NY State Senate Bill 2019-S8876

Senate Bill S8876

2019-2020 Legislative Session

Requires persons offering weight loss services to provide notice of certain weight loss and dieting information

download bill text pdf

Archive: Last Bill Status - In Senate Committee Rules Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Aug 05, 2020	referred to rules

2019-S8876 (ACTIVE) - Details

See Assembly Version of this Bill:: A6884
Current Committee:: Senate Rules
Law Section:: General Business Law
Laws Affected:: Add Art 30-B §§641 - 645, Gen Bus L
Versions Introduced in Other Legislative Sessions:: 2009-2010: A3302
2011-2012: A1953
2013-2014: A6259
2015-2016: A6010
2017-2018: A6767
2021-2022: S3764, A3173

2019-S8876 (ACTIVE) - Summary

Requires persons selling or offering to sell weight loss services or weight loss products to provide consumers with a weight loss and dieting information notice; sets forth such notice shall include the dangers of rapid weight loss, dieting information, and risks associated with certain medications used with weight loss programs; delineates deceptive practices; provides for penalties, including fines and injunctions

2019-S8876 (ACTIVE) - Sponsor Memo

                                
 
BILL NUMBER: S8876

SPONSOR: COMRIE
 
TITLE OF BILL:

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

 
PURPOSE OF BILL:

To  provide  consumers with guidance and protection when choosing weight
loss services and products.

 
SUMMARY OF SPECIFIC PROVISIONS:

Requires anyone selling or offering to  sell  weight  loss  services  or
weight  loss  services  and products as defined in the bill, in New York
State to provide the following information in some written form:

               WEIGHT LOSS AND DIETING INFORMATION

1. WARNING! Rapid weight loss may cause serious health  problems.  Rapid
weight  loss  is  weight loss of more than 1 1/2 to two lbs. per week or
weight loss of more than one percent of body weight per week  after  the
second week of participation in a weight loss program.

2.  Consult  your  physician  before starting any weight loss program or
using any diet medications or formulas.

3. Long term weight control is the safest and most important goal of any
diet program. Permanent lifestyle  changes  such  as  eating  nutritious
foods  and  increasing  physical  activity help promote long term weight
loss according to medical experts.

4. 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.

5. 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.
Defines weight loss services, products and direct sellers. Specifies how
the notice is to be provided. Exempts direct sellers, retail stores  and
pharmacies  that  sell  weight  loss  products  unless they also provide
services or recommend the use of weight loss products.   Exempts  anyone
providing  weight loss services incidental to their primary professional
activities. Defines deceptive  practices  for  sellers  of  weight  loss
services  and  products.  Grandfathers  existing  NYC  notice, rules and
allows for other local laws. Establishes civil penalties for violations.

 
EFFECTS OF PRESENT LAW WHICH THIS BILL WOULD ALTER:

Adds a new article 30-b to the General Business Law.

 
JUSTIFICATION:

Millions  of  New  Yorkers  have  tried or are trying to lose weight for
medical and cosmetic reasons. It is estimated that  dieters  across  the
nation  are  spending  as much as $33 billion each year on diet programs
and products. Unfortunately the results of medical  research  about  the
safety  and  effectiveness  of  diet  programs  are often vague and even
contradictory. This makes it difficult  for  consumers  to  decide  what
programs  and  products to use. Success rates for most programs are very
low.

Most experts now recommend long-term weight control by making  permanent
changes  in eating habits and increasing physical activity as opposed to
quick fix diets. Many programs and products are offered or  promoted  by
celebrities, health "experts", store clerks and others who have no back-
ground  or training in nutrition and health. Those offering the services
sometimes advertise quick solutions that may be risky.  The  information
and  protection  from deceptive practices required by this proposal help
consumers make a more informed choice before  spending  their  money  on
weight loss. Legitimate programs and businesses should have no reason to
be  concerned  about  providing  this  guidance to their customers. Diet
centers in NYC are already required  to  post  similar  information  for
their clients.

 
LEGISLATIVE HISTORY:

Previously introduced in Assembly.

 
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:

None.

 
EFFECTIVE DATE:
This  act  shall  take  effect on the one hundred eightieth day after it
shall have become law.

2019-S8876 (ACTIVE) - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   8876
 
                             I N  S E N A T E
 
                              August 5, 2020
                                ___________
 
 Introduced  by  Sen.  COMRIE -- read twice and ordered printed, and when
   printed to be committed to the Committee on Rules
 
 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.
   §  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
 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
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets

                       [ ] is old law to be omitted.
                                                            LBD08044-01-9

 S. 8876                             2
 
 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.
   § 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-
 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.
   § 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:

 S. 8876                             3
 
   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.
   § 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.
   §  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
 MAKE A DETERMINATION OF THE RELEVANT FACTS AND  TO  ISSUE  SUBPOENAS  IN
 ACCORDANCE WITH THE CIVIL PRACTICE LAW AND RULES.
   § 2. This act shall take effect on the one hundred eightieth day after
 it shall have become a law.

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