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.