BILL NUMBER: S3331

SPONSOR: LAVALLE
 
TITLE OF BILL:

An act to amend the general business law, in relation to the sale of
over-the-counter drugs

 
PURPOSE:

To promote and protect the health and safety of purchasers of O-T-C
drugs and cosmetics by enabling them to read such products' packaging or
labels in a complete, unaltered and unobstructed condition, at the time
of purchase or thereafter. Such labels are required by federal law and
regulations.

 
SUMMARY OF PROVISIONS:

Section 1. Changes the article heading of Article 38-A of the General
Business law.

              

Section 2. Amends subdivision 2 of Section 820 of the General Business
law, to make it unlawful for any retailer to knowingly alter, obstruct,
obscure or remove, by means of a sticker, tag or other device used to
deter theft, or a price sticker, or otherwise, the whole or any part of
the label or packaging of any over-the-counter (O-T-C) drug or cosmetic
as such label is required by the federal Food, Drug and Cosmetic Act,
and by the Food and Drug Administration's (FDA) rules and regulations
that implement the Act's label requirements for such products.  Viola-
tors would be subject to the existing enforcement remedy contained in
GBL Section 821. Under that provision, compliance with FDA rules and
regulations constitutes a complete defense to any enforcement action.

 
JUSTIFICATION:

At the very foundation of consumer protection for purchasers of O-T-C
drugs and cosmetics are the labeling requirements of Chapters V and VI
of the Federal Food, Drug and Cosmetic Act and the implementing regu-
lations of the Food and Drug Administration.  See, 21 C.F.R. Part 201,
Subchapter C, et seq. (O-T-C drugs) and 21 FR Part 701 (cosmetics). Drug
labels provide vital health and safety information including: indi-
cations, directions for use, warnings and precautions, drug interaction
information, cautions and list of ingredients. Cosmetic labels must
contain a designation of ingredients, a requirement of special impor-
tance for users who suffer particular allergic reactions.

In early 1990, the Department of Law's Bureau of Consumer Frauds and
Protection conducted a random survey of drug stores operated by eight
major chains located in the metropolitan New York City area in an effort
to determine whether the labels of O-T-C drugs or cosmetics offered for
sale to the public were being obscured or obstructed by the retailers'
practice of superimposing upon such labels the store's own price stick-
ers or security stickers or other devices intended to deter theft. The
survey revealed that in a significant number of instances, retailers
were obstructing or obscuring product labels by placing paper stickers
or plastic devices over the manufacturer's product labels. This practice
made it impossible, in many cases, for prospective purchasers to read
the labels before purchase. Even after purchase, consumers, in many
cases, would be unable to read the labels because the removal of the
retailer's stickers would result in the unintended destruction of the
manufacturer's label as well.

Indeed, in one case, the cashier at a major drug retail chain store tore
off the store's sticker from the principal display panel of an O-T-C
drug product and, in doing so, destroyed the manufacturer's label at the
same time. In general, this practice could have severe health and safety
consequences. For example, the product in question in this particular
case was "Collyrium Fresh Sterile Eye Drops" manufactured by Wyeth Labo-
ratories. That part of the manufacturer's label destroyed by the store's
cashier included crucial product warnings and cautions, as follows:
Warnings: Do not use if solution changes color or becomes cloudy. Remove
contact lenses before using.  If you have glaucoma do not use this prod-
uct except under the advice and supervision of a physician. Overuse of
this product may produce increased redness of the eye. To avoid contam-
ination, do not touch tip of container to any surface. Replace cap after
using. If you experience eye pain, changes in vision, continued redness
or irritation of the eye, or if the condition worsens or persists for
more than 72 hours, discontinue use and consult a physician. Keep this
and all medication out of the reach of children. Retain this carton for
complete product information. Keep bottle tightly closed at Room Temper-
ature, Approx. 77 degrees F/25 degrees C.

The Department of Law survey confirmed that the above described practice
by retail drug stores is common and widespread. Case by case enforcement
would not offer consumers the full protection that a legislative initi-
ative offers. This bill builds upon an earlier law that addressed a
related problem. In 1985, a survey published by the Department of Law
revealed, inter alia, that retailers of O-T-C drugs were similarly
obstructing the expiration date of such drug products offered for sale.
See, Expiration Dating Of Over-The-Counter Drugs In New York, a Report
by New York State Attorney General Robert Abrams, (January, 1985).
Subsequently, the Legislature adopted an Attorney General's Program bill
(L. 1986, Ch. 697) that included GBL Section 820(2), a provision that
makes such practice unlawful. The present proposal would offer parallel
protection for consumers with regard to the obstruction of labels.

 
LEGISLATIVE HISTORY:

S.2067; S.202/A.2817
2015-16; S.905/A.2256,
2013-14; S.1936,
2011-12; S.2924,
2009-10; S.1332,
2007-08; S.1547,
2005-06; S.6400,
2003-04.

 
FISCAL IMPLICATIONS:

None.

 
EFFECTIVE DATE:
This act shall take effect immediately.