§ 151.314 — FOOD AND FOOD PRODUCTS.

Texas § 151.314

• Jurisdiction: Texas
• Code TX: Tax Code

Text

Sec. 151.314. FOOD AND FOOD PRODUCTS. (a) Food products for human consumption are exempted from the taxes imposed by this chapter.
(b) "Food products" shall include, except as otherwise provided herein, but shall not be limited to cereals and cereal products; milk and milk products, including ice cream; oleomargarine; meat and meat products; poultry and poultry products; fish and fish products; eggs and egg products; vegetables and vegetable products; fruit and fruit products; spices, condiments, and salt; sugar and sugar products; coffee and coffee substitutes; tea; cocoa products; snack items; or any combination of the above.
(b-1) For purposes of this section, "snack items" means:
(1) breakfast bars, granola bars, nutrition bars, sports bars, protein bars, or yogurt bars, unless labeled and marketed as candy;
(2) snack mix or trail mix;
(3) nuts, but not including pine nuts or candy-coated nuts;
(4) popcorn;
(5) chips, crackers, hard pretzels, pork rinds, or corn nuts;
(6) sunflower seeds or pumpkin seeds;
(7) ice cream, sherbet, or frozen yogurt; and
(8) ice pops, juice pops, sorbet, or other frozen fruit items containing not more than 50 percent fruit juice by volume.
(b-2) For purposes of this section:
(1) "Bakery" means a retail location that primarily sells bakery items from a display case or counter, predominantly for consumption off the premises.
(2) "Bakery items" means bread, rolls, buns, biscuits, bagels, croissants, pastries, doughnuts, Danish, cakes, tortes, pies, tarts, muffins, bars, cookies, tortillas, and similar items.
(c) "Food products" shall not include:
(1) drugs, medicines, tonics, vitamins, dietary supplements, and medicinal preparations in any form;
(2) carbonated and noncarbonated packaged soft drinks, which are nonalcoholic beverages that contain natural or artificial sweeteners;
(3) ice; or
(4) candy.
(c-1) For purposes of this section, diluted juice that is more than 50 percent vegetable or fruit juice by volume is not considered to be a soft drink.
(c-2) The exemption provided by Subsection (a) does not include the following prepared food:
(1) except as provided by Subsection (c-3)(1), food, food products, and drinks, including meals, milk and milk products, fruit and fruit products, sandwiches, salads, processed meats and seafoods, vegetable juice, and ice cream in cones or small cups, served, prepared, or sold ready for immediate consumption by restaurants, lunch counters, cafeterias, delis, vending machines, hotels, or like places of business or sold ready for immediate consumption from pushcarts, motor vehicles, or any other form of vehicle;
(2) except as provided by Subsection (c-3)(1), food sold in a heated state or heated by the seller; or
(3) two or more food ingredients mixed or combined by the seller for sale as a single item, including items that are sold in an unheated state by weight or volume as a single item, but not including food that is only cut, repackaged, or pasteurized by the seller.
(c-3) The exemption provided by Subsection (a) includes:
(1) bakery items sold by a bakery, regardless of whether the items are:
(A) heated by the consumer or seller; or
(B) served with plates or other eating utensils;
(2) bakery items sold at a retail location other than a bakery without plates or other eating utensils; and
(3) eggs, fish, meat, and poultry, and foods containing these raw animal foods, that require cooking by the consumer as recommended by the Food and Drug Administration in Chapter 3, Section 401.11 of its Food Code to prevent food-borne illness and any other food that requires cooking by the consumer before the food is edible.
(c-4) For purposes of Subdivision (c-2)(1), if a grocery store or convenience store contains a type of location listed in that subdivision, the store is considered a like place of business for purposes of that subdivision, but only in relation to items sold at that location.
(d) Food products, meals, soft drinks, and candy for human consumption are exempted from the taxes imposed by this chapter if:
(1) served by a public or private school, school district, student organization, booster club or other school support organization, or parent-teacher association under an agreement with the proper school authorities in an elementary or secondary school during the regular school day or by a parent-teacher association during a fund-raising sale the proceeds of which do not benefit an individual;
(2) sold by a church or at a function of a church;
(3) served to a patient or inmate of a hospital or other institution licensed by the state for the care of humans;
(4) served to a permanent resident of a retirement facility which provides permanent housing and residence to individuals, a majority of whom are 60 years or older; or
(5) sold during an event sponsored or sanctioned by an elementary or secondary school or school district at a concession stand operated by a booster club or other school support organization formed to support the school or school district, but only if the proceeds from the sales benefit the school or school district.
(e) Food products, candy, and soft drinks are exempted from the taxes imposed by this chapter if sold at an exempt sale qualifying under this subsection or if stored or used by the purchaser of the item at the exempt sale. A sale is exempted under this subsection if:
Text of subsec. (e)(1) as amended by Acts 2003, 78th Leg., ch. 1310, Sec. 103
(1) the sale is made by a person under 19 years old who is a member of a nonprofit organization devoted to the exclusive purpose of education or religious or physical training or by a group associated with a public or private elementary or secondary school;
Text of subsec. (e)(1) as amended by Acts 2003, 78th Leg., ch. 209, Sec. 20
(1) the sale is made by a member of or volunteer for a nonprofit organization devoted to the exclusive purpose of education or religious or physical training or by a group associated with a public or private elementary or secondary school;
(2) the sale is made as a part of a fund-raising drive sponsored by the organization or group; and
(3) all net proceeds from the sale go to the organization or group for its exclusive use.
(f) The exemption provided by this section does not apply to the sale of food products through the use or operation of a vending machine for which the receipts or sales prices are determined by Section 151.007 (d).
(g) The exemption provided by Subsection (d)(3) does not apply to food products, meals, soft drinks, and candy sold to a person confined in a correctional facility operated under the authority or jurisdiction of or under contract with this state or a political subdivision of the state.
(h) The exemption provided by Subsection (a) does not apply to a snack item if the item is sold through a vending machine or is sold in individual-sized portions. For purposes of this subsection, an individual-sized portion is a portion that:
(1) is labeled as having not more than one serving; or
(2) contains less than 2.5 ounces.

Legislative History

Acts 1981, 67th Leg., p. 1562, ch. 389, Sec. 1, eff. Jan. 1, 1982. Amended by Acts 1983, 68th Leg., p. 1040, ch. 235, art. 7, Sec. 4(a), eff. Sept. 1, 1983; Acts 1984, 68th Leg., 2nd C.S., ch. 31, art. 7, Sec. 20, eff. Oct. 2, 1984; Acts 1987, 70th Leg., ch. 704, Sec. 1, eff. June 19, 1987; Acts 1987, 70th Leg., 2nd C.S., ch. 5, art. 1, pt. 4, Sec. 23; Acts 1989, 71st Leg., ch. 299, Sec. 1, eff. Oct. 1, 1989; Acts 1995, 74th Leg., ch. 79, Sec. 1, eff. Oct. 1, 1995; Acts 1995, 74th Leg., ch. 1000, Sec. 13, eff. Oct. 1, 1995; Acts 2003, 78th Leg., ch. 209, Sec. 20, eff. Oct. 1, 2003; Acts 2003, 78th Leg., ch. 1310, Sec. 103, eff. Oct. 1, 2003. Amended by: Acts 2013, 83rd Leg., R.S., Ch. 774 (S.B. 1151 ), Sec. 1, eff. September 1, 2013. Acts 2013, 83rd Leg., R.S., Ch. 873 (H.B. 697 ), Sec. 1, eff. September 1, 2013. Acts 2015, 84th Leg., R.S., Ch. 1255 (H.B. 1905 ), Sec. 21, eff. September 1, 2015. Acts 2017, 85th Leg., R.S., Ch. 379 (H.B. 4054 ), Sec. 1, eff. September 1, 2017.