Texas 2017 - 85th Regular

Texas House Bill HB296 Compare Versions

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1	1	85R1604 JSC-D
2	2	By: Muñoz, Jr. H.B. No. 296
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to a deceptive act or practice related to the sale,
8	8	marketing, packaging, or advertising of nitrous oxide.
9	9	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
10	10	SECTION 1. Section 17.46(b), Business & Commerce Code, as
11	11	amended by Chapters 1023 (H.B. 1265) and 1080 (H.B. 2573), Acts of
12	12	the 84th Legislature, Regular Session, 2015, is reenacted and
13	13	amended to read as follows:
14	14	(b) Except as provided in Subsection (d) of this section,
15	15	the term "false, misleading, or deceptive acts or practices"
16	16	includes, but is not limited to, the following acts:
17	17	(1) passing off goods or services as those of another;
18	18	(2) causing confusion or misunderstanding as to the
19	19	source, sponsorship, approval, or certification of goods or
20	20	services;
21	21	(3) causing confusion or misunderstanding as to
22	22	affiliation, connection, or association with, or certification by,
23	23	another;
24	24	(4) using deceptive representations or designations
25	25	of geographic origin in connection with goods or services;
26	26	(5) representing that goods or services have
27	27	sponsorship, approval, characteristics, ingredients, uses,
28	28	benefits, or quantities which they do not have or that a person has
29	29	a sponsorship, approval, status, affiliation, or connection which
30	30	the person does not;
31	31	(6) representing that goods are original or new if
32	32	they are deteriorated, reconditioned, reclaimed, used, or
33	33	secondhand;
34	34	(7) representing that goods or services are of a
35	35	particular standard, quality, or grade, or that goods are of a
36	36	particular style or model, if they are of another;
37	37	(8) disparaging the goods, services, or business of
38	38	another by false or misleading representation of facts;
39	39	(9) advertising goods or services with intent not to
40	40	sell them as advertised;
41	41	(10) advertising goods or services with intent not to
42	42	supply a reasonable expectable public demand, unless the
43	43	advertisements disclosed a limitation of quantity;
44	44	(11) making false or misleading statements of fact
45	45	concerning the reasons for, existence of, or amount of price
46	46	reductions;
47	47	(12) representing that an agreement confers or
48	48	involves rights, remedies, or obligations which it does not have or
49	49	involve, or which are prohibited by law;
50	50	(13) knowingly making false or misleading statements
51	51	of fact concerning the need for parts, replacement, or repair
52	52	service;
53	53	(14) misrepresenting the authority of a salesman,
54	54	representative or agent to negotiate the final terms of a consumer
55	55	transaction;
56	56	(15) basing a charge for the repair of any item in
57	57	whole or in part on a guaranty or warranty instead of on the value of
58	58	the actual repairs made or work to be performed on the item without
59	59	stating separately the charges for the work and the charge for the
60	60	warranty or guaranty, if any;
61	61	(16) disconnecting, turning back, or resetting the
62	62	odometer of any motor vehicle so as to reduce the number of miles
63	63	indicated on the odometer gauge;
64	64	(17) advertising of any sale by fraudulently
65	65	representing that a person is going out of business;
66	66	(18) advertising, selling, or distributing a card
67	67	which purports to be a prescription drug identification card issued
68	68	under Section 4151.152, Insurance Code, in accordance with rules
69	69	adopted by the commissioner of insurance, which offers a discount
70	70	on the purchase of health care goods or services from a third party
71	71	provider, and which is not evidence of insurance coverage, unless:
72	72	(A) the discount is authorized under an agreement
73	73	between the seller of the card and the provider of those goods and
74	74	services or the discount or card is offered to members of the
75	75	seller;
76	76	(B) the seller does not represent that the card
77	77	provides insurance coverage of any kind; and
78	78	(C) the discount is not false, misleading, or
79	79	deceptive;
80	80	(19) using or employing a chain referral sales plan in
81	81	connection with the sale or offer to sell of goods, merchandise, or
82	82	anything of value, which uses the sales technique, plan,
83	83	arrangement, or agreement in which the buyer or prospective buyer
84	84	is offered the opportunity to purchase merchandise or goods and in
85	85	connection with the purchase receives the seller's promise or
86	86	representation that the buyer shall have the right to receive
87	87	compensation or consideration in any form for furnishing to the
88	88	seller the names of other prospective buyers if receipt of the
89	89	compensation or consideration is contingent upon the occurrence of
90	90	an event subsequent to the time the buyer purchases the merchandise
91	91	or goods;
92	92	(20) representing that a guaranty or warranty confers
93	93	or involves rights or remedies which it does not have or involve,
94	94	provided, however, that nothing in this subchapter shall be
95	95	construed to expand the implied warranty of merchantability as
96	96	defined in Sections 2.314 through 2.318 and Sections 2A.212 through
97	97	2A.216 to involve obligations in excess of those which are
98	98	appropriate to the goods;
99	99	(21) promoting a pyramid promotional scheme, as
100	100	defined by Section 17.461;
101	101	(22) representing that work or services have been
102	102	performed on, or parts replaced in, goods when the work or services
103	103	were not performed or the parts replaced;
104	104	(23) filing suit founded upon a written contractual
105	105	obligation of and signed by the defendant to pay money arising out
106	106	of or based on a consumer transaction for goods, services, loans, or
107	107	extensions of credit intended primarily for personal, family,
108	108	household, or agricultural use in any county other than in the
109	109	county in which the defendant resides at the time of the
110	110	commencement of the action or in the county in which the defendant
111	111	in fact signed the contract; provided, however, that a violation of
112	112	this subsection shall not occur where it is shown by the person
113	113	filing such suit that the person neither knew or had reason to know
114	114	that the county in which such suit was filed was neither the county
115	115	in which the defendant resides at the commencement of the suit nor
116	116	the county in which the defendant in fact signed the contract;
117	117	(24) failing to disclose information concerning goods
118	118	or services which was known at the time of the transaction if such
119	119	failure to disclose such information was intended to induce the
120	120	consumer into a transaction into which the consumer would not have
121	121	entered had the information been disclosed;
122	122	(25) using the term "corporation," "incorporated," or
123	123	an abbreviation of either of those terms in the name of a business
124	124	entity that is not incorporated under the laws of this state or
125	125	another jurisdiction;
126	126	(26) selling, offering to sell, or illegally promoting
127	127	an annuity contract under Chapter 22, Acts of the 57th Legislature,
128	128	3rd Called Session, 1962 (Article 6228a-5, Vernon's Texas Civil
129	129	Statutes), with the intent that the annuity contract will be the
130	130	subject of a salary reduction agreement, as defined by that Act, if
131	131	the annuity contract is not an eligible qualified investment under
132	132	that Act or is not registered with the Teacher Retirement System of
133	133	Texas as required by Section 8A of that Act;
134	134	(27) taking advantage of a disaster declared by the
135	135	governor under Chapter 418, Government Code, by:
136	136	(A) selling or leasing fuel, food, medicine, or
137	137	another necessity at an exorbitant or excessive price; or
138	138	(B) demanding an exorbitant or excessive price in
139	139	connection with the sale or lease of fuel, food, medicine, or
140	140	another necessity;
141	141	(28) using the translation into a foreign language of
142	142	a title or other word, including "attorney," "lawyer," "licensed,"
143	143	"notary," and "notary public," in any written or electronic
144	144	material, including an advertisement, a business card, a
145	145	letterhead, stationery, a website, or an online video, in reference
146	146	to a person who is not an attorney in order to imply that the person
147	147	is authorized to practice law in the United States;
148	148	(29) [(28)] delivering or distributing a solicitation
149	149	in connection with a good or service that:
150	150	(A) represents that the solicitation is sent on
151	151	behalf of a governmental entity when it is not; or
152	152	(B) resembles a governmental notice or form that
153	153	represents or implies that a criminal penalty may be imposed if the
154	154	recipient does not remit payment for the good or service;
155	155	(30) [(29)] delivering or distributing a solicitation
156	156	in connection with a good or service that resembles a check or other
157	157	negotiable instrument or invoice, unless the portion of the
158	158	solicitation that resembles a check or other negotiable instrument
159	159	or invoice includes the following notice, clearly and conspicuously
160	160	printed in at least 18-point type:
161	161	"SPECIMEN-NON-NEGOTIABLE";
162	162	(31) [(30)] in the production, sale, distribution, or
163	163	promotion of a synthetic substance that produces and is intended to
164	164	produce an effect when consumed or ingested similar to, or in excess
165	165	of, the effect of a controlled substance or controlled substance
166	166	analogue, as those terms are defined by Section 481.002, Health and
167	167	Safety Code:
168	168	(A) making a deceptive representation or
169	169	designation about the synthetic substance; or
170	170	(B) causing confusion or misunderstanding as to
171	171	the effects the synthetic substance causes when consumed or
172	172	ingested;
173	173	(32) in the sale, marketing, packaging, or advertising
174	174	of nitrous oxide, representing that the nitrous oxide is intended
175	175	for a purpose or for use other than as:
176	176	(A) a pesticide subject to Chapter 76,
177	177	Agriculture Code, or to the Federal Environmental Pesticide Control
178	178	Act of 1972 (7 U.S.C. Section 136 et seq.);
179	179	(B) a food, drug, or cosmetic subject to Chapter
180	180	431 or to the Federal Food, Drug, and Cosmetic Act (21 U.S.C.
181	181	Section 301 et seq.); or
182	182	(C) a beverage subject to the Federal Alcohol
183	183	Administration Act (27 U.S.C. Section 201 et seq.); or
184	184	(33) [(31)] a licensed public insurance adjuster
185	185	directly or indirectly soliciting employment, as defined by Section
186	186	38.01, Penal Code, for an attorney, or a licensed public insurance
187	187	adjuster entering into a contract with an insured for the primary
188	188	purpose of referring the insured to an attorney without the intent
189	189	to actually perform the services customarily provided by a licensed
190	190	public insurance adjuster, provided that this subdivision may not
191	191	be construed to prohibit a licensed public insurance adjuster from
192	192	recommending a particular attorney to an insured.
193	193	SECTION 2. The change in law made by this Act applies only
194	194	to a cause of action that accrues on or after the effective date of
195	195	this Act. A cause of action that accrued before the effective date
196	196	of this Act is governed by the law in effect immediately before the
197	197	effective date of this Act, and that law is continued in effect for
198	198	that purpose.
199	199	SECTION 3. To the extent of any conflict, this Act prevails
200	200	over another Act of the 85th Legislature, Regular Session, 2017,
201	201	relating to nonsubstantive additions to and corrections in enacted
202	202	codes.
203	203	SECTION 4. This Act takes effect September 1, 2017.