By: Meyer, Fallon (Senate Sponsor - Huffman) H.B. No. 2612
(In the Senate - Received from the House May 10, 2017;
May 11, 2017, read first time and referred to Committee on State
Affairs; May 18, 2017, reported favorably by the following vote:
Yeas 9, Nays 0; May 18, 2017, sent to printer.)
Click here to see the committee vote
A BILL TO BE ENTITLED
AN ACT
relating to civil liability of a person who produces, distributes,
sells, or provides or aids in the production, distribution, sale,
or provision of certain synthetic substances to another person for
damages caused by the other person and to certain actions and
investigations under the Deceptive Trade Practices-Consumer
Protection Act.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subchapter D, Chapter 481, Health and Safety
Code, is amended by adding Section 481.1191 to read as follows:
Sec. 481.1191. CIVIL LIABILITY FOR ENGAGING IN OR AIDING IN
PRODUCTION, DISTRIBUTION, SALE, OR PROVISION OF SYNTHETIC
SUBSTANCES. (a) In this section:
(1) "Minor" means a person younger than 18 years of
age.
(2) "Synthetic substance" means an artificial
substance that produces and is intended by the manufacturer to
produce when consumed or ingested an effect similar to or in excess
of the effect produced by the consumption or ingestion of a
controlled substance or controlled substance analogue, as those
terms are defined by Section 481.002.
(b) A person is liable for damages proximately caused by the
consumption or ingestion of a synthetic substance by another person
if the actor:
(1) produced, distributed, sold, or provided the
synthetic substance to the other person; or
(2) aided in the production, distribution, sale, or
provision of the synthetic substance to the other person.
(c) A person is strictly liable for all damages caused by
the consumption or ingestion of a synthetic substance by a minor if
the actor:
(1) produced, distributed, sold, or provided the
synthetic substance to the minor; or
(2) aided in the production, distribution, sale, or
provision of the synthetic substance to the minor.
(d) A person who is found liable under this section or other
law for any amount of damages arising from the consumption or
ingestion by another of a synthetic substance is jointly and
severally liable with any other person for the entire amount of
damages awarded.
(e) Chapter 33, Civil Practice and Remedies Code, does not
apply to an action brought under this section or an action brought
under Section 17.50, Business & Commerce Code, based on conduct
made actionable under Subsection (f) of this section.
(f) Conduct for which Subsection (b) or (c) creates
liability is a false, misleading, or deceptive act or practice or an
unconscionable action or course of action for purposes of Section
17.50, Business & Commerce Code, and that conduct is:
(1) actionable under Subchapter E, Chapter 17,
Business & Commerce Code; and
(2) subject to any remedy prescribed by that
subchapter.
(g) An action brought under this section may include a claim
for exemplary damages, which may be awarded in accordance with
Section 41.003, Civil Practice and Remedies Code.
(h) Section 41.008, Civil Practice and Remedies Code, does
not apply to the award of exemplary damages in an action brought
under this section.
(i) Section 41.005, Civil Practice and Remedies Code, does
not apply to a claim for exemplary damages in an action brought
under this section.
(j) It is an affirmative defense to liability under this
section that the synthetic substance produced, distributed, sold,
or provided was approved for use, sale, or distribution by the
United States Food and Drug Administration or other state or
federal regulatory agency with authority to approve a substance for
use, sale, or distribution.
(k) It is not a defense to liability under this section that
a synthetic substance was in packaging labeled with "Not for Human
Consumption" or other wording indicating the substance is not
intended to be ingested.
SECTION 2. Subchapter E, Chapter 17, Business & Commerce
Code, is amended by adding Section 17.463 to read as follows:
Sec. 17.463. PRODUCTION, SALE, DISTRIBUTION, OR PROMOTION
OF CERTAIN SYNTHETIC SUBSTANCES. (a) This section applies only to
an act described by Section 17.46(b)(31).
(b) Subject to Subsection (e) and except as otherwise
provided by this section, an act to which this section applies is
subject to action by a district or county attorney under Sections
17.47, 17.58, 17.60, and 17.61 to the same extent as the act is
subject to action by the consumer protection division under those
sections.
(c) If a district or county attorney, under the authority of
this section, accepts assurance of voluntary compliance under
Section 17.58, the district or county attorney must file the
assurance of voluntary compliance in the district court in the
county in which the alleged violator resides or does business.
(d) If a district or county attorney, under the authority of
this section, executes and serves a civil investigative demand and
files a petition described by Section 17.61(g), the petition must
be filed in the district court in the county where the parties
reside.
(e) A district or county attorney may act under this section
so long as the consumer protection division does not intend to act
with respect to that matter. Further, consistent with Section
17.48(b) of this subchapter, the consumer protection division
shall, upon request and to the extent it has the resources
available, provide assistance to a district or county attorney in
any action taken under this subchapter. A district or county
attorney may institute a suit described by this section on or after
the 90th day after the date the attorney general receives the notice
required by Section 17.48 unless before the 90th day after the date
the notice is received the attorney general responds that it is
actively investigating or litigating at least one of the alleged
violations set forth in the notice. The consumer protection
division shall notify the district or county attorney it no longer
intends to actively investigate or litigate an alleged violation
within a reasonable time of such determination.
(f) Notwithstanding any other law, in an action brought by a
district or county attorney under this section, all settlements or
penalties collected by the district or county attorney shall be
divided between the state and the county in which the attorney
brought suit, with:
(1) 50 percent of the amount collected paid to the
comptroller for deposit to the credit of the basic civil legal
services account established by Section 51.943, Government Code;
and
(2) 50 percent of the amount collected paid to the
county shall be deposited by the county in a segregated account and
the funds shall be used only for law enforcement, public health
programs, or drug abuse prevention programs.
SECTION 3. This Act applies only to a cause of action that
accrues on or after the effective date of this Act. A cause of
action that accrued before the effective date of this Act is
governed by the law applicable to the cause of action immediately
before the effective date of this Act, and that law is continued in
effect for that purpose.
SECTION 4. This Act takes effect September 1, 2017.
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