| 1 | 1 | | 84R21254 JSC-D |
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| 2 | 2 | | By: Parker H.B. No. 1955 |
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| 3 | 3 | | Substitute the following for H.B. No. 1955: |
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| 4 | 4 | | By: Herrero C.S.H.B. No. 1955 |
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| 5 | 5 | | |
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| 6 | 6 | | |
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| 7 | 7 | | A BILL TO BE ENTITLED |
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| 8 | 8 | | AN ACT |
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| 9 | 9 | | relating to false or misleading packaging, labeling, or advertising |
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| 10 | 10 | | of certain abusable synthetic substances; providing civil |
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| 11 | 11 | | penalties; creating a criminal offense. |
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| 12 | 12 | | BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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| 13 | 13 | | SECTION 1. Subtitle C, Title 6, Health and Safety Code, is |
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| 14 | 14 | | amended by adding Chapter 484 to read as follows: |
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| 15 | 15 | | CHAPTER 484. ABUSABLE SYNTHETIC SUBSTANCES |
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| 16 | 16 | | Sec. 484.001. DEFINITIONS. In this chapter: |
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| 17 | 17 | | (1) "Abusable synthetic substance" means a substance |
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| 18 | 18 | | that: |
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| 19 | 19 | | (A) is not otherwise regulated under this title |
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| 20 | 20 | | or under federal law; |
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| 21 | 21 | | (B) is intended to mimic a controlled substance |
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| 22 | 22 | | or controlled substance analogue; and |
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| 23 | 23 | | (C) when inhaled, ingested, or otherwise |
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| 24 | 24 | | introduced into a person's body: |
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| 25 | 25 | | (i) produces an effect on the central |
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| 26 | 26 | | nervous system similar to the effect produced by a controlled |
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| 27 | 27 | | substance or controlled substance analogue; |
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| 28 | 28 | | (ii) creates a condition of intoxication, |
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| 29 | 29 | | hallucination, or elation similar to a condition produced by a |
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| 30 | 30 | | controlled substance or controlled substance analogue; or |
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| 31 | 31 | | (iii) changes, distorts, or disturbs the |
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| 32 | 32 | | person's eyesight, thinking process, balance, or coordination in a |
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| 33 | 33 | | manner similar to a controlled substance or controlled substance |
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| 34 | 34 | | analogue. |
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| 35 | 35 | | (2) "Business" includes trade and commerce and |
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| 36 | 36 | | advertising, selling, and buying service or property. |
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| 37 | 37 | | (3) "Mislabeled" means varying from the standard of |
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| 38 | 38 | | truth or disclosure in labeling prescribed by law or set by |
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| 39 | 39 | | established commercial usage. |
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| 40 | 40 | | (4) "Sell" and "sale" include offer for sale, |
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| 41 | 41 | | advertise for sale, expose for sale, keep for the purpose of sale, |
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| 42 | 42 | | deliver for or after sale, solicit and offer to buy, and every |
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| 43 | 43 | | disposition for value. |
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| 44 | 44 | | Sec. 484.002. PROHIBITED ACTS. (a) A person commits an |
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| 45 | 45 | | offense if in the course of business the person knowingly produces, |
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| 46 | 46 | | distributes, sells, or offers for sale a mislabeled abusable |
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| 47 | 47 | | synthetic substance. |
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| 48 | 48 | | (b) An offense under this section is a Class C misdemeanor, |
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| 49 | 49 | | except that the offense is a Class A misdemeanor if it is shown on |
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| 50 | 50 | | the trial of the offense that the actor has previously been |
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| 51 | 51 | | convicted of an offense under this section or of an offense under |
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| 52 | 52 | | Section 32.42(b)(4), Penal Code, and the adulterated or mislabeled |
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| 53 | 53 | | commodity was an abusable synthetic substance. |
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| 54 | 54 | | (c) If conduct constituting an offense under this section |
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| 55 | 55 | | also constitutes an offense under another provision of law, the |
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| 56 | 56 | | person may be prosecuted under either this section or the other |
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| 57 | 57 | | provision. |
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| 58 | 58 | | Sec. 484.003. CIVIL PENALTY. (a) The attorney general or a |
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| 59 | 59 | | district, county, or city attorney may institute an action in |
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| 60 | 60 | | district court to collect a civil penalty from a person who in the |
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| 61 | 61 | | course of business produces, distributes, sells, or offers for sale |
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| 62 | 62 | | a mislabeled abusable synthetic substance. |
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| 63 | 63 | | (b) The civil penalty may not exceed $25,000 a day for each |
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| 64 | 64 | | offense. Each day an offense is committed constitutes a separate |
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| 65 | 65 | | violation for purposes of the penalty assessment. |
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| 66 | 66 | | (c) The court shall consider the following in determining |
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| 67 | 67 | | the amount of the penalty: |
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| 68 | 68 | | (1) the person's history of any previous offenses |
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| 69 | 69 | | under Section 484.002 or under Section 32.42(b)(4), Penal Code, |
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| 70 | 70 | | relating to the sale of a mislabeled abusable synthetic substance; |
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| 71 | 71 | | (2) the seriousness of the offense; |
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| 72 | 72 | | (3) any hazard posed to the public health and safety by |
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| 73 | 73 | | the offense; and |
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| 74 | 74 | | (4) demonstrations of good faith by the person |
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| 75 | 75 | | charged. |
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| 76 | 76 | | (d) Venue for a suit brought under this section is in the |
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| 77 | 77 | | city or county in which the offense occurred or in Travis County. |
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| 78 | 78 | | (e) A civil penalty recovered in a suit instituted by a |
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| 79 | 79 | | local government under this section shall be paid to that local |
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| 80 | 80 | | government. |
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| 81 | 81 | | Sec. 484.004. AFFIRMATIVE DEFENSE. It is an affirmative |
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| 82 | 82 | | defense to prosecution or liability under this chapter that: |
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| 83 | 83 | | (1) the abusable synthetic substance was approved for |
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| 84 | 84 | | use, sale, or distribution by the United States Food and Drug |
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| 85 | 85 | | Administration or other state or federal regulatory agency with |
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| 86 | 86 | | authority to approve the substance's use, sale, or distribution; |
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| 87 | 87 | | and |
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| 88 | 88 | | (2) the abusable synthetic substance was lawfully |
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| 89 | 89 | | produced, distributed, sold, or offered for sale by the person who |
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| 90 | 90 | | is the subject of the criminal or civil action. |
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| 91 | 91 | | Sec. 484.005. NO DEFENSE. In a prosecution or civil action |
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| 92 | 92 | | under this chapter, the fact that the abusable synthetic substance |
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| 93 | 93 | | was in packaging labeled with "Not for Human Consumption," or other |
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| 94 | 94 | | wording indicating the substance is not intended to be ingested, is |
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| 95 | 95 | | not a defense. |
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| 96 | 96 | | SECTION 2. This Act takes effect September 1, 2015. |
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