81R1654 SJM-D
By: Alvarado H.B. No. 1522
A BILL TO BE ENTITLED
AN ACT
relating to a requirement that a chain restaurant disclose
nutrition information; providing an administrative penalty.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Chapter 438, Health and Safety Code, is amended
by adding Subchapter H to read as follows:
SUBCHAPTER H. DISCLOSURE OF NUTRITION INFORMATION BY CHAIN
RESTAURANT
Sec. 438.131. DEFINITIONS. In this subchapter:
(1) "Calorie content information" means the total
number of calories for a standard menu item as the item is usually
prepared or offered for sale.
(2) "Chain restaurant" means an establishment
operating with the same name or as a franchised outlet of the same
parent company, at 19 or more locations in this state and offering
for sale substantially similar menu items. The term does not
include:
(A) a farmers market;
(B) a commissary;
(C) a grocery store, except for a separately
owned restaurant located inside a grocery store to which this
section otherwise applies;
(D) a licensed health care facility;
(E) a mobile support unit; or
(F) a school cafeteria.
(3) "Commissioner" means the commissioner of state
health services.
(4) "Drive-through" means an area where a customer may
provide an order for and receive a standard menu item while
occupying a motor vehicle.
(5) "Menu board" means a posted list or pictorial
display of food or beverage items offered for sale by a chain
restaurant.
(6) "Standard menu item" means a food or beverage item
offered for sale by a chain restaurant through a menu, menu board,
or display tag at least 180 days a calendar year except:
(A) a food item that is customized on a
case-by-case basis in response to an unsolicited customer request;
(B) an alcoholic beverage, the labeling of which
is not regulated by the federal Food and Drug Administration;
(C) a packaged food subject to the nutrition
labeling requirements of the Federal Food, Drug, and Cosmetic Act
(21 U.S.C. Section 301 et seq.); or
(D) a food or beverage item served at a consumer
self-service buffet or salad bar.
Sec. 438.132. DISCLOSURE OF NUTRITION INFORMATION. (a) A
chain restaurant that offers sit-down service shall provide to
consumers nutrition information about each standard menu item by
including the information in:
(1) text next to the menu item on a printed menu;
(2) a menu insert;
(3) a brochure available at each table; or
(4) a menu tent available at each table.
(b) A chain restaurant that offers drive-through service
and uses a menu board to display standard menu items at the point of
sale shall provide nutrition information about a displayed standard
menu item in a brochure that is available on request and
conspicuously exhibited at the point of sale under a notice
indicating its availability.
(c) In a disclosure of nutrition information, a chain
restaurant shall include:
(1) calorie content information indicating:
(A) total calories; or
(B) if the standard menu item is a combination of
at least two separately listed standard menu items, a calorie range
including the minimum and maximum number of calories possible based
on all variations of the standard menu item;
(2) total grams of carbohydrates;
(3) total grams of saturated fat;
(4) total milligrams of sodium; and
(5) if a standard menu item is intended to serve more
than one individual:
(A) the number of individuals intended to be
served by the item; and
(B) the calorie content information for each
individual serving.
(d) A chain restaurant shall include with a disclosure of
nutrition information a statement that the recommended limits for a
2,000-calorie daily diet are 20 grams of saturated fat and 2,300
milligrams of sodium.
(e) This section expires December 31, 2010.
Sec. 438.133. DISCLOSURE OF CALORIE CONTENT INFORMATION.
(a) A chain restaurant that provides a menu shall disclose calorie
content information for a standard menu item by printing it next to
the item on the menu in a font size not more than one font size
smaller than the smallest font size used to list the menu items.
(b) A chain restaurant that uses an indoor menu board shall
disclose calorie content information for a standard menu item next
to the item on the menu board in a font size not more than one font
size smaller than the smallest font size used to list the menu
items.
(c) A chain restaurant that uses a display tag to describe a
standard menu item not listed on a menu or menu board that is
displayed for sale in a case inside the restaurant shall disclose
calorie content information for the item on a display tag on the
case in a font size not more than one font size smaller than the
smallest font size used to list the food items.
(d) A menu or menu board may include a disclaimer indicating
that variations in nutrition content may exist based on variations
in overall size of ingredients, quantities of ingredients, or
special ordering.
(e) In a disclosure of calorie content information, a chain
restaurant shall include:
(1) calorie content information indicating:
(A) total calories; or
(B) if the standard menu item is a combination of
at least two separately listed standard menu items, a calorie range
including the minimum and maximum number of calories possible based
on all variations of the standard menu item; and
(2) if a standard menu item is intended to serve more
than one individual:
(A) the number of individuals intended to be
served by the item; and
(B) the calorie content information for each
individual serving.
Sec. 438.134. INSPECTION. (a) To enforce this subchapter,
the commissioner, an authorized agent, or a health authority may,
on presenting appropriate credentials to the owner, operator, or
agent in charge of a chain restaurant, enter a restaurant to conduct
an inspection to determine compliance with this subchapter and
rules adopted under this subchapter.
(b) On finding an alleged violation, an authorized agent
conducting an inspection shall submit to the commissioner and the
owner or operator of the chain restaurant notice by certified mail
that includes:
(1) a brief summary of the alleged violation;
(2) the amount of the recommended penalty; and
(3) a statement informing the owner or operator of the
chain restaurant of the owner's or operator's right to a hearing on
the occurrence of the violation, the amount of the penalty, or both.
Sec. 438.135. ADMINISTRATIVE PENALTY. (a) The
commissioner may assess an administrative penalty against a person
who violates this subchapter.
(b) In determining the amount of the penalty, the
commissioner shall consider:
(1) the seriousness of the violation;
(2) the person's previous violations;
(3) the amount necessary to deter a future violation;
(4) the person's demonstrated good faith; and
(5) such other matters as justice may require.
(c) The penalty may not exceed $500 for each violation.
(d) A person may not be charged with more than one violation
of this subchapter on the basis of evidence gathered during a single
inspection.
Sec. 438.136. ADMINISTRATIVE PENALTY ASSESSMENT PROCEDURE.
(a) An administrative penalty may be assessed only after a person
charged with a violation is given an opportunity for a hearing.
(b) If a hearing is held, the commissioner shall make
findings of fact and shall issue a written decision regarding the
occurrence of the violation and the amount of the penalty that may
be warranted.
(c) If the person charged with the violation does not
request a hearing, the commissioner may assess a penalty after
determining that a violation has occurred and the amount of the
penalty that may be warranted.
(d) After making a determination under this section that a
penalty is to be assessed against a person, the commissioner shall
issue an order requiring that the person pay the penalty.
(e) The commissioner may consolidate a hearing held under
this section with another proceeding.
Sec. 438.137. PAYMENT AND COLLECTION OF ADMINISTRATIVE
PENALTY; JUDICIAL REVIEW. (a) Within 30 days after the date an
order of the commissioner under Section 438.136(d) that imposes an
administrative penalty becomes final, the person shall:
(1) pay the penalty; or
(2) file a petition for judicial review of the
commissioner's order contesting the occurrence of the violation,
the amount of the penalty, or both.
(b) Within the 30-day period prescribed by Subsection (a), a
person who files a petition for judicial review may:
(1) stay enforcement of the penalty by:
(A) paying the penalty to the court for placement
in an escrow account; or
(B) giving the court a supersedeas bond approved
by the court that:
(i) is for the amount of the penalty; and
(ii) is effective until all judicial review
of the commissioner's order is final; or
(2) request the court to stay enforcement of the
penalty by:
(A) filing with the court a sworn affidavit of
the person stating that the person is financially unable to pay the
penalty and is financially unable to give the supersedeas bond; and
(B) sending a copy of the affidavit to the
commissioner by certified mail.
(c) If the commissioner receives a copy of an affidavit
under Subsection (b)(2), the commissioner may file with the court,
within five days after the date the copy is received, a contest to
the affidavit. The court shall hold a hearing on the facts alleged
in the affidavit as soon as practicable and shall stay the
enforcement of the penalty on finding that the alleged facts are
true. The person who files an affidavit has the burden of proving
that the person is financially unable to pay the penalty or to give
a supersedeas bond.
(d) If the person does not pay the penalty and the
enforcement of the penalty is not stayed, the penalty may be
collected. The attorney general may sue to collect the penalty.
(e) If the court sustains the finding that a violation
occurred, the court may uphold or reduce the amount of the penalty
and order the person to pay the full or reduced amount of the
penalty.
(f) If the court does not sustain the finding that a
violation occurred, the court shall order that a penalty is not
owed.
(g) If the person paid the penalty and if the amount of the
penalty is reduced or the penalty is not upheld by the court, the
court shall order, when the court's judgment becomes final, that
the appropriate amount plus accrued interest be remitted to the
person within 30 days after the date that the judgment of the court
becomes final. The interest accrues at the rate charged on loans to
depository institutions by the New York Federal Reserve Bank. The
interest shall be paid for the period beginning on the date the
penalty is paid and ending on the date the penalty is remitted.
(h) If the person gave a supersedeas bond and the penalty is
not upheld by the court, the court shall order, when the court's
judgment becomes final, the release of the bond. If the person gave
a supersedeas bond and the amount of the penalty is reduced, the
court shall order the release of the bond after the person pays the
reduced amount.
Sec. 438.138. RULES. The executive commissioner of the
Health and Human Services Commission may adopt rules necessary to
implement this subchapter.
SECTION 2. This Act takes effect January 1, 2010, except
that Section 438.133, Health and Safety Code, as added by this Act,
takes effect January 1, 2011.