Bill Text: TX HB2831 | 2015-2016 | 84th Legislature | Introduced
Bill Title: Relating to disclosure of calorie content and nutrition information by certain food establishments; providing an administrative penalty.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2015-04-21 - Left pending in committee [HB2831 Detail]
Download: Texas-2015-HB2831-Introduced.html
84R1834 LED-D | ||
By: Lucio III | H.B. No. 2831 |
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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. |