By Gray, Homer, et al. H.B. No. 2729 A BILL TO BE ENTITLED 1-1 AN ACT 1-2 relating to allowing the donation of certain unused prescription 1-3 drugs to charitable medical clinics. 1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: 1-5 SECTION 1. Chapter 431, Health and Safety Code, is amended by 1-6 adding Subchapter M to read as follows: 1-7 SUBCHAPTER M. DRUG DONATION PROGRAM 1-8 Sec. 431.321. DEFINITION. In this subchapter, "charitable 1-9 medical clinic" means a clinic that provides medical care without 1-10 charge or for a substantially reduced charge. 1-11 Sec. 431.322. DONATION OF UNUSED DRUGS TO CHARITABLE MEDICAL 1-12 CLINIC. (a) A licensed convalescent or nursing home or related 1-13 institution, licensed hospice, hospital, physician, pharmacy, or 1-14 individual may donate certain unused prescription drugs to a 1-15 charitable medical clinic, and a charitable medical clinic may 1-16 accept and dispense or administer the donated drugs, in accordance 1-17 with this subchapter. 1-18 (b) The donor shall use appropriate safeguards established 1-19 by the board to ensure that the drugs are not compromised or 1-20 illegally diverted while being stored or transported to the 1-21 charitable medical clinic. 1-22 (c) The charitable medical clinic may not accept the donated 1-23 drugs unless: 1-24 (1) the donor certifies that the drugs have been 2-1 properly stored while in the possession of the donor or of the 2-2 person for whom the drugs were originally dispensed; 2-3 (2) the donor provides the clinic with a verifiable 2-4 address and telephone number; and 2-5 (3) the person transferring possession of the drugs 2-6 presents the clinic with photographic identification. 2-7 Sec. 431.323. CIRCUMSTANCES UNDER WHICH DONATED DRUGS MAY BE 2-8 ACCEPTED AND DISPENSED. (a) A charitable medical clinic may accept 2-9 and dispense or administer donated drugs only in accordance with 2-10 this section. 2-11 (b) The donated drugs must be drugs that require a 2-12 prescription. A donated drug may not be a controlled substance 2-13 under Chapter 481. 2-14 (c) The donated drugs must: 2-15 (1) be sealed in the manufacturer's unopened original 2-16 tamper-evident packaging and either: 2-17 (A) individually packaged; or 2-18 (B) packaged in unit-dose packaging; 2-19 (2) be oral or parenteral medication in sealed 2-20 single-dose containers approved by the federal Food and Drug 2-21 Administration; 2-22 (3) be topical or inhalant drugs in sealed 2-23 units-of-use containers approved by the federal Food and Drug 2-24 Administration; or 2-25 (4) be parenteral medication in sealed multiple-dose 2-26 containers approved by the federal Food and Drug Administration 2-27 from which no doses have been withdrawn. 3-1 (d) The charitable medical clinic may dispense or administer 3-2 the donated drugs only: 3-3 (1) before the expiration date or within the 3-4 recommended shelf life of the donated drugs, as applicable; and 3-5 (2) after a licensed pharmacist has determined that 3-6 the drugs are of an acceptable integrity. 3-7 (e) The donated drugs may be accepted and dispensed or 3-8 administered by the charitable medical clinic only in accordance 3-9 with rules adopted by the department. 3-10 Sec. 431.324. RULES. The department shall adopt rules to 3-11 implement this subchapter that are designed to protect the public 3-12 health and safety. 3-13 Sec. 431.325. LIMITATION ON LIABILITY. A person may be held 3-14 civilly liable in connection with the donation of drugs under this 3-15 subchapter, and a charitable medical clinic and its physicians, 3-16 nurses, pharmacists, or other personnel may be held civilly liable 3-17 because of accepting and dispensing or administering drugs donated 3-18 under this subchapter, only for an act or omission that is wilfully 3-19 or wantonly negligent, done with conscious indifference or reckless 3-20 disregard for the safety of others, or done with the intent to harm 3-21 another. 3-22 SECTION 2. Section 431.021, Health and Safety Code, is 3-23 amended to read as follows: 3-24 Sec. 431.021. PROHIBITED ACTS. The following acts and the 3-25 causing of the following acts within this state are unlawful and 3-26 prohibited: 3-27 (a) the introduction or delivery for introduction into 4-1 commerce of any food, drug, device, or cosmetic that is adulterated 4-2 or misbranded; 4-3 (b) the adulteration or misbranding of any food, drug, 4-4 device, or cosmetic in commerce; 4-5 (c) the receipt in commerce of any food, drug, device, 4-6 or cosmetic that is adulterated or misbranded, and the delivery or 4-7 proffered delivery thereof for pay or otherwise; 4-8 (d) the distribution in commerce of a consumer 4-9 commodity, if such commodity is contained in a package, or if there 4-10 is affixed to that commodity a label that does not conform to the 4-11 provisions of this chapter and of rules adopted under the authority 4-12 of this chapter; provided, however, that this prohibition shall not 4-13 apply to persons engaged in business as wholesale or retail 4-14 distributors of consumer commodities except to the extent that such 4-15 persons: 4-16 (1) are engaged in the packaging or labeling of 4-17 such commodities; or 4-18 (2) prescribe or specify by any means the manner 4-19 in which such commodities are packaged or labeled; 4-20 (e) the introduction or delivery for introduction into 4-21 commerce of any article in violation of Section 431.084, 431.114, 4-22 or 431.115; 4-23 (f) the dissemination of any false advertisement; 4-24 (g) the refusal to permit entry or inspection, or to 4-25 permit the taking of a sample or to permit access to or copying of 4-26 any record as authorized by Sections 431.042-431.044; or the 4-27 failure to establish or maintain any record or make any report 5-1 required under Section 512(j), (l), or (m) of the federal Act, or 5-2 the refusal to permit access to or verification or copying of any 5-3 such required record; 5-4 (h) the manufacture within this state of any food, 5-5 drug, device, or cosmetic that is adulterated or misbranded; 5-6 (i) the giving of a guaranty or undertaking referred 5-7 to in Section 431.059, which guaranty or undertaking is false, 5-8 except by a person who relied on a guaranty or undertaking to the 5-9 same effect signed by, and containing the name and address of the 5-10 person residing in this state from whom the person received in good 5-11 faith the food, drug, device, or cosmetic; or the giving of a 5-12 guaranty or undertaking referred to in Section 431.059, which 5-13 guaranty or undertaking is false; 5-14 (j) the use, removal, or disposal of a detained or 5-15 embargoed article in violation of Section 431.048; 5-16 (k) the alteration, mutilation, destruction, 5-17 obliteration, or removal of the whole or any part of the labeling 5-18 of, or the doing of any other act with respect to a food, drug, 5-19 device, or cosmetic, if such act is done while such article is held 5-20 for sale after shipment in commerce and results in such article 5-21 being adulterated or misbranded; 5-22 (l)(1) forging, counterfeiting, simulating, or falsely 5-23 representing, or without proper authority using any mark, stamp, 5-24 tag, label, or other identification device authorized or required 5-25 by rules adopted under this chapter or the regulations promulgated 5-26 under the provisions of the federal Act; 5-27 (2) making, selling, disposing of, or keeping in 6-1 possession, control, or custody, or concealing any punch, die, 6-2 plate, stone, or other thing designed to print, imprint, or 6-3 reproduce the trademark, trade name, or other identifying mark, 6-4 imprint, or device of another or any likeness of any of the 6-5 foregoing on any drug or container or labeling thereof so as to 6-6 render such drug a counterfeit drug; 6-7 (3) the doing of any act that causes a drug to 6-8 be a counterfeit drug, or the sale or dispensing, or the holding 6-9 for sale or dispensing, of a counterfeit drug; 6-10 (m) the using by any person to the person's own 6-11 advantage, or revealing, other than to the commissioner, an 6-12 authorized agent, a health authority or to the courts when relevant 6-13 in any judicial proceeding under this chapter, of any information 6-14 acquired under the authority of this chapter concerning any method 6-15 or process that as a trade secret is entitled to protection; 6-16 (n) the using, on the labeling of any drug or device 6-17 or in any advertising relating to such drug or device, of any 6-18 representation or suggestion that approval of an application with 6-19 respect to such drug or device is in effect under Section 431.114 6-20 or Section 505, 515, or 520(g) of the federal Act, as the case may 6-21 be, or that such drug or device complies with the provisions of 6-22 such sections; 6-23 (o) the using, in labeling, advertising or other sales 6-24 promotion of any reference to any report or analysis furnished in 6-25 compliance with Sections 431.042-431.044 or Section 704 of the 6-26 federal Act; 6-27 (p) in the case of a prescription drug distributed or 7-1 offered for sale in this state, the failure of the manufacturer, 7-2 packer, or distributor of the drug to maintain for transmittal, or 7-3 to transmit, to any practitioner licensed by applicable law to 7-4 administer such drug who makes written request for information as 7-5 to such drug, true and correct copies of all printed matter that is 7-6 required to be included in any package in which that drug is 7-7 distributed or sold, or such other printed matter as is approved 7-8 under the federal Act. Nothing in this subsection shall be 7-9 construed to exempt any person from any labeling requirement 7-10 imposed by or under other provisions of this chapter; 7-11 (q)(1) placing or causing to be placed on any drug or 7-12 device or container of any drug or device, with intent to defraud, 7-13 the trade name or other identifying mark, or imprint of another or 7-14 any likeness of any of the foregoing; 7-15 (2) selling, dispensing, disposing of or causing 7-16 to be sold, dispensed, or disposed of, or concealing or keeping in 7-17 possession, control, or custody, with intent to sell, dispense, or 7-18 dispose of, any drug, device, or any container of any drug or 7-19 device, with knowledge that the trade name or other identifying 7-20 mark or imprint of another or any likeness of any of the foregoing 7-21 has been placed thereon in a manner prohibited by Subdivision (1) 7-22 of this subsection; or 7-23 (3) making, selling, disposing of, causing to be 7-24 made, sold, or disposed of, keeping in possession, control, or 7-25 custody, or concealing with intent to defraud any punch, die, 7-26 plate, stone, or other thing designed to print, imprint, or 7-27 reproduce the trademark, trade name, or other identifying mark, 8-1 imprint, or device of another or any likeness of any of the 8-2 foregoing on any drug or container or labeling of any drug or 8-3 container so as to render such drug a counterfeit drug; 8-4 (r) dispensing or causing to be dispensed a different 8-5 drug in place of the drug ordered or prescribed without the express 8-6 permission in each case of the person ordering or prescribing; 8-7 (s) the failure to register in accordance with Section 8-8 510 of the federal Act, the failure to provide any information 8-9 required by Section 510(j) or (k) of the federal Act, or the 8-10 failure to provide a notice required by Section 510(j)(2) of the 8-11 federal Act; 8-12 (t)(1) the failure or refusal to: 8-13 (A) comply with any requirement prescribed 8-14 under Section 518 or 520(g) of the federal Act; or 8-15 (B) furnish any notification or other 8-16 material or information required by or under Section 519 or 520(g) 8-17 of the federal Act; 8-18 (2) with respect to any device, the submission 8-19 of any report that is required by or under this chapter that is 8-20 false or misleading in any material respect; 8-21 (u) the movement of a device in violation of an order 8-22 under Section 304(g) of the federal Act or the removal or 8-23 alteration of any mark or label required by the order to identify 8-24 the device as detained; 8-25 (v) the failure to provide the notice required by 8-26 Section 412(b) or 412(c), the failure to make the reports required 8-27 by Section 412(d)(1)(B), or the failure to meet the requirements 9-1 prescribed under Section 412(d)(2) of the federal Act; 9-2 (w) except as provided under Subchapter M, the 9-3 acceptance by a person of an unused prescription or drug, in whole 9-4 or in part, for the purpose of resale, after the prescription or 9-5 drug has been originally dispensed, or sold; 9-6 (x) engaging in the wholesale distribution of drugs or 9-7 operating as a distributor or manufacturer of devices in this state 9-8 without filing a licensing statement with the commissioner as 9-9 required by Section 431.202 or having a license as required by 9-10 Section 431.272, as applicable; 9-11 (y) engaging in the manufacture of food in this state 9-12 without first registering with the department as required by 9-13 Section 431.222; or 9-14 (z) unless approved by the United States Food and Drug 9-15 Administration pursuant to the federal Act, the sale, delivery, 9-16 holding, or offering for sale of a self-testing kit designed to 9-17 indicate whether a person has a human immunodeficiency virus 9-18 infection, acquired immune deficiency syndrome, or a related 9-19 disorder or condition. 9-20 SECTION 3. Subchapter M, Chapter 431, Health and Safety Code, 9-21 as added by this Act, and the change in law made by this Act to 9-22 Section 431.021, Health and Safety Code, take effect January 1, 9-23 2002. This Act takes effect September 1, 2001, for the limited 9-24 purpose of allowing the Texas Department of Health to adopt the 9-25 rules required under Section 431.324, Health and Safety Code, as 9-26 added by this Act, in time for the rules to take effect on January 9-27 1, 2002.