§ 138.001.Definitions

Nine definitions setting who is protected and what counts as food.

"Food" takes its meaning from the Health and Safety Code, and then excludes three things by reference to the federal Food, Drug, and Cosmetic Act: a cosmetic, a drug whether prescription or over-the-counter, and a dietary supplement.

The dietary supplement exclusion is the consequential one. Supplements are marketed with health claims and consumed long-term, so they resemble the products the chapter protects — and the Legislature deliberately left them exposed.

Five categories of defendant are protected: a manufacturer, a seller, a trade association, a livestock producer, and an agricultural producer.

"Manufacturer" and "seller" both require the person to be lawfully engaged, in the regular course of trade or business, in the activity — so an unlawful operation is outside the protection.

"Seller" is broad, covering marketing, distributing, advertising, or selling, which reaches advertising agencies and distributors as well as retailers.

"Trade association" covers a not-for-profit association with two or more members in the industry, incorporated or not — which protects the industry bodies that were named as defendants alongside manufacturers in the tobacco litigation these suits were modelled on.

"State" is defined expansively to include the District of Columbia, the territories and possessions, and any political subdivision of them.