1-1                                   AN ACT

 1-2     relating to certain misbranded drugs and devices and the use of

 1-3     certain detained or embargoed articles.

 1-4           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

 1-5           SECTION 1.  Section 431.021, Health and Safety Code, is

 1-6     amended to read as follows:

 1-7           Sec. 431.021.  PROHIBITED ACTS.  The following acts and the

 1-8     causing of the following acts within this state are unlawful and

 1-9     prohibited:

1-10                 (a)  the introduction or delivery for introduction into

1-11     commerce of any food, drug, device, or cosmetic that is adulterated

1-12     or misbranded;

1-13                 (b)  the adulteration or misbranding of any food, drug,

1-14     device, or cosmetic in commerce;

1-15                 (c)  the receipt in commerce of any food, drug, device,

1-16     or cosmetic that is adulterated or misbranded, and the delivery or

1-17     proffered delivery thereof for pay or otherwise;

1-18                 (d)  the distribution in commerce of a consumer

1-19     commodity, if such commodity is contained in a package, or if there

1-20     is affixed to that commodity a label that does not conform to the

1-21     provisions of this chapter and of rules adopted under the authority

1-22     of this chapter;  provided, however, that this prohibition shall

1-23     not apply to persons engaged in business as wholesale or retail

1-24     distributors of consumer commodities except to the extent that such

 2-1     persons:

 2-2                       (1)  are engaged in the packaging or labeling of

 2-3     such commodities;  or

 2-4                       (2)  prescribe or specify by any means the manner

 2-5     in which such commodities are packaged or labeled;

 2-6                 (e)  the introduction or delivery for introduction into

 2-7     commerce of any article in violation of Section 431.084, 431.114,

 2-8     or 431.115;

 2-9                 (f)  the dissemination of any false advertisement;

2-10                 (g)  the refusal to permit entry or inspection, or to

2-11     permit the taking of a sample or to permit access to or copying of

2-12     any record as authorized by Sections 431.042-431.044;  or the

2-13     failure to establish or maintain any record or make any report

2-14     required under Section 512(j), (l), or (m) of the federal Act, or

2-15     the refusal to permit access to or verification or copying of any

2-16     such required record;

2-17                 (h)  the manufacture within this state of any food,

2-18     drug, device, or cosmetic that is adulterated or misbranded;

2-19                 (i)  the giving of a guaranty or undertaking referred

2-20     to in Section 431.059, which guaranty or undertaking is false,

2-21     except by a person who relied on a guaranty or undertaking to the

2-22     same effect signed by, and containing the name and address of the

2-23     person residing in this state from whom the person received in good

2-24     faith the food, drug, device, or cosmetic;  or the giving of a

2-25     guaranty or undertaking referred to in Section 431.059, which

2-26     guaranty or undertaking is false;

2-27                 (j)  the use, removal, or disposal of a detained or

 3-1     embargoed article in violation of Section 431.048;

 3-2                 (k)  the alteration, mutilation, destruction,

 3-3     obliteration, or removal of the whole or any part of the labeling

 3-4     of, or the doing of any other act with respect to a food, drug,

 3-5     device, or cosmetic, if such act is done while such article is held

 3-6     for sale after shipment in commerce and results in such article

 3-7     being adulterated or misbranded;

 3-8                 (l)(1)  forging, counterfeiting, simulating, or falsely

 3-9     representing, or without proper authority using any mark, stamp,

3-10     tag, label, or other identification device authorized or required

3-11     by rules adopted under this chapter or the regulations promulgated

3-12     under the provisions of the federal Act;

3-13                       (2)  making, selling, disposing of, or keeping in

3-14     possession, control, or custody, or concealing any punch, die,

3-15     plate, stone, or other thing designed to print, imprint, or

3-16     reproduce the trademark, trade name, or other identifying mark,

3-17     imprint, or device of another or any likeness of any of the

3-18     foregoing on any drug or container or labeling thereof so as to

3-19     render such drug a counterfeit drug;

3-20                       (3)  the doing of any act that causes a drug to

3-21     be a counterfeit drug, or the sale or dispensing, or the holding

3-22     for sale or dispensing, of a counterfeit drug;

3-23                 (m)  the using by any person to the person's own

3-24     advantage, or revealing, other than to the commissioner, an

3-25     authorized agent, a health authority or to the courts when relevant

3-26     in any judicial proceeding under this chapter, of any information

3-27     acquired under the authority of this chapter concerning any method

 4-1     or process that as a trade secret is entitled to protection;

 4-2                 (n)  the using, on the labeling of any drug or device

 4-3     or in any advertising relating to such drug or device, of any

 4-4     representation or suggestion that approval of an application with

 4-5     respect to such drug or device is in effect under Section 431.114

 4-6     or Section 505, 515, or 520(g) of the federal Act, as the case may

 4-7     be, or that such drug or device complies with the provisions of

 4-8     such sections;

 4-9                 (o)  the using, in labeling, advertising or other sales

4-10     promotion of any reference to any report or analysis furnished in

4-11     compliance with Sections 431.042-431.044 or Section 704 of the

4-12     federal Act;

4-13                 (p)  in the case of a prescription drug distributed or

4-14     offered for sale in this state, the failure of the manufacturer,

4-15     packer, or distributor of the drug to maintain for transmittal, or

4-16     to transmit, to any practitioner licensed by applicable law to

4-17     administer such drug who makes written request for information as

4-18     to such drug, true and correct copies of all printed matter that is

4-19     required to be included in any package in which that drug is

4-20     distributed or sold, or such other printed matter as is approved

4-21     under the federal Act.  Nothing in this subsection shall be

4-22     construed to exempt any person from any labeling requirement

4-23     imposed by or under other provisions of this chapter;

4-24                 (q)(1)  placing or causing to be placed on any drug or

4-25     device or container of any drug or device, with intent to defraud,

4-26     the trade name or other identifying mark, or imprint of another or

4-27     any likeness of any of the foregoing;

 5-1                       (2)  selling, dispensing, disposing of or causing

 5-2     to be sold, dispensed, or disposed of, or concealing or keeping in

 5-3     possession, control, or custody, with intent to sell, dispense, or

 5-4     dispose of, any drug, device, or any container of any drug or

 5-5     device, with knowledge that the trade name or other identifying

 5-6     mark or imprint of another or any likeness of any of the foregoing

 5-7     has been placed thereon in a manner prohibited by Subdivision (1)

 5-8     of this subsection;  or

 5-9                       (3)  making, selling, disposing of, causing to be

5-10     made, sold, or disposed of, keeping in possession, control, or

5-11     custody, or concealing with intent to defraud any punch, die,

5-12     plate, stone, or other thing designed to print, imprint, or

5-13     reproduce the trademark, trade name, or other identifying mark,

5-14     imprint, or device of another or any likeness of any of the

5-15     foregoing on any drug or container or labeling of any drug or

5-16     container so as to render such drug a counterfeit drug;

5-17                 (r)  dispensing or causing to be dispensed a different

5-18     drug in place of the drug ordered or prescribed without the express

5-19     permission in each case of the person ordering or prescribing;

5-20                 (s)  the failure to register in accordance with Section

5-21     510 of the federal Act, the failure to provide any information

5-22     required by Section 510(j) or (k) of the federal Act, or the

5-23     failure to provide a notice required by Section 510(j)(2) of the

5-24     federal Act;

5-25                 (t)(1)  the failure or refusal to:

5-26                             (A)  comply with any requirement prescribed

5-27     under Section 518 or 520(g) of the federal Act;  or

 6-1                             (B)  furnish any notification or other

 6-2     material or information required by or under Section 519 or 520(g)

 6-3     of the federal Act;

 6-4                       (2)  with respect to any device, the submission

 6-5     of any report that is required by or under this chapter that is

 6-6     false or misleading in any material respect;

 6-7                 (u)  the movement of a device in violation of an order

 6-8     under Section 304(g) of the federal Act or the removal or

 6-9     alteration of any mark or label required by the order to identify

6-10     the device as detained;

6-11                 (v)  the failure to provide the notice required by

6-12     Section 412(b) or 412(c), the failure to make the reports required

6-13     by Section 412(d)(1)(B), or the failure to meet the requirements

6-14     prescribed under Section 412(d)(2) of the federal Act;

6-15                 (w)  the acceptance by a person of an unused

6-16     prescription or drug, in whole or in part, for the purpose of

6-17     resale, after the prescription or drug has been originally

6-18     dispensed, or sold;

6-19                 (x)  engaging in the wholesale distribution of drugs or

6-20     operating as a distributor or manufacturer of devices in this state

6-21     without filing a licensing statement with the commissioner as

6-22     required by Section 431.202 or having a license as required by

6-23     Section 431.272, as applicable;

6-24                 (y)  engaging in the manufacture of food in this state

6-25     without first registering with the department as required by

6-26     Section 431.222;  or

6-27                 (z)  unless approved by the United States Food and Drug

 7-1     Administration pursuant to the federal Act, the sale, delivery,

 7-2     holding, or offering for sale of a self-testing kit designed to

 7-3     indicate whether a person has a human immunodeficiency virus

 7-4     infection, acquired immune deficiency syndrome, or a related

 7-5     disorder or condition.

 7-6           SECTION 2.  Sections 431.048(b) and (c), Health and Safety

 7-7     Code, are amended to read as follows:

 7-8           (b)  The tag or marking on a detained or embargoed article

 7-9     must warn all persons not to use the article, remove the article

7-10     from the premises, or dispose of the article by sale or otherwise

7-11     until  permission for use, removal, or disposal is given by the

7-12     commissioner, the authorized agent, or a court.

7-13           (c)  A person may not use a detained or embargoed article,

7-14     remove a detained or embargoed article from the premises, or

7-15     dispose of a detained or embargoed article [it] by sale or

7-16     otherwise without permission of the commissioner, the authorized

7-17     agent, or a court.  The commissioner or the authorized agent may

7-18     permit perishable goods to be moved to a place suitable for proper

7-19     storage.

7-20           SECTION 3.  Section 431.049(a), Health and Safety Code, is

7-21     amended to read as follows:

7-22           (a)  If the claimant of the detained or embargoed articles or

7-23     the claimant's agent fails or refuses to transfer the articles to a

7-24     secure place after the tag or other appropriate marking has been

7-25     affixed as provided by Section 431.048, the commissioner or an

7-26     authorized agent may order the transfer of the articles to one or

7-27     more secure storage areas to prevent their unauthorized use,

 8-1     removal, or disposal.

 8-2           SECTION 4.  Section 431.112, Health and Safety Code, is

 8-3     amended to read as follows:

 8-4           Sec. 431.112.  Misbranded Drug or Device.  A drug or device

 8-5     shall be deemed to be misbranded:

 8-6                 (a)(1)  if its labeling is false or misleading in any

 8-7     particular; or

 8-8                       (2)  if its labeling or packaging fails to

 8-9     conform with the requirements of Section 431.181.

8-10                 (b)  if in a package form unless it bears a label

8-11     containing (1) the name and place of business of the manufacturer,

8-12     packer, or distributor; and (2) an accurate statement of the

8-13     quantity of the contents in terms of weight, measure, or numerical

8-14     count; provided, that under Subdivision (2) reasonable variations

8-15     shall be permitted, and exemptions as to small packages shall be

8-16     allowed in accordance with regulations prescribed by the secretary

8-17     under the federal Act;

8-18                 (c)  if any word, statement, or other information

8-19     required by or under authority of this chapter to appear on the

8-20     label or labeling is not prominently placed thereon with such

8-21     conspicuousness (as compared with other words, statements, designs,

8-22     or devices, in the labeling) and in such terms as to render it

8-23     likely to be read and understood by the ordinary individual under

8-24     customary conditions of purchase and use;

8-25                 (d)  if it is for use by man and contains any quantity

8-26     of the narcotic or hypnotic substance alpha-eucaine, barbituric

8-27     acid, betaeucaine, bromal, cannabis, carbromal, chloral, coca,

 9-1     cocaine, codeine, heroin, marihuana, morphine, opium, paraldehyde,

 9-2     peyote, or sulphonmethane, or any chemical derivative of such

 9-3     substance, which derivative, after investigation, has been found to

 9-4     be designated as habit forming, by regulations issued by the

 9-5     secretary under Section 502(d) of the federal Act, unless its label

 9-6     bears the name and quantity or proportion of such substance or

 9-7     derivative and in juxtaposition therewith the statement,

 9-8     "Warning:  May be habit forming";

 9-9                 (e)(1)  if it is a drug, unless:

9-10                             (A)  its label bears, to the exclusion of

9-11     any other nonproprietary name (except the applicable systematic

9-12     chemical name or the chemical formula):

9-13                                            (i)  the established name

9-14     (as defined in Subdivision (3)) of the drug, if any; and

9-15                                            (ii)  in case it is

9-16     fabricated from two or more ingredients, the established name and

9-17     quantity of each active ingredient, including the quantity, kind,

9-18     and proportion of any alcohol, and also including, whether active

9-19     or not, the established name and quantity or proportion of any

9-20     bromides, ether, chloroform, acetanilid, acetphenetidin,

9-21     amidopyrine, antipyrine, atropine, hyoscine, hyoscyamine, arsenic,

9-22     digitalis, digitalis glucosides, mercury, ouabain, strophanthin,

9-23     strychnine, thyroid, or any derivative or preparation of any such

9-24     substances, contained therein; provided, that the requirement for

9-25     stating the quantity of the active ingredients, other than the

9-26     quantity of those specifically named in this subparagraph shall

9-27     apply only to prescription drugs; and

 10-1                            (B)  for any prescription drug the

 10-2    established name of the drug or ingredient, as the case may be, on

 10-3    the label (and on any labeling on which a name for such drug or

 10-4    ingredient is used) is printed prominently and in type at least

 10-5    half as large as that used thereon for any proprietary name or

 10-6    designation for such drug or ingredient; and provided, that to the

 10-7    extent that compliance with the requirements of Paragraph (A)(ii)

 10-8    or this paragraph is impracticable, exemptions shall be allowed

 10-9    under regulations promulgated by the secretary under the federal

10-10    Act;

10-11                      (2)  if it is a device and it has an established

10-12    name, unless its label bears, to the exclusion of any other

10-13    nonproprietary name, its established name (as defined in

10-14    Subdivision (4)) prominently printed in type at least half as large

10-15    as that used thereon for any proprietary name or designation for

10-16    such device, except that to the extent compliance with this

10-17    subdivision is impracticable, exemptions shall be allowed under

10-18    regulations promulgated by the secretary under the federal Act;

10-19                      (3)  as used in Subdivision (1), the term

10-20    "established name," with respect to a drug or ingredient thereof,

10-21    means:

10-22                            (A)  the applicable official name

10-23    designated pursuant to Section 508 of the federal Act; or

10-24                            (B)  if there is no such name and such

10-25    drug, or such ingredient, is an article recognized in an official

10-26    compendium, then the official title thereof in such compendium; or

10-27                            (C)  if neither Paragraph (A) nor Paragraph

 11-1    (B) applies, then the common or usual name, if any, of such drug or

 11-2    of such ingredient; provided further, that where Paragraph (B)

 11-3    applies to an article recognized in the United States Pharmacopoeia

 11-4    National Formulary, the official title used in the United States

 11-5    Pharmacopoeia National Formulary shall apply;

 11-6                      (4)  as used in Subdivision (2), the term

 11-7    "established name" with respect to a device means:

 11-8                            (A)  the applicable official name of the

 11-9    device designated pursuant to Section 508 of the federal Act;

11-10                            (B)  if there is no such name and such

11-11    device is an article recognized in an official compendium, then the

11-12    official title thereof in such compendium; or

11-13                            (C)  if neither Paragraph (A) nor Paragraph

11-14    (B) applies, then any common or usual name of such device;

11-15                (f)  unless its labeling bears:

11-16                      (1)  adequate directions for use; and

11-17                      (2)  such adequate warnings against use in those

11-18    pathological conditions or by children where its use may be

11-19    dangerous to health, or against unsafe dosage or methods or

11-20    durations of administration or application, in such manner and

11-21    form, as are necessary for the protection of users unless the drug

11-22    or device has been exempted from those requirements by the

11-23    regulations adopted by the secretary;

11-24                (g)  if it purports to be a drug the name of which is

11-25    recognized in an official compendium, unless it is packaged and

11-26    labeled as prescribed therein unless the method of packing has been

11-27    modified with the consent of the secretary.  Whenever a drug is

 12-1    recognized in the United States Pharmacopoeia National Formulary,

 12-2    it shall be subject to the requirements of the United States

 12-3    Pharmacopoeia National Formulary with respect to packaging and

 12-4    labeling.  If there is an inconsistency between the requirements of

 12-5    this subsection and those of Subsection (e) as to the name by which

 12-6    the drug or its ingredients shall be designated, the requirements

 12-7    of Subsection (e) prevail;

 12-8                (h)  if it has been found by the secretary to be a drug

 12-9    liable to deterioration, unless it is packaged in such form and

12-10    manner, and its label bears a statement of such precautions, as the

12-11    secretary shall by regulations require as necessary for the

12-12    protection of public health;

12-13                (i)  if:

12-14                      (1)  it is a drug and its container is so made,

12-15    formed, or filled as to be misleading; or

12-16                      (2)  it is an imitation of another drug; or

12-17                      (3)  it is offered for sale under the name of

12-18    another drug;

12-19                (j)  if it is dangerous to health when used in the

12-20    dosage, or manner or with the frequency or duration prescribed,

12-21    recommended, or suggested in the labeling thereof;

12-22                (k)  if it is, or purports to be, or is represented as

12-23    a drug composed wholly or partly of insulin, unless:

12-24                      (1)  it is from a batch with respect to which a

12-25    certificate or release has been issued pursuant to Section 506 of

12-26    the federal Act; and

12-27                      (2)  such certificate or release is in effect

 13-1    with respect to such drug;

 13-2                (l)  if it is, or purports to be, or is represented as

 13-3    a drug (except a drug for use in animals other than man) composed

 13-4    wholly or partly of any kind of penicillin, streptomycin,

 13-5    chlortetracycline, chloramphenicol, bacitracin, or any other

 13-6    antibiotic drug, or any derivative thereof, unless:

 13-7                      (1)  it is from a batch with respect to which a

 13-8    certificate or release has been issued pursuant to Section 507 of

 13-9    the federal Act; and

13-10                      (2)  the certificate or release is in effect with

13-11    respect to the drug; provided, that this subdivision shall not

13-12    apply to any drug or class of drugs exempted by regulations

13-13    promulgated under Section 507(c) or (d) of the federal Act;

13-14                (m)  if it is a color additive, the intended use of

13-15    which is for the purpose of coloring only, unless its packaging and

13-16    labeling are in conformity with such packaging and labeling

13-17    requirements applicable to such color additive, as may be contained

13-18    in rules issued under Section 431.161(b);

13-19                (n)  in the case of any prescription drug distributed

13-20    or offered for sale in this state, unless the manufacturer, packer,

13-21    or distributor thereof includes in all advertisements and other

13-22    descriptive printed matter issued or caused to be issued by the

13-23    manufacturer, packer, or distributor with respect to that drug a

13-24    true statement of:

13-25                      (1)  the established name as defined in

13-26    Subsection (e), printed prominently and in type at least half as

13-27    large as that used for any trade or brand name;

 14-1                      (2)  the formula showing quantitatively each

 14-2    ingredient of the drug to the extent required for labels under

 14-3    Subsection (e); and

 14-4                      (3)  other information in brief summary relating

 14-5    to side effects, contraindications, and effectiveness as required

 14-6    in regulations issued under Section 701(e) of the federal Act;

 14-7                (o)  if it was manufactured, prepared, propagated,

 14-8    compounded, or processed in an establishment in this state not

 14-9    registered under Section 510 of the federal Act, if it was not

14-10    included in a list required by Section 510(j) of the federal Act,

14-11    if a notice or other information respecting it was not provided as

14-12    required by that section or Section 510(k) of the federal Act, or

14-13    if it does not bear symbols from the uniform system for

14-14    identification of devices prescribed under Section 510(e) of the

14-15    federal Act as required by regulation;

14-16                (p)  if it is a drug and its packaging or labeling is

14-17    in violation of an applicable regulation issued under Section 3 or

14-18    4 of the Federal Poison Prevention Packaging Act of 1970 (21 U.S.C.

14-19    1472 or 1473);

14-20                (q)  if a trademark, trade name, or other identifying

14-21    mark, imprint or device of another, or any likeness of the

14-22    foregoing has been placed thereon or on its container with intent

14-23    to defraud;

14-24                (r)  in the case of any restricted device distributed

14-25    or offered for sale in this state, if:

14-26                      (1)  its advertising is false or misleading in

14-27    any particular; or

 15-1                      (2)  it is sold, distributed, or used in

 15-2    violation of regulations prescribed under Section 520(e) of the

 15-3    federal Act [Subsection (e)];

 15-4                (s)  in the case of any restricted device distributed

 15-5    or offered for sale in this state, unless the manufacturer, packer,

 15-6    or distributor thereof includes in all advertisements and other

 15-7    descriptive printed matter issued by the manufacturer, packer, or

 15-8    distributor with respect to that device:

 15-9                      (1)  a true statement of the device's established

15-10    name as defined in Section 502(e) of the federal Act, printed

15-11    prominently and in type at least half as large as that used for any

15-12    trade or brand name thereof; and

15-13                      (2)  a brief statement of the intended uses of

15-14    the device and relevant warnings, precautions, side effects, and

15-15    contraindications and in the case of specific devices made subject

15-16    to regulations issued under the federal Act, a full description of

15-17    the components of such device or the formula showing quantitatively

15-18    each ingredient of such device to the extent required in

15-19    regulations under the federal Act;

15-20                (t)  if it is a device subject to a performance

15-21    standard established under Section 514 of the federal Act, unless

15-22    it bears such labeling as may be prescribed in such performance

15-23    standard; or

15-24                (u)  if it is a device and there was a failure or

15-25    refusal:

15-26                      (1)  to comply with any requirement prescribed

15-27    under Section 518 of the federal Act respecting the device; or

 16-1                      (2)  to furnish material required by or under

 16-2    Section 519 of the federal Act respecting the device.

 16-3          SECTION 5.  The importance of this legislation and the

 16-4    crowded condition of the calendars in both houses create an

 16-5    emergency and an imperative public necessity that the

 16-6    constitutional rule requiring bills to be read on three several

 16-7    days in each house be suspended, and this rule is hereby suspended,

 16-8    and that this Act take effect and be in force from and after its

 16-9    passage, and it is so enacted.

         _______________________________     _______________________________

             President of the Senate              Speaker of the House

               I certify that H.B. No. 358 was passed by the House on April

         9, 1997, by a non-record vote; and that the House concurred in

         Senate amendments to H.B. No. 358 on May 12, 1997, by a non-record

         vote.

                                             _______________________________

                                                 Chief Clerk of the House

               I certify that H.B. No. 358 was passed by the Senate, with

         amendments, on May 7, 1997, by the following vote:  Yeas 31, Nays

         0.

                                             _______________________________

                                                 Secretary of the Senate

         APPROVED:  _____________________

                            Date

                    _____________________

                          Governor