81R3631 SJM-D
By: Lucio III H.B. No. 1845
A BILL TO BE ENTITLED
AN ACT
relating to disclosure of calorie content of and nutrition
information regarding food served by a chain restaurant; 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 CALORIE CONTENT AND NUTRITION
INFORMATION BY CHAIN RESTAURANT
Sec. 438.131. DEFINITIONS. In this subchapter:
(1) "Calorie content information" means, for a
standard menu item:
(A) the total number of calories; and
(B) the number of calories derived from fat.
(2) "Chain restaurant" means a for-profit
establishment operating with the same name or as a franchised
outlet of the same parent company at 20 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) "Menu board" means a posted list or pictorial
display of food items offered for sale by a chain restaurant.
(5) "Standard food item" means a food item, as it is
usually prepared for sale, offered for sale by a chain restaurant at
least 90 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) 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.);
(C) a food item served at a consumer self-service
buffet or salad bar; or
(D) a food item exempt under department rule.
Sec. 438.132. DISCLOSURE OF CALORIE CONTENT INFORMATION.
(a) A chain restaurant that provides a menu shall disclose before
the point of purchase calorie content information for a standard
food item by printing it in a font size not more than one font size
smaller than the smallest font size used to list the menu items:
(1) in the menu;
(2) in a menu insert or appendix; or
(3) in a supplemental writing that accompanies the
menu.
(b) A chain restaurant that uses a menu board shall disclose
calorie content information for a standard food item next to the
item in a font size not more than one font size smaller than the
smallest font size used to list the menu items:
(1) on the menu board;
(2) on a sign presenting a standard food item in a
manner similar to a menu board that is posted next to the menu
board; or
(3) on a sign posted conspicuously at eye level in the
consumer queue before the point of purchase.
Sec. 438.133. DISCLOSURE OF NUTRITION INFORMATION. (a) A
chain restaurant on request shall make available to consumers
before the point of purchase the following written nutrition
information about each single-serving standard food item:
(1) calorie content information;
(2) total fat;
(3) saturated fat;
(4) cholesterol;
(5) sodium;
(6) total carbohydrates;
(7) complex carbohydrates;
(8) sugars;
(9) dietary fiber; and
(10) total protein.
(b) A menu, menu board, or other writing posted before the
point of purchase must include a statement alerting consumers to
the availability of the written nutrition information required by
Subsection (a).
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.