1-1  By:  Armbrister                                        S.B. No. 558
    1-2        (In the Senate - Filed March 2, 1993; March 3, 1993, read
    1-3  first time and referred to Committee on Health and Human Services;
    1-4  March 31, 1993, reported favorably by the following vote:  Yeas 9,
    1-5  Nays 0; March 31, 1993, sent to printer.)
    1-6                            COMMITTEE VOTE
    1-7                          Yea     Nay      PNV      Absent 
    1-8        Zaffirini          x                               
    1-9        Ellis              x                               
   1-10        Madla              x                               
   1-11        Moncrief           x                               
   1-12        Nelson             x                               
   1-13        Patterson          x                               
   1-14        Shelley            x                               
   1-15        Truan              x                               
   1-16        Wentworth          x                               
   1-17                         A BILL TO BE ENTITLED
   1-18                                AN ACT
   1-19  relating to food labeling requirements under the Texas Food, Drug,
   1-20  and Cosmetic Act.
   1-21        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
   1-22        SECTION 1.  Subdivision (14), Section 431.002, Health and
   1-23  Safety Code, is amended to read as follows:
   1-24              (14)  "Drug" means articles recognized in the official
   1-25  United States Pharmacopoeia National Formulary, or any supplement
   1-26  to it, articles designed or intended for use in the diagnosis,
   1-27  cure, mitigation, treatment, or prevention of disease in man or
   1-28  other animals, articles, other than food, intended to affect the
   1-29  structure or any function of the body of man or other animals, and
   1-30  articles intended for use as a component of any article specified
   1-31  in this subdivision.  The term does not include devices or their
   1-32  components, parts, or accessories.  A food for which a claim is
   1-33  made in accordance with Section 403(r) of the federal Act, and for
   1-34  which the claim is approved by the secretary, is not a drug solely
   1-35  because the label or labeling contains such a claim.
   1-36        SECTION 2.  Section 431.060, Health and Safety Code, is
   1-37  amended to read as follows:
   1-38        Sec. 431.060.  Initiation of Proceedings.  (a)  The attorney
   1-39  general, or a district, county, or municipal attorney to whom the
   1-40  commissioner, an authorized agent, or a health authority reports a
   1-41  violation of this chapter, shall initiate and prosecute appropriate
   1-42  proceedings without delay.
   1-43        (b)  The commissioner, the commissioner's authorized agent,
   1-44  or the attorney general may, as authorized by Section 307 of the
   1-45  federal Act, bring in the name of this state a suit for civil
   1-46  penalties or to restrain a violation of Section 401 or Section
   1-47  403(b) through (i), (k), (q), or (r) of the federal Act if the food
   1-48  that is the subject of the proceedings is located in this state.
   1-49        (c)  The commissioner, the commissioner's authorized agent,
   1-50  or the attorney general may not bring a proceeding under Subsection
   1-51  (b):
   1-52              (1)  before the 31st day after the date on which the
   1-53  state has given notice to the secretary of its intent to bring a
   1-54  suit;
   1-55              (2)  before the 91st day after the date on which the
   1-56  state has given notice to the secretary of its intent to bring a
   1-57  suit if the secretary has, not later than the 30th day after
   1-58  receiving notice from the state, commenced an informal or formal
   1-59  enforcement action pertaining to the food that would be the subject
   1-60  of the suit brought by the state; or
   1-61              (3)  if the secretary is diligently prosecuting a suit
   1-62  in court pertaining to that food, has settled a suit pertaining to
   1-63  that food, or has settled the informal or formal enforcement action
   1-64  pertaining to that food.
   1-65        SECTION 3.  Section 431.082, Health and Safety Code, is
   1-66  amended to read as follows:
   1-67        Sec. 431.082.  Misbranded Food.  A food shall be deemed to be
   1-68  misbranded:
    2-1              (a)  if its labeling is false or misleading in any
    2-2  particular or fails to conform with the requirements of Section
    2-3  431.181;
    2-4              (b)  if, in the case of a food to which Section 411 of
    2-5  the federal Act applies, its advertising is false or misleading in
    2-6  a material respect or its labeling is in violation of Section
    2-7  411(b)(2) of the federal Act;
    2-8              (c)  if it is offered for sale under the name of
    2-9  another food;
   2-10              (d)  if it is an imitation of another food, unless its
   2-11  label bears, in prominent type of uniform size, the word
   2-12  "imitation" and immediately thereafter the name of the food
   2-13  imitated;
   2-14              (e)  if its container is so made, formed, or filled as
   2-15  to be misleading;
   2-16              (f)  if in package form unless it bears a label
   2-17  containing:
   2-18                    (1)  the name and place of business of the
   2-19  manufacturer, packer, or distributor; and
   2-20                    (2)  an accurate statement, in a uniform location
   2-21  on the principal display panel of the label, of the quantity of the
   2-22  contents in terms of weight, measure, or numerical count; provided,
   2-23  that under this subsection reasonable variations shall be
   2-24  permitted, and exemptions as to small packages shall be
   2-25  established, by rules adopted by the board;
   2-26              (g)  if any word, statement, or other information
   2-27  required by or under the authority of this chapter to appear on the
   2-28  label or labeling is not prominently placed thereon with such
   2-29  conspicuousness (as compared with other words, statements, designs,
   2-30  or devices in the labeling) and in such terms as to render it
   2-31  likely to be read and understood by the ordinary individual under
   2-32  customary conditions of purchase and use;
   2-33              (h)  if it purports to be or is represented as a food
   2-34  for which a definition and standard of identity has been prescribed
   2-35  by federal regulations or rules of the board as provided by Section
   2-36  431.245, unless:
   2-37                    (1)  it conforms to such definition and standard;
   2-38  and
   2-39                    (2)  its label bears the name of the food
   2-40  specified in the definition and standard, and, in so far as may be
   2-41  required by those regulations or rules, the common names of
   2-42  <optional> ingredients, other than spices, flavoring, and coloring,
   2-43  present in such food;
   2-44              (i)  if it purports to be or is represented as:
   2-45                    (1)  a food for which a standard of quality has
   2-46  been prescribed by federal regulations or rules of the board as
   2-47  provided by Section 431.245, and its quality falls below such
   2-48  standard unless its label bears, in such manner and form as those
   2-49  regulations or rules specify, a statement that it falls below such
   2-50  standard; or
   2-51                    (2)  a food for which a standard or standards of
   2-52  fill of container have been prescribed by federal regulations or
   2-53  rules of the board as provided by Section 431.245, and it falls
   2-54  below the standard of fill of container applicable thereto, unless
   2-55  its label bears, in such manner and form as those regulations or
   2-56  rules specify, a statement that it falls below such standard;
   2-57              (j)  <if it is not subject to the provisions of
   2-58  Subsection (h),> unless its label bears:
   2-59                    (1)  the common or usual name of the food, if
   2-60  any; and
   2-61                    (2)  in case it is fabricated from two or more
   2-62  ingredients, the common or usual name of each such ingredient, and
   2-63  if the food purports to be a beverage containing vegetable or fruit
   2-64  juice, a statement with appropriate prominence on the information
   2-65  panel of the total percentage of the fruit or vegetable juice
   2-66  contained in the food; except that spices, flavorings, and colors
   2-67  not required to be certified under Section 706(c) of the federal
   2-68  Act <colorings>, other than those sold as such, may be designated
   2-69  as spices, flavorings, and colors <colorings>, without naming each;
   2-70  provided that, to the extent that compliance with the requirements
    3-1  of this subdivision is impractical or results in deception or
    3-2  unfair competition, exemptions shall be established by rules of the
    3-3  board;
    3-4              (k)  if it purports to be or is represented for special
    3-5  dietary uses, unless its label bears such information concerning
    3-6  its vitamin, mineral, and other dietary properties as the board
    3-7  determines to be, and by rule prescribed, as necessary in order to
    3-8  fully inform purchasers as to its value for such uses;
    3-9              (l)  if it bears or contains any artificial flavoring,
   3-10  artificial coloring, or chemical preservative, unless it bears
   3-11  labeling stating that fact; provided that, to the extent that
   3-12  compliance with the requirements of this subsection is
   3-13  impracticable, exemptions shall be established by rules of the
   3-14  board.  The provisions of this subsection and Subsections (h) and
   3-15  (j) with respect to artificial coloring do not apply in the case of
   3-16  butter, cheese, and ice cream;
   3-17              (m)  if it is a raw agricultural commodity that is the
   3-18  produce of the soil and bears or contains a pesticide chemical
   3-19  applied after harvest, unless the shipping container of the
   3-20  commodity bears labeling that declares the presence of the chemical
   3-21  in or on the commodity and the common or usual name and the
   3-22  function of the chemical, except that the declaration is not
   3-23  required while the commodity, after removal from the shipping
   3-24  container, is being held or displayed for sale at retail out of the
   3-25  container in accordance with the custom of the trade;
   3-26              (n)  if it is a product intended as an ingredient of
   3-27  another food and if used according to the directions of the
   3-28  purveyor will result in the final food product being adulterated or
   3-29  misbranded;
   3-30              (o)  if it is a color additive, unless its packaging
   3-31  and labeling are in conformity with the packaging and labeling
   3-32  requirements applicable to the color additive as may be contained
   3-33  in regulations issued under Section 706 of the federal Act;
   3-34              (p)  if its packaging or labeling is in violation of an
   3-35  applicable regulation issued under Section 3 or 4 of the Federal
   3-36  Poison Prevention Packaging Act of 1970 (15 U.S.C. 1491 et seq.);
   3-37              (q)  if it contains saccharin, unless its label and
   3-38  labeling and retail display comply with the requirements of
   3-39  Sections 403(o) and 403(p) of the federal Act; <or>
   3-40              (r)  if it contains saccharin and is offered for sale,
   3-41  but not for immediate consumption, at a retail establishment,
   3-42  unless the retail establishment displays prominently, where the
   3-43  food is held for sale, notice that is provided by the manufacturer
   3-44  of the food under Section 403(o)(2) of the federal Act for
   3-45  consumers concerning the information required by Section 403(p) of
   3-46  the federal Act to be on food labels and labeling;
   3-47              (s)(1)  if it is a food intended for human consumption
   3-48  and is offered for sale, unless its label or labeling bears
   3-49  nutrition information that provides:
   3-50                          (A)(i)  the serving size that is an amount
   3-51  customarily consumed and that is expressed in a common household
   3-52  measure that is appropriate to the food; or
   3-53                                (ii)  if the use of the food is not
   3-54  typically expressed in a serving size, the common household unit of
   3-55  measure that expresses the serving size of the food;
   3-56                          (B)  the number of servings or other units
   3-57  of measure per container;
   3-58                          (C)  the total number of calories in each
   3-59  serving size or other unit of measure that are:
   3-60                                (i)  derived from any source; and
   3-61                                (ii)  derived from fat;
   3-62                          (D)  the amount of total fat, saturated
   3-63  fat, cholesterol, sodium, total carbohydrates, complex
   3-64  carbohydrates, sugar, dietary fiber, and total protein contained in
   3-65  each serving size or other unit of measure; and
   3-66                          (E)  any vitamin, mineral, or other
   3-67  nutrient required to be placed on the label and labeling of food
   3-68  under the federal Act; or
   3-69                    (2)(A)  if it is a food distributed at retail in
   3-70  bulk display cases, or a food received in bulk containers, unless
    4-1  it has nutrition labeling prescribed by the secretary; and
    4-2                          (B)  if the secretary determines it is
    4-3  necessary, nutrition labeling will be mandatory for raw fruits,
    4-4  vegetables, and fish, including freshwater or marine fin fish,
    4-5  crustaceans, mollusks including shellfish, amphibians, and other
    4-6  forms of aquatic animal life, except that:
    4-7                    (3)(A)  Subdivisions (1) and (2) do not apply to
    4-8  food:
    4-9                                (i)  that is served in restaurants or
   4-10  other establishments in which food is served for immediate human
   4-11  consumption or that is sold for sale or use in those
   4-12  establishments;
   4-13                                (ii)  that is processed and prepared
   4-14  primarily in a retail establishment, that is ready for human
   4-15  consumption, that is of the type described in Subparagraph (i),
   4-16  that is offered for sale to consumers but not for immediate human
   4-17  consumption in the establishment, and that is not offered for sale
   4-18  outside the establishment;
   4-19                                (iii)  that is an infant formula
   4-20  subject to Section 412 of the federal Act;
   4-21                                (iv)  that is a medical food as
   4-22  defined in Section 5(b) of the Orphan Drug Act (21 U.S.C. Section
   4-23  360ee(b)); or
   4-24                                (v)  that is described in Section
   4-25  405, clause (2), of the federal Act;
   4-26                          (B)  Subdivision (1) does not apply to the
   4-27  label of a food if the secretary determines by regulation that
   4-28  compliance with that subdivision is impracticable because the
   4-29  package of the food is too small to comply with the requirements of
   4-30  that subdivision and if the label of that food does not contain any
   4-31  nutrition information;
   4-32                          (C)  if the secretary determines that a
   4-33  food contains insignificant amounts of all the nutrients required
   4-34  by Subdivision (1) to be listed in the label or labeling of food,
   4-35  the requirements of Subdivision (1) do not apply to the food if the
   4-36  label, labeling, or advertising of the food does not make any claim
   4-37  with respect to the nutritional value of the food, provided that if
   4-38  the secretary determines that a food contains insignificant amounts
   4-39  of more than half the nutrients required by Subdivision (1) to be
   4-40  in the label or labeling of the food, the amounts of those
   4-41  nutrients shall be stated in a simplified form prescribed by the
   4-42  secretary;
   4-43                          (D)  if a person offers food for sale and
   4-44  has annual gross sales made or business done in sales to consumers
   4-45  that is not more than $500,000 or has annual gross sales made or
   4-46  business done in sales of food to consumers that is not more than
   4-47  $50,000, the requirements of this subsection do not apply to food
   4-48  sold by that person to consumers unless the label or labeling of
   4-49  food offered by that person provides nutrition information or makes
   4-50  a nutrition claim;
   4-51                          (E)  if foods are subject to Section 411 of
   4-52  the federal Act, the foods shall comply with Subdivisions (1) and
   4-53  (2) in a manner prescribed by the rules; and
   4-54                          (F)  if food is sold by a food distributor,
   4-55  Subdivisions (1) and (2) do not apply if the food distributor
   4-56  principally sells food to restaurants or other establishments in
   4-57  which food is served for immediate human consumption and the food
   4-58  distributor does not manufacture, process, or repackage the food it
   4-59  sells;
   4-60              (t)  if it is a food intended for human consumption and
   4-61  is offered for sale, and a claim is made on the label, labeling, or
   4-62  retail display relating to the nutrient content or a nutritional
   4-63  quality of the food to a specific disease or condition of the human
   4-64  body, except as permitted by Section 403(r) of the federal Act; or
   4-65              (u)  if it is a food intended for human consumption and
   4-66  its label, labeling, and retail display do not comply with the
   4-67  requirements of Section 403(r) of the federal Act pertaining to
   4-68  nutrient content and health claims.
   4-69        SECTION 4.  Section 431.083, Health and Safety Code, is
   4-70  amended by amending Subsection (a) and adding Subsection (c) to
    5-1  read as follows:
    5-2        (a)  Except as provided by Subsection (c), the <The> board
    5-3  shall adopt rules exempting from any labeling requirement of this
    5-4  chapter:
    5-5              (1)  small open containers of fresh fruits and fresh
    5-6  vegetables; and
    5-7              (2)  food that is in accordance with the practice of
    5-8  the trade, to be processed, labeled, or repacked in substantial
    5-9  quantities at establishments other than those where originally
   5-10  processed or packed, on conditions that the food is not adulterated
   5-11  or misbranded under the provisions of this chapter when removed
   5-12  from the processing, labeling, or repacking establishment.
   5-13        (c)  The board may not adopt rules under Subsection (a) to
   5-14  exempt foods from the labeling requirements of Sections 403(q) and
   5-15  (r) of the federal Act.
   5-16        SECTION 5.  Section 431.182, Health and Safety Code, is
   5-17  amended to read as follows:
   5-18        Sec. 431.182.  FALSE ADVERTISEMENT.  (a)  An advertisement of
   5-19  a food, drug, device, or cosmetic shall be deemed to be false if it
   5-20  is false or misleading in any particular.
   5-21        (b)  The advertising of a food that incorporates a health
   5-22  claim not in conformance with or defined by Section 403(r) of the
   5-23  federal Act is deemed to be false or misleading for the purposes of
   5-24  this chapter.
   5-25        SECTION 6.  Section 431.244, Health and Safety Code, is
   5-26  amended to read as follows:
   5-27        Sec. 431.244.  Federal Regulations Adopted as State Rules.
   5-28  (a)  A regulation adopted by the secretary under the federal Act
   5-29  concerning pesticide chemicals, food additives, color additives,
   5-30  special dietary use, processed low acid food, acidified food,
   5-31  infant formula, bottled water, or vended bottled water is a rule
   5-32  for the purposes of this chapter, unless the board modifies or
   5-33  rejects the rule.
   5-34        (b)  A regulation adopted under the Fair Packaging and
   5-35  Labeling Act (15 U.S.C. 1451 et seq.) is a rule for the purposes of
   5-36  this chapter, unless the board modifies or rejects the rule.  The
   5-37  board may not adopt a rule that conflicts with the labeling
   5-38  requirements for the net quantity of contents required under
   5-39  Section 4 of the Fair Packaging and Labeling Act (15 U.S.C.  1453)
   5-40  and the regulations adopted under that Act.
   5-41        (c)  A regulation adopted by the secretary under Sections
   5-42  403(b) through (i) of the federal Act is a rule for the purposes of
   5-43  this chapter unless the board modifies or rejects the rule.  The
   5-44  board may not adopt a rule that conflicts with the limitations
   5-45  provided by Sections 403(q) and (r) of the federal Act.
   5-46        (d)  A federal regulation that this section provides as a
   5-47  rule for the purposes of this chapter is effective:
   5-48              (1)  on the date that the regulation becomes effective
   5-49  as a federal regulation; and
   5-50              (2)  whether or not the department has fulfilled the
   5-51  rulemaking provisions of the Administrative Procedure and Texas
   5-52  Register Act (Article 6252-13a, Vernon's Texas Civil Statutes).
   5-53        (e) <(d)>  If the board modifies or rejects a federal
   5-54  regulation, the board shall comply with the rulemaking provisions
   5-55  of the Administrative Procedure and Texas Register Act (Article
   5-56  6252-13a, Vernon's Texas Civil Statutes).
   5-57        SECTION 7.  This Act takes effect September 1, 1993.
   5-58        SECTION 8.  The importance of this legislation and the
   5-59  crowded condition of the calendars in both houses create an
   5-60  emergency and an imperative public necessity that the
   5-61  constitutional rule requiring bills to be read on three several
   5-62  days in each house be suspended, and this rule is hereby suspended.
   5-63                               * * * * *
   5-64                                                         Austin,
   5-65  Texas
   5-66                                                         March 31, 1993
   5-67  Hon. Bob Bullock
   5-68  President of the Senate
   5-69  Sir:
   5-70  We, your Committee on Health and Human Services to which was
    6-1  referred S.B. No. 558, have had the same under consideration, and I
    6-2  am instructed to report it back to the Senate with the
    6-3  recommendation that it do pass and be printed.
    6-4                                                         Ellis,
    6-5  Vice-Chair
    6-6                               * * * * *
    6-7                               WITNESSES
    6-8                                                  FOR   AGAINST  ON
    6-9  ___________________________________________________________________
   6-10  Name:  R. D. (Dan) Sowards                                     x
   6-11  Representing:  Tx Dept of Health
   6-12  City:  Austin
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