By Capelo H.B. No. 3598
77R6613 DLF-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to certain distressed or reconditioned food, drugs,
1-3 devices, and cosmetics and certain licensed persons.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Subchapter A, Chapter 431, Health and Safety
1-6 Code, is amended by adding Section 431.008 to read as follows:
1-7 Sec. 431.008. APPLICABILITY OF CHAPTER TO DISTRESSED OR
1-8 RECONDITIONED MERCHANDISE AND CERTAIN LICENSED ENTITIES. (a) This
1-9 chapter applies to a food, drug, device, or cosmetic that is
1-10 distressed merchandise for purposes of Chapter 432 or that has been
1-11 subject to reconditioning in accordance with Chapter 432.
1-12 (b) Except as provided by Subsection (c), this chapter
1-13 applies to the conduct of a person licensed under Chapter 432.
1-14 (c) A person who holds a license under Chapter 432 and is
1-15 engaging in conduct within the scope of that license is not
1-16 required to hold a license as a wholesale drug distributor under
1-17 Subchapter I, a food wholesaler under Subchapter J, or a device
1-18 distributor under Subchapter L.
1-19 SECTION 2. Subchapter B, Chapter 431, Health and Safety
1-20 Code, is amended by adding Section 431.023 to read as follows:
1-21 Sec. 431.023. LIMITED EXEMPTION FOR DISTRESSED FOOD, DRUGS,
1-22 DEVICES, OR COSMETICS. In relation to a food, drug, device, or
1-23 cosmetic that is distressed merchandise for purposes of Chapter
1-24 432, Sections 431.021(a), (c), and (d) do not prohibit:
2-1 (1) the introduction or delivery for introduction into
2-2 commerce of the merchandise for the purpose of reconditioning in
2-3 accordance with Chapter 432 and not for sale to the ultimate
2-4 consumer;
2-5 (2) the receipt in commerce of the merchandise for the
2-6 purpose of reconditioning in accordance with Chapter 432 and not
2-7 for sale to the ultimate consumer; or
2-8 (3) the reconditioning of the merchandise in
2-9 accordance with Chapter 432.
2-10 SECTION 3. Section 431.048, Health and Safety Code, is
2-11 amended by adding Subsection (e) to read as follows:
2-12 (e) The commissioner or an authorized agent may not detain
2-13 or embargo an article, including an article that is distressed
2-14 merchandise, that is in the possession of a person licensed under
2-15 Chapter 432 and that is being held for the purpose of
2-16 reconditioning in accordance with Chapter 432, unless the
2-17 commissioner or an authorized agent finds or has probable cause to
2-18 believe that the article cannot be adequately reconditioned in
2-19 accordance with that chapter.
2-20 SECTION 4. Section 431.059, Health and Safety Code, is
2-21 amended by adding Subsection (e) to read as follows:
2-22 (e) It is an affirmative defense to prosecution under
2-23 Subsection (a) that the conduct charged is exempt, in accordance
2-24 with Section 431.023, from the application of Section 431.021.
2-25 SECTION 5. Section 431.2021, Health and Safety Code, is
2-26 amended by amending Subsection (b) and adding Subsection (c) to
2-27 read as follows:
3-1 (b) A person who holds a license under Chapter 432 and who
3-2 is engaging only in conduct within the scope of that license is not
3-3 required to be licensed under this subchapter.
3-4 (c) An exemption from the licensing requirements under this
3-5 section does not constitute an exemption from the other provisions
3-6 of this Act or the rules adopted by the board to administer and
3-7 enforce this Act.
3-8 SECTION 6. Section 431.2211, Health and Safety Code, is
3-9 amended to read as follows:
3-10 Sec. 431.2211. APPLICATION OF SUBCHAPTER. (a) A person is
3-11 not required to hold a license under this [This] subchapter if the
3-12 person is [does not apply to]:
3-13 (1) a person, firm, or corporation that only harvests,
3-14 packages, washes, or ships raw fruits or vegetables;
3-15 (2) an individual who only sells prepackaged
3-16 nonperishable foods, including dietary supplements, from a private
3-17 home as a direct seller; [or]
3-18 (3) a person engaged solely in the distribution of
3-19 alcoholic beverages in sealed containers by holders of licenses or
3-20 permits issued under Chapter 19, 20, 21, 23, 64, or 65, Alcoholic
3-21 Beverage Code; or
3-22 (4) a person who holds a license under Chapter 432 and
3-23 who only engages in conduct within the scope of that license.
3-24 (b) An exemption from the licensing requirements under this
3-25 section does not exempt the person from the other provisions of
3-26 this subchapter or the rules adopted by the board to administer and
3-27 enforce those provisions.
4-1 SECTION 7. Section 432.003(6), Health and Safety Code, is
4-2 amended to read as follows:
4-3 (6) "Distressed merchandise" means any food, drug,
4-4 device, or cosmetic that is adulterated or misbranded for purposes
4-5 of Section 431.081, 431.082, 431.111, 431.112, 431.141, or 431.142,
4-6 as interpreted by board rule and judicial decision. The term
4-7 includes a food, drug, device, or cosmetic that:
4-8 (A) has lost its label or is otherwise
4-9 unidentified;
4-10 (B) has been subjected to prolonged or improper
4-11 storage;
4-12 (C) has been subjected for any reason to
4-13 abnormal environmental conditions, including temperature extremes,
4-14 humidity, smoke, water, fumes, pressure, or radiation; or
4-15 (D) may have been rendered unsafe or unsuitable
4-16 for human consumption or use for any reason other than those
4-17 specified by this subdivision.
4-18 SECTION 8. Chapter 432, Health and Safety Code, is amended by
4-19 adding Section 432.026 to read as follows:
4-20 Sec. 432.026. DETAINED OR EMBARGOED ARTICLE. In accordance
4-21 with Subchapter C, Chapter 431, the department may detain or
4-22 embargo an article, including an article that is distressed
4-23 merchandise, that is in the possession of a person licensed under
4-24 this chapter and that is being held for the purpose of
4-25 reconditioning in accordance with this chapter if the department
4-26 makes the finding required by Section 431.048(e).
4-27 SECTION 9. Section 483.041(c), Health and Safety Code, is
5-1 amended to read as follows:
5-2 (c) Subsection (a) does not apply to the possession of a
5-3 dangerous drug in the usual course of business or practice or in
5-4 the performance of official duties by the following persons or an
5-5 agent or employee of the person:
5-6 (1) a pharmacy licensed by the board;
5-7 (2) a practitioner;
5-8 (3) a person who obtains a dangerous drug for lawful
5-9 research, teaching, or testing, but not for resale;
5-10 (4) a hospital that obtains a dangerous drug for
5-11 lawful administration by a practitioner;
5-12 (5) an officer or employee of the federal, state, or
5-13 local government;
5-14 (6) a manufacturer or wholesaler licensed by the
5-15 commissioner of health under Chapter 431 (Texas Food, Drug, and
5-16 Cosmetic Act);
5-17 (7) a carrier or warehouseman;
5-18 (8) a home and community support services agency
5-19 licensed under and acting in accordance with Chapter 142; [or]
5-20 (9) a documented midwife who obtains oxygen for
5-21 administration to a mother or newborn or who obtains a dangerous
5-22 drug for the administration of prophylaxis to a newborn for the
5-23 prevention of ophthalmia neonatorum in accordance with Section
5-24 203.353, Occupations Code; or
5-25 (10) a salvage broker or salvage operator licensed
5-26 under Chapter 432 [16A, Texas Midwifery Act (Article 4512i,
5-27 Vernon's Texas Civil Statutes)].
6-1 SECTION 10. (a) The change in law made by this Act by the
6-2 addition of Section 431.059(e), Health and Safety Code, applies
6-3 only to the punishment for an offense committed on or after the
6-4 effective date of this Act. For purposes of this section, an
6-5 offense is committed before the effective date of this Act if any
6-6 element of the offense occurs before the effective date.
6-7 (b) An offense committed before the effective date of this
6-8 Act is covered by the law in effect when the offense was committed,
6-9 and the former law is continued in effect for that purpose.
6-10 SECTION 11. This Act takes effect immediately if it receives
6-11 a vote of two-thirds of all the members elected to each house, as
6-12 provided by Section 39, Article III, Texas Constitution. If this
6-13 Act does not receive the vote necessary for immediate effect, this
6-14 Act takes effect September 1, 2001.