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 1-6 by adding Subchapter M to read as follows: 1-7 SUBCHAPTER M. DRUG DONATION PROGRAM 1-8 Sec. 431.321. DEFINITIONS. (a) "Charitable medical clinic" 1-9 means a clinic that provides medical care without charge or for a 1-10 substantially reduced charge, complies with the insurance 1-11 requirements of Chapter 84, Civil Practice and Remedies Code, and 1-12 is exempt from federal income tax under Section 501(a) of the 1-13 Internal Revenue Code of 1986 by being listed as an exempt 1-14 organization in Section 501(c)(3) or 501(c)(4) of the code and is 1-15 operated exclusively for the promotion of social welfare by being 1-16 primarily engaged in promoting the common good and general welfare 1-17 of the people in a community. 1-18 (b) "Seller" means a person, other than a charitable drug 1-19 donor, as defined in Chapter 82, Civil Practice and Remedies Code. 1-20 (c) "Manufacturer" means a person, other than a charitable 1-21 drug donor, as defined in Chapter 82, Civil Practice and Remedies 1-22 Code. 1-23 (d) "Charitable drug donor" means a licensed convalescent or 1-24 nursing home or related institution, licensed hospice, hospital, 2-1 physician, pharmacy, or a pharmaceutical seller or manufacturer 2-2 that donates drugs pursuant to a qualified patient assistance 2-3 program, that donates drugs to a charitable medical clinic. 2-4 (e) In this subchapter, "patient assistance program" means a 2-5 qualified program offered by a pharmaceutical manufacturer under 2-6 which the manufacturer provides drugs to financially disadvantaged 2-7 persons at no charge or at a substantially reduced cost. The term 2-8 does not include the provision of a drug as part of a clinical 2-9 trial. 2-10 Sec. 431.322. DONATION OF UNUSED DRUGS TO CHARITABLE MEDICAL 2-11 CLINIC. (a) A charitable drug donor may donate certain unused 2-12 prescription drugs to a charitable medical clinic, and a charitable 2-13 clinic may accept, dispense, or administer the donated drugs in 2-14 accordance with this subchapter. 2-15 (b) A seller or manufacturer of a drug may not donate drugs 2-16 to a charitable medical clinic except pursuant to a qualified 2-17 patient assistance program. A seller or manufacturer of a drug 2-18 that donates drugs through a qualified patient assistance program 2-19 shall be considered a charitable drug donor. 2-20 (c) The charitable drug donor shall use appropriate 2-21 safeguards established by the board to ensure that the drugs are 2-22 not compromised or illegally diverted while being stored or 2-23 transported to the charitable medical clinic. 2-24 (d) The charitable medical clinic may not accept the donated 2-25 drugs unless: 2-26 (1) the charitable drug donor certifies that the drugs 2-27 have been properly stored while in the possession of the donor or 3-1 of the person for whom the drugs were originally dispensed; 3-2 (2) the charitable drug donor provides the clinic with 3-3 a verifiable address and telephone number; and 3-4 (3) the person transferring possession of the drugs 3-5 presents the charitable medical clinic with photographic 3-6 identification. 3-7 Sec. 431.323. CIRCUMSTANCES UNDER WHICH DONATED DRUGS MAY BE 3-8 ACCEPTED AND DISPENSED. (a) A charitable medical clinic may 3-9 accept and dispense or administer donated drugs only in accordance 3-10 with this subchapter. 3-11 (b) The donated drugs must be drugs that require a 3-12 prescription. A donated drug may not be a controlled substance 3-13 under Chapter 481. 3-14 (c) The donated drugs must be approved by the federal Food 3-15 and Drug Administration and: 3-16 (1) be sealed in the manufacturer's unopened original 3-17 tamper-evident packaging and either: 3-18 (A) individually packaged; or 3-19 (B) packaged in unit-dose packaging; 3-20 (2) be oral or parenteral medication in sealed 3-21 single-dose containers approved by the federal Food and Drug 3-22 Administration; 3-23 (3) be topical or inhalant drugs in sealed 3-24 units-of-use containers approved by the federal Food and Drug 3-25 Administration; or 3-26 (4) be parenteral medication in sealed multiple-dose 3-27 containers approved by the federal Food and Drug Administration 4-1 from which no doses have been withdrawn; and 4-2 (5) must not be the subject of a mandatory recall by a 4-3 state or federal agency or a voluntary recall by a drug seller or 4-4 manufacturer. 4-5 (d) The charitable medical clinic may dispense or administer 4-6 the donated drugs only: 4-7 (1) before the expiration date or within the 4-8 recommended shelf life of the donated drugs, as applicable; and 4-9 (2) after a licensed pharmacist has determined that 4-10 the drugs are of an acceptable integrity. 4-11 (e) The donated drugs may be accepted and dispensed or 4-12 administered by the charitable medical clinic only in accordance 4-13 with rules adopted by the department. 4-14 Sec. 431.324. RULES. The department shall adopt rules to 4-15 implement this subchapter that are designed to protect the public 4-16 health and safety. 4-17 Sec. 431.325. LIMITATION ON LIABILITY. (a) Charitable drug 4-18 donors, charitable medical clinics, and their employees are not 4-19 liable for harm caused by the accepting, dispensing, or 4-20 administering of drugs donated in strict compliance with this 4-21 subchapter unless the harm is caused by: 4-22 (i) willful or wanton acts of negligence; 4-23 (ii) conscious indifference or reckless disregard for 4-24 the safety of others; or 4-25 (iii) intentional conduct. 4-26 (b) This section does not limit, or in any way affect or 4-27 diminish, the liability of a drug seller or manufacturer pursuant 5-1 to Chapter 82, Civil Practice and Remedies Code. 5-2 (c) This section shall not apply where harm results from the 5-3 failure to fully and completely comply with the requirements of 5-4 this subchapter. 5-5 (d) This section shall not apply to a charitable medical 5-6 clinic that fails to comply with the insurance provisions of 5-7 Chapter 84, Civil Practice and Remedies Code. 5-8 SECTION 2. Section 431.021, Health and Safety Code, is 5-9 amended to read as follows: 5-10 Sec. 431.021. PROHIBITED ACTS. The following acts and the 5-11 causing of the following acts within this state are unlawful and 5-12 prohibited: 5-13 (a) the introduction or delivery for introduction into 5-14 commerce of any food, drug, device, or cosmetic that is adulterated 5-15 or misbranded; 5-16 (b) the adulteration or misbranding of any food, drug, 5-17 device, or cosmetic in commerce; 5-18 (c) the receipt in commerce of any food, drug, device, or 5-19 cosmetic that is adulterated or misbranded, and the delivery or 5-20 proffered delivery thereof for pay or otherwise; 5-21 (d) the distribution in commerce of a consumer commodity, if 5-22 such commodity is contained in a package, or if there is affixed to 5-23 that commodity a label that does not conform to the provisions of 5-24 this chapter and of rules adopted under the authority of this 5-25 chapter; provided, however, that this prohibition shall not apply 5-26 to persons engaged in business as wholesale or retail distributors 5-27 of consumer commodities except to the extent that such persons: 6-1 (1) are engaged in the packaging or labeling of such 6-2 commodities; or 6-3 (2) prescribe or specify by any means the manner in 6-4 which such commodities are packaged or labeled; 6-5 (e) the introduction or delivery for introduction into 6-6 commerce of any article in violation of Section 431.084, 431.114, 6-7 or 431.115; 6-8 (f) the dissemination of any false advertisement; 6-9 (g) the refusal to permit entry or inspection, or to permit 6-10 the taking of a sample or to permit access to or copying of any 6-11 record as authorized by Sections 431.042-431.044; or the failure to 6-12 establish or maintain any record or make any report required under 6-13 Section 512(j), (l), or (m) of the federal Act, or the refusal to 6-14 permit access to or verification or copying of any such required 6-15 record; 6-16 (h) the manufacture within this state of any food, drug, 6-17 device, or cosmetic that is adulterated or misbranded; 6-18 (i) the giving of a guaranty or undertaking referred to in 6-19 Section 431.059, which guaranty or undertaking is false, except by 6-20 a person who relied on a guaranty or undertaking to the same effect 6-21 signed by, and containing the name and address of the person 6-22 residing in this state from whom the person received in good faith 6-23 the food, drug, device, or cosmetic; or the giving of a guaranty or 6-24 undertaking referred to in Section 431.059, which guaranty or 6-25 undertaking is false; 6-26 (j) the use, removal, or disposal of a detained or embargoed 6-27 article in violation of Section 431.048; 7-1 (k) the alteration, mutilation, destruction, obliteration, 7-2 or removal of the whole or any part of the labeling of, or the 7-3 doing of any other act with respect to a food, drug, device, or 7-4 cosmetic, if such act is done while such article is held for sale 7-5 after shipment in commerce and results in such article being 7-6 adulterated or misbranded; 7-7 (l)(1) forging, counterfeiting, simulating, or falsely 7-8 representing, or without proper authority using any mark, stamp, 7-9 tag, label, or other identification device authorized or required 7-10 by rules adopted under this chapter or the regulations promulgated 7-11 under the provisions of the federal Act; 7-12 (2) making, selling, disposing of, or keeping in 7-13 possession, control, or custody, or concealing any punch, die, 7-14 plate, stone, or other thing designed to print, imprint, or 7-15 reproduce the trademark, trade name, or other identifying mark, 7-16 imprint, or device of another or any likeness of any of the 7-17 foregoing on any drug or container or labeling thereof so as to 7-18 render such drug a counterfeit drug; 7-19 (3) the doing of any act that causes a drug to be a 7-20 counterfeit drug, or the sale or dispensing, or the holding for 7-21 sale or dispensing, of a counterfeit drug; 7-22 (m) the using by any person to the person's own advantage, 7-23 or revealing, other than to the commissioner, an authorized agent, 7-24 a health authority or to the courts when relevant in any judicial 7-25 proceeding under this chapter, of any information acquired under 7-26 the authority of this chapter concerning any method or process that 7-27 as a trade secret is entitled to protection; 8-1 (n) the using, on the labeling of any drug or device or in 8-2 any advertising relating to such drug or device, of any 8-3 representation or suggestion that approval of an application with 8-4 respect to such drug or device is in effect under Section 431.114 8-5 or Section 505, 515, or 520(g) of the federal Act, as the case may 8-6 be, or that such drug or device complies with the provisions of 8-7 such sections; 8-8 (o) the using, in labeling, advertising or other sales 8-9 promotion of any reference to any report or analysis furnished in 8-10 compliance with Sections 431.042-431.044 or Section 704 of the 8-11 federal Act; 8-12 (p) in the case of a prescription drug distributed or 8-13 offered for sale in this state, the failure of the manufacturer, 8-14 packer, or distributor of the drug to maintain for transmittal, or 8-15 to transmit, to any practitioner licensed by applicable law to 8-16 administer such drug who makes written request for information as 8-17 to such drug, true and correct copies of all printed matter that is 8-18 required to be included in any package in which that drug is 8-19 distributed or sold, or such other printed matter as is approved 8-20 under the federal Act. Nothing in this subsection shall be 8-21 construed to exempt any person from any labeling requirement 8-22 imposed by or under other provisions of this chapter; 8-23 (q)(1) placing or causing to be placed on any drug or device 8-24 or container of any drug or device, with intent to defraud, the 8-25 trade name or other identifying mark, or imprint of another or any 8-26 likeness of any of the foregoing; 8-27 (2) selling, dispensing, disposing of or causing to be 9-1 sold, dispensed, or disposed of, or concealing or keeping in 9-2 possession, control, or custody, with intent to sell, dispense, or 9-3 dispose of, any drug, device, or any container of any drug or 9-4 device, with knowledge that the trade name or other identifying 9-5 mark or imprint of another or any likeness of any of the foregoing 9-6 has been placed thereon in a manner prohibited by Subdivision (1) 9-7 of this subsection; or 9-8 (3) making, selling, disposing of, causing to be made, 9-9 sold, or disposed of, keeping in possession, control, or custody, 9-10 or concealing with intent to defraud any punch, die, plate, stone, 9-11 or other thing designed to print, imprint, or reproduce the 9-12 trademark, trade name, or other identifying mark, imprint, or 9-13 device of another or any likeness of any of the foregoing on any 9-14 drug or container or labeling of any drug or container so as to 9-15 render such drug a counterfeit drug; 9-16 (r) dispensing or causing to be dispensed a different drug 9-17 in place of the drug ordered or prescribed without the express 9-18 permission in each case of the person ordering or prescribing; 9-19 (s) the failure to register in accordance with Section 510 9-20 of the federal Act, the failure to provide any information required 9-21 by Section 510(j) or (k) of the federal Act, or the failure to 9-22 provide a notice required by Section 510(j)(2) of the federal Act; 9-23 (t)(1) the failure or refusal to: 9-24 (A) comply with any requirement prescribed under 9-25 Section 518 or 520(g) of the federal Act; or 9-26 (B) furnish any notification or other material 9-27 or information required by or under Section 519 or 520(g) of the 10-1 federal Act; 10-2 (2) with respect to any device, the submission of any 10-3 report that is required by or under this chapter that is false or 10-4 misleading in any material respect; 10-5 (u) the movement of a device in violation of an order under 10-6 Section 304(g) of the federal Act or the removal or alteration of 10-7 any mark or label required by the order to identify the device as 10-8 detained; 10-9 (v) the failure to provide the notice required by Section 10-10 412(b) or 412(c), the failure to make the reports required by 10-11 Section 412(d)(1)(B), or the failure to meet the requirements 10-12 prescribed under Section 412(d)(2) of the federal Act; 10-13 (w) except as provided under Subchapter M, the acceptance by 10-14 a person of an unused prescription or drug, in whole or in part, 10-15 for the purpose of resale, after the prescription or drug has been 10-16 originally dispensed, or sold; 10-17 (x) engaging in the wholesale distribution of drugs or 10-18 operating as a distributor or manufacturer of devices in this state 10-19 without filing a licensing statement with the commissioner as 10-20 required by Section 431.202 or having a license as required by 10-21 Section 431.272, as applicable; 10-22 (y) engaging in the manufacture of food in this state 10-23 without first registering with the department as required by 10-24 Section 431.222; or 10-25 (z) unless approved by the United States Food and Drug 10-26 Administration pursuant to the federal Act, the sale, delivery, 10-27 holding, or offering for sale of a self-testing kit designed to 11-1 indicate whether a person has a human immunodeficiency virus 11-2 infection, acquired immune deficiency syndrome, or a related 11-3 disorder or condition. 11-4 SECTION 3. Subchapter M, Chapter 431, Health and Safety 11-5 Code, as added by this Act, and the change in law made by this Act 11-6 to Section 431.021, Health and Safety Code, take effect January 1, 11-7 2002. This Act takes effect September 1, 2001, for the limited 11-8 purpose of allowing the Texas Department of Health to adopt the 11-9 rules required under Section 431.324, Health and Safety Code, as 11-10 added by this Act, in time for the rules to take effect on January 11-11 1, 2002. _______________________________ _______________________________ President of the Senate Speaker of the House I certify that H.B. No. 2729 was passed by the House on May 5, 2001, by a non-record vote; and that the House concurred in Senate amendments to H.B. No. 2729 on May 25, 2001, by a non-record vote. _______________________________ Chief Clerk of the House I certify that H.B. No. 2729 was passed by the Senate, with amendments, on May 22, 2001, by a viva-voce vote. _______________________________ Secretary of the Senate APPROVED: __________________________ Date __________________________ Governor