82R2205 NAJ-D
By: Hinojosa S.B. No. 171
A BILL TO BE ENTITLED
AN ACT
relating to disclosure of calorie content and nutrition information
by certain food establishments; 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. NUTRITION LABELING OF STANDARD MENU ITEMS AT CERTAIN
FOOD ESTABLISHMENTS
Sec. 438.131. DEFINITIONS. In this subchapter:
(1) "Commissioner" means the commissioner of state
health services.
(2) "Department" means the Department of State Health
Services.
(3) "Executive commissioner" means the executive
commissioner of the Health and Human Services Commission.
Sec. 438.132. ENFORCEMENT; RULES. (a) A food
establishment subject to Section 403(q)(5)(H), Federal Food, Drug,
and Cosmetic Act (21 U.S.C. Section 343), shall comply with that
section and the rules adopted under this subchapter.
(b) The department shall enforce Section 403(q)(5)(H),
Federal Food, Drug, and Cosmetic Act (21 U.S.C. Section 343).
(c) The executive commissioner shall adopt rules to
implement this subchapter. The executive commissioner shall review
the regulations adopted by the United States Food and Drug
Administration under Section 403(q)(5)(H), Federal Food, Drug, and
Cosmetic Act (21 U.S.C. Section 343), before adopting rules under
this subsection.
(d) Rules adopted under Subsection (c) must be consistent
with the requirements of Section 403(q)(5)(H), Federal Food, Drug,
and Cosmetic Act (21 U.S.C. Section 343), and the regulations
adopted by the United States Food and Drug Administration under
that section.
Sec. 438.133. INSPECTION. (a) To enforce the rules adopted
under 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 establishment, enter
an establishment to conduct an inspection to determine compliance
with 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 establishment 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 establishment 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. 438.134. 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. 438.135. 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. 438.136. PAYMENT AND COLLECTION OF ADMINISTRATIVE
PENALTY; JUDICIAL REVIEW. (a) Within 30 days after the date an
order of the commissioner under Section 438.135(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 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.
SECTION 2. The executive commissioner of the Health and
Human Services Commission may not adopt the rules required by
Section 438.132, Health and Safety Code, as added by this Act,
before the United States Food and Drug Administration has adopted
regulations under Section 403(q)(5)(H) of the Federal Food, Drug,
and Cosmetic Act (21 U.S.C. Section 343).
SECTION 3. This Act takes effect September 1, 2011.