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RULE §3.293Food; Food Products; Meals; Food Service

(a) Definitions. The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise.

  (1) Bakery--A retail location where more than 50% of sales made are sales of bakery items sold from a display case or counter and consumed off the premises. A retail location is a premise occupied temporarily or permanently by the seller where the seller holds or handles bakery items for retail sale. The term includes a table, booth, or other space rented or leased by a seller within a multi-seller marketplace.

  (2) Bakery items--Bread, rolls, buns, biscuits, bagels, croissants, pastries, doughnuts, Danish pastries, cakes, tortes, pies, tarts, muffins, bars, cookies, tortillas, and similar items. The term does not include candy, snack items, sandwiches, tacos, or pizzas.

  (3) Bulk vending machine--A device that contains unsorted items and randomly dispenses goods in approximately equal amounts without selection of a particular item or type of item by the customer.

  (4) Candy--A confection made with natural or artificial sweeteners. Examples include: candy bars; gum; drops; taffy; nuts, raisins, and fruits that have been candied, crystalized, glazed, or coated with chocolate, yogurt, or caramel; and nuts roasted with a sweetener. The term does not include products used exclusively for cooking, such as chocolate bits and cake sprinkles.

  (5) Combine--To join two or more food products into a single item.

  (6) Eating utensils--Tableware implements for cutting or eating food, or an object used as a container intended for drinking. Examples include trays, plates, knives, forks, spoons, glasses, cups, chop sticks, or straws.

  (7) Food and food ingredients--Substances, whether in liquid, concentrated, solid, frozen, dried, or dehydrated form, that are sold for ingestion or chewing by humans and are consumed for taste, aroma, or nutritional value.

    (A) Food and food ingredients include food products intended for human consumption, such as the following: cereal and cereal products; milk and milk products, butter, and yogurt; 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 products; coffee and coffee substitutes; tea; juice (if more than 50% fruit or vegetable juice by volume); cocoa and cocoa products; canned foods; snack items; or any combination of these.

    (B) Food products do not include:

      (i) alcoholic beverages;

      (ii) cigarettes, tobacco, or tobacco products;

      (iii) candy;

      (iv) ice;

      (v) water; or

      (vi) drugs, medicines, tonics, vitamins, dietary supplements, and medicinal preparations in any form. For further information about drugs, medicines, and dietary supplements, see §3.284 of this title (relating to Drugs, Medicines, Medical Equipment and Devices).

  (8) Food ready for immediate consumption--Food, drinks, or meals prepared, served, or sold by restaurants, lunch counters, hotels, cafeterias, delis, mobile vendors, or other like places of business, that, when sold, require no further preparation by the purchaser prior to consumption; and food sold through vending machines. A grocery store or convenience store that contains a restaurant, lunch counter, deli, or other similar location is a like place of business selling food ready for immediate consumption, but only for items sold at that location.

  (9) Food sold through vending machines--Food dispensed from a machine or other mechanical device that accepts payment.

  (10) Mix--To blend two or more food items together into a single item that is more or less a uniform whole, but each ingredient may or may not retain its identity (e.g., potato salad, coleslaw or seafood salad).

  (11) Mobile vendor--A person who sells food from a motor vehicle, push cart, or any other form of vehicle.

  (12) Prepared food--Prepared food means:

    (A) food ready for immediate consumption;

    (B) food sold in a heated state or heated by the seller;

    (C) food sold with eating utensils provided by the seller; or

    (D) two or more food ingredients mixed or combined by the seller for sale as a single item, including items that are sold by weight or volume as a single item, but does not include food that is prepared at an off-site location, refrigerated food that is typically reheated prior to eating, or food that is only cut, repackaged, or pasteurized by the seller.

  (13) Retirement facility--A facility that provides permanent housing and residence to individuals, a majority of whom are 60 years of age or older.

  (14) Snack items--Snack items means:

    (A) breakfast bars, granola bars, nutrition bars, sports bars, protein bars, and yogurt bars, unless they are labeled and marketed as candy;

    (B) snack mix and trail mix;

    (C) nuts, but not including pine nuts or nuts that have been candied, crystalized, glazed, coated with chocolate, yogurt, or caramel, or roasted with a sweetener;

    (D) popcorn;

    (E) chips, crackers, hard pretzels, pork rinds, and corn nuts;

    (F) sunflower seeds and pumpkin seeds;

    (G) ice cream, sherbet, and frozen yogurt; and

    (H) ice pops, juice pops, sorbet, and other frozen fruit items containing not more than 50 percent fruit juice by volume.

  (15) Soft drinks--Packaged carbonated and non-carbonated non-alcoholic beverages that contain natural or artificial sweeteners.

    (A) The term includes mixes that when combined with water become soft drinks, and bottled and canned teas and coffees that contain natural or artificial sweeteners.

    (B) The term does not include beverages that contain milk or milk products, soy, rice, or similar milk substitutes, or juices that contain more than 50% vegetable or fruit juice by volume.

(b) Sales of exempt food products or water.

  (1) Food and food ingredients are exempt from sales tax unless otherwise taxable under subsection (c) of this section.

  (2) Water is exempt as explained in §3.318 of this title (relating to Water-Related Exemptions).

(c) Taxable sales. The following are subject to sales tax:

  (1) sales of soft drinks;

  (2) sales of candy;

  (3) sales of ice;

  (4) sales of beer, wine, and other alcoholic beverages unless subject to mixed beverage gross receipts tax and mixed beverage sales tax under Tax Code, Chapter 183 (Mixed Beverage Taxes), or prepared and served by a person holding an airline beverage permit, passenger train permit, or passenger bus permit issued by the Texas Alcoholic Beverage Commission;

  (5) sales of cigarettes and other tobacco products;

  (6) vending machine sales of food, soft drinks, and candy as explained in subsection (d) of this section;

  (7) sales of prepared food as defined in subsection (a)(12) of this section, other than bakery items which are addressed in paragraph (8) of this subsection, including:

    (A) all food ready for immediate consumption sold by caterers, mobile vendors, or restaurants, fast food outlets, lunch counters, cafeterias, delis, hotels, and other like places of businesses; and

    (B) all sandwiches ready for immediate consumption, including refrigerated triangle-type sandwiches such as ham, cheese, tuna, egg salad, or chicken salad, but not sales of sandwiches that are frozen or partially frozen and that require thawing or heating by the customer prior to consumption;

  (8) sales of bakery items at a place of business other than a bakery when sold:

    (A) in a heated state;

    (B) with plates or other eating utensils that the seller hands to the customer or the seller places on a tray or plate for the customer; or

    (C) in conjunction with a taxable meal for which plates or other eating utensils are provided, even if the seller makes a separate charge for the bakery item. For example, a roll served in a restaurant with a meal is taxable even if the roll is served in a napkin rather than directly on the plate; and

  (9) sales of snack items sold in individual-sized portions.

    (A) A snack item is sold in an individual sized-portion if the snack item:

      (i) is labeled as having not more than one serving; or


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