1-1 By: Moncrief S.B. No. 1080
1-2 (In the Senate - Filed March 5, 2001; March 6, 2001, read
1-3 first time and referred to Committee on Health and Human Services;
1-4 April 17, 2001, reported adversely, with favorable Committee
1-5 Substitute by the following vote: Yeas 7, Nays 0; April 17, 2001,
1-6 sent to printer.)
1-7 COMMITTEE SUBSTITUTE FOR S.B. No. 1080 By: Moncrief
1-8 A BILL TO BE ENTITLED
1-9 AN ACT
1-10 relating to certain distressed or reconditioned food, drugs,
1-11 devices, and cosmetics and certain licensed persons.
1-12 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-13 SECTION 1. Subchapter A, Chapter 431, Health and Safety
1-14 Code, is amended by adding Section 431.008 to read as follows:
1-15 Sec. 431.008. APPLICABILITY OF CHAPTER TO DISTRESSED OR
1-16 RECONDITIONED MERCHANDISE AND CERTAIN LICENSED ENTITIES. (a) This
1-17 chapter applies to a food, drug, device, or cosmetic that is
1-18 distressed merchandise for purposes of Chapter 432 or that has been
1-19 subject to reconditioning in accordance with Chapter 432.
1-20 (b) Except as provided by Subsection (c), this chapter
1-21 applies to the conduct of a person licensed under Chapter 432.
1-22 (c) A person who holds a license under Chapter 432 and is
1-23 engaging in conduct within the scope of that license is not
1-24 required to hold a license as a wholesale drug distributor under
1-25 Subchapter I, a food wholesaler under Subchapter J, or a device
1-26 distributor under Subchapter L.
1-27 SECTION 2. Subchapter B, Chapter 431, Health and Safety
1-28 Code, is amended by adding Section 431.023 to read as follows:
1-29 Sec. 431.023. LIMITED EXEMPTION FOR DISTRESSED FOOD, DRUGS,
1-30 DEVICES, OR COSMETICS. In relation to a food, drug, device, or
1-31 cosmetic that is distressed merchandise for purposes of Chapter
1-32 432, Sections 431.021(a), (c), and (d) do not prohibit:
1-33 (1) the introduction or delivery for introduction into
1-34 commerce of the merchandise for the purpose of reconditioning in
1-35 accordance with Chapter 432 and not for sale to the ultimate
1-36 consumer;
1-37 (2) the receipt in commerce of the merchandise for the
1-38 purpose of reconditioning in accordance with Chapter 432 and not
1-39 for sale to the ultimate consumer;
1-40 (3) the holding of merchandise for the purpose of
1-41 reconditioning in accordance with Chapter 432 and not for resale to
1-42 the ultimate consumer; or
1-43 (4) the reconditioning of the merchandise in
1-44 accordance with Chapter 432.
1-45 SECTION 3. Section 431.048, Health and Safety Code, is
1-46 amended by adding Subsection (e) to read as follows:
1-47 (e) The commissioner or an authorized agent may not detain
1-48 or embargo an article, including an article that is distressed
1-49 merchandise, that is in the possession of a person licensed under
1-50 Chapter 432 and that is being held for the purpose of
1-51 reconditioning in accordance with Chapter 432, unless the
1-52 commissioner or an authorized agent finds or has probable cause to
1-53 believe that the article cannot be adequately reconditioned in
1-54 accordance with that chapter and applicable rules.
1-55 SECTION 4. Section 431.059, Health and Safety Code, is
1-56 amended by adding Subsection (e) to read as follows:
1-57 (e) It is an affirmative defense to prosecution under
1-58 Subsection (a) that the conduct charged is exempt, in accordance
1-59 with Section 431.023, from the application of Section 431.021.
1-60 SECTION 5. Subdivision (6), Section 432.003, Health and
1-61 Safety Code, is amended to read as follows:
1-62 (6) "Distressed merchandise" means any food, drug,
1-63 device, or cosmetic that is adulterated or misbranded for purposes
1-64 of Section 431.081 (Adulterated Food), 431.082 (Misbranded Food),
2-1 431.111 (Adulterated Drug or Device), 431.112 (Misbranded Drug or
2-2 Device), 431.141 (Adulterated Cosmetic), or 431.142 (Misbranded
2-3 Cosmetic), as interpreted by board rule and judicial decision. The
2-4 term includes a food, drug, device, or cosmetic that:
2-5 (A) has lost its label or is otherwise
2-6 unidentified;
2-7 (B) has been subjected to prolonged or improper
2-8 storage;
2-9 (C) has been subjected for any reason to
2-10 abnormal environmental conditions, including temperature extremes,
2-11 humidity, smoke, water, fumes, pressure, or radiation; [or]
2-12 (D) has been subjected to conditions that result
2-13 in either its strength, purity, or quality falling below that which
2-14 it purports or is represented to possess; or
2-15 (E) may have been rendered unsafe or unsuitable
2-16 for human consumption or use for any reason other than those
2-17 specified by this subdivision.
2-18 SECTION 6. Section 432.005, Health and Safety Code, is
2-19 amended by adding Subsection (c) to read as follows:
2-20 (c) A salvage operator or salvage broker who is engaging
2-21 only within the scope of the license issued under this chapter is
2-22 not required to also be licensed under Chapter 431.
2-23 SECTION 7. Section 432.011, Health and Safety Code, is
2-24 amended to read as follows:
2-25 Sec. 432.011. MINIMUM STANDARDS. (a) The board shall adopt
2-26 rules prescribing minimum standards or related requirements for:
2-27 (1) the operation of salvage establishments and
2-28 salvage warehouses; and
2-29 (2) qualifications for licenses issued under this
2-30 chapter.
2-31 (b) The rules shall prescribe standards for food, drugs,
2-32 devices, and cosmetics in separate subchapters.
2-33 SECTION 8. Chapter 432, Health and Safety Code, is amended
2-34 by adding Section 432.026 to read as follows:
2-35 Sec. 432.026. DETAINED OR EMBARGOED ARTICLE. In accordance
2-36 with Subchapter C, Chapter 431, the department may detain or
2-37 embargo an article, including an article that is distressed
2-38 merchandise, that is in the possession of a person licensed under
2-39 this chapter and that is being held for the purpose of
2-40 reconditioning in accordance with this chapter if the department
2-41 makes the finding required by Section 431.048(e).
2-42 SECTION 9. Subsection (c), Section 483.041, Health and
2-43 Safety Code, is amended to read as follows:
2-44 (c) Subsection (a) does not apply to the possession of a
2-45 dangerous drug in the usual course of business or practice or in
2-46 the performance of official duties by the following persons or an
2-47 agent or employee of the person:
2-48 (1) a pharmacy licensed by the board;
2-49 (2) a practitioner;
2-50 (3) a person who obtains a dangerous drug for lawful
2-51 research, teaching, or testing, but not for resale;
2-52 (4) a hospital that obtains a dangerous drug for
2-53 lawful administration by a practitioner;
2-54 (5) an officer or employee of the federal, state, or
2-55 local government;
2-56 (6) a manufacturer or wholesaler licensed by the
2-57 commissioner of health under Chapter 431 (Texas Food, Drug, and
2-58 Cosmetic Act);
2-59 (7) a carrier or warehouseman;
2-60 (8) a home and community support services agency
2-61 licensed under and acting in accordance with Chapter 142; [or]
2-62 (9) a documented midwife who obtains oxygen for
2-63 administration to a mother or newborn or who obtains a dangerous
2-64 drug for the administration of prophylaxis to a newborn for the
2-65 prevention of ophthalmia neonatorum in accordance with Section
2-66 203.353, Occupations Code; or
2-67 (10) a salvage broker or salvage operator licensed
2-68 under Chapter 432 [16A, Texas Midwifery Act (Article 4512i,
2-69 Vernon's Texas Civil Statutes)].
3-1 SECTION 10. (a) The change in law made by this Act by the
3-2 addition of Subsection (e), Section 431.059, Health and Safety
3-3 Code, applies only to the punishment for an offense committed on or
3-4 after the effective date of this Act. For purposes of this
3-5 section, an offense is committed before the effective date of this
3-6 Act if any element of the offense occurs before the effective date.
3-7 (b) An offense committed before the effective date of this
3-8 Act is covered by the law in effect when the offense was committed,
3-9 and the former law is continued in effect for that purpose.
3-10 SECTION 11. This Act takes effect immediately if it receives
3-11 a vote of two-thirds of all the members elected to each house, as
3-12 provided by Section 39, Article III, Texas Constitution. If this
3-13 Act does not receive the vote necessary for immediate effect, this
3-14 Act takes effect September 1, 2001.
3-15 * * * * *