1-1     By:  Moncrief                                         S.B. No. 1046
 1-2           (In the Senate - Filed March 2, 2001; March 5, 2001, read
 1-3     first time and referred to Committee on Health and Human Services;
 1-4     April 11, 2001, reported adversely, with favorable Committee
 1-5     Substitute by the following vote:  Yeas 7, Nays 0; April 11, 2001,
 1-6     sent to printer.)
 1-7     COMMITTEE SUBSTITUTE FOR S.B. No. 1046                By:  Moncrief
 1-8                            A BILL TO BE ENTITLED
 1-9                                   AN ACT
1-10     relating to the enforcement powers of the Texas Department of
1-11     Health over food, drugs, devices, and cosmetics.
1-12           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-13           SECTION 1.  Section 431.021, Health and Safety Code, is
1-14     amended to read as follows:
1-15           Sec. 431.021.  PROHIBITED ACTS.  The following acts and the
1-16     causing of the following acts within this state are unlawful and
1-17     prohibited:
1-18                 (a)  the introduction or delivery for introduction into
1-19     commerce of any food, drug, device, or cosmetic that is adulterated
1-20     or misbranded;
1-21                 (b)  the adulteration or misbranding of any food, drug,
1-22     device, or cosmetic in commerce;
1-23                 (c)  the receipt in commerce of any food, drug, device,
1-24     or cosmetic that is adulterated or misbranded, and the delivery or
1-25     proffered delivery thereof for pay or otherwise;
1-26                 (d)  the distribution in commerce of a consumer
1-27     commodity, if such commodity is contained in a package, or if there
1-28     is affixed to that commodity a label that does not conform to the
1-29     provisions of this chapter and of rules adopted under the authority
1-30     of this chapter; provided, however, that this prohibition shall not
1-31     apply to persons engaged in business as wholesale or retail
1-32     distributors of consumer commodities except to the extent that such
1-33     persons:
1-34                       (1)  are engaged in the packaging or labeling of
1-35     such commodities; or
1-36                       (2)  prescribe or specify by any means the manner
1-37     in which such commodities are packaged or labeled;
1-38                 (e)  the introduction or delivery for introduction into
1-39     commerce of any article in violation of Section 431.084, 431.114,
1-40     or 431.115;
1-41                 (f)  the dissemination of any false advertisement;
1-42                 (g)  the refusal to permit entry or inspection, or to
1-43     permit the taking of a sample or to permit access to or copying of
1-44     any record as authorized by Sections 431.042-431.044; or the
1-45     failure to establish or maintain any record or make any report
1-46     required under Section 512(j), (l), or (m) of the federal Act, or
1-47     the refusal to permit access to or verification or copying of any
1-48     such required record;
1-49                 (h)  the manufacture within this state of any food,
1-50     drug, device, or cosmetic that is adulterated or misbranded;
1-51                 (i)  the giving of a guaranty or undertaking referred
1-52     to in Section 431.059, which guaranty or undertaking is false,
1-53     except by a person who relied on a guaranty or undertaking to the
1-54     same effect signed by, and containing the name and address of the
1-55     person residing in this state from whom the person received in good
1-56     faith the food, drug, device, or cosmetic; or the giving of a
1-57     guaranty or undertaking referred to in Section 431.059, which
1-58     guaranty or undertaking is false;
1-59                 (j)  the use, removal, or disposal of a detained or
1-60     embargoed article in violation of Section 431.048;
1-61                 (k)  the alteration, mutilation, destruction,
1-62     obliteration, or removal of the whole or any part of the labeling
1-63     of, or the doing of any other act with respect to a food, drug,
1-64     device, or cosmetic, if such act is done while such article is held
 2-1     for sale after shipment in commerce and results in such article
 2-2     being adulterated or misbranded;
 2-3                 (l)(1)  forging, counterfeiting, simulating, or falsely
 2-4     representing, or without proper authority using any mark, stamp,
 2-5     tag, label, or other identification device authorized or required
 2-6     by rules adopted under this chapter or the regulations promulgated
 2-7     under the provisions of the federal Act;
 2-8                       (2)  making, selling, disposing of, or keeping in
 2-9     possession, control, or custody, or concealing any punch, die,
2-10     plate, stone, or other thing designed to print, imprint, or
2-11     reproduce the trademark, trade name, or other identifying mark,
2-12     imprint, or device of another or any likeness of any of the
2-13     foregoing on any drug or container or labeling thereof so as to
2-14     render such drug a counterfeit drug;
2-15                       (3)  the doing of any act that causes a drug to
2-16     be a counterfeit drug, or the sale or dispensing, or the holding
2-17     for sale or dispensing, of a counterfeit drug;
2-18                 (m)  the using by any person to the person's own
2-19     advantage, or revealing, other than to the commissioner, an
2-20     authorized agent, a health authority or to the courts when relevant
2-21     in any judicial proceeding under this chapter, of any information
2-22     acquired under the authority of this chapter concerning any method
2-23     or process that as a trade secret is entitled to protection;
2-24                 (n)  the using, on the labeling of any drug or device
2-25     or in any advertising relating to such drug or device, of any
2-26     representation or suggestion that approval of an application with
2-27     respect to such drug or device is in effect under Section 431.114
2-28     or Section 505, 515, or 520(g) of the federal Act, as the case may
2-29     be, or that such drug or device complies with the provisions of
2-30     such sections;
2-31                 (o)  the using, in labeling, advertising or other sales
2-32     promotion of any reference to any report or analysis furnished in
2-33     compliance with Sections 431.042-431.044 or Section 704 of the
2-34     federal Act;
2-35                 (p)  in the case of a prescription drug distributed or
2-36     offered for sale in this state, the failure of the manufacturer,
2-37     packer, or distributor of the drug to maintain for transmittal, or
2-38     to transmit, to any practitioner licensed by applicable law to
2-39     administer such drug who makes written request for information as
2-40     to such drug, true and correct copies of all printed matter that is
2-41     required to be included in any package in which that drug is
2-42     distributed or sold, or such other printed matter as is approved
2-43     under the federal Act.  Nothing in this subsection shall be
2-44     construed to exempt any person from any labeling requirement
2-45     imposed by or under other provisions of this chapter;
2-46                 (q)(1)  placing or causing to be placed on any drug or
2-47     device or container of any drug or device, with intent to defraud,
2-48     the trade name or other identifying mark, or imprint of another or
2-49     any likeness of any of the foregoing;
2-50                       (2)  selling, dispensing, disposing of or causing
2-51     to be sold, dispensed, or disposed of, or concealing or keeping in
2-52     possession, control, or custody, with intent to sell, dispense, or
2-53     dispose of, any drug, device, or any container of any drug or
2-54     device, with knowledge that the trade name or other identifying
2-55     mark or imprint of another or any likeness of any of the foregoing
2-56     has been placed thereon in a manner prohibited by Subdivision (1)
2-57     of this subsection; or
2-58                       (3)  making, selling, disposing of, causing to be
2-59     made, sold, or disposed of, keeping in possession, control, or
2-60     custody, or concealing with intent to defraud any punch, die,
2-61     plate, stone, or other thing designed to print, imprint, or
2-62     reproduce the trademark, trade name, or other identifying mark,
2-63     imprint, or device of another or any likeness of any of the
2-64     foregoing on any drug or container or labeling of any drug or
2-65     container so as to render such drug a counterfeit drug;
2-66                 (r)  dispensing or causing to be dispensed a different
2-67     drug in place of the drug ordered or prescribed without the express
2-68     permission in each case of the person ordering or prescribing;
2-69                 (s)  the failure to register in accordance with Section
 3-1     510 of the federal Act, the failure to provide any information
 3-2     required by Section 510(j) or (k) of the federal Act, or the
 3-3     failure to provide a notice required by Section 510(j)(2) of the
 3-4     federal Act;
 3-5                 (t)(1)  the failure or refusal to:
 3-6                             (A)  comply with any requirement prescribed
 3-7     under Section 518 or 520(g) of the federal Act; or
 3-8                             (B)  furnish any notification or other
 3-9     material or information required by or under Section 519 or 520(g)
3-10     of the federal Act;
3-11                       (2)  with respect to any device, the submission
3-12     of any report that is required by or under this chapter that is
3-13     false or misleading in any material respect;
3-14                 (u)  the movement of a device in violation of an order
3-15     under Section 304(g) of the federal Act or the removal or
3-16     alteration of any mark or label required by the order to identify
3-17     the device as detained;
3-18                 (v)  the failure to provide the notice required by
3-19     Section 412(b) or 412(c), the failure to make the reports required
3-20     by Section 412(d)(1)(B), or the failure to meet the requirements
3-21     prescribed under Section 412(d)(2) of the federal Act;
3-22                 (w)  the acceptance by a person of an unused
3-23     prescription or drug, in whole or in part, for the purpose of
3-24     resale, after the prescription or drug has been originally
3-25     dispensed, or sold;
3-26                 (x)  engaging in the wholesale distribution of drugs or
3-27     operating as a distributor or manufacturer of devices in this state
3-28     without filing a licensing statement with the commissioner as
3-29     required by Section 431.202 or having a license as required by
3-30     Section 431.272, as applicable;
3-31                 (y)  engaging in the manufacture of food in this state
3-32     or operating as a food wholesaler in this state without having a
3-33     license [first registering with the department] as required by
3-34     Section 431.222; or
3-35                 (z)  unless approved by the United States Food and Drug
3-36     Administration pursuant to the federal Act, the sale, delivery,
3-37     holding, or offering for sale of a self-testing kit designed to
3-38     indicate whether a person has a human immunodeficiency virus
3-39     infection, acquired immune deficiency syndrome, or a related
3-40     disorder or condition.
3-41           SECTION 2.  Subsection (a), Section 431.045, Health and
3-42     Safety Code, is amended to read as follows:
3-43           (a)  The commissioner or a person designated by the
3-44     commissioner may issue an emergency order, either mandatory or
3-45     prohibitory in nature, in relation to the manufacture or
3-46     distribution of a food, drug, device, or cosmetic in the
3-47     department's jurisdiction if the commissioner or the person
3-48     designated by the commissioner determines that:
3-49                 (1)  the manufacture or distribution of the food, drug,
3-50     device, or cosmetic creates or poses an immediate and serious
3-51     threat to human life or health; and
3-52                 (2)  other procedures available to the department to
3-53     remedy or prevent the occurrence of the situation will result in
3-54     unreasonable delay.
3-55           SECTION 3.  Section 431.2211, Health and Safety Code, is
3-56     amended to read as follows:
3-57           Sec. 431.2211.  APPLICATION OF SUBCHAPTER.  (a)  A person is
3-58     not required to hold a license under this [This] subchapter if the
3-59     person is [does not apply to]:
3-60                 (1)  a person, firm, or corporation that only harvests,
3-61     packages, washes, or ships raw fruits or vegetables;
3-62                 (2)  an individual who only sells prepackaged
3-63     nonperishable foods, including dietary supplements, from a private
3-64     home as a direct seller; or
3-65                 (3)  a person who holds a license under Chapter 432 and
3-66     who only engages in conduct within the scope of that license.
3-67           (b)  An exemption from the licensing requirements prescribed
3-68     by this subchapter does not exempt the person from other provisions
3-69     prescribed by this subchapter or from rules adopted by the board to
 4-1     administer and enforce those provisions.
 4-2           (c)  This subchapter does not apply to [engaged solely in]
 4-3     the distribution of [alcoholic] beverages in sealed containers by
 4-4     holders of licenses or permits issued under Chapter 19, 20, 21, 23,
 4-5     64, or 65, Alcoholic Beverage Code.  The provisions of the
 4-6     Alcoholic Beverage Code prevail to the extent of any conflict with
 4-7     this chapter.
 4-8           SECTION 4.  This Act takes effect September 1, 2001.
 4-9                                  * * * * *