S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  3302

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                            January 26, 2009
                               ___________

Introduced  by  M.  of  A. COOK, ORTIZ, CHRISTENSEN, PHEFFER, ZEBROWSKI,
  JAFFEE -- Multi-Sponsored by -- M. of A. BOYLAND, COLTON,  CYMBROWITZ,
  DINOWITZ,  GLICK,  HIKIND,  MARKEY,  McENENY,  J. RIVERA, SCARBOROUGH,
  SCHROEDER, TOWNS -- read once and referred to the Committee on Consum-
  er Affairs and Protection

AN ACT to amend the general  business  law,  in  relation  to  requiring
  persons  offering  weight  loss  services to provide notice of certain
  risks

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. The general business law is amended by adding a new article
30-B to read as follows:
                               ARTICLE 30-B
                          WEIGHT LOSS SERVICES
SECTION 641. WEIGHT LOSS SERVICES AND PRODUCTS.
        642. WEIGHT LOSS SERVICES; NOTICE.
        643. DECEPTIVE PRACTICES.
        644. LOCAL REGULATION.
        645. PENALTIES.
  S  641.  WEIGHT  LOSS  SERVICES AND PRODUCTS. FOR THE PURPOSES OF THIS
ARTICLE:
  1. "WEIGHT LOSS SERVICES" SHALL MEAN COUNSELING AND EDUCATIONAL ACTIV-
ITIES, INCLUDING, BUT NOT LIMITED TO, RECOMMENDING  THE  USE  OF  WEIGHT
LOSS  PRODUCTS,  WHICH  HAVE  THE PRIMARY PURPOSE OF HELPING INDIVIDUALS
REDUCE BODY WEIGHT.   WEIGHT LOSS SERVICES DOES  NOT  INCLUDE  PROVIDING
INFORMATION  TO  THE PUBLIC REGARDING INDIVIDUAL WEIGHT LOSS PRODUCTS IF
THE PERSON, FIRM OR CORPORATION IS NOT ALSO ENGAGED IN COUNSELING ACTIV-
ITIES.
  2. "WEIGHT LOSS PRODUCTS" SHALL MEAN ANY FOODS, INGREDIENTS OR  COMPO-
NENTS OF FOODS, NUTRITIONAL FORMULAS OR SUPPLEMENTS, DRUGS, EQUIPMENT OR

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
A                                                          LBD05431-01-9

              

A. 3302                             2

ANY  OTHER  PRODUCTS  SOLD OR OFFERED FOR THE PRIMARY PURPOSE OF HELPING
INDIVIDUALS REDUCE BODY WEIGHT.
  3.  "DIRECT  SELLER"  SHALL  MEAN ANY PERSON IF (A) SUCH PERSON IS (I)
ENGAGED IN THE TRADE OR BUSINESS OF SELLING OR SOLICITING  THE  SALE  OF
CONSUMER  PRODUCTS TO ANY BUYER ON A BUY-SELL BASIS OR A DEPOSIT-COMMIS-
SION BASIS FOR RESALE BY THE BUYER OR ANY OTHER PERSON IN  THE  HOME  OR
OTHERWISE  THAN  IN A PERMANENT RETAIL ESTABLISHMENT, OR (II) ENGAGED IN
THE TRADE OR BUSINESS OF SELLING OR  SOLICITING  THE  SALE  OF  CONSUMER
PRODUCTS  IN THE HOME OR OTHERWISE THAN IN A PERMANENT RETAIL ESTABLISH-
MENT;
  (B) SUBSTANTIALLY ALL THE REMUNERATION, WHETHER OR NOT PAID  IN  CASH,
FOR  THE  PERFORMANCE OF THE SERVICES DESCRIBED IN PARAGRAPH (A) OF THIS
SUBDIVISION IS DIRECTLY RELATED TO SALES OR OTHER OUTPUT, INCLUDING  THE
PERFORMANCE OF SERVICES, RATHER THAN TO THE NUMBER OF HOURS WORKED; AND
  (C)  THE  SERVICES PERFORMED BY THE PERSON ARE PERFORMED PURSUANT TO A
WRITTEN CONTRACT BETWEEN  SUCH  PERSON  AND  THE  PERSON  FOR  WHOM  THE
SERVICES  ARE  PERFORMED AND SUCH CONTRACT PROVIDES THAT THE PERSON WILL
NOT BE TREATED AS AN EMPLOYEE WITH RESPECT TO SUCH  SERVICES  FOR  STATE
AND FEDERAL TAX PURPOSES.
  S  642.  WEIGHT  LOSS  SERVICES; NOTICE. 1. ANY PERSON, FIRM OR CORPO-
RATION OFFERING  WEIGHT  LOSS  SERVICES  OR  WEIGHT  LOSS  SERVICES  AND
PRODUCTS  IN  THIS  STATE  BY  MEANS OF SELLING OR OFFERING TO SELL SUCH
SERVICES OR PRODUCTS TO THE PUBLIC SHALL EITHER (I) CONSPICUOUSLY POST A
SIGN, MEASURING AT LEAST NINE INCHES BY FOURTEEN INCHES, WHERE CONSUMERS
ARE OFFERED THE SERVICES OR PRODUCTS, IN WRITING, IN AT LEAST TEN  POINT
PRINT, OR (II) PROVIDE IN WRITING, IN AT LEAST TEN POINT PRINT, TO INDI-
VIDUALS  AND  CONSUMERS  PRIOR TO THE PURCHASE OF SUCH GOODS OR SERVICES
THE FOLLOWING NOTICE OR SOME OTHER NOTICE WHICH  SUBSTANTIALLY  CONTAINS
OR PROVIDES THE FOLLOWING INFORMATION.
                    WEIGHT LOSS AND DIETING INFORMATION
  A. WARNING! RAPID WEIGHT LOSS MAY CAUSE SERIOUS HEALTH PROBLEMS. RAPID
WEIGHT  LOSS  IS  WEIGHT LOSS OF MORE THAN 1 1/2 TO 2 POUNDS PER WEEK OR
WEIGHT LOSS OF MORE THAN 1 PERCENT OF BODY WEIGHT  PER  WEEK  AFTER  THE
SECOND WEEK OF PARTICIPATION IN A WEIGHT LOSS PROGRAM.
  B.  CONSULT  YOUR PHYSICIAN BEFORE STARTING ANY WEIGHT LOSS PROGRAM OR
USING ANY DIET MEDICATIONS OR FORMULAS.
  C. LONG TERM WEIGHT CONTROL IS THE SAFEST AND MOST IMPORTANT  GOAL  OF
ANY  DIET PROGRAM. PERMANENT LIFESTYLE CHANGES SUCH AS EATING NUTRITIOUS
FOODS, CALORIE CONTROL AND INCREASING  PHYSICAL  ACTIVITY  HELP  PROMOTE
LONG TERM WEIGHT LOSS ACCORDING TO MEDICAL EXPERTS.
  D.  ASK THE PERSON PROVIDING OR SELLING YOU WEIGHT LOSS ADVICE OR DIET
PRODUCTS, MEDICATIONS OR FORMULAS ABOUT THEIR QUALIFICATIONS AND  TRAIN-
ING IN NUTRITION AND HEALTH.
  E. YOU HAVE THE RIGHT TO:
  (I)  ASK QUESTIONS ABOUT THE POTENTIAL HEALTH RISKS OF THIS PROGRAM OR
PRODUCT, ITS NUTRITIONAL  CONTENT,  AND  ITS  PSYCHOLOGICAL-SUPPORT  AND
EDUCATIONAL COMPONENTS;
  (II)  KNOW  THE  PRICE  OF TREATMENT, INCLUDING THE PRICE OF ANY EXTRA
PRODUCTS, SERVICES, SUPPLEMENTS AND LABORATORY TESTS; AND
  (III) KNOW THE PROGRAM DURATION OF THE PROGRAM RECOMMENDED TO YOU.
  2. THE PROVISIONS OF THIS SECTION SHALL NOT APPLY TO  DIRECT  SELLERS,
RETAIL  STORES  OR PHARMACIES SELLING WEIGHT LOSS PRODUCTS AND PROVIDING
INFORMATION TO THE PUBLIC REGARDING  INDIVIDUAL  PRODUCTS,  UNLESS  SUCH
BUSINESSES  OFFER  BOTH  WEIGHT  LOSS SERVICES AND WEIGHT LOSS PRODUCTS.
FURTHERMORE, THE PROVISIONS OF THIS SECTION SHALL NOT  APPLY  TO  WEIGHT
LOSS  SERVICES  PROVIDED  TO AN INDIVIDUAL BY ANY PERSON, FIRM OR CORPO-

A. 3302                             3

RATION WHICH PROVIDES WEIGHT LOSS SERVICES INCIDENTAL TO  THEIR  PRIMARY
PROFESSIONAL  SERVICES  TO  SUCH  INDIVIDUAL AND WHICH DOES NOT OFFER TO
SELL WEIGHT LOSS SERVICES OR WEIGHT LOSS PRODUCTS TO THE PUBLIC.
  S 643. DECEPTIVE PRACTICES. IT SHALL BE A DECEPTIVE TRADE PRACTICE FOR
ANY  PERSON,  FIRM  OR  CORPORATION  OFFERING  OR  PROVIDING WEIGHT LOSS
SERVICES OR WEIGHT LOSS PRODUCTS TO MISREPRESENT, DIRECTLY OR  INDIRECT-
LY:
  1.  THE POTENTIAL HEALTH RISKS OF THE WEIGHT LOSS SERVICES OR PRODUCTS
OFFERED;
  2. THE SUCCESS OF PARTICIPANTS  USING  THE  WEIGHT  LOSS  SERVICES  OR
PRODUCTS  OFFERED  IN  ACHIEVING  OR  MAINTAINING  WEIGHT LOSS OR WEIGHT
CONTROL. ANY REPRESENTATION OF SUCCESSFUL WEIGHT LOSS OR WEIGHT  CONTROL
BY  PARTICIPANTS  WILL  BE  CONSIDERED MISLEADING IF THE PERSON, FIRM OR
CORPORATION DOES NOT POSSESS OR RELY UPON A  REASONABLE  BASIS  FOR  THE
REPRESENTATION  AT  THE TIME IT IS DISSEMINATED. IF A CLAIM IS MADE THAT
SCIENTIFIC EVIDENCE SUPPORTS THE REPRESENTATION,  THE  PERSON,  FIRM  OR
CORPORATION  MUST  POSSESS  COMPETENT  AND  RELIABLE SCIENTIFIC EVIDENCE
SUBSTANTIATING SUCH CLAIM. FOR THE PURPOSES OF THIS SUBDIVISION, "COMPE-
TENT AND RELIABLE SCIENTIFIC EVIDENCE" SHALL MEAN THOSE TESTS, ANALYSES,
RESEARCH, STUDIES OR OTHER EVIDENCE BASED ON THE  EXPERTISE  OF  PROFES-
SIONALS  IN THE RELEVANT AREA, THAT HAVE BEEN CONDUCTED AND EVALUATED IN
AN OBJECTIVE MANNER BY PERSONS QUALIFIED  TO  DO  SO,  USING  PROCEDURES
GENERALLY  ACCEPTED  IN  THE  PROFESSION  TO YIELD ACCURATE AND RELIABLE
RESULTS;
  3. THE  EDUCATIONAL  AND  PROFESSIONAL  EXPERIENCE  OF  THE  PERSONNEL
PROVIDING WEIGHT LOSS SERVICES OR WEIGHT LOSS PRODUCTS;
  4. THE TOTAL CHARGES FOR ANY WEIGHT LOSS SERVICES AND PRODUCTS; OR
  5.  THE  ACTUAL  OR  ESTIMATED  DURATION OF THE USE OF THE WEIGHT LOSS
SERVICES OR PRODUCTS OFFERED.
  S 644. LOCAL REGULATION. NOTHING IN THIS ARTICLE SHALL BE CONSTRUED TO
RESTRICT THE POWER OF ANY COUNTY, CITY, TOWN OR  VILLAGE  TO  ADOPT  AND
ENFORCE  LOCAL  LAWS, ORDINANCES OR REGULATIONS WHICH EXCEED THE MINIMUM
REQUIREMENTS OF THIS ARTICLE, AS LONG AS SUCH LOCAL LAWS, ORDINANCES  OR
REGULATIONS  ARE  NOT  INCONSISTENT WITH THE PROVISIONS OF THIS ARTICLE.
ANY LOCAL LAWS OR RULES REGULATING WEIGHT LOSS SERVICES AND PRODUCTS  IN
A  CITY  HAVING  A  POPULATION  OF ONE MILLION OR MORE AND WHICH WERE IN
EFFECT PRIOR TO THE EFFECTIVE  DATE  OF  THIS  ARTICLE  AND  ANY  NOTICE
PROVIDED  PURSUANT TO SUCH LAW OR RULE, SHALL BE DEEMED TO BE CONSISTENT
WITH THE PROVISIONS OF THIS ARTICLE.
  S 645. PENALTIES. EACH DAY A PERSON, FIRM OR CORPORATION VIOLATES  ANY
PROVISION  OF THIS ARTICLE SHALL CONSTITUTE A SINGLE VIOLATION. WHENEVER
THERE SHALL BE A VIOLATION OF THIS ARTICLE, AN APPLICATION MAY  BE  MADE
BY  THE  ATTORNEY  GENERAL IN THE NAME OF THE PEOPLE OF THE STATE OF NEW
YORK TO A COURT OR JUSTICE HAVING JURISDICTION BY A  SPECIAL  PROCEEDING
TO  ISSUE  AN  INJUNCTION,  AND UPON NOTICE TO THE DEFENDANT OF NOT LESS
THAN  FIVE  DAYS,  TO  ENJOIN  AND  RESTRAIN  THE  CONTINUANCE  OF  SUCH
VIOLATIONS.  IF IT SHALL APPEAR TO THE COURT OR JUSTICE THAT THE DEFEND-
ANT HAS IN FACT, VIOLATED THIS ARTICLE, AN INJUNCTION MAY BE  ISSUED  BY
SUCH  COURT OR JUSTICE, ENJOINING AND RESTRAINING ANY FURTHER VIOLATION,
WITHOUT REQUIRING PROOF THAT ANY PERSON HAS, IN  FACT  BEEN  INJURED  OR
DAMAGED  THEREBY. WHENEVER THE COURT SHALL DETERMINE THAT A VIOLATION OF
THIS ARTICLE HAS OCCURRED, THE COURT MAY IMPOSE A CIVIL PENALTY  OF  NOT
MORE  THAN  ONE  HUNDRED DOLLARS FOR THE FIRST VIOLATION AND TWO HUNDRED
DOLLARS FOR EACH VIOLATION THEREAFTER, BUT IN NO EVENT SHALL  THE  TOTAL
PENALTY  THEREFOR  EXCEED  ONE  THOUSAND DOLLARS. IN CONNECTION WITH ANY
SUCH APPLICATION, THE ATTORNEY GENERAL IS AUTHORIZED TO TAKE  PROOF  AND

A. 3302                             4

MAKE  A  DETERMINATION  OF  THE RELEVANT FACTS AND TO ISSUE SUBPOENAS IN
ACCORDANCE WITH THE CIVIL PRACTICE LAW AND RULES.
  S 2. This act shall take effect on the one hundred eightieth day after
it shall have become a law.