  processed or packed, on conditions that the food is not adulterated
   11-5  or misbranded under the provisions of this chapter when removed
   11-6  from the processing, labeling, or repacking establishment.
   11-7        (c)  The board may not adopt rules under Subsection (a) to
   11-8  exempt foods from the labeling requirements of Sections 403(q) and
   11-9  (r) of the federal Act.
  11-10        SECTION 5.  Section 431.182, Health and Safety Code, is
  11-11  amended to read as follows:
  11-12        Sec. 431.182.  FALSE ADVERTISEMENT.  (a)  An advertisement of
  11-13  a food, drug, device, or cosmetic shall be deemed to be false if it
  11-14  is false or misleading in any particular.
  11-15        (b)  The advertising of a food that incorporates a health
  11-16  claim not in conformance with or defined by Section 403(r) of the
  11-17  federal Act is deemed to be false or misleading for the purposes of
  11-18  this chapter.
  11-19        SECTION 6.  Section 431.244, Health and Safety Code, is
  11-20  amended to read as follows:
  11-21        Sec. 431.244.  Federal Regulations Adopted as State Rules.
  11-22  (a)  A regulation adopted by the secretary under the federal Act
  11-23  concerning pesticide chemicals, food additives, color additives,
  11-24  special dietary use, processed low acid food, acidified food,
  11-25  infant formula, bottled water, or vended bottled water is a rule
  11-26  for the purposes of this chapter, unless the board modifies or
  11-27  rejects the rule.
   12-1        (b)  A regulation adopted under the Fair Packaging and
   12-2  Labeling Act (15 U.S.C. 1451 et seq.) is a rule for the purposes of
   12-3  this chapter, unless the board modifies or rejects the rule.  The
   12-4  board may not adopt a rule that conflicts with the labeling
   12-5  requirements for the net quantity of contents required under
   12-6  Section 4 of the Fair Packaging and Labeling Act (15 U.S.C.  1453)
   12-7  and the regulations adopted under that Act.
   12-8        (c)  A regulation adopted by the secretary under Sections
   12-9  403(b)-(i) of the federal Act is a rule for the purposes of this
  12-10  chapter, unless the board modifies or rejects the rule.  The board
  12-11  may not adopt a rule that conflicts with the limitations provided
  12-12  by Sections 403(q) and (r) of the federal Act.
  12-13        (d)  A federal regulation that this section provides as a
  12-14  rule for the purposes of this chapter is effective:
  12-15              (1)  on the date that the regulation becomes effective
  12-16  as a federal regulation; and
  12-17              (2)  whether or not the department has fulfilled the
  12-18  rulemaking provisions of the Administrative Procedure and Texas
  12-19  Register Act (Article 6252-13a, Vernon's Texas Civil Statutes).
  12-20        (e) <(d)>  If the board modifies or rejects a federal
  12-21  regulation, the board shall comply with the rulemaking provisions
  12-22  of the Administrative Procedure and Texas Register Act (Article
  12-23  6252-13a, Vernon's Texas Civil Statutes).
  12-24        SECTION 7.  This Act takes effect September 1, 1993.
  12-25        SECTION 8.  The importance of this legislation and the
  12-26  crowded condition of the calendars in both houses create an
  12-27  emergency   and   an   imperative   public   necessity   that   the
   13-1  constitutional rule requiring bills to be read on three several
   13-2  days in each house be suspended, and this rule is hereby suspended.