S T A T E   O F   N E W   Y O R K
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                                   5239
 
                        2017-2018 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             February 7, 2017
                                ___________
 
 Introduced  by  M.  of  A.  DINOWITZ, GOTTFRIED, MOSLEY, HIKIND, JAFFEE,
   SIMON, JOYNER,  COLTON,  GALEF,  STECK,  ARROYO,  SIMOTAS,  SEAWRIGHT,
   TITONE  --  Multi-Sponsored  by -- M. of A. COOK, GLICK, PERRY -- read
   once and referred to the Committee on Consumer Affairs and Protection
 
 AN ACT to amend the agriculture and markets  law,  in  relation  to  the
   labeling of sugar-sweetened beverages with warnings
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Short title. This act shall be known and may  be  cited  as
 the "sugar-sweetened beverages safety warning act".
   §  2.  The  agriculture  and  markets  law  is amended by adding a new
 section 204-e to read as follows:
   § 204-E. LABELING OF SUGAR-SWEETENED BEVERAGES. 1. FOR THE PURPOSES OF
 THIS SECTION:
   (A) "BEVERAGE  CONTAINER"  MEANS  ANY  SEALED  OR  UNSEALED  CONTAINER
 REGARDLESS OF SIZE OR SHAPE INCLUDING, BUT NOT LIMITED TO, THOSE MADE OF
 GLASS,  METAL,  PAPER,  PLASTIC, OR ANY OTHER MATERIAL OR COMBINATION OF
 MATERIALS THAT IS USED OR INTENDED TO BE USED TO HOLD A  SUGAR-SWEETENED
 BEVERAGE FOR INDIVIDUAL SALE TO A CONSUMER.
   (B)  "BEVERAGE DISPENSING MACHINE" MEANS ANY DEVICE THAT MIXES CONCEN-
 TRATE WITH ANY ONE OR MORE OTHER INGREDIENTS, AND DISPENSES THE  RESULT-
 ING MIXTURE INTO AN UNSEALED CONTAINER AS A READY-TO-DRINK BEVERAGE.
   (C) "CALORIC SWEETENER" MEANS ANY SUBSTANCE CONTAINING CALORIES, SUIT-
 ABLE  FOR  HUMAN  CONSUMPTION,  THAT  HUMANS PERCEIVE AS SWEET AND SHALL
 INCLUDE, BUT NOT BE LIMITED TO, SUCROSE, FRUCTOSE,  GLUCOSE,  AND  OTHER
 SUGARS  AND  FRUIT  JUICE CONCENTRATES. "CALORIC" MEANS A SUBSTANCE THAT
 ADDS CALORIES TO THE DIET OF THE INDIVIDUAL WHO CONSUMES SUCH SUBSTANCE.
   (D) "CONCENTRATE" MEANS A SYRUP OR POWDER THAT IS USED OR INTENDED  TO
 BE USED FOR MIXING, COMPOUNDING OR MAKING A SUGAR-SWEETENED BEVERAGE.
   (E)  "CONSUMER"  MEANS  AN  INDIVIDUAL WHO PURCHASES A SUGAR-SWEETENED
 BEVERAGE FOR A PURPOSE OTHER THAN RESALE.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD02152-01-7

 A. 5239                             2
 
   (F) "DISTRIBUTE" MEANS TO SELL OR OTHERWISE PROVIDE A PRODUCT  TO  ANY
 PERSON FOR RESALE.
   (G)  "MENU  OR  MENU BOARD" MEANS THE PRIMARY WRITING OF A PUBLIC FOOD
 SERVICE ESTABLISHMENT, AS DEFINED IN SUBDIVISION THREE OF SECTION  THIR-
 TEEN  HUNDRED  NINETY-NINE-N  OF  THE  PUBLIC  HEALTH  LAW, FROM WHICH A
 CONSUMER MAKES AN ORDER SELECTION, WHICH CAN BE IN DIFFERENT FORMS  SUCH
 AS  BOOKLETS,  PAMPHLETS,  OR SINGLE SHEETS OF PAPER, AND CAN BE LOCATED
 INSIDE OR OUTSIDE OF SUCH PUBLIC FOOD SERVICE ESTABLISHMENT.
   (H) "NATURAL FRUIT JUICE" MEANS THE ORIGINAL LIQUID RESULTING FROM THE
 PRESSING OF FRUIT, THE  LIQUID  RESULTING  FROM  THE  RECONSTITUTION  OF
 NATURAL  FRUIT JUICE CONCENTRATE OR THE LIQUID RESULTING FROM THE RESTO-
 RATION OF WATER TO DEHYDRATED NATURAL FRUIT JUICE.
   (I) "NATURAL VEGETABLE JUICE" MEANS THE ORIGINAL LIQUID RESULTING FROM
 THE PRESSING OF VEGETABLES, THE LIQUID RESULTING FROM THE RECONSTITUTION
 OF NATURAL VEGETABLE JUICE CONCENTRATE OR THE LIQUID RESULTING FROM  THE
 RESTORATION OF WATER TO DEHYDRATED NATURAL VEGETABLE JUICE.
   (J)  "POWDER"  MEANS A SOLID MIXTURE WITH ADDED CALORIC SWEETENER USED
 IN MAKING, MIXING OR COMPOUNDING A SUGAR-SWEETENED  BEVERAGE  BY  MIXING
 SUCH SOLID MIXTURE WITH ANY ONE OR MORE OTHER INGREDIENTS INCLUDING, BUT
 NOT  LIMITED  TO,  WATER,  ICE, SYRUP, SIMPLE SYRUP, FRUITS, VEGETABLES,
 FRUIT JUICE, OR CARBONATION OR OTHER GAS.
   (K) "PRINCIPAL DISPLAY PANEL" MEANS THE PART OF A LABEL THAT  IS  MOST
 LIKELY  TO  BE  DISPLAYED,  PRESENTED, SHOWN OR EXAMINED UNDER CUSTOMARY
 CONDITIONS OF DISPLAY FOR RETAIL SALE.
   (L) "SEALED BEVERAGE CONTAINER" MEANS A BEVERAGE CONTAINER  HOLDING  A
 BEVERAGE  THAT  IS  CLOSED  OR SEALED BEFORE BEING OFFERED FOR SALE TO A
 CONSUMER.
   (M) (1) "SUGAR-SWEETENED BEVERAGE" MEANS  ANY  SWEETENED  NONALCOHOLIC
 BEVERAGE,  CARBONATED  OR NONCARBONATED, SOLD FOR HUMAN CONSUMPTION THAT
 HAS ADDED CALORIC SWEETENERS AND WHICH CONTAINS SEVENTY-FIVE CALORIES OR
 MORE PER TWELVE FLUID OUNCES.
   (2) SUCH TERM SHALL NOT INCLUDE:
   (A) ANY BEVERAGE CONTAINING ONE HUNDRED PERCENT NATURAL FRUIT JUICE OR
 NATURAL VEGETABLE JUICE WITH NO ADDED CALORIC SWEETENERS;
   (B) ANY LIQUID PRODUCT MANUFACTURED FOR ANY OF THE FOLLOWING USES  AND
 COMMONLY REFERRED TO AS A "DIETARY AID":
   (I) AN ORAL NUTRITIONAL THERAPY FOR PERSONS WHO CANNOT ABSORB OR META-
 BOLIZE DIETARY NUTRIENTS FROM FOOD OR BEVERAGES,
   (II)  A  SOURCE  OF  NECESSARY NUTRITION USED AS A RESULT OF A MEDICAL
 CONDITION, OR
   (III) AN ORAL ELECTROLYTE SOLUTION FOR INFANTS AND CHILDREN FORMULATED
 TO PREVENT DEHYDRATION DUE TO ILLNESS;
   (C) ANY PRODUCT FOR  CONSUMPTION  BY  INFANTS  AND  THAT  IS  COMMONLY
 REFERRED TO AS "INFANT FORMULA";
   (D) ANY BEVERAGE WHOSE PRINCIPAL INGREDIENT BY WEIGHT IS MILK; OR
   (E)  ANY ALCOHOLIC BEVERAGE THAT IS SUBJECT TO REGULATION BY THE ALCO-
 HOLIC BEVERAGE CONTROL LAW.
   (N) "SYRUP" MEANS A LIQUID MIXTURE WITH ADDED CALORIC  SWEETENER  USED
 IN  MAKING,  MIXING  OR COMPOUNDING A SUGAR-SWEETENED BEVERAGE BY MIXING
 SUCH LIQUID MIXTURE WITH ANY ONE OR MORE OTHER  INGREDIENTS,  INCLUDING,
 BUT  NOT LIMITED TO, WATER, ICE, A POWDER, SIMPLE SYRUP, FRUITS, VEGETA-
 BLES, FRUIT JUICE, VEGETABLE JUICE, OR CARBONATION OR OTHER GAS.
   (O) "UNSEALED BEVERAGE CONTAINER"  MEANS  A  BEVERAGE  CONTAINER  INTO
 WHICH A BEVERAGE IS DISPENSED OR POURED AT THE PREMISES WHERE THE BEVER-
 AGE IS PURCHASED INCLUDING, BUT NOT LIMITED TO, A CONTAINER FOR FOUNTAIN
 DRINKS.

 A. 5239                             3
 
   2.  (A)  NO  PERSON  SHALL DISTRIBUTE, SELL OR OFFER FOR SALE A SUGAR-
 SWEETENED BEVERAGE IN A SEALED BEVERAGE CONTAINER UNLESS SUCH  CONTAINER
 BEARS  THE  FOLLOWING  SAFETY  WARNING  AND  OTHERWISE  MEETS ALL OF THE
 REQUIREMENTS OF THIS SUBDIVISION:
   "SAFETY  WARNING:  DRINKING  BEVERAGES WITH ADDED SUGAR CONTRIBUTES TO
 OBESITY, DIABETES AND TOOTH DECAY."
   (B) THE SAFETY WARNING REQUIRED BY PARAGRAPH (A) OF  THIS  SUBDIVISION
 SHALL BE DISPLAYED IN A CLEAR AND CONSPICUOUS MANNER AND READILY LEGIBLE
 UNDER  ORDINARY  CONDITIONS ON THE PRINCIPAL DISPLAY PANEL OF THE SEALED
 BEVERAGE CONTAINER, SEPARATE AND APART FROM ALL OTHER  INFORMATION,  AND
 SHALL  BE  ON A CONTRASTING BACKGROUND.  THE ENTIRE SAFETY WARNING SHALL
 APPEAR IN BOLD TYPE.
   (C) IF THE SAFETY WARNING REQUIRED BY PARAGRAPH (A) OF  THIS  SUBDIVI-
 SION IS NOT PRINTED DIRECTLY ON THE BEVERAGE CONTAINER, THE SAFETY WARN-
 ING  SHALL BE AFFIXED TO THE BEVERAGE CONTAINER IN SUCH A MANNER THAT IT
 CANNOT BE  REMOVED  WITHOUT  THOROUGH  APPLICATION  OF  WATER  OR  OTHER
 SOLVENTS.
   (D)  NO PERSON SHALL DISTRIBUTE, SELL OR OFFER FOR SALE A MULTIPACK OF
 SUGAR-SWEETENED BEVERAGES  IN  SEALED  BEVERAGE  CONTAINERS  UNLESS  THE
 MULTIPACK  OF  BEVERAGES  BEARS THE SAFETY WARNING REQUIRED BY PARAGRAPH
 (A) OF THIS SUBDIVISION. THE SAFETY WARNING SHALL BE POSTED IN  A  CLEAR
 AND  CONSPICUOUS  MANNER  ON THE PRINCIPAL DISPLAY PANEL AND ON AT LEAST
 ONE OTHER SIDE OF THE MULTIPACK, IN ADDITION TO  BEING  POSTED  ON  EACH
 INDIVIDUAL SEALED BEVERAGE CONTAINER.
   (E)  NO  PERSON SHALL DISTRIBUTE, SELL OR OFFER FOR SALE A CONCENTRATE
 UNLESS THE PACKAGING OF THE CONCENTRATE, WHICH IS  INTENDED  FOR  RETAIL
 SALE,  BEARS THE SAFETY WARNING REQUIRED BY PARAGRAPH (A) OF THIS SUBDI-
 VISION.  THE SAFETY WARNING SHALL BE POSTED IN A CLEAR  AND  CONSPICUOUS
 MANNER  ON  THE  PRINCIPAL DISPLAY PANEL OF THE PACKAGING OF THE CONCEN-
 TRATE.
   (F) THIS SUBDIVISION SHALL NOT BE  CONSTRUED  TO  REQUIRE  THE  SAFETY
 WARNING REQUIRED BY PARAGRAPH (A) OF THIS SUBDIVISION TO BE PLACED IMME-
 DIATELY PRECEDING ANY COMMON NAME OR PRIMARY PRODUCT DESCRIPTOR.
   3.  (A)  EVERY PERSON WHO OWNS, LEASES OR OTHERWISE CONTROLS THE PREM-
 ISES WHERE A VENDING MACHINE OR BEVERAGE DISPENSING MACHINE IS  LOCATED,
 OR  WHERE  A  SUGAR-SWEETENED  BEVERAGE  IS SOLD IN AN UNSEALED BEVERAGE
 CONTAINER, SHALL PLACE OR CAUSE TO BE PLACED, A SAFETY WARNING  IN  EACH
 OF THE FOLLOWING LOCATIONS:
   (1)  ON  THE  EXTERIOR  OF  ANY VENDING MACHINE THAT INCLUDES A SUGAR-
 SWEETENED BEVERAGE FOR SALE;
   (2) ON THE EXTERIOR OF ANY  BEVERAGE  DISPENSING  MACHINE  USED  BY  A
 CONSUMER  TO  DISPENSE  A SUGAR-SWEETENED BEVERAGE THROUGH SELF-SERVICE;
 AND
   (3) AT THE POINT-OF-PURCHASE, WHICH  MAY  INCLUDE  THE  MENU  OR  MENU
 BOARD,  WHERE  ANY  CONSUMER  PURCHASES A SUGAR-SWEETENED BEVERAGE IN AN
 UNSEALED BEVERAGE CONTAINER, WHEN THE  UNSEALED  BEVERAGE  CONTAINER  IS
 FILLED  BY AN EMPLOYEE OF A FOOD ESTABLISHMENT RATHER THAN THE CONSUMER;
 PROVIDED, HOWEVER, THIS SUBPARAGRAPH SHALL NOT APPLY UNLESS THE PREMISES
 WHERE A BEVERAGE DISPENSING MACHINE IS  LOCATED,  OR  WHERE  THE  SUGAR-
 SWEETENED  BEVERAGE IS SOLD IN AN UNSEALED BEVERAGE CONTAINER IS PART OF
 A NETWORK OF SUBSIDIARIES, AFFILIATES  OR  OTHER  MEMBER  STORES,  UNDER
 DIRECT  OR INDIRECT COMMON CONTROL, WITH THREE OR MORE STORES LOCATED IN
 NEW YORK.
   (B) THE SAFETY WARNING REQUIRED BY PARAGRAPH (A) OF  THIS  SUBDIVISION
 SHALL CONTAIN THE FOLLOWING LANGUAGE:

 A. 5239                             4
 
   "SAFETY  WARNING:  DRINKING  BEVERAGES WITH ADDED SUGAR CONTRIBUTES TO
 OBESITY, DIABETES AND TOOTH DECAY."
   (C)  THE  SAFETY WARNING REQUIRED BY PARAGRAPH (A) OF THIS SUBDIVISION
 SHALL BE DISPLAYED IN A CLEAR AND CONSPICUOUS MANNER AND READILY LEGIBLE
 UNDER ORDINARY CONDITIONS, SEPARATE AND APART FROM  ALL  OTHER  INFORMA-
 TION, AND SHALL BE ON A CONTRASTING BACKGROUND.  THE ENTIRE SAFETY WARN-
 ING SHALL APPEAR IN BOLD TYPE.
   4.  (A)  WHENEVER  IT  SHALL APPEAR THAT THERE HAS BEEN A VIOLATION OF
 THIS SECTION, 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 VIOLATION; AND IF IT SHALL APPEAR TO
 THE SATISFACTION OF THE COURT OR JUSTICE  THAT  THE  DEFENDANT  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. IN ANY SUCH PROCEEDING, THE COURT MAY MAKE  ALLOWANCES  TO  THE
 ATTORNEY  GENERAL  AS  PROVIDED  IN  PARAGRAPH SIX OF SUBDIVISION (A) OF
 SECTION EIGHTY-THREE HUNDRED THREE OF THE CIVIL PRACTICE LAW AND  RULES,
 AND  DIRECT  RESTITUTION.  WHENEVER  THE  COURT  SHALL  DETERMINE THAT A
 VIOLATION OF THIS ARTICLE HAS OCCURRED, THE COURT  MAY  IMPOSE  A  CIVIL
 PENALTY  OF  NOT  LESS  THAN  FIFTY  DOLLARS  NOR MORE THAN FIVE HUNDRED
 DOLLARS FOR EACH SUCH VIOLATION. IN CONNECTION WITH  ANY  SUCH  PROPOSED
 APPLICATION, THE ATTORNEY GENERAL IS AUTHORIZED TO TAKE PROOF AND MAKE A
 DETERMINATION OF THE RELEVANT FACTS AND TO ISSUE SUBPOENAS IN ACCORDANCE
 WITH THE CIVIL PRACTICE LAW AND RULES.
   (B) THE PROVISIONS OF THIS SECTION MAY BE ENFORCED CONCURRENTLY BY THE
 DIRECTOR  OF  A MUNICIPAL CONSUMER AFFAIRS OFFICE, OR BY THE TOWN ATTOR-
 NEY, CITY CORPORATION COUNSEL, OR OTHER LAWFUL  DESIGNEE  OF  A  MUNICI-
 PALITY  OR LOCAL GOVERNMENT, AND ALL MONEYS COLLECTED UNDER THIS SECTION
 SHALL BE RETAINED BY SUCH MUNICIPALITY OR LOCAL GOVERNMENT.
   5. A RETAILER SHALL NOT BE SUBJECT TO THE PENALTIES UNDER THIS SECTION
 UNLESS: (A) THE RETAILER IS  THE  MANUFACTURER  OF  THE  SUGAR-SWEETENED
 BEVERAGE,  THE  PACKAGER  OF A MULTIPACK OF SUGAR-SWEETENED BEVERAGES IN
 SEALED BEVERAGE CONTAINERS, OR THE MANUFACTURER  OF  A  CONCENTRATE  AND
 SELLS  THE SUGAR-SWEETENED BEVERAGE, MULTIPACK OF SUGAR-SWEETENED BEVER-
 AGES, OR CONCENTRATE UNDER A BRAND IT OWNS; OR (B) THE RETAILER'S  FAIL-
 URE TO LABEL WAS KNOWING AND WILLFUL.
   §  3.  Severability clause. If any provision of this act or its appli-
 cation to any person, legal entity, or circumstance is held invalid, the
 remainder of the act or  the  application  of  the  provision  to  other
 persons, legal entities or circumstances shall not be affected.
   §  4. This act shall take effect one year after it shall have become a
 law.