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:
1-25 (1) the introduction or delivery for introduction into
2-1 commerce of the merchandise for the purpose of reconditioning in
2-2 accordance with Chapter 432 and not for sale to the ultimate
2-3 consumer;
2-4 (2) the receipt in commerce of the merchandise for the
2-5 purpose of reconditioning in accordance with Chapter 432 and not
2-6 for sale to the ultimate consumer;
2-7 (3) the holding of merchandise for the purpose of
2-8 reconditioning in accordance with Chapter 432 and not for resale to
2-9 the ultimate consumer; or
2-10 (4) the reconditioning of the merchandise in
2-11 accordance with Chapter 432.
2-12 SECTION 3. Section 431.048, Health and Safety Code, is
2-13 amended by adding Subsection (e) to read as follows:
2-14 (e) The commissioner or an authorized agent may not detain
2-15 or embargo an article, including an article that is distressed
2-16 merchandise, that is in the possession of a person licensed under
2-17 Chapter 432 and that is being held for the purpose of
2-18 reconditioning in accordance with Chapter 432, unless the
2-19 commissioner or an authorized agent finds or has probable cause to
2-20 believe that the article cannot be adequately reconditioned in
2-21 accordance with that chapter and applicable rules.
2-22 SECTION 4. Section 431.059, Health and Safety Code, is
2-23 amended by adding Subsection (e) to read as follows:
2-24 (e) It is an affirmative defense to prosecution under
2-25 Subsection (a) that the conduct charged is exempt, in accordance
2-26 with Section 431.023, from the application of Section 431.021.
3-1 SECTION 5. Subdivision (6), Section 432.003, Health and
3-2 Safety Code, is amended to read as follows:
3-3 (6) "Distressed merchandise" means any food, drug,
3-4 device, or cosmetic that is adulterated or misbranded for purposes
3-5 of Section 431.081 (Adulterated Food), 431.082 (Misbranded Food),
3-6 431.111 (Adulterated Drug or Device), 431.112 (Misbranded Drug or
3-7 Device), 431.141 (Adulterated Cosmetic), or 431.142 (Misbranded
3-8 Cosmetic), as interpreted by board rule and judicial decision. The
3-9 term includes a food, drug, device, or cosmetic that:
3-10 (A) has lost its label or is otherwise
3-11 unidentified;
3-12 (B) has been subjected to prolonged or improper
3-13 storage;
3-14 (C) has been subjected for any reason to
3-15 abnormal environmental conditions, including temperature extremes,
3-16 humidity, smoke, water, fumes, pressure, or radiation; [or]
3-17 (D) has been subjected to conditions that result
3-18 in either its strength, purity, or quality falling below that which
3-19 it purports or is represented to possess; or
3-20 (E) may have been rendered unsafe or unsuitable
3-21 for human consumption or use for any reason other than those
3-22 specified by this subdivision.
3-23 SECTION 6. Section 432.005, Health and Safety Code, is
3-24 amended by adding Subsection (c) to read as follows:
3-25 (c) A salvage operator or salvage broker who is engaging
3-26 only within the scope of the license issued under this chapter is
4-1 not required to also be licensed under Chapter 431.
4-2 SECTION 7. Section 432.011, Health and Safety Code, is
4-3 amended to read as follows:
4-4 Sec. 432.011. MINIMUM STANDARDS. (a) The board shall adopt
4-5 rules prescribing minimum standards or related requirements for:
4-6 (1) the operation of salvage establishments and
4-7 salvage warehouses; and
4-8 (2) qualifications for licenses issued under this
4-9 chapter.
4-10 (b) The rules shall prescribe standards for food, drugs,
4-11 devices, and cosmetics in separate subchapters.
4-12 SECTION 8. Chapter 432, Health and Safety Code, is amended
4-13 by adding Section 432.026 to read as follows:
4-14 Sec. 432.026. DETAINED OR EMBARGOED ARTICLE. In accordance
4-15 with Subchapter C, Chapter 431, the department may detain or
4-16 embargo an article, including an article that is distressed
4-17 merchandise, that is in the possession of a person licensed under
4-18 this chapter and that is being held for the purpose of
4-19 reconditioning in accordance with this chapter if the department
4-20 makes the finding required by Section 431.048(e).
4-21 SECTION 9. Subsection (c), Section 483.041, Health and
4-22 Safety Code, is amended to read as follows:
4-23 (c) Subsection (a) does not apply to the possession of a
4-24 dangerous drug in the usual course of business or practice or in
4-25 the performance of official duties by the following persons or an
4-26 agent or employee of the person:
5-1 (1) a pharmacy licensed by the board;
5-2 (2) a practitioner;
5-3 (3) a person who obtains a dangerous drug for lawful
5-4 research, teaching, or testing, but not for resale;
5-5 (4) a hospital that obtains a dangerous drug for
5-6 lawful administration by a practitioner;
5-7 (5) an officer or employee of the federal, state, or
5-8 local government;
5-9 (6) a manufacturer or wholesaler licensed by the
5-10 commissioner of health under Chapter 431 (Texas Food, Drug, and
5-11 Cosmetic Act);
5-12 (7) a carrier or warehouseman;
5-13 (8) a home and community support services agency
5-14 licensed under and acting in accordance with Chapter 142; [or]
5-15 (9) a documented midwife who obtains oxygen for
5-16 administration to a mother or newborn or who obtains a dangerous
5-17 drug for the administration of prophylaxis to a newborn for the
5-18 prevention of ophthalmia neonatorum in accordance with Section
5-19 203.353, Occupations Code; or
5-20 (10) a salvage broker or salvage operator licensed
5-21 under Chapter 432 [16A, Texas Midwifery Act (Article 4512i,
5-22 Vernon's Texas Civil Statutes)].
5-23 SECTION 10. (a) The change in law made by this Act by the
5-24 addition of Subsection (e), Section 431.059, Health and Safety
5-25 Code, applies only to the punishment for an offense committed on or
5-26 after the effective date of this Act. For purposes of this
6-1 section, an offense is committed before the effective date of this
6-2 Act if any element of the offense occurs before the effective date.
6-3 (b) An offense committed before the effective date of this
6-4 Act is covered by the law in effect when the offense was committed,
6-5 and the former law is continued in effect for that purpose.
6-6 SECTION 11. This Act takes effect immediately if it receives
6-7 a vote of two-thirds of all the members elected to each house, as
6-8 provided by Section 39, Article III, Texas Constitution. If this
6-9 Act does not receive the vote necessary for immediate effect, this
6-10 Act takes effect September 1, 2001.
_______________________________ _______________________________
President of the Senate Speaker of the House
I hereby certify that S.B. No. 1080 passed the Senate on
April 26, 2001, by the following vote: Yeas 30, Nays 0, one
present, not voting.
_______________________________
Secretary of the Senate
I hereby certify that S.B. No. 1080 passed the House on
May 8, 2001, by the following vote: Yeas 147, Nays 0, two present,
not voting.
_______________________________
Chief Clerk of the House
Approved:
_______________________________
Date
_______________________________
Governor