By: Perry, et al. S.B. No. 461
 
 
A BILL TO BE ENTITLED
 
AN ACT
  relating to false or misleading packaging, labeling, or advertising
  of certain abusable synthetic substances; providing civil
  penalties; creating a criminal offense.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Subtitle C, Title 6, Health and Safety Code, is
  amended by adding Chapter 484 to read as follows:
  CHAPTER 484. ABUSABLE SYNTHETIC SUBSTANCES
         Sec. 484.001.  DEFINITIONS. In this chapter:
               (1)  "Abusable synthetic substance" means a substance
  that:
                     (A)  is not otherwise regulated under this title
  or under federal law;
                     (B)  is intended to mimic a controlled substance
  or controlled substance analogue; and
                     (C)  when inhaled, ingested, or otherwise
  introduced into a person's body:
                           (i)  produces an effect on the central
  nervous system similar to the effect produced by a controlled
  substance or controlled substance analogue;
                           (ii)  creates a condition of intoxication,
  hallucination, or elation similar to a condition produced by a
  controlled substance or controlled substance analogue; or
                           (iii)  changes, distorts, or disturbs the
  person's eyesight, thinking process, balance, or coordination in a
  manner similar to a controlled substance or controlled substance
  analogue.
               (2)  "Business" includes trade and commerce and
  advertising, selling, and buying service or property.
               (3)  "Mislabeled" means varying from the standard of
  truth or disclosure in labeling prescribed by law or set by
  established commercial usage.
               (4)  "Sell" and "sale" include offer for sale,
  advertise for sale, expose for sale, keep for the purpose of sale,
  deliver for or after sale, solicit and offer to buy, and every
  disposition for value.
         Sec. 484.002.  PROHIBITED ACTS. (a)  A person commits an
  offense if in the course of business the person knowingly produces,
  distributes, sells, or offers for sale a mislabeled abusable
  synthetic substance.
         (b)  An offense under this section is a Class C misdemeanor,
  except that the offense is a Class A misdemeanor if it is shown on
  the trial of the offense that the actor has previously been
  convicted of an offense under this section or of an offense under
  Section 32.42(b)(4), Penal Code, and the adulterated or mislabeled
  commodity was an abusable synthetic substance.
         (c)  If conduct constituting an offense under this section
  also constitutes an offense under another provision of law, the
  person may be prosecuted under either this section or the other
  provision.
         Sec. 484.003.  CIVIL PENALTY.  (a)  The attorney general or
  a district, county, or city attorney may institute an action in
  district court to collect a civil penalty from a person who in the
  course of business produces, distributes, sells, or offers for sale
  a mislabeled abusable synthetic substance.
         (b)  The civil penalty may not exceed $25,000 a day for each
  offense.  Each day an offense is committed constitutes a separate
  violation for purposes of the penalty assessment.
         (c)  The court shall consider the following in determining
  the amount of the penalty:
               (1)  the person's history of any previous offenses
  under Section 484.002 or under Section 32.42(b)(4), Penal Code,
  relating to the sale of a mislabeled abusable synthetic substance;
               (2)  the seriousness of the offense;
               (3)  any hazard posed to the public health and safety by
  the offense; and
               (4)  demonstrations of good faith by the person
  charged.
         (d)  Venue for a suit brought under this section is in the
  city or county in which the offense occurred or in Travis County.
         (e)  A civil penalty recovered in a suit instituted by a
  local government under this section shall be paid to that local
  government.
         Sec. 484.004.  AFFIRMATIVE DEFENSE. It is an affirmative
  defense to prosecution or liability under this chapter that:
               (1)  the abusable synthetic substance 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 the substance's use, sale, or distribution;
  and
               (2)  the abusable synthetic substance was lawfully
  produced, distributed, sold, or offered for sale by the person who
  is the subject of the criminal or civil action.
         Sec. 484.005.  NO DEFENSE.  In a prosecution or civil action
  under this chapter, the fact that the abusable synthetic substance
  was in packaging labeled with "Not for Human Consumption," or other
  wording indicating the substance is not intended to be ingested, is
  not a defense.
         SECTION 2.  This Act takes effect September 1, 2015.