84R1834 LED-D
By: Lucio III H.B. No. 2831
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 I to read as follows:
SUBCHAPTER I. NUTRITION LABELING OF STANDARD MENU ITEMS AT CERTAIN
FOOD ESTABLISHMENTS; ADMINISTRATIVE PENALTY
Sec. 438.201. DEFINITIONS. In this subchapter:
(1) "Department" means the Department of State Health
Services.
(2) "Executive commissioner" means the executive
commissioner of the Health and Human Services Commission.
Sec. 438.202. 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. 438.203. INSPECTION. (a) To enforce the rules adopted
under this subchapter, the department, 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 department 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. 438.204. ADMINISTRATIVE PENALTY: IMPOSITION AND
AMOUNT. (a) The department may impose an administrative penalty
against a person who violates this subchapter.
(b) In determining the amount of the penalty, the department
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. 438.205. 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 the person requests a hearing, the department shall
refer the matter to the State Office of Administrative Hearings and
shall give notice of the hearing to the person. The hearing shall
be held by an administrative law judge of that office. The
administrative law judge shall make findings of fact and
conclusions of law and promptly issue to the department a written
proposal for decision about the occurrence of the violation and the
amount of any proposed penalty. Based on the findings of fact,
conclusions of law, and proposal for decision, the department by
order may find that a violation has occurred and impose a penalty or
may find that no violation occurred.
(c) If the person charged with the violation does not
request a hearing, the department may assess a penalty after
determining that a violation has occurred and the amount of the
penalty that may be warranted.
(d) The notice of the department's order given to the person
under Chapter 2001, Government Code, must include a statement of
the right of the person to judicial review of the order.
Sec. 438.206. PAYMENT AND COLLECTION OF ADMINISTRATIVE
PENALTY; JUDICIAL REVIEW. (a) Within 30 days after the date an
order of the department under Section 438.205 that imposes an
administrative penalty becomes final, the person shall:
(1) pay the penalty; or
(2) file a petition for judicial review of the
department'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 department'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
department by certified mail.
(c) If the department receives a copy of an affidavit under
Subsection (b)(2), the department 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 438.202, Health and Safety Code, as added by this Act,
before the United States Food and Drug Administration has adopted
and published regulations under Section 403(q)(5)(H), Federal
Food, Drug, and Cosmetic Act (21 U.S.C. Section 343).
SECTION 3. This Act takes effect September 1, 2015.