§ 431.161 Poisonous or Deleterious Substances
§ 431.161. Poisonous or Deleterious Substances
(a) Any poisonous or deleterious substance, food additive, pesticide chemical in or on a raw agricultural commodity, or color additive shall, with respect to any particular use or intended use, be deemed unsafe for the purpose of Section 431.081(a)(2) with respect to any food, Section 431.111(a) with respect to any drug or device, or Section 431.141 with respect to any cosmetic. However, if a rule adopted under Section 431.181 or Subsection (b) is in effect that limits the quantity of that substance, and if the use or intended use of that substance conforms to the terms prescribed by the rule, a food, drug, or cosmetic shall not, by reason of bearing or containing that substance in accordance with the rules, be considered adulterated within the meaning of Section 431.081(a)(1), 431.111, or 431.141.
(b) The board, whenever public health or other considerations in the state so require or on the petition of an interested party, may adopt rules prescribing tolerances for any added, poisonous, or deleterious substances, food additives, pesticide chemicals in or on raw agricultural commodities, or color additives, including zero tolerances and exemptions from tolerances in the case of pesticide chemicals in or on raw agricultural commodities. The rule may prescribe the conditions under which a food additive or a color additive may be safely used and may prescribe exemptions if the food additive or color additive is to be used solely for investigational or experimental purposes. Rules adopted under this section limiting the quantity of poisonous or deleterious substances in food must provide equal or stricter standards than those adopted by the federal Food and Drug Administration or its successor. A person petitioning for the adoption of a rule shall establish by data submitted to the board that a necessity exists for the rule and that its effect will not be detrimental to the public health. If the data furnished by the petitioner are not sufficient to allow the board to determine whether the rules should be adopted, the board may require additional data to be submitted. The petitioner's failure to comply with the request is sufficient grounds to deny the request. In adopting rules relating to those substances, the board shall consider, among other relevant factors, the following information furnished by the petitioner, if any:
(1) the name and all pertinent information concerning the substance, including, if available, its chemical identity and composition, astatement of the conditions of the proposed use, directions, recommendations, and suggestions, specimens of proposed labeling, all relevant data bearing on the physical or other technical effect, and the quantity required to produce that effect;
(2) the probable composition of any substance formed in or on a food, drug, or cosmetic resulting from the use of that substance;
(3) the probable consumption of that substance in the diet of man and animals, taking into account any chemically or pharmacologically related substance in the diet;
(4) safety factors that, in the opinion of experts qualified by scientific training and experience to evaluate the safety of those substances for the use or uses for which they are proposed to be used, are generally recognized as appropriate for the use of animal experimentation data;
(5) the availability of any needed practicable methods of analysis for determining the identity and quantity of:
(A) that substance in or on an article;
(B) any substance formed in or on an article because of the use of that substance; and
(C) the pure substance and all intermediates and impurities; and
(6) facts supporting a contention that the proposed use of that substance will serve a useful purpose.
(c) Notwithstanding Sections 11.013 and 12.001, the commissioner may adopt emergency rules under Chapter 2001, Government Code to establish tolerance levels of poisonous or deleterious substances in food.