Texas 2015 - 84th Regular

Texas House Bill HB2831 Compare Versions

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

Old	New	Differences
1	1	84R1834 LED-D
2	2	By: Lucio III H.B. No. 2831
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to disclosure of calorie content and nutrition information
8	8	by certain food establishments; providing an administrative
9	9	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 I to read as follows:
13	13	SUBCHAPTER I. NUTRITION LABELING OF STANDARD MENU ITEMS AT CERTAIN
14	14	FOOD ESTABLISHMENTS; ADMINISTRATIVE PENALTY
15	15	Sec. 438.201. DEFINITIONS. In this subchapter:
16	16	(1) "Department" means the Department of State Health
17	17	Services.
18	18	(2) "Executive commissioner" means the executive
19	19	commissioner of the Health and Human Services Commission.
20	20	Sec. 438.202. ENFORCEMENT; RULES. (a) A food
21	21	establishment subject to Section 403(q)(5)(H), Federal Food, Drug,
22	22	and Cosmetic Act (21 U.S.C. Section 343), shall comply with that
23	23	section and the rules adopted under this subchapter.
24	24	(b) The department shall enforce Section 403(q)(5)(H),
25	25	Federal Food, Drug, and Cosmetic Act (21 U.S.C. Section 343).
26	26	(c) The executive commissioner shall adopt rules to
27	27	implement this subchapter. The executive commissioner shall review
28	28	the regulations adopted by the United States Food and Drug
29	29	Administration under Section 403(q)(5)(H), Federal Food, Drug, and
30	30	Cosmetic Act (21 U.S.C. Section 343), before adopting rules under
31	31	this subsection.
32	32	(d) Rules adopted under Subsection (c) must be consistent
33	33	with the requirements of Section 403(q)(5)(H), Federal Food, Drug,
34	34	and Cosmetic Act (21 U.S.C. Section 343), and the regulations
35	35	adopted by the United States Food and Drug Administration under
36	36	that section.
37	37	Sec. 438.203. INSPECTION. (a) To enforce the rules adopted
38	38	under this subchapter, the department, an authorized agent, or a
39	39	health authority may, on presenting appropriate credentials to the
40	40	owner, operator, or agent in charge of a food establishment, enter
41	41	an establishment to conduct an inspection to determine compliance
42	42	with rules adopted under this subchapter.
43	43	(b) On finding an alleged violation, an authorized agent
44	44	conducting an inspection shall submit to the department and the
45	45	owner or operator of the food establishment notice by certified
46	46	mail that includes:
47	47	(1) a brief summary of the alleged violation;
48	48	(2) the amount of the recommended penalty; and
49	49	(3) a statement informing the owner or operator of the
50	50	food establishment of the owner's or operator's right to a hearing
51	51	on the occurrence of the violation, the amount of the penalty, or
52	52	both.
53	53	Sec. 438.204. ADMINISTRATIVE PENALTY: IMPOSITION AND
54	54	AMOUNT. (a) The department may impose an administrative penalty
55	55	against a person who violates this subchapter.
56	56	(b) In determining the amount of the penalty, the department
57	57	shall consider:
58	58	(1) the seriousness of the violation;
59	59	(2) the person's previous violations;
60	60	(3) the amount necessary to deter a future violation;
61	61	(4) the person's demonstrated good faith; and
62	62	(5) such other matters as justice may require.
63	63	(c) The penalty may not exceed $500 for each violation.
64	64	(d) A person may not be charged with more than one violation
65	65	of this subchapter on the basis of evidence gathered during a single
66	66	inspection.
67	67	Sec. 438.205. ADMINISTRATIVE PENALTY ASSESSMENT PROCEDURE.
68	68	(a) An administrative penalty may be assessed only after a person
69	69	charged with a violation is given an opportunity for a hearing.
70	70	(b) If the person requests a hearing, the department shall
71	71	refer the matter to the State Office of Administrative Hearings and
72	72	shall give notice of the hearing to the person. The hearing shall
73	73	be held by an administrative law judge of that office. The
74	74	administrative law judge shall make findings of fact and
75	75	conclusions of law and promptly issue to the department a written
76	76	proposal for decision about the occurrence of the violation and the
77	77	amount of any proposed penalty. Based on the findings of fact,
78	78	conclusions of law, and proposal for decision, the department by
79	79	order may find that a violation has occurred and impose a penalty or
80	80	may find that no violation occurred.
81	81	(c) If the person charged with the violation does not
82	82	request a hearing, the department may assess a penalty after
83	83	determining that a violation has occurred and the amount of the
84	84	penalty that may be warranted.
85	85	(d) The notice of the department's order given to the person
86	86	under Chapter 2001, Government Code, must include a statement of
87	87	the right of the person to judicial review of the order.
88	88	Sec. 438.206. PAYMENT AND COLLECTION OF ADMINISTRATIVE
89	89	PENALTY; JUDICIAL REVIEW. (a) Within 30 days after the date an
90	90	order of the department under Section 438.205 that imposes an
91	91	administrative penalty becomes final, the person shall:
92	92	(1) pay the penalty; or
93	93	(2) file a petition for judicial review of the
94	94	department's order contesting the occurrence of the violation, the
95	95	amount of the penalty, or both.
96	96	(b) Within the 30-day period prescribed by Subsection (a), a
97	97	person who files a petition for judicial review may:
98	98	(1) stay enforcement of the penalty by:
99	99	(A) paying the penalty to the court for placement
100	100	in an escrow account; or
101	101	(B) giving the court a supersedeas bond approved
102	102	by the court that:
103	103	(i) is for the amount of the penalty; and
104	104	(ii) is effective until all judicial review
105	105	of the department's order is final; or
106	106	(2) request the court to stay enforcement of the
107	107	penalty by:
108	108	(A) filing with the court a sworn affidavit of
109	109	the person stating that the person is financially unable to pay the
110	110	penalty and is financially unable to give the supersedeas bond; and
111	111	(B) sending a copy of the affidavit to the
112	112	department by certified mail.
113	113	(c) If the department receives a copy of an affidavit under
114	114	Subsection (b)(2), the department may file with the court, within
115	115	five days after the date the copy is received, a contest to the
116	116	affidavit. The court shall hold a hearing on the facts alleged in
117	117	the affidavit as soon as practicable and shall stay enforcement of
118	118	the penalty on finding that the alleged facts are true. The person
119	119	who files an affidavit has the burden of proving that the person is
120	120	financially unable to pay the penalty or to give a supersedeas bond.
121	121	(d) If the person does not pay the penalty and the
122	122	enforcement of the penalty is not stayed, the penalty may be
123	123	collected. The attorney general may sue to collect the penalty.
124	124	(e) If the court sustains the finding that a violation
125	125	occurred, the court may uphold or reduce the amount of the penalty
126	126	and order the person to pay the full or reduced amount of the
127	127	penalty.
128	128	(f) If the court does not sustain the finding that a
129	129	violation occurred, the court shall order that a penalty is not
130	130	owed.
131	131	(g) If the person paid the penalty and if the amount of the
132	132	penalty is reduced or the penalty is not upheld by the court, the
133	133	court shall order, when the court's judgment becomes final, that
134	134	the appropriate amount plus accrued interest be remitted to the
135	135	person within 30 days after the date that the judgment of the court
136	136	becomes final. The interest accrues at the rate charged on loans to
137	137	depository institutions by the New York Federal Reserve Bank. The
138	138	interest shall be paid for the period beginning on the date the
139	139	penalty is paid and ending on the date the penalty is remitted.
140	140	(h) If the person gave a supersedeas bond and the penalty is
141	141	not upheld by the court, the court shall order, when the court's
142	142	judgment becomes final, the release of the bond. If the person gave
143	143	a supersedeas bond and the amount of the penalty is reduced, the
144	144	court shall order the release of the bond after the person pays the
145	145	reduced amount.
146	146	SECTION 2. The executive commissioner of the Health and
147	147	Human Services Commission may not adopt the rules required by
148	148	Section 438.202, Health and Safety Code, as added by this Act,
149	149	before the United States Food and Drug Administration has adopted
150	150	and published regulations under Section 403(q)(5)(H), Federal
151	151	Food, Drug, and Cosmetic Act (21 U.S.C. Section 343).
152	152	SECTION 3. This Act takes effect September 1, 2015.