By: Meyer, Fallon (Senate Sponsor - Huffman) H.B. No. 2612          (In the Senate - Received from the House May 10, 2017;   May 11, 2017, read first time and referred to Committee on State   Affairs; May 18, 2017, reported favorably by the following vote:     Yeas 9, Nays 0; May 18, 2017, sent to printer.)Click here to see the committee vote     A BILL TO BE ENTITLED   AN ACT     relating to civil liability of a person who produces, distributes,   sells, or provides or aids in the production, distribution, sale,   or provision of certain synthetic substances to another person for   damages caused by the other person and to certain actions and   investigations under the Deceptive Trade Practices-Consumer   Protection Act.          BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:          SECTION 1.  Subchapter D, Chapter 481, Health and Safety   Code, is amended by adding Section 481.1191 to read as follows:          Sec. 481.1191.  CIVIL LIABILITY FOR ENGAGING IN OR AIDING IN   PRODUCTION, DISTRIBUTION, SALE, OR PROVISION OF SYNTHETIC   SUBSTANCES. (a) In this section:                (1)  "Minor" means a person younger than 18 years of   age.                (2)  "Synthetic substance" means an artificial   substance that produces and is intended by the manufacturer to   produce when consumed or ingested an effect similar to or in excess   of the effect produced by the consumption or ingestion of a   controlled substance or controlled substance analogue, as those   terms are defined by Section 481.002.          (b)  A person is liable for damages proximately caused by the   consumption or ingestion of a synthetic substance by another person   if the actor:                (1)  produced, distributed, sold, or provided the   synthetic substance to the other person; or                (2)  aided in the production, distribution, sale, or   provision of the synthetic substance to the other person.          (c)  A person is strictly liable for all damages caused by   the consumption or ingestion of a synthetic substance by a minor if   the actor:                (1)  produced, distributed, sold, or provided the   synthetic substance to the minor; or                (2)  aided in the production, distribution, sale, or   provision of the synthetic substance to the minor.          (d)  A person who is found liable under this section or other   law for any amount of damages arising from the consumption or   ingestion by another of a synthetic substance is jointly and   severally liable with any other person for the entire amount of   damages awarded.          (e)  Chapter 33, Civil Practice and Remedies Code, does not   apply to an action brought under this section or an action brought   under Section 17.50, Business & Commerce Code, based on conduct   made actionable under Subsection (f) of this section.          (f)  Conduct for which Subsection (b) or (c) creates   liability is a false, misleading, or deceptive act or practice or an   unconscionable action or course of action for purposes of Section   17.50, Business & Commerce Code, and that conduct is:                (1)  actionable under Subchapter E, Chapter 17,   Business & Commerce Code; and                (2)  subject to any remedy prescribed by that   subchapter.          (g)  An action brought under this section may include a claim   for exemplary damages, which may be awarded in accordance with   Section 41.003, Civil Practice and Remedies Code.          (h)  Section 41.008, Civil Practice and Remedies Code, does   not apply to the award of exemplary damages in an action brought   under this section.           (i)  Section 41.005, Civil Practice and Remedies Code, does   not apply to a claim for exemplary damages in an action brought   under this section.          (j)  It is an affirmative defense to liability under this   section that the synthetic substance produced, distributed, sold,   or provided 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 a substance for   use, sale, or distribution.          (k)  It is not a defense to liability under this section that   a synthetic substance was in packaging labeled with "Not for Human   Consumption" or other wording indicating the substance is not   intended to be ingested.          SECTION 2.  Subchapter E, Chapter 17, Business & Commerce   Code, is amended by adding Section 17.463 to read as follows:          Sec. 17.463.  PRODUCTION, SALE, DISTRIBUTION, OR PROMOTION   OF CERTAIN SYNTHETIC SUBSTANCES. (a)  This section applies only to   an act described by Section 17.46(b)(31).          (b)  Subject to Subsection (e) and except as otherwise   provided by this section, an act to which this section applies is   subject to action by a district or county attorney under Sections   17.47, 17.58, 17.60, and 17.61 to the same extent as the act is   subject to action by the consumer protection division under those   sections.          (c)  If a district or county attorney, under the authority of   this section, accepts assurance of voluntary compliance under   Section 17.58, the district or county attorney must file the   assurance of voluntary compliance in the district court in the   county in which the alleged violator resides or does business.          (d)  If a district or county attorney, under the authority of   this section, executes and serves a civil investigative demand and   files a petition described by Section 17.61(g), the petition must   be filed in the district court in the county where the parties   reside.          (e)  A district or county attorney may act under this section   so long as the consumer protection division does not intend to act   with respect to that matter.  Further, consistent with Section   17.48(b) of this subchapter, the consumer protection division   shall, upon request and to the extent it has the resources   available, provide assistance to a district or county attorney in   any action taken under this subchapter.  A district or county   attorney may institute a suit described by this section on or after   the 90th day after the date the attorney general receives the notice   required by Section 17.48 unless before the 90th day after the date   the notice is received the attorney general responds that it is   actively investigating or litigating at least one of the alleged   violations set forth in the notice.  The consumer protection   division shall notify the district or county attorney it no longer   intends to actively investigate or litigate an alleged violation   within a reasonable time of such determination.          (f)  Notwithstanding any other law, in an action brought by a   district or county attorney under this section, all settlements or   penalties collected by the district or county attorney shall be   divided between the state and the county in which the attorney   brought suit, with:                (1)  50 percent of the amount collected paid to the   comptroller for deposit to the credit of the basic civil legal   services account established by Section 51.943, Government Code;   and                (2)  50 percent of the amount collected paid to the   county shall be deposited by the county in a segregated account and   the funds shall be used only for law enforcement, public health   programs, or drug abuse prevention programs.          SECTION 3.   This Act applies only to a cause of action that   accrues on or after the effective date of this Act. A cause of   action that accrued before the effective date of this Act is   governed by the law applicable to the cause of action immediately   before the effective date of this Act, and that law is continued in   effect for that purpose.          SECTION 4.  This Act takes effect September 1, 2017.     * * * * *