(a) A person commits a misdemeanor if in this course of business he: (1) uses or possesses for a false weight or measure, or any other device for falsely determining or recording any quality or quantity; (2) sells, offers or exposes for sale, or delivers less than the represented quantity of any commodity or service; (3) takes or attempts to take more than the represented quantity of any commodity or service when as buyer he furnishes the weight or measure; (4) sells, offers or exposes for sale adulterated or mislabeled commodities. “Adulterated” means varying from the standard of composition or quality prescribed by or pursuant to any statute providing criminal penalties for such variance or lawfully promulgated administrative regulation, or, if none, as set by established commercial usage. “Mislabeled” means varying from the standard of truth or disclosure in labeling prescribed by or pursuant to any statute providing criminal penalties for such variance or lawfully promulgated administrative regulations or, if none, as set by established commercial usage; (5) makes a false or misleading statement in any advertisement addressed to the public or to a substantial segment thereof with the intent of promoting the purchase or sale of property or services; (6) makes a false or misleading written statement with the intent of obtaining property or credit; or (7) makes a false or misleading written statement with the intent of promoting the sale of securities, or omits information required by law to be disclosed in written documents relating to securities. (b) It is an affirmative defense to prosecution under Subsection (a) if the defendant proves by a preponderance of the evidence that his conduct was not knowingly or recklessly deceptive. SOURCE: G.P.C. §§ 350-351a, 364, 354a, 380-383a, 395, 402a, 564, 577-580; *M.P.C. § 224.7; Mass. ch. 266, § 32; N.J. § 2C:21-7. CROSS-REFERENCES: See § 47210, Govt. Code - Full weight or measure required - a misdemeanor See §§ 53610 - 53616 - Trade practices and consumer protection - Civil remedies and penalties. COMMENT: Section 46.40 consolidate a number of unrelated statutes dealing with deceptive practices and does not touch the Government Code in this respect, but adds to it.
The terms adulterated and mislabeled should be defined some way. The Commission simply incorporated definitions based on those in the Model Penal Code and supplemented these with specific guidelines furnished by the Penal Code § 383. The Commission has no idea where the latter came from originally or whether they are adequate.