Texas 2009 - 81st Regular

Texas House Bill HB1845 Compare Versions

Only one version of the bill is available at this time.

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1	1	81R3631 SJM-D
2	2	By: Lucio III H.B. No. 1845
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to disclosure of calorie content of and nutrition
8	8	information regarding food served by a chain restaurant; providing
9	9	an administrative penalty.
10	10	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
11	11	SECTION 1. Chapter 438, Health and Safety Code, is amended
12	12	by adding Subchapter H to read as follows:
13	13	SUBCHAPTER H. DISCLOSURE OF CALORIE CONTENT AND NUTRITION
14	14	INFORMATION BY CHAIN RESTAURANT
15	15	Sec. 438.131. DEFINITIONS. In this subchapter:
16	16	(1) "Calorie content information" means, for a
17	17	standard menu item:
18	18	(A) the total number of calories; and
19	19	(B) the number of calories derived from fat.
20	20	(2) "Chain restaurant" means a for-profit
21	21	establishment operating with the same name or as a franchised
22	22	outlet of the same parent company at 20 or more locations in this
23	23	state and offering for sale substantially similar menu items. The
24	24	term does not include:
25	25	(A) a farmers' market;
26	26	(B) a commissary;
27	27	(C) a grocery store, except for a separately
28	28	owned restaurant located inside a grocery store to which this
29	29	section otherwise applies;
30	30	(D) a licensed health care facility;
31	31	(E) a mobile support unit; or
32	32	(F) a school cafeteria.
33	33	(3) "Commissioner" means the commissioner of state
34	34	health services.
35	35	(4) "Menu board" means a posted list or pictorial
36	36	display of food items offered for sale by a chain restaurant.
37	37	(5) "Standard food item" means a food item, as it is
38	38	usually prepared for sale, offered for sale by a chain restaurant at
39	39	least 90 days a calendar year except:
40	40	(A) a food item that is customized on a
41	41	case-by-case basis in response to an unsolicited customer request;
42	42	(B) a packaged food subject to the nutrition
43	43	labeling requirements of the Federal Food, Drug, and Cosmetic Act
44	44	(21 U.S.C. Section 301 et seq.);
45	45	(C) a food item served at a consumer self-service
46	46	buffet or salad bar; or
47	47	(D) a food item exempt under department rule.
48	48	Sec. 438.132. DISCLOSURE OF CALORIE CONTENT INFORMATION.
49	49	(a) A chain restaurant that provides a menu shall disclose before
50	50	the point of purchase calorie content information for a standard
51	51	food item by printing it in a font size not more than one font size
52	52	smaller than the smallest font size used to list the menu items:
53	53	(1) in the menu;
54	54	(2) in a menu insert or appendix; or
55	55	(3) in a supplemental writing that accompanies the
56	56	menu.
57	57	(b) A chain restaurant that uses a menu board shall disclose
58	58	calorie content information for a standard food item next to the
59	59	item in a font size not more than one font size smaller than the
60	60	smallest font size used to list the menu items:
61	61	(1) on the menu board;
62	62	(2) on a sign presenting a standard food item in a
63	63	manner similar to a menu board that is posted next to the menu
64	64	board; or
65	65	(3) on a sign posted conspicuously at eye level in the
66	66	consumer queue before the point of purchase.
67	67	Sec. 438.133. DISCLOSURE OF NUTRITION INFORMATION. (a) A
68	68	chain restaurant on request shall make available to consumers
69	69	before the point of purchase the following written nutrition
70	70	information about each single-serving standard food item:
71	71	(1) calorie content information;
72	72	(2) total fat;
73	73	(3) saturated fat;
74	74	(4) cholesterol;
75	75	(5) sodium;
76	76	(6) total carbohydrates;
77	77	(7) complex carbohydrates;
78	78	(8) sugars;
79	79	(9) dietary fiber; and
80	80	(10) total protein.
81	81	(b) A menu, menu board, or other writing posted before the
82	82	point of purchase must include a statement alerting consumers to
83	83	the availability of the written nutrition information required by
84	84	Subsection (a).
85	85	Sec. 438.134. INSPECTION. (a) To enforce this subchapter,
86	86	the commissioner, an authorized agent, or a health authority may,
87	87	on presenting appropriate credentials to the owner, operator, or
88	88	agent in charge of a chain restaurant, enter a restaurant to conduct
89	89	an inspection to determine compliance with this subchapter and
90	90	rules adopted under this subchapter.
91	91	(b) On finding an alleged violation, an authorized agent
92	92	conducting an inspection shall submit to the commissioner and the
93	93	owner or operator of the chain restaurant notice by certified mail
94	94	that includes:
95	95	(1) a brief summary of the alleged violation;
96	96	(2) the amount of the recommended penalty; and
97	97	(3) a statement informing the owner or operator of the
98	98	chain restaurant of the owner's or operator's right to a hearing on
99	99	the occurrence of the violation, the amount of the penalty, or both.
100	100	Sec. 438.135. ADMINISTRATIVE PENALTY. (a) The
101	101	commissioner may assess an administrative penalty against a person
102	102	who violates this subchapter.
103	103	(b) In determining the amount of the penalty, the
104	104	commissioner shall consider:
105	105	(1) the seriousness of the violation;
106	106	(2) the person's previous violations;
107	107	(3) the amount necessary to deter a future violation;
108	108	(4) the person's demonstrated good faith; and
109	109	(5) such other matters as justice may require.
110	110	(c) The penalty may not exceed $500 for each violation.
111	111	(d) A person may not be charged with more than one violation
112	112	of this subchapter on the basis of evidence gathered during a single
113	113	inspection.
114	114	Sec. 438.136. ADMINISTRATIVE PENALTY ASSESSMENT PROCEDURE.
115	115	(a) An administrative penalty may be assessed only after a person
116	116	charged with a violation is given an opportunity for a hearing.
117	117	(b) If a hearing is held, the commissioner shall make
118	118	findings of fact and shall issue a written decision regarding the
119	119	occurrence of the violation and the amount of the penalty that may
120	120	be warranted.
121	121	(c) If the person charged with the violation does not
122	122	request a hearing, the commissioner may assess a penalty after
123	123	determining that a violation has occurred and the amount of the
124	124	penalty that may be warranted.
125	125	(d) After making a determination under this section that a
126	126	penalty is to be assessed against a person, the commissioner shall
127	127	issue an order requiring that the person pay the penalty.
128	128	(e) The commissioner may consolidate a hearing held under
129	129	this section with another proceeding.
130	130	Sec. 438.137. PAYMENT AND COLLECTION OF ADMINISTRATIVE
131	131	PENALTY; JUDICIAL REVIEW. (a) Within 30 days after the date an
132	132	order of the commissioner under Section 438.136(d) that imposes an
133	133	administrative penalty becomes final, the person shall:
134	134	(1) pay the penalty; or
135	135	(2) file a petition for judicial review of the
136	136	commissioner's order contesting the occurrence of the violation,
137	137	the amount of the penalty, or both.
138	138	(b) Within the 30-day period prescribed by Subsection (a), a
139	139	person who files a petition for judicial review may:
140	140	(1) stay enforcement of the penalty by:
141	141	(A) paying the penalty to the court for placement
142	142	in an escrow account; or
143	143	(B) giving the court a supersedeas bond approved
144	144	by the court that:
145	145	(i) is for the amount of the penalty; and
146	146	(ii) is effective until all judicial review
147	147	of the commissioner's order is final; or
148	148	(2) request the court to stay enforcement of the
149	149	penalty by:
150	150	(A) filing with the court a sworn affidavit of
151	151	the person stating that the person is financially unable to pay the
152	152	penalty and is financially unable to give the supersedeas bond; and
153	153	(B) sending a copy of the affidavit to the
154	154	commissioner by certified mail.
155	155	(c) If the commissioner receives a copy of an affidavit
156	156	under Subsection (b)(2), the commissioner may file with the court,
157	157	within five days after the date the copy is received, a contest to
158	158	the affidavit. The court shall hold a hearing on the facts alleged
159	159	in the affidavit as soon as practicable and shall stay the
160	160	enforcement of the penalty on finding that the alleged facts are
161	161	true. The person who files an affidavit has the burden of proving
162	162	that the person is financially unable to pay the penalty or to give
163	163	a supersedeas bond.
164	164	(d) If the person does not pay the penalty and the
165	165	enforcement of the penalty is not stayed, the penalty may be
166	166	collected. The attorney general may sue to collect the penalty.
167	167	(e) If the court sustains the finding that a violation
168	168	occurred, the court may uphold or reduce the amount of the penalty
169	169	and order the person to pay the full or reduced amount of the
170	170	penalty.
171	171	(f) If the court does not sustain the finding that a
172	172	violation occurred, the court shall order that a penalty is not
173	173	owed.
174	174	(g) If the person paid the penalty and if the amount of the
175	175	penalty is reduced or the penalty is not upheld by the court, the
176	176	court shall order, when the court's judgment becomes final, that
177	177	the appropriate amount plus accrued interest be remitted to the
178	178	person within 30 days after the date that the judgment of the court
179	179	becomes final. The interest accrues at the rate charged on loans to
180	180	depository institutions by the New York Federal Reserve Bank. The
181	181	interest shall be paid for the period beginning on the date the
182	182	penalty is paid and ending on the date the penalty is remitted.
183	183	(h) If the person gave a supersedeas bond and the penalty is
184	184	not upheld by the court, the court shall order, when the court's
185	185	judgment becomes final, the release of the bond. If the person gave
186	186	a supersedeas bond and the amount of the penalty is reduced, the
187	187	court shall order the release of the bond after the person pays the
188	188	reduced amount.
189	189	Sec. 438.138. RULES. The executive commissioner of the
190	190	Health and Human Services Commission may adopt rules necessary to
191	191	implement this subchapter.
192	192	SECTION 2. This Act takes effect January 1, 2010.