1-1     By:  Maxey (Senate Sponsor - Zaffirini)                H.B. No. 358

 1-2           (In the Senate - Received from the House April 10, 1997;

 1-3     April 11, 1997, read first time and referred to Committee on Health

 1-4     and Human Services; May 5, 1997, reported adversely, with favorable

 1-5     Committee Substitute by the following vote:  Yeas 11, Nays 0;

 1-6     May 5, 1997, sent to printer.)

 1-7     COMMITTEE SUBSTITUTE FOR H.B. No. 358                 By:  Moncrief

 1-8                            A BILL TO BE ENTITLED

 1-9                                   AN ACT

1-10     relating to certain misbranded drugs and devices and the use of

1-11     certain detained or embargoed articles.

1-12           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

1-13           SECTION 1.  Section 431.021, Health and Safety Code, is

1-14     amended to read as follows:

1-15           Sec. 431.021.  PROHIBITED ACTS.  The following acts and the

1-16     causing of the following acts within this state are unlawful and

1-17     prohibited:

1-18                 (a)  the introduction or delivery for introduction into

1-19     commerce of any food, drug, device, or cosmetic that is adulterated

1-20     or misbranded;

1-21                 (b)  the adulteration or misbranding of any food, drug,

1-22     device, or cosmetic in commerce;

1-23                 (c)  the receipt in commerce of any food, drug, device,

1-24     or cosmetic that is adulterated or misbranded, and the delivery or

1-25     proffered delivery thereof for pay or otherwise;

1-26                 (d)  the distribution in commerce of a consumer

1-27     commodity, if such commodity is contained in a package, or if there

1-28     is affixed to that commodity a label that does not conform to the

1-29     provisions of this chapter and of rules adopted under the authority

1-30     of this chapter;  provided, however, that this prohibition shall

1-31     not apply to persons engaged in business as wholesale or retail

1-32     distributors of consumer commodities except to the extent that such

1-33     persons:

1-34                       (1)  are engaged in the packaging or labeling of

1-35     such commodities;  or

1-36                       (2)  prescribe or specify by any means the manner

1-37     in which such commodities are packaged or labeled;

1-38                 (e)  the introduction or delivery for introduction into

1-39     commerce of any article in violation of Section 431.084, 431.114,

1-40     or 431.115;

1-41                 (f)  the dissemination of any false advertisement;

1-42                 (g)  the refusal to permit entry or inspection, or to

1-43     permit the taking of a sample or to permit access to or copying of

1-44     any record as authorized by Sections 431.042-431.044;  or the

1-45     failure to establish or maintain any record or make any report

1-46     required under Section 512(j), (l), or (m) of the federal Act, or

1-47     the refusal to permit access to or verification or copying of any

1-48     such required record;

1-49                 (h)  the manufacture within this state of any food,

1-50     drug, device, or cosmetic that is adulterated or misbranded;

1-51                 (i)  the giving of a guaranty or undertaking referred

1-52     to in Section 431.059, which guaranty or undertaking is false,

1-53     except by a person who relied on a guaranty or undertaking to the

1-54     same effect signed by, and containing the name and address of the

1-55     person residing in this state from whom the person received in good

1-56     faith the food, drug, device, or cosmetic;  or the giving of a

1-57     guaranty or undertaking referred to in Section 431.059, which

1-58     guaranty or undertaking is false;

1-59                 (j)  the use, removal, or disposal of a detained or

1-60     embargoed article in violation of Section 431.048;

1-61                 (k)  the alteration, mutilation, destruction,

1-62     obliteration, or removal of the whole or any part of the labeling

1-63     of, or the doing of any other act with respect to a food, drug,

1-64     device, or cosmetic, if such act is done while such article is held

 2-1     for sale after shipment in commerce and results in such article

 2-2     being adulterated or misbranded;

 2-3                 (l)(1)  forging, counterfeiting, simulating, or falsely

 2-4     representing, or without proper authority using any mark, stamp,

 2-5     tag, label, or other identification device authorized or required

 2-6     by rules adopted under this chapter or the regulations promulgated

 2-7     under the provisions of the federal Act;

 2-8                       (2)  making, selling, disposing of, or keeping in

 2-9     possession, control, or custody, or concealing any punch, die,

2-10     plate, stone, or other thing designed to print, imprint, or

2-11     reproduce the trademark, trade name, or other identifying mark,

2-12     imprint, or device of another or any likeness of any of the

2-13     foregoing on any drug or container or labeling thereof so as to

2-14     render such drug a counterfeit drug;

2-15                       (3)  the doing of any act that causes a drug to

2-16     be a counterfeit drug, or the sale or dispensing, or the holding

2-17     for sale or dispensing, of a counterfeit drug;

2-18                 (m)  the using by any person to the person's own

2-19     advantage, or revealing, other than to the commissioner, an

2-20     authorized agent, a health authority or to the courts when relevant

2-21     in any judicial proceeding under this chapter, of any information

2-22     acquired under the authority of this chapter concerning any method

2-23     or process that as a trade secret is entitled to protection;

2-24                 (n)  the using, on the labeling of any drug or device

2-25     or in any advertising relating to such drug or device, of any

2-26     representation or suggestion that approval of an application with

2-27     respect to such drug or device is in effect under Section 431.114

2-28     or Section 505, 515, or 520(g) of the federal Act, as the case may

2-29     be, or that such drug or device complies with the provisions of

2-30     such sections;

2-31                 (o)  the using, in labeling, advertising or other sales

2-32     promotion of any reference to any report or analysis furnished in

2-33     compliance with Sections 431.042-431.044 or Section 704 of the

2-34     federal Act;

2-35                 (p)  in the case of a prescription drug distributed or

2-36     offered for sale in this state, the failure of the manufacturer,

2-37     packer, or distributor of the drug to maintain for transmittal, or

2-38     to transmit, to any practitioner licensed by applicable law to

2-39     administer such drug who makes written request for information as

2-40     to such drug, true and correct copies of all printed matter that is

2-41     required to be included in any package in which that drug is

2-42     distributed or sold, or such other printed matter as is approved

2-43     under the federal Act.  Nothing in this subsection shall be

2-44     construed to exempt any person from any labeling requirement

2-45     imposed by or under other provisions of this chapter;

2-46                 (q)(1)  placing or causing to be placed on any drug or

2-47     device or container of any drug or device, with intent to defraud,

2-48     the trade name or other identifying mark, or imprint of another or

2-49     any likeness of any of the foregoing;

2-50                       (2)  selling, dispensing, disposing of or causing

2-51     to be sold, dispensed, or disposed of, or concealing or keeping in

2-52     possession, control, or custody, with intent to sell, dispense, or

2-53     dispose of, any drug, device, or any container of any drug or

2-54     device, with knowledge that the trade name or other identifying

2-55     mark or imprint of another or any likeness of any of the foregoing

2-56     has been placed thereon in a manner prohibited by Subdivision (1)

2-57     of this subsection;  or

2-58                       (3)  making, selling, disposing of, causing to be

2-59     made, sold, or disposed of, keeping in possession, control, or

2-60     custody, or concealing with intent to defraud any punch, die,

2-61     plate, stone, or other thing designed to print, imprint, or

2-62     reproduce the trademark, trade name, or other identifying mark,

2-63     imprint, or device of another or any likeness of any of the

2-64     foregoing on any drug or container or labeling of any drug or

2-65     container so as to render such drug a counterfeit drug;

2-66                 (r)  dispensing or causing to be dispensed a different

2-67     drug in place of the drug ordered or prescribed without the express

2-68     permission in each case of the person ordering or prescribing;

2-69                 (s)  the failure to register in accordance with Section

 3-1     510 of the federal Act, the failure to provide any information

 3-2     required by Section 510(j) or (k) of the federal Act, or the

 3-3     failure to provide a notice required by Section 510(j)(2) of the

 3-4     federal Act;

 3-5                 (t)(1)  the failure or refusal to:

 3-6                             (A)  comply with any requirement prescribed

 3-7     under Section 518 or 520(g) of the federal Act;  or

 3-8                             (B)  furnish any notification or other

 3-9     material or information required by or under Section 519 or 520(g)

3-10     of the federal Act;

3-11                       (2)  with respect to any device, the submission

3-12     of any report that is required by or under this chapter that is

3-13     false or misleading in any material respect;

3-14                 (u)  the movement of a device in violation of an order

3-15     under Section 304(g) of the federal Act or the removal or

3-16     alteration of any mark or label required by the order to identify

3-17     the device as detained;

3-18                 (v)  the failure to provide the notice required by

3-19     Section 412(b) or 412(c), the failure to make the reports required

3-20     by Section 412(d)(1)(B), or the failure to meet the requirements

3-21     prescribed under Section 412(d)(2) of the federal Act;

3-22                 (w)  the acceptance by a person of an unused

3-23     prescription or drug, in whole or in part, for the purpose of

3-24     resale, after the prescription or drug has been originally

3-25     dispensed, or sold;

3-26                 (x)  engaging in the wholesale distribution of drugs or

3-27     operating as a distributor or manufacturer of devices in this state

3-28     without filing a licensing statement with the commissioner as

3-29     required by Section 431.202 or having a license as required by

3-30     Section 431.272, as applicable;

3-31                 (y)  engaging in the manufacture of food in this state

3-32     without first registering with the department as required by

3-33     Section 431.222;  or

3-34                 (z)  unless approved by the United States Food and Drug

3-35     Administration pursuant to the federal Act, the sale, delivery,

3-36     holding, or offering for sale of a self-testing kit designed to

3-37     indicate whether a person has a human immunodeficiency virus

3-38     infection, acquired immune deficiency syndrome, or a related

3-39     disorder or condition.

3-40           SECTION 2.  Sections 431.048(b) and (c), Health and Safety

3-41     Code, are amended to read as follows:

3-42           (b)  The tag or marking on a detained or embargoed article

3-43     must warn all persons not to use the article, remove the article

3-44     from the premises, or dispose of the article by sale or otherwise

3-45     until  permission for use, removal, or disposal is given by the

3-46     commissioner, the authorized agent, or a court.

3-47           (c)  A person may not use a detained or embargoed article,

3-48     remove a detained or embargoed article from the premises, or

3-49     dispose of a detained or embargoed article [it] by sale or

3-50     otherwise without permission of the commissioner, the authorized

3-51     agent, or a court.  The commissioner or the authorized agent may

3-52     permit perishable goods to be moved to a place suitable for proper

3-53     storage.

3-54           SECTION 3.  Section 431.049(a), Health and Safety Code, is

3-55     amended to read as follows:

3-56           (a)  If the claimant of the detained or embargoed articles or

3-57     the claimant's agent fails or refuses to transfer the articles to a

3-58     secure place after the tag or other appropriate marking has been

3-59     affixed as provided by Section 431.048, the commissioner or an

3-60     authorized agent may order the transfer of the articles to one or

3-61     more secure storage areas to prevent their unauthorized use,

3-62     removal, or disposal.

3-63           SECTION 4.  Section 431.112, Health and Safety Code, is

3-64     amended to read as follows:

3-65           Sec. 431.112.  Misbranded Drug or Device.  A drug or device

3-66     shall be deemed to be misbranded:

3-67                 (a)(1)  if its labeling is false or misleading in any

3-68     particular; or

3-69                       (2)  if its labeling or packaging fails to

 4-1     conform with the requirements of Section 431.181.

 4-2                 (b)  if in a package form unless it bears a label

 4-3     containing (1) the name and place of business of the manufacturer,

 4-4     packer, or distributor; and (2) an accurate statement of the

 4-5     quantity of the contents in terms of weight, measure, or numerical

 4-6     count; provided, that under Subdivision (2) reasonable variations

 4-7     shall be permitted, and exemptions as to small packages shall be

 4-8     allowed in accordance with regulations prescribed by the secretary

 4-9     under the federal Act;

4-10                 (c)  if any word, statement, or other information

4-11     required by or under authority of this chapter to appear on the

4-12     label or labeling is not prominently placed thereon with such

4-13     conspicuousness (as compared with other words, statements, designs,

4-14     or devices, in the labeling) and in such terms as to render it

4-15     likely to be read and understood by the ordinary individual under

4-16     customary conditions of purchase and use;

4-17                 (d)  if it is for use by man and contains any quantity

4-18     of the narcotic or hypnotic substance alpha-eucaine, barbituric

4-19     acid, betaeucaine, bromal, cannabis, carbromal, chloral, coca,

4-20     cocaine, codeine, heroin, marihuana, morphine, opium, paraldehyde,

4-21     peyote, or sulphonmethane, or any chemical derivative of such

4-22     substance, which derivative, after investigation, has been found to

4-23     be designated as habit forming, by regulations issued by the

4-24     secretary under Section 502(d) of the federal Act, unless its label

4-25     bears the name and quantity or proportion of such substance or

4-26     derivative and in juxtaposition therewith the statement,

4-27     "Warning:  May be habit forming";

4-28                 (e)(1)  if it is a drug, unless:

4-29                             (A)  its label bears, to the exclusion of

4-30     any other nonproprietary name (except the applicable systematic

4-31     chemical name or the chemical formula):

4-32                                            (i)  the established name

4-33     (as defined in Subdivision (3)) of the drug, if any; and

4-34                                            (ii)  in case it is

4-35     fabricated from two or more ingredients, the established name and

4-36     quantity of each active ingredient, including the quantity, kind,

4-37     and proportion of any alcohol, and also including, whether active

4-38     or not, the established name and quantity or proportion of any

4-39     bromides, ether, chloroform, acetanilid, acetphenetidin,

4-40     amidopyrine, antipyrine, atropine, hyoscine, hyoscyamine, arsenic,

4-41     digitalis, digitalis glucosides, mercury, ouabain, strophanthin,

4-42     strychnine, thyroid, or any derivative or preparation of any such

4-43     substances, contained therein; provided, that the requirement for

4-44     stating the quantity of the active ingredients, other than the

4-45     quantity of those specifically named in this subparagraph shall

4-46     apply only to prescription drugs; and

4-47                             (B)  for any prescription drug the

4-48     established name of the drug or ingredient, as the case may be, on

4-49     the label (and on any labeling on which a name for such drug or

4-50     ingredient is used) is printed prominently and in type at least

4-51     half as large as that used thereon for any proprietary name or

4-52     designation for such drug or ingredient; and provided, that to the

4-53     extent that compliance with the requirements of Paragraph (A)(ii)

4-54     or this paragraph is impracticable, exemptions shall be allowed

4-55     under regulations promulgated by the secretary under the federal

4-56     Act;

4-57                       (2)  if it is a device and it has an established

4-58     name, unless its label bears, to the exclusion of any other

4-59     nonproprietary name, its established name (as defined in

4-60     Subdivision (4)) prominently printed in type at least half as large

4-61     as that used thereon for any proprietary name or designation for

4-62     such device, except that to the extent compliance with this

4-63     subdivision is impracticable, exemptions shall be allowed under

4-64     regulations promulgated by the secretary under the federal Act;

4-65                       (3)  as used in Subdivision (1), the term

4-66     "established name," with respect to a drug or ingredient thereof,

4-67     means:

4-68                             (A)  the applicable official name

4-69     designated pursuant to Section 508 of the federal Act; or

 5-1                             (B)  if there is no such name and such

 5-2     drug, or such ingredient, is an article recognized in an official

 5-3     compendium, then the official title thereof in such compendium; or

 5-4                             (C)  if neither Paragraph (A) nor Paragraph

 5-5     (B) applies, then the common or usual name, if any, of such drug or

 5-6     of such ingredient; provided further, that where Paragraph (B)

 5-7     applies to an article recognized in the United States Pharmacopoeia

 5-8     National Formulary, the official title used in the United States

 5-9     Pharmacopoeia National Formulary shall apply;

5-10                       (4)  as used in Subdivision (2), the term

5-11     "established name" with respect to a device means:

5-12                             (A)  the applicable official name of the

5-13     device designated pursuant to Section 508 of the federal Act;

5-14                             (B)  if there is no such name and such

5-15     device is an article recognized in an official compendium, then the

5-16     official title thereof in such compendium; or

5-17                             (C)  if neither Paragraph (A) nor Paragraph

5-18     (B) applies, then any common or usual name of such device;

5-19                 (f)  unless its labeling bears:

5-20                       (1)  adequate directions for use; and

5-21                       (2)  such adequate warnings against use in those

5-22     pathological conditions or by children where its use may be

5-23     dangerous to health, or against unsafe dosage or methods or

5-24     durations of administration or application, in such manner and

5-25     form, as are necessary for the protection of users unless the drug

5-26     or device has been exempted from those requirements by the

5-27     regulations adopted by the secretary;

5-28                 (g)  if it purports to be a drug the name of which is

5-29     recognized in an official compendium, unless it is packaged and

5-30     labeled as prescribed therein unless the method of packing has been

5-31     modified with the consent of the secretary.  Whenever a drug is

5-32     recognized in the United States Pharmacopoeia National Formulary,

5-33     it shall be subject to the requirements of the United States

5-34     Pharmacopoeia National Formulary with respect to packaging and

5-35     labeling.  If there is an inconsistency between the requirements of

5-36     this subsection and those of Subsection (e) as to the name by which

5-37     the drug or its ingredients shall be designated, the requirements

5-38     of Subsection (e) prevail;

5-39                 (h)  if it has been found by the secretary to be a drug

5-40     liable to deterioration, unless it is packaged in such form and

5-41     manner, and its label bears a statement of such precautions, as the

5-42     secretary shall by regulations require as necessary for the

5-43     protection of public health;

5-44                 (i)  if:

5-45                       (1)  it is a drug and its container is so made,

5-46     formed, or filled as to be misleading; or

5-47                       (2)  it is an imitation of another drug; or

5-48                       (3)  it is offered for sale under the name of

5-49     another drug;

5-50                 (j)  if it is dangerous to health when used in the

5-51     dosage, or manner or with the frequency or duration prescribed,

5-52     recommended, or suggested in the labeling thereof;

5-53                 (k)  if it is, or purports to be, or is represented as

5-54     a drug composed wholly or partly of insulin, unless:

5-55                       (1)  it is from a batch with respect to which a

5-56     certificate or release has been issued pursuant to Section 506 of

5-57     the federal Act; and

5-58                       (2)  such certificate or release is in effect

5-59     with respect to such drug;

5-60                 (l)  if it is, or purports to be, or is represented as

5-61     a drug (except a drug for use in animals other than man) composed

5-62     wholly or partly of any kind of penicillin, streptomycin,

5-63     chlortetracycline, chloramphenicol, bacitracin, or any other

5-64     antibiotic drug, or any derivative thereof, unless:

5-65                       (1)  it is from a batch with respect to which a

5-66     certificate or release has been issued pursuant to Section 507 of

5-67     the federal Act; and

5-68                       (2)  the certificate or release is in effect with

5-69     respect to the drug; provided, that this subdivision shall not

 6-1     apply to any drug or class of drugs exempted by regulations

 6-2     promulgated under Section 507(c) or (d) of the federal Act;

 6-3                 (m)  if it is a color additive, the intended use of

 6-4     which is for the purpose of coloring only, unless its packaging and

 6-5     labeling are in conformity with such packaging and labeling

 6-6     requirements applicable to such color additive, as may be contained

 6-7     in rules issued under Section 431.161(b);

 6-8                 (n)  in the case of any prescription drug distributed

 6-9     or offered for sale in this state, unless the manufacturer, packer,

6-10     or distributor thereof includes in all advertisements and other

6-11     descriptive printed matter issued or caused to be issued by the

6-12     manufacturer, packer, or distributor with respect to that drug a

6-13     true statement of:

6-14                       (1)  the established name as defined in

6-15     Subsection (e), printed prominently and in type at least half as

6-16     large as that used for any trade or brand name;

6-17                       (2)  the formula showing quantitatively each

6-18     ingredient of the drug to the extent required for labels under

6-19     Subsection (e); and

6-20                       (3)  other information in brief summary relating

6-21     to side effects, contraindications, and effectiveness as required

6-22     in regulations issued under Section 701(e) of the federal Act;

6-23                 (o)  if it was manufactured, prepared, propagated,

6-24     compounded, or processed in an establishment in this state not

6-25     registered under Section 510 of the federal Act, if it was not

6-26     included in a list required by Section 510(j) of the federal Act,

6-27     if a notice or other information respecting it was not provided as

6-28     required by that section or Section 510(k) of the federal Act, or

6-29     if it does not bear symbols from the uniform system for

6-30     identification of devices prescribed under Section 510(e) of the

6-31     federal Act as required by regulation;

6-32                 (p)  if it is a drug and its packaging or labeling is

6-33     in violation of an applicable regulation issued under Section 3 or

6-34     4 of the Federal Poison Prevention Packaging Act of 1970 (21 U.S.C.

6-35     1472 or 1473);

6-36                 (q)  if a trademark, trade name, or other identifying

6-37     mark, imprint or device of another, or any likeness of the

6-38     foregoing has been placed thereon or on its container with intent

6-39     to defraud;

6-40                 (r)  in the case of any restricted device distributed

6-41     or offered for sale in this state, if:

6-42                       (1)  its advertising is false or misleading in

6-43     any particular; or

6-44                       (2)  it is sold, distributed, or used in

6-45     violation of regulations prescribed under Section 520(e) of the

6-46     federal Act [Subsection (e)];

6-47                 (s)  in the case of any restricted device distributed

6-48     or offered for sale in this state, unless the manufacturer, packer,

6-49     or distributor thereof includes in all advertisements and other

6-50     descriptive printed matter issued by the manufacturer, packer, or

6-51     distributor with respect to that device:

6-52                       (1)  a true statement of the device's established

6-53     name as defined in Section 502(e) of the federal Act, printed

6-54     prominently and in type at least half as large as that used for any

6-55     trade or brand name thereof; and

6-56                       (2)  a brief statement of the intended uses of

6-57     the device and relevant warnings, precautions, side effects, and

6-58     contraindications and in the case of specific devices made subject

6-59     to regulations issued under the federal Act, a full description of

6-60     the components of such device or the formula showing quantitatively

6-61     each ingredient of such device to the extent required in

6-62     regulations under the federal Act;

6-63                 (t)  if it is a device subject to a performance

6-64     standard established under Section 514 of the federal Act, unless

6-65     it bears such labeling as may be prescribed in such performance

6-66     standard; or

6-67                 (u)  if it is a device and there was a failure or

6-68     refusal:

6-69                       (1)  to comply with any requirement prescribed

 7-1     under Section 518 of the federal Act respecting the device; or

 7-2                       (2)  to furnish material required by or under

 7-3     Section 519 of the federal Act respecting the device.

 7-4           SECTION 5.  The importance of this legislation and the

 7-5     crowded condition of the calendars in both houses create an

 7-6     emergency and an imperative public necessity that the

 7-7     constitutional rule requiring bills to be read on three several

 7-8     days in each house be suspended, and this rule is hereby suspended,

 7-9     and that this Act take effect and be in force from and after its

7-10     passage, and it is so enacted.

7-11                                  * * * * *