CHAPTER 440. FROZEN DESSERTS MANUFACTURER LICENSING ACT

HEALTH AND SAFETY CODE

TITLE 6. FOOD, DRUGS, ALCOHOL, AND HAZARDOUS SUBSTANCES

SUBTITLE A. FOOD AND DRUG HEALTH REGULATIONS

CHAPTER 440. FROZEN DESSERTS MANUFACTURER LICENSING ACT

SUBCHAPTER A. GENERAL PROVISIONS

Sec. 440.001. SHORT TITLE. This chapter may be cited as the

Frozen Desserts Manufacturer Licensing Act.

Added by Acts 1991, 72nd Leg., ch. 14, Sec. 167, eff. Sept. 1,

1991.

Sec. 440.002. PURPOSE. The legislature finds that a statewide

licensing act is needed to:

(1) regulate manufacturers of frozen desserts, imitation frozen

desserts, products sold in semblance of frozen desserts, or mixes

for those products;

(2) provide for uniformity of inspections of the premises of

frozen dessert manufacturers;

(3) protect the health and safety of consumers by preventing the

manufacture or distribution of frozen desserts, imitation frozen

desserts, products sold in semblance of frozen desserts, or mixes

for those products that do not meet state standards or related

requirements of purity or labeling; and

(4) assist manufacturers in meeting state standards or related

requirements.

Added by Acts 1991, 72nd Leg., ch. 14, Sec. 167, eff. Sept. 1,

1991.

Sec. 440.003. DEFINITIONS. In this Act:

(1) "Adulterated or misbranded frozen desserts mix" means any

frozen dessert or mix that contains an unwholesome substance or,

if defined in this standard, that does not conform with its

definition or that does not comply with Chapter 431 (Texas Food,

Drug, and Cosmetic Act) or any other applicable regulation.

(2) "Board" means the Texas Board of Health.

(3) "Commissioner" means the commissioner of health.

(4) "Department" means the Texas Department of Health.

(5) "Frozen dessert" means any of the following: ice cream, ice

milk, fruit sherbet, water ice, nonfruit sherbet, nonfruit water

ice, frozen dietary dairy desserts, frozen yogurt, quiescently

frozen confection, quiescently frozen dairy confection,

mellorine, lorine, parevine, freezer-made milk shake,

freezer-made shake, or nondairy frozen dessert. The term includes

the mix used in the freezing of one of those frozen desserts.

(6) "Frozen desserts manufacturer" means a person who

manufactures, processes, converts, partially freezes, or freezes

any mix (regardless of whether it is dairy, nondairy, imitation,

pasteurized or unpasteurized), frozen desserts, imitation frozen

desserts, or nondairy frozen desserts for distribution or sale at

wholesale. The term does not include a frozen desserts retail

establishment.

(7) "Frozen desserts plant" means premises where a frozen

dessert or mix is manufactured, processed, or frozen for sale.

(8) "Frozen desserts retail establishment" means premises,

including a retail store, approved type stand, hotel, restaurant,

vehicle, or mobile unit, where frozen dessert mixes are frozen or

partially frozen and dispensed for retail sale or distribution.

(9) "Health authority" means the municipal, county, or state

health officer or the officer's representative or any other

agency having jurisdiction or control over the matters embraced

within the specifications and requirements of this chapter.

(10) "Imitation frozen dessert" means any frozen substance,

mixture, or compound, regardless of the name under which it is

represented, that is made in imitation or semblance of any of the

following products or is prepared or frozen in the manner in

which any of the following products is customarily prepared or

frozen and that is not the product: ice cream, ice milk, fruit

sherbet, water ice, nonfruit sherbet, nonfruit ice, frozen low

fat yogurt, nonfat yogurt, frozen yogurt, quiescently frozen

confection, quiescently frozen dairy confection, mellorine,

lorine, parevine, freezer-made milk shake, freezer-made shake, or

nondairy frozen dessert.

(11) "Manufacture" means the processing, freezing, or packaging

of frozen desserts, imitation frozen desserts, products sold in

semblance of frozen desserts, or mixes for those products for

sale at wholesale. The term does not include a retailer

purchasing those products from a manufacturer displaying the

retailer's brand name.

(12) "Mix" means the pasteurized or unpasteurized, liquid or

dry, unfrozen combination of the ingredients permitted in a

frozen dessert with or without fruits, fruit juices, candy, baked

goods and confections, nutmeats, or other harmless flavor or

color.

(13) "Official laboratory" means a biological, chemical, or

physical laboratory that is under the supervision of a state or

local health authority.

(14) "Sale" means the:

(A) manufacture, production, processing, packing, exposure,

offer, or holding of any frozen dessert product for sale;

(B) sale, dispensing, or giving of any frozen dessert product;

or

(C) supplying or applying of any frozen dessert product in the

conduct of any frozen desserts retail establishment.

(15) "State health officer" means the commissioner of health.

(16) "Wholesale" means the exposing, offering, possessing,

selling, dispensing, holding, or giving of any frozen dessert,

imitation frozen dessert, product sold in semblance of frozen

dessert, or a mix for one of those products to other than the

ultimate consumer. The term does not include sale by a retail

store.

Added by Acts 1991, 72nd Leg., ch. 14, Sec. 167, eff. Sept. 1,

1991.

Sec. 440.004. EXEMPTIONS. This chapter does not apply to:

(1) a person operating a frozen desserts retail establishment;

or

(2) a person operating a retail store unless the person is also

a manufacturer.

Added by Acts 1991, 72nd Leg., ch. 14, Sec. 167, eff. Sept. 1,

1991.

Sec. 440.005. HEARINGS. (a) A hearing conducted by the board

in the administration of this chapter is governed by Chapter

2001, Government Code.

(b) Based on the record of a hearing conducted under this

chapter, the department shall make a finding and shall sustain,

change, or rescind an official notice or order considered in the

hearing.

Added by Acts 1991, 72nd Leg., ch. 14, Sec. 167, eff. Sept. 1,

1991. Amended by Acts 1995, 74th Leg., ch. 76, Sec. 5.95(49),

eff. Sept. 1, 1995.

Sec. 440.006. POWERS AND DUTIES OF BOARD. The board may:

(1) adopt rules prescribing standards or related requirements

for the operation of establishments for the manufacture of frozen

desserts, imitation frozen desserts, products sold in semblance

of frozen desserts, or mixes for those products, including

standards or requirements for the:

(A) health, cleanliness, education, and training of personnel

who are employed in the establishments;

(B) protection of raw materials, manufactured merchandise, and

merchandise held for sale;

(C) design, construction, installation, and cleanliness of

equipment and utensils;

(D) sanitary facilities and controls of the establishments;

(E) establishment construction and maintenance, including

vehicles;

(F) production processes and controls; and

(G) institution and content of a system of records to be

maintained by the establishment; and

(2) adopt rules prescribing procedures for the enforcement of

the standards or related requirements prescribed under

Subdivision (1), including procedures for the:

(A) requirement of a valid license to operate an establishment;

(B) issuance, suspension, revocation, and reinstatement of

licenses;

(C) administrative hearings before the board or its designee;

(D) institution of certain court proceedings by the board or its

designee;

(E) inspection of establishments and securing of samples of

frozen desserts, imitation frozen desserts, products sold in

semblance of frozen desserts, or mixes for those products;

(F) access to the establishments and to the vehicles used in

operations;

(G) compliance by manufacturers outside the jurisdiction of the

state; and

(H) review of plans for future construction.

Added by Acts 1991, 72nd Leg., ch. 14, Sec. 167, eff. Sept. 1,

1991.

Sec. 440.007. APPLICABILITY OF OTHER LAW. Except as provided by

Section 431.009(c), Chapter 431 applies to a person or product

regulated under this chapter, including a frozen dessert

manufacturer, a frozen dessert, an imitation frozen dessert, a

product sold in semblance of a frozen dessert, and a mix for one

of those products.

Added by Acts 2003, 78th Leg., ch. 112, Sec. 3, eff. Sept. 1,

2003.

SUBCHAPTER B. LICENSING

Sec. 440.011. PROHIBITED ACT. (a) A person may not operate an

establishment for the manufacture of a frozen dessert, imitation

frozen dessert, product sold in semblance of a frozen dessert, or

a mix for one of those products in this state unless the person

has a valid license issued under this chapter.

(b) A political subdivision or agency of the state, other than

the department, may not impose a license fee on any manufacturer

covered by this section.

Added by Acts 1991, 72nd Leg., ch. 14, Sec. 167, eff. Sept. 1,

1991.

Sec. 440.012. LICENSE. (a) A person desiring to operate an

establishment for the manufacture of a frozen dessert, imitation

frozen dessert, product sold in semblance of a frozen dessert, or

a mix for one of those products may apply to the department for a

license. A license shall be granted under the procedural rules

adopted by the board and shall be issued only for the purpose and

use as stated on the application for a license.

(b) The department shall inspect the establishment under Section

440.031 before issuing a license.

(c) A license may not be issued to a person who does not comply

with the standards prescribed by the board under this chapter.

(d) A license issued under this chapter must be renewed on or

before September 1 of each year in accordance with rules adopted

by the board.

Added by Acts 1991, 72nd Leg., ch. 14, Sec. 167, eff. Sept. 1,

1991.

Sec. 440.013. FEES. (a) A $200 nonrefundable fee for each

establishment must accompany each application for a license.

(b) The department also shall assess the following fees:

(1) a fee for a frozen dessert manufacturer located in this

state in the amount of one cent per 100 pounds of manufactured or

processed frozen dessert manufactured or processed and

distributed in this state by that manufacturer;

(2) a fee for a frozen dessert manufacturer not located in this

state in the amount of one cent per 100 pounds of frozen desserts

manufactured or processed by the manufacturer in another state

and imported for sale in this state; and

(3) a fee for the actual cost of analyzing samples of frozen

desserts for a frozen dessert manufacturer not located in this

state.

(c) The board shall adopt rules to collect fees imposed under

this section monthly, quarterly, semiannually, or annually based

on amounts due by the frozen dessert manufacturer.

(d) The department may revoke a license to operate a frozen

desserts plant if the licensee fails to make a timely payment of

the monthly fees required under this section. The department's

rules of procedure for a contested case hearing and Chapter 2001,

Government Code govern the revocation of a license.

Added by Acts 1991, 72nd Leg., ch. 14, Sec. 167, eff. Sept. 1,

1991. Amended by Acts 1995, 74th Leg., ch. 76, Sec. 5.95(49),

eff. Sept. 1, 1995.

Sec. 440.014. RECORD KEEPING. The board shall adopt rules

establishing minimum standards for record keeping by persons

required to pay fees under this chapter and the records shall be

made available to the department on request.

Added by Acts 1991, 72nd Leg., ch. 14, Sec. 167, eff. Sept. 1,

1991.

Sec. 440.015. ESTABLISHMENTS OUTSIDE STATE. A frozen dessert,

imitation frozen dessert, product sold in semblance of a frozen

dessert, or a mix for one of those products from a manufacturer

located outside this state may be sold or distributed in this

state if the manufacturer complies with this chapter or complies

with other regulatory requirements that are substantially

equivalent to those of this state. To determine the extent of the

manufacturer's compliance, the department may accept reports from

responsible authorities in the jurisdiction in which the

manufacturer is located.

Added by Acts 1991, 72nd Leg., ch. 14, Sec. 167, eff. Sept. 1,

1991.

Sec. 440.016. TEMPORARY PERMIT. The department may issue a

temporary permit to continue the operation of an establishment

for the manufacture of a frozen dessert, imitation frozen

dessert, product sold in semblance of a frozen dessert, or mix

for one of those products until the department performs the

inspection required by this chapter.

Added by Acts 1991, 72nd Leg., ch. 14, Sec. 167, eff. Sept. 1,

1991.

Sec. 440.017. REFUSAL TO GRANT LICENSE; SUSPENSION OR REVOCATION

OF LICENSE. In accordance with rules adopted under Section

440.006, the commissioner may refuse an application for a license

under this chapter or may suspend or revoke a license issued

under this chapter.

Added by Acts 2003, 78th Leg., ch. 112, Sec. 4, eff. Sept. 1,

2003.

SUBCHAPTER C. ENFORCEMENT

Sec. 440.031. INSPECTION BY DEPARTMENT. (a) Under rules

adopted by the board, the department's authorized representatives

have free access at all reasonable hours to any establishment for

the manufacture of a frozen dessert, imitation frozen dessert,

product sold in semblance of a frozen dessert, or a mix for one

of those products or to any vehicle being used to transport in

commerce a frozen dessert, imitation frozen dessert, product sold

in semblance of a frozen dessert, or a mix for one of those

products for the purpose of:

(1) inspecting the establishment or vehicle to determine

compliance with the standards or related requirements prescribed

by the board under this chapter; or

(2) securing samples of frozen desserts, imitation frozen

desserts, products sold in semblance of frozen desserts, or a mix

for one of those products for the purpose of making or causing to

be made an examination of the samples to determine compliance

with the standards or related requirements prescribed by the

board under this chapter.

(b) A political subdivision or an agency other than the

department that collects samples described by Subsection (a)(2)

shall bear the cost of the samples and any analyses of the

samples.

(c) The inspection procedures provided by this section are in

addition to the procedures provided by Chapter 431.

Added by Acts 1991, 72nd Leg., ch. 14, Sec. 167, eff. Sept. 1,

1991. Amended by Acts 2003, 78th Leg., ch. 112, Sec. 5, eff.

Sept. 1, 2003.

Sec. 440.032. PENALTIES. (a) A person commits an offense if

the person knowingly or intentionally violates Section 440.011 or

a rule adopted by the board under this chapter.

(b) An offense under this section is a Class C misdemeanor.

(c) The penalty prescribed by this section is in addition to any

civil or administrative penalty or sanction otherwise imposed

under Chapter 431 or other law.

Added by Acts 1991, 72nd Leg., ch. 14, Sec. 167, eff. Sept. 1,

1991. Amended by Acts 2003, 78th Leg., ch. 112, Sec. 6, eff.

Sept. 1, 2003.