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.