1-1 By: Gray, Homer, et al. (Senate Sponsor-Moncrief) H.B. No. 2729 1-2 (In the Senate - Received from the House May 7, 2001; 1-3 May 7, 2001, read first time and referred to Committee on Health 1-4 and Human Services; May 11, 2001, reported adversely, with 1-5 favorable Committee Substitute by the following vote: Yeas 7, Nays 1-6 0; May 11, 2001, sent to printer.) 1-7 COMMITTEE SUBSTITUTE FOR H.B. No. 2729 By: Moncrief 1-8 A BILL TO BE ENTITLED 1-9 AN ACT 1-10 relating to allowing the donation of certain unused prescription 1-11 drugs to charitable medical clinics. 1-12 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: 1-13 SECTION 1. Chapter 431, Health and Safety Code, is amended 1-14 by adding Subchapter M to read as follows: 1-15 SUBCHAPTER M. DRUG DONATION PROGRAM 1-16 Sec. 431.321. DEFINITION. (a) "Charitable medical clinic" 1-17 means a clinic that provides medical care without charge or for a 1-18 substantially reduced charge, complies with the insurance 1-19 requirements of Chapter 84, Civil Practice and Remedies Code, and 1-20 is exempt from federal income tax under Section 501(a) of the 1-21 Internal Revenue Code of 1986 by being listed as an exempt 1-22 organization in Section 501(c)(3) or 501(c)(4) of the code and is 1-23 operated exclusively for the promotion of social welfare by being 1-24 primarily engaged in promoting the common good and general welfare 1-25 of the people in a community. 1-26 (b) "Seller" means a person, other than a charitable drug 1-27 donor, as defined in Chapter 82, Civil Practice and Remedies Code. 1-28 (c) "Manufacturer" means a person, other than a charitable 1-29 drug donor, as defined in Chapter 82, Civil Practice and Remedies 1-30 Code. 1-31 (d) "Charitable drug donor" means a licensed convalescent or 1-32 nursing home or related institution, licensed hospice, hospital, 1-33 physician, pharmacy, or a pharmaceutical seller or manufacturer 1-34 that donates drugs pursuant to a qualified patient assistance 1-35 program, that donates drugs to a charitable medical clinic. 1-36 (e) In this subchapter, "patient assistance program" means a 1-37 qualified program offered by a pharmaceutical manufacturer under 1-38 which the manufacturer provides drugs to financially disadvantaged 1-39 persons at no charge or at a substantially reduced cost. The term 1-40 does not include the provision of a drug as part of a clinical 1-41 trial. 1-42 Sec. 431.322. DONATION OF UNUSED DRUGS TO CHARITABLE MEDICAL 1-43 CLINIC. (a) A charitable drug donor may donate certain unused 1-44 prescription drugs to a charitable medical clinic, and a charitable 1-45 clinic may accept, dispense, or administer the donated drugs in 1-46 accordance with this subchapter. 1-47 (b) A seller or manufacturer of a drug may not donate drugs 1-48 to a charitable medical clinic except pursuant to a qualified 1-49 patient assistance program. A seller or manufacturer of a drug 1-50 that donates drugs through a qualified patient assistance program 1-51 shall be considered a charitable drug donor. 1-52 (c) The charitable drug donor shall use appropriate 1-53 safeguards established by the board to ensure that the drugs are 1-54 not compromised or illegally diverted while being stored or 1-55 transported to the charitable medical clinic. 1-56 (d) The charitable medical clinic may not accept the donated 1-57 drugs unless: 1-58 (1) the charitable drug donor certifies that the drugs 1-59 have been properly stored while in the possession of the donor or 1-60 of the person for whom the drugs were originally dispensed; 1-61 (2) the charitable drug donor provides the clinic with 1-62 a verifiable address and telephone number; and 1-63 (3) the person transferring possession of the drugs 1-64 presents the charitable medical clinic with photographic 2-1 identification. 2-2 Sec. 431.323. CIRCUMSTANCES UNDER WHICH DONATED DRUGS MAY BE 2-3 ACCEPTED AND DISPENSED. (a) A charitable medical clinic may 2-4 accept and dispense or administer donated drugs only in accordance 2-5 with this subchapter. 2-6 (b) The donated drugs must be drugs that require a 2-7 prescription. A donated drug may not be a controlled substance 2-8 under Chapter 481. 2-9 (c) The donated drugs must be approved by the federal Food 2-10 and Drug Administration and: 2-11 (1) be sealed in the manufacturer's unopened original 2-12 tamper-evident packaging and either: 2-13 (A) individually packaged; or 2-14 (B) packaged in unit-dose packaging; 2-15 (2) be oral or parenteral medication in sealed 2-16 single-dose containers approved by the federal Food and Drug 2-17 Administration; 2-18 (3) be topical or inhalant drugs in sealed 2-19 units-of-use containers approved by the federal Food and Drug 2-20 Administration; or 2-21 (4) be parenteral medication in sealed multiple-dose 2-22 containers approved by the federal Food and Drug Administration 2-23 from which no doses have been withdrawn, and 2-24 (5) must not be the subject of a mandatory recall by a 2-25 state or federal agency or a voluntary recall by a drug seller or 2-26 manufacturer. 2-27 (d) The charitable medical clinic may dispense or administer 2-28 the donated drugs only: 2-29 (1) before the expiration date or within the 2-30 recommended shelf life of the donated drugs, as applicable; and 2-31 (2) after a licensed pharmacist has determined that 2-32 the drugs are of an acceptable integrity. 2-33 (e) The donated drugs may be accepted and dispensed or 2-34 administered by the charitable medical clinic only in accordance 2-35 with rules adopted by the department. 2-36 Sec. 431.324. RULES. The department shall adopt rules to 2-37 implement this subchapter that are designed to protect the public 2-38 health and safety. 2-39 Sec. 431.325. LIMITATION ON LIABILITY. (a) Charitable drug 2-40 donors, charitable medical clinics, and their employees are not 2-41 liable for harm caused by the accepting, dispensing, or 2-42 administering of drugs donated in strict compliance with this 2-43 subchapter unless the harm is caused by: 2-44 (i) willful or wanton acts of negligence; 2-45 (ii) conscious indifference or reckless disregard for 2-46 the safety of others; or 2-47 (iii) intentional conduct. 2-48 (b) This section does not limit, or in any way affect or 2-49 diminish, the liability of a drug seller or manufacturer pursuant 2-50 to Chapter 82, Civil Practices and Remedies Code. 2-51 (c) This section shall not apply where harm results from the 2-52 failure to fully and completely comply with the requirements of 2-53 this subchapter. 2-54 (d) This section shall not apply to a charitable medical 2-55 clinic that fails to comply with the insurance provisions of 2-56 Chapter 84, Civil Practice and Remedies Code. 2-57 SECTION 2. Section 431.021, Health and Safety Code, is 2-58 amended to read as follows: 2-59 Sec. 431.021. PROHIBITED ACTS. The following acts and the 2-60 causing of the following acts within this state are unlawful and 2-61 prohibited: 2-62 (a) the introduction or delivery for introduction into 2-63 commerce of any food, drug, device, or cosmetic that is adulterated 2-64 or misbranded; 2-65 (b) the adulteration or misbranding of any food, drug, 2-66 device, or cosmetic in commerce; 2-67 (c) the receipt in commerce of any food, drug, device, or 2-68 cosmetic that is adulterated or misbranded, and the delivery or 2-69 proffered delivery thereof for pay or otherwise; 3-1 (d) the distribution in commerce of a consumer commodity, if 3-2 such commodity is contained in a package, or if there is affixed to 3-3 that commodity a label that does not conform to the provisions of 3-4 this chapter and of rules adopted under the authority of this 3-5 chapter; provided, however, that this prohibition shall not apply 3-6 to persons engaged in business as wholesale or retail distributors 3-7 of consumer commodities except to the extent that such persons: 3-8 (1) are engaged in the packaging or labeling of such 3-9 commodities; or 3-10 (2) prescribe or specify by any means the manner in 3-11 which such commodities are packaged or labeled; 3-12 (e) the introduction or delivery for introduction into 3-13 commerce of any article in violation of Section 431.084, 431.114, 3-14 or 431.115; 3-15 (f) the dissemination of any false advertisement; 3-16 (g) the refusal to permit entry or inspection, or to permit 3-17 the taking of a sample or to permit access to or copying of any 3-18 record as authorized by Sections 431.042-431.044; or the failure to 3-19 establish or maintain any record or make any report required under 3-20 Section 512(j), (l), or (m) of the federal Act, or the refusal to 3-21 permit access to or verification or copying of any such required 3-22 record; 3-23 (h) the manufacture within this state of any food, drug, 3-24 device, or cosmetic that is adulterated or misbranded; 3-25 (i) the giving of a guaranty or undertaking referred to in 3-26 Section 431.059, which guaranty or undertaking is false, except by 3-27 a person who relied on a guaranty or undertaking to the same effect 3-28 signed by, and containing the name and address of the person 3-29 residing in this state from whom the person received in good faith 3-30 the food, drug, device, or cosmetic; or the giving of a guaranty or 3-31 undertaking referred to in Section 431.059, which guaranty or 3-32 undertaking is false; 3-33 (j) the use, removal, or disposal of a detained or embargoed 3-34 article in violation of Section 431.048; 3-35 (k) the alteration, mutilation, destruction, obliteration, 3-36 or removal of the whole or any part of the labeling of, or the 3-37 doing of any other act with respect to a food, drug, device, or 3-38 cosmetic, if such act is done while such article is held for sale 3-39 after shipment in commerce and results in such article being 3-40 adulterated or misbranded; 3-41 (l)(1) forging, counterfeiting, simulating, or falsely 3-42 representing, or without proper authority using any mark, stamp, 3-43 tag, label, or other identification device authorized or required 3-44 by rules adopted under this chapter or the regulations promulgated 3-45 under the provisions of the federal Act; 3-46 (2) making, selling, disposing of, or keeping in 3-47 possession, control, or custody, or concealing any punch, die, 3-48 plate, stone, or other thing designed to print, imprint, or 3-49 reproduce the trademark, trade name, or other identifying mark, 3-50 imprint, or device of another or any likeness of any of the 3-51 foregoing on any drug or container or labeling thereof so as to 3-52 render such drug a counterfeit drug; 3-53 (3) the doing of any act that causes a drug to be a 3-54 counterfeit drug, or the sale or dispensing, or the holding for 3-55 sale or dispensing, of a counterfeit drug; 3-56 (m) the using by any person to the person's own advantage, 3-57 or revealing, other than to the commissioner, an authorized agent, 3-58 a health authority or to the courts when relevant in any judicial 3-59 proceeding under this chapter, of any information acquired under 3-60 the authority of this chapter concerning any method or process that 3-61 as a trade secret is entitled to protection; 3-62 (n) the using, on the labeling of any drug or device or in 3-63 any advertising relating to such drug or device, of any 3-64 representation or suggestion that approval of an application with 3-65 respect to such drug or device is in effect under Section 431.114 3-66 or Section 505, 515, or 520(g) of the federal Act, as the case may 3-67 be, or that such drug or device complies with the provisions of 3-68 such sections; 3-69 (o) the using, in labeling, advertising or other sales 4-1 promotion of any reference to any report or analysis furnished in 4-2 compliance with Sections 431.042-431.044 or Section 704 of the 4-3 federal Act; 4-4 (p) in the case of a prescription drug distributed or 4-5 offered for sale in this state, the failure of the manufacturer, 4-6 packer, or distributor of the drug to maintain for transmittal, or 4-7 to transmit, to any practitioner licensed by applicable law to 4-8 administer such drug who makes written request for information as 4-9 to such drug, true and correct copies of all printed matter that is 4-10 required to be included in any package in which that drug is 4-11 distributed or sold, or such other printed matter as is approved 4-12 under the federal Act. Nothing in this subsection shall be 4-13 construed to exempt any person from any labeling requirement 4-14 imposed by or under other provisions of this chapter; 4-15 (q)(1) placing or causing to be placed on any drug or device 4-16 or container of any drug or device, with intent to defraud, the 4-17 trade name or other identifying mark, or imprint of another or any 4-18 likeness of any of the foregoing; 4-19 (2) selling, dispensing, disposing of or causing to be 4-20 sold, dispensed, or disposed of, or concealing or keeping in 4-21 possession, control, or custody, with intent to sell, dispense, or 4-22 dispose of, any drug, device, or any container of any drug or 4-23 device, with knowledge that the trade name or other identifying 4-24 mark or imprint of another or any likeness of any of the foregoing 4-25 has been placed thereon in a manner prohibited by Subdivision (1) 4-26 of this subsection; or 4-27 (3) making, selling, disposing of, causing to be made, 4-28 sold, or disposed of, keeping in possession, control, or custody, 4-29 or concealing with intent to defraud any punch, die, plate, stone, 4-30 or other thing designed to print, imprint, or reproduce the 4-31 trademark, trade name, or other identifying mark, imprint, or 4-32 device of another or any likeness of any of the foregoing on any 4-33 drug or container or labeling of any drug or container so as to 4-34 render such drug a counterfeit drug; 4-35 (r) dispensing or causing to be dispensed a different drug 4-36 in place of the drug ordered or prescribed without the express 4-37 permission in each case of the person ordering or prescribing; 4-38 (s) the failure to register in accordance with Section 510 4-39 of the federal Act, the failure to provide any information required 4-40 by Section 510(j) or (k) of the federal Act, or the failure to 4-41 provide a notice required by Section 510(j)(2) of the federal Act; 4-42 (t)(1) the failure or refusal to: 4-43 (A) comply with any requirement prescribed under 4-44 Section 518 or 520(g) of the federal Act; or 4-45 (B) furnish any notification or other material 4-46 or information required by or under Section 519 or 520(g) of the 4-47 federal Act; 4-48 (2) with respect to any device, the submission of any 4-49 report that is required by or under this chapter that is false or 4-50 misleading in any material respect; 4-51 (u) the movement of a device in violation of an order under 4-52 Section 304(g) of the federal Act or the removal or alteration of 4-53 any mark or label required by the order to identify the device as 4-54 detained; 4-55 (v) the failure to provide the notice required by Section 4-56 412(b) or 412(c), the failure to make the reports required by 4-57 Section 412(d)(1)(B), or the failure to meet the requirements 4-58 prescribed under Section 412(d)(2) of the federal Act; 4-59 (w) except as provided under Subchapter M, the acceptance by 4-60 a person of an unused prescription or drug, in whole or in part, 4-61 for the purpose of resale, after the prescription or drug has been 4-62 originally dispensed, or sold; 4-63 (x) engaging in the wholesale distribution of drugs or 4-64 operating as a distributor or manufacturer of devices in this state 4-65 without filing a licensing statement with the commissioner as 4-66 required by Section 431.202 or having a license as required by 4-67 Section 431.272, as applicable; 4-68 (y) engaging in the manufacture of food in this state 4-69 without first registering with the department as required by 5-1 Section 431.222; or 5-2 (z) unless approved by the United States Food and Drug 5-3 Administration pursuant to the federal Act, the sale, delivery, 5-4 holding, or offering for sale of a self-testing kit designed to 5-5 indicate whether a person has a human immunodeficiency virus 5-6 infection, acquired immune deficiency syndrome, or a related 5-7 disorder or condition. 5-8 SECTION 3. Subchapter M, Chapter 431, Health and Safety 5-9 Code, as added by this Act, and the change in law made by this Act 5-10 to Section 431.021, Health and Safety Code, take effect January 1, 5-11 2002. This Act takes effect September 1, 2001, for the limited 5-12 purpose of allowing the Texas Department of Health to adopt the 5-13 rules required under Section 431.324, Health and Safety Code, as 5-14 added by this Act, in time for the rules to take effect on January 5-15 1, 2002. 5-16 * * * * *