81R5466 SJM-D
By: Alvarado H.B. No. 1523
A BILL TO BE ENTITLED
AN ACT
relating to a prohibition of foods containing trans fat; 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. FOODS CONTAINING TRANS FAT
Sec. 438.121. DEFINITIONS. In this subchapter:
(1) "Commissioner" means the commissioner of state
health services.
(2) "Department" means the Department of State Health
Services.
(3) "Food" and "label" have the meanings assigned by
Section 431.002.
(4) "Food service facility" means an establishment
that sells or otherwise serves individual portions of food or
drink, intended for human consumption, directly to the public or a
consumer.
(5) "Trans fat" means a food or food additive
artificially created by partial hydrogenation.
Sec. 438.122. EXEMPTIONS. This subchapter does not apply
to:
(1) a nonprofit organization, as defined by Section
223.002, that serves food to the public only four days or less in
any week, except that once each year the organization may serve food
to the public for not more than 14 consecutive days;
(2) a volunteer fire department that serves food to
the public only four days or less in any week, except that once each
year the fire department may serve food to the public for not more
than 30 consecutive days;
(3) a kitchen in a private home where food is prepared
at no charge for guests in the home or at a social gathering;
(4) a shelter where food is prepared at no charge for
unemployed, homeless, or other disadvantaged populations;
(5) a caterer that prepares food for consumption by
persons in a private home or at a private social gathering; or
(6) a food preparation area or serving area where only
food that is not potentially hazardous food, as determined under
the 2005 Model Food Code of the United States Food and Drug
Administration and the guidelines interpreting that model code, or
a subsequent model food code and related guidelines adopted by rule
under Section 438.123, is prepared or served by an organization
described by Subdivision (1) or (2).
Sec. 438.123. RULES. The executive commissioner of the
Health and Human Services Commission shall adopt the rules
necessary to implement this subchapter.
Sec. 438.124. MAINTENANCE OF FOOD LABELS FOR INSPECTION.
(a) A food service facility shall maintain on the food service
facility's premises an original label for any food or food additive
that is required by federal or state law to have a label affixed to
it when purchased by the facility and that contains a fat for as
long as the food or food additive is used, stored, distributed, or
served by the food service facility.
(b) On request, a food service facility shall make a label
required under Subsection (a) available to a person conducting an
inspection under Section 437.009.
(c) If a food is not required to be labeled when purchased, a
food service facility shall obtain and maintain documentation from
the manufacturer of the food indicating whether the food contains
trans fat and the food's trans fat content.
Sec. 438.125. USE OF TRANS FAT PROHIBITED. (a) A food
service facility may not prepare, package, store, serve,
distribute, or use a trans fat to prepare or serve food.
(b) Subsection (a) does not apply to:
(1) a packaged food served directly to a consumer in
the original sealed package of the manufacturer; or
(2) a food with a nutrition facts label or other
documentation from the manufacturer indicating that the food has a
trans fat content of less than 0.5 grams per serving.
Sec. 438.126. 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 food service facility, enter a facility 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 food service facility 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
food service facility 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. 438.127. 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 $1,000 for each violation.
(d) The assessment of a penalty under this subchapter does
not affect the status of a license issued to a food service facility
by the department under Chapter 437.
Sec. 438.128. 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. 438.129. PAYMENT AND COLLECTION OF ADMINISTRATIVE
PENALTY; JUDICIAL REVIEW. (a) Within 30 days after the date an
order of the commissioner under Section 438.128(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. 438.130. INTERNET POSTING. The department shall
maintain on the department's Internet website a list of food
service facilities that are in violation of this subchapter. The
department may not remove a food service facility from the list
until the department determines the food service facility is in
compliance with this subchapter.
SECTION 2. This Act takes effect September 1, 2009, except
that Section 438.125, Health and Safety Code, as added by this Act,
takes effect September 1, 2010.