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A BILL TO BE ENTITLED
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AN ACT
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relating to civil liability of a person who produces, distributes, |
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sells, or provides or aids in the production, distribution, sale, |
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or provision of certain synthetic substances to another person for |
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damages caused by the other person and to certain actions and |
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investigations under the Deceptive Trade Practices-Consumer |
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Protection Act. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Subchapter D, Chapter 481, Health and Safety |
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Code, is amended by adding Section 481.1191 to read as follows: |
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Sec. 481.1191. CIVIL LIABILITY FOR ENGAGING IN OR AIDING IN |
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PRODUCTION, DISTRIBUTION, SALE, OR PROVISION OF SYNTHETIC |
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SUBSTANCES. (a) In this section: |
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(1) "Minor" means a person younger than 18 years of |
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age. |
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(2) "Synthetic substance" means an artificial |
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substance that produces and is intended by the manufacturer to |
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produce when consumed or ingested an effect similar to or in excess |
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of the effect produced by the consumption or ingestion of a |
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controlled substance or controlled substance analogue, as those |
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terms are defined by Section 481.002. |
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(b) A person is liable for damages proximately caused by the |
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consumption or ingestion of a synthetic substance by another person |
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if the actor: |
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(1) produced, distributed, sold, or provided the |
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synthetic substance to the other person; or |
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(2) aided in the production, distribution, sale, or |
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provision of the synthetic substance to the other person. |
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(c) A person is strictly liable for all damages caused by |
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the consumption or ingestion of a synthetic substance by a minor if |
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the actor: |
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(1) produced, distributed, sold, or provided the |
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synthetic substance to the minor; or |
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(2) aided in the production, distribution, sale, or |
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provision of the synthetic substance to the minor. |
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(d) A person who is found liable under this section or other |
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law for any amount of damages arising from the consumption or |
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ingestion by another of a synthetic substance is jointly and |
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severally liable with any other person for the entire amount of |
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damages awarded. |
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(e) Chapter 33, Civil Practice and Remedies Code, does not |
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apply to an action brought under this section or an action brought |
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under Section 17.50, Business & Commerce Code, based on conduct |
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made actionable under Subsection (f) of this section. |
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(f) Conduct for which Subsection (b) or (c) creates |
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liability is a false, misleading, or deceptive act or practice or an |
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unconscionable action or course of action for purposes of Section |
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17.50, Business & Commerce Code, and that conduct is: |
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(1) actionable under Subchapter E, Chapter 17, |
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Business & Commerce Code; and |
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(2) subject to any remedy prescribed by that |
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subchapter. |
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(g) An action brought under this section may include a claim |
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for exemplary damages, which may be awarded in accordance with |
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Section 41.003, Civil Practice and Remedies Code. |
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(h) Section 41.008, Civil Practice and Remedies Code, does |
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not apply to the award of exemplary damages in an action brought |
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under this section. |
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(i) Section 41.005, Civil Practice and Remedies Code, does |
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not apply to a claim for exemplary damages in an action brought |
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under this section. |
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(j) It is an affirmative defense to liability under this |
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section that the synthetic substance produced, distributed, sold, |
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or provided was approved for use, sale, or distribution by the |
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United States Food and Drug Administration or other state or |
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federal regulatory agency with authority to approve a substance for |
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use, sale, or distribution. |
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(k) It is not a defense to liability under this section that |
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a synthetic substance was in packaging labeled with "Not for Human |
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Consumption" or other wording indicating the substance is not |
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intended to be ingested. |
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SECTION 2. Subchapter E, Chapter 17, Business & Commerce |
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Code, is amended by adding Section 17.463 to read as follows: |
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Sec. 17.463. PRODUCTION, SALE, DISTRIBUTION, OR PROMOTION |
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OF CERTAIN SYNTHETIC SUBSTANCES. (a) This section applies only to |
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an act described by Section 17.46(b)(31). |
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(b) Subject to Subsection (e) and except as otherwise |
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provided by this section, an act to which this section applies is |
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subject to action by a district or county attorney under Sections |
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17.47, 17.58, 17.60, and 17.61 to the same extent as the act is |
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subject to action by the consumer protection division under those |
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sections. |
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(c) If a district or county attorney, under the authority of |
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this section, accepts assurance of voluntary compliance under |
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Section 17.58, the district or county attorney must file the |
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assurance of voluntary compliance in the district court in the |
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county in which the alleged violator resides or does business. |
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(d) If a district or county attorney, under the authority of |
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this section, executes and serves a civil investigative demand and |
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files a petition described by Section 17.61(g), the petition must |
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be filed in the district court in the county where the parties |
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reside. |
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(e) A district or county attorney may act under this section |
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so long as the consumer protection division does not intend to act |
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with respect to that matter. Further, consistent with Section |
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17.48(b) of this subchapter, the consumer protection division |
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shall, upon request and to the extent it has the resources |
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available, provide assistance to a district or county attorney in |
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any action taken under this subchapter. A district or county |
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attorney may institute a suit described by this section on or after |
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the 90th day after the date the attorney general receives the notice |
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required by Section 17.48 unless before the 90th day after the date |
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the notice is received the attorney general responds that it is |
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actively investigating or litigating at least one of the alleged |
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violations set forth in the notice. The consumer protection |
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division shall notify the district or county attorney it no longer |
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intends to actively investigate or litigate an alleged violation |
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within a reasonable time of such determination. |
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(f) Notwithstanding any other law, in an action brought by a |
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district or county attorney under this section, all settlements or |
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penalties collected by the district or county attorney shall be |
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divided between the state and the county in which the attorney |
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brought suit, with: |
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(1) 50 percent of the amount collected paid to the |
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comptroller for deposit to the credit of the basic civil legal |
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services account established by Section 51.943, Government Code; |
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and |
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(2) 50 percent of the amount collected paid to the |
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county shall be deposited by the county in a segregated account and |
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the funds shall be used only for law enforcement, public health |
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programs, or drug abuse prevention programs. |
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SECTION 3. This Act applies only to a cause of action that |
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accrues on or after the effective date of this Act. A cause of |
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action that accrued before the effective date of this Act is |
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governed by the law applicable to the cause of action immediately |
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before the effective date of this Act, and that law is continued in |
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effect for that purpose. |
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SECTION 4. This Act takes effect September 1, 2017. |