S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  4424--A
 
                        2023-2024 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             February 14, 2023
                                ___________
 
 Introduced  by  M.  of A. REYES, KELLES -- read once and referred to the
   Committee  on  Agriculture  --  committee  discharged,  bill  amended,
   ordered reprinted as amended and recommitted to said committee
 
 AN  ACT  to  amend the agriculture and markets law, the general business
   law and the public health law, in relation to food  and  food  product
   advertising
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Legislative findings and  intent.  The  legislature  hereby
 finds  that  children  are an inherently vulnerable population, and that
 marketing unhealthy foods in a targeted and persistent  manner  to  this
 group  is  inconsistent with this state's efforts to curb the disastrous
 health outcomes that follow the overconsumption of these products.  Such
 marketing  is  inherently  misleading,  as  children often lack the same
 ability to resist the rewarding cues presented in unhealthy food market-
 ing as adults.   New York has  a  strong  and  substantial  interest  in
 protecting our children from negative health consequences. Additionally,
 the power of the state is at its greatest when protecting the health and
 welfare  of  its  citizens,  especially those most vulnerable. Thus, the
 legislature finds that unfair and deceptive marketing targeted at  chil-
 dren  can mislead and manipulate children into lifelong habits, and that
 such unfair and deceptive advertising should be regulated accordingly.
   § 2. Section 202-a of the agriculture and markets law  is  amended  by
 adding a new subdivision 4 to read as follows:
   4.  IN  DETERMINING  WHETHER A VIOLATION OF THIS SECTION HAS OCCURRED,
 THE COURT SHALL CONSIDER FACTORS  AND  SPECIAL  CONSIDERATION  GIVEN  TO
 ADVERTISING  DIRECTED  AT  A  CHILD  PURSUANT  TO  SECTION THREE HUNDRED
 FIFTY-A OF GENERAL BUSINESS LAW.
   § 3. Section 350-a of the general business law is  amended  by  adding
 three new subdivisions 4, 5 and 6 to read as follows:

  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD01982-03-3
 A. 4424--A                          2
              

 
   4.    IN DETERMINING WHETHER ANY ADVERTISING CONCERNING A FOOD OR FOOD
 PRODUCT IS FALSE OR MISLEADING, FACTORS SHALL INCLUDE, BUT NOT BE LIMIT-
 ED TO:
   (A)  WHETHER  THE  ADVERTISEMENT  TARGETS A CONSUMER WHO IS REASONABLY
 UNABLE TO PROTECT THEIR INTERESTS BECAUSE OF THEIR AGE, PHYSICAL INFIRM-
 ITY, IGNORANCE, ILLITERACY, INABILITY TO UNDERSTAND THE LANGUAGE  OF  AN
 AGREEMENT, OR SIMILAR FACTOR.
   (B) WHETHER THE ADVERTISEMENT IS AN UNFAIR ACT, PRACTICE OR CONDUCT.
   (C)  FOR  THE PURPOSES OF THIS SUBDIVISION AND SUBDIVISION SIX OF THIS
 SECTION, A "CONSUMER" IS DEFINED AS A  PERSON  WHO  IS  TARGETED  BY  AN
 ADVERTISEMENT, OR THOSE ACTING ON SUCH A PERSON'S BEHALF.
   5.  FOR  THE  PURPOSES OF THIS SECTION, FOR A CONSUMER:  AN ACT, PRAC-
 TICE, OR CONDUCT IS "UNFAIR" WHERE IT:
   (A)    CAUSES OR IS LIKELY TO CAUSE SUBSTANTIAL INJURY TO SUCH CONSUM-
 ER;
   (B)   CANNOT BE REASONABLY AVOIDED BY SUCH CONSUMER; AND
   (C) IS NOT OUTWEIGHED BY COUNTERVAILING BENEFITS TO SUCH  CONSUMER  OR
 TO COMPETITION.
   6.  FOR PURPOSES OF PARAGRAPH (A) OF SUBDIVISION FOUR OF THIS SECTION,
 SPECIAL CONSIDERATION SHALL BE GIVEN TO  ADVERTISEMENTS  DIRECTED  AT  A
 CHILD  AS  DEFINED  IN  SECTION  THREE HUNDRED SEVENTY-ONE OF THE SOCIAL
 SERVICES LAW. IN DETERMINING WHETHER AN ADVERTISEMENT CONCERNING A  FOOD
 OR  FOOD  PRODUCT IS DIRECTED AT A CHILD, FACTORS SHALL INCLUDE, BUT NOT
 BE LIMITED TO:
   (A) SUBJECT MATTER;
   (B) VISUAL CONTENT;
   (C) USE OF ANIMATED CHARACTERS OR CHILD-ORIENTED ACTIVITIES AND INCEN-
 TIVES;
   (D) MUSIC OR OTHER AUDIO CONTENT;
   (E) AGE OF MODELS;
   (F) PRESENCE OF CHILD CELEBRITIES OR CELEBRITIES WHO APPEAL  TO  CHIL-
 DREN;
   (G) LANGUAGE;
   (H)  COMPETENT  AND  RELIABLE  EMPIRICAL  EVIDENCE  REGARDING AUDIENCE
 COMPOSITION AND EVIDENCE REGARDING THE INTENDED AUDIENCE;
   (I) PHYSICAL LOCATION OF ADVERTISEMENT, INCLUDING, BUT NOT LIMITED TO,
 PROXIMITY TO SCHOOLS OR OTHER INSTITUTIONS FREQUENTED BY CHILDREN;
   (J) MEDIUM BY WHICH THE ADVERTISEMENT IS COMMUNICATED, INCLUDING,  BUT
 NOT LIMITED TO, SOCIAL MEDIA; OR
   (K) OTHER SIMILAR FACTORS.
   §  4.  Subdivision  3 of section 350-e of the general business law, as
 amended by chapter 328 of the laws  of  2007,  is  amended  to  read  as
 follows:
   3.  Any  person  who  has  been  injured by reason of any violation of
 section three hundred fifty or three hundred fifty-a of this article may
 bring an action in his or her own name to enjoin such  unlawful  act  or
 practice, an action to recover his or her actual damages or five hundred
 dollars,  whichever  is greater, or both such actions. The court may, in
 its discretion, increase the award of damages to an amount not to exceed
 three times the actual damages, up to ten thousand dollars, if the court
 finds that the defendant willfully or knowingly violated this section OR
 ENGAGED IN ADVERTISING DIRECTED AT A CHILD  PURSUANT  TO  SECTION  THREE
 HUNDRED  FIFTY-A  OF THIS ARTICLE. The court may award reasonable attor-
 ney's fees to a prevailing plaintiff.
 A. 4424--A                          3
 
   § 5. Subdivision 1 of section 2599-b of  the  public  health  law,  as
 amended  by  section  1 of part A of chapter 469 of the laws of 2015, is
 amended to read as follows:
   1.  The  program shall be designed to prevent and reduce the incidence
 and prevalence of obesity in children and adolescents, especially  among
 populations  with  high  rates  of  obesity  and  obesity-related health
 complications including, but not limited to,  diabetes,  heart  disease,
 cancer,  osteoarthritis,  asthma,  emphysema,  chronic bronchitis, other
 chronic respiratory diseases and other conditions. The program shall use
 recommendations and goals of the United States departments  of  agricul-
 ture  and health and human services, the surgeon general and centers for
 disease control and prevention in developing and implementing guidelines
 for nutrition education and physical activity projects as part of obesi-
 ty prevention efforts. The content and  implementation  of  the  program
 shall  stress  the  benefits of choosing a balanced, healthful diet from
 the many options available to consumers[, without specifically targeting
 the elimination of any particular food group, food product  or  food-re-
 lated industry] WHILE SPECIFICALLY INCLUDING EDUCATION ON ACCESS AND THE
 NUTRITIONAL  VALUE  OF  LOCALLY GROWN FOODS AND FOOD PRODUCTS INCLUDING,
 BUT NOT LIMITED TO DAIRY,  FRUIT  AND  VEGETABLE  FOOD  PRODUCTS.    THE
 PROGRAM  SHALL  COOPERATE WITH THE DEPARTMENT OF AGRICULTURE AND MARKETS
 TO ADD ACCESS TO LOCALLY GROWN FOODS AND FOOD  PRODUCTS  INCLUDING,  BUT
 NOT  LIMITED  TO  DAIRY,  FRUIT  AND  VEGETABLE FOOD PRODUCTS WITHIN THE
 GUIDELINES AND FRAMEWORK OF THE PROGRAM.
   § 6. Severability.  If any part or provision of this act or its appli-
 cation to a person  is  held  invalid,  the  invalidity  of  that  part,
 provision  or  application  does  not  affect other parts, provisions or
 applications of this act that can be given effect  without  the  invalid
 provision or application.
   §  7.  This  act shall take effect on the thirtieth day after it shall
 have become a law.

                             
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  4424--B
 
                        2023-2024 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             February 14, 2023
                                ___________
 
 Introduced  by  M.  of A. REYES, KELLES -- read once and referred to the
   Committee  on  Agriculture  --  committee  discharged,  bill  amended,
   ordered  reprinted  as  amended  and  recommitted to said committee --
   again reported from said committee with amendments, ordered  reprinted
   as amended and recommitted to said committee

 AN  ACT  to  amend the agriculture and markets law, the general business
   law and the public health law, in relation to food  and  food  product
   advertising
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Legislative findings and  intent.  The  legislature  hereby
 finds  that  children  are an inherently vulnerable population, and that
 marketing unhealthy foods in a targeted and persistent  manner  to  this
 group  is  inconsistent with this state's efforts to curb the disastrous
 health outcomes that follow the overconsumption of these products.  Such
 marketing  is  inherently  misleading,  as  children often lack the same
 ability to resist the rewarding cues presented in unhealthy food market-
 ing as adults.   New York has  a  strong  and  substantial  interest  in
 protecting our children from negative health consequences. Additionally,
 the power of the state is at its greatest when protecting the health and
 welfare  of  its  citizens,  especially those most vulnerable. Thus, the
 legislature finds that unfair and deceptive marketing targeted at  chil-
 dren  can mislead and manipulate children into lifelong habits, and that
 such unfair and deceptive advertising should be regulated accordingly.
   § 2. Section 202-a of the agriculture and markets law  is  amended  by
 adding a new subdivision 4 to read as follows:
   4.  IN  DETERMINING  WHETHER A VIOLATION OF THIS SECTION HAS OCCURRED,
 THE COURT SHALL CONSIDER FACTORS  AND  SPECIAL  CONSIDERATION  GIVEN  TO
 ADVERTISING  DIRECTED  AT  A  CHILD  PURSUANT  TO  SECTION THREE HUNDRED
 FIFTY-A OF GENERAL BUSINESS LAW.

  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD01982-05-3
 A. 4424--B                          2
              

 
   § 3. Section 350-a of the general business law is  amended  by  adding
 three new subdivisions 4, 5 and 6 to read as follows:
   4.    IN DETERMINING WHETHER ANY ADVERTISING CONCERNING A FOOD OR FOOD
 PRODUCT IS FALSE OR MISLEADING, FACTORS SHALL INCLUDE, BUT NOT BE LIMIT-
 ED TO:
   (A) WHETHER THE ADVERTISEMENT TARGETS A  CONSUMER  WHO  IS  REASONABLY
 UNABLE TO PROTECT THEIR INTERESTS BECAUSE OF THEIR AGE, PHYSICAL INFIRM-
 ITY,  IGNORANCE,  ILLITERACY, INABILITY TO UNDERSTAND THE LANGUAGE OF AN
 AGREEMENT, OR SIMILAR FACTOR.
   (B) WHETHER THE ADVERTISEMENT IS AN UNFAIR ACT, PRACTICE OR CONDUCT.
   (C) FOR THE PURPOSES OF THIS SUBDIVISION AND SUBDIVISION SIX  OF  THIS
 SECTION,  A  "CONSUMER"  IS  DEFINED  AS  A PERSON WHO IS TARGETED BY AN
 ADVERTISEMENT, OR THOSE ACTING ON SUCH A PERSON'S BEHALF.
   5. FOR THE PURPOSES OF THIS SECTION, FOR A CONSUMER:   AN  ACT,  PRAC-
 TICE, OR CONDUCT IS "UNFAIR" WHERE IT:
   (A)    CAUSES OR IS LIKELY TO CAUSE SUBSTANTIAL INJURY TO SUCH CONSUM-
 ER;
   (B)   CANNOT BE REASONABLY AVOIDED BY SUCH CONSUMER; AND
   (C)  IS  NOT OUTWEIGHED BY COUNTERVAILING BENEFITS TO SUCH CONSUMER OR
 TO COMPETITION.
   6. FOR PURPOSES OF PARAGRAPH (A) OF SUBDIVISION FOUR OF THIS  SECTION,
 SPECIAL  CONSIDERATION  SHALL  BE  GIVEN TO ADVERTISEMENTS DIRECTED AT A
 CHILD AS DEFINED IN SECTION THREE  HUNDRED  SEVENTY-ONE  OF  THE  SOCIAL
 SERVICES  LAW. IN DETERMINING WHETHER AN ADVERTISEMENT CONCERNING A FOOD
 OR FOOD PRODUCT IS DIRECTED AT A CHILD, FACTORS SHALL INCLUDE,  BUT  NOT
 BE LIMITED TO:
   (A) SUBJECT MATTER;
   (B) VISUAL CONTENT;
   (C) USE OF ANIMATED CHARACTERS OR CHILD-ORIENTED ACTIVITIES AND INCEN-
 TIVES;
   (D) MUSIC OR OTHER AUDIO CONTENT;
   (E) AGE OF MODELS;
   (F)  PRESENCE  OF CHILD CELEBRITIES OR CELEBRITIES WHO APPEAL TO CHIL-
 DREN;
   (G) LANGUAGE;
   (H) COMPETENT  AND  RELIABLE  EMPIRICAL  EVIDENCE  REGARDING  AUDIENCE
 COMPOSITION AND EVIDENCE REGARDING THE INTENDED AUDIENCE;
   (I) PHYSICAL LOCATION OF ADVERTISEMENT, INCLUDING, BUT NOT LIMITED TO,
 PROXIMITY TO SCHOOLS OR OTHER INSTITUTIONS FREQUENTED BY CHILDREN;
   (J)  MEDIUM BY WHICH THE ADVERTISEMENT IS COMMUNICATED, INCLUDING, BUT
 NOT LIMITED TO, SOCIAL MEDIA; OR
   (K) OTHER SIMILAR FACTORS.
   § 4. Subdivision 1 of section 2599-b of  the  public  health  law,  as
 amended  by  section  1 of part A of chapter 469 of the laws of 2015, is
 amended to read as follows:
   1. The program shall be designed to prevent and reduce  the  incidence
 and  prevalence of obesity in children and adolescents, especially among
 populations with  high  rates  of  obesity  and  obesity-related  health
 complications  including,  but  not limited to, diabetes, heart disease,
 cancer, osteoarthritis, asthma,  emphysema,  chronic  bronchitis,  other
 chronic respiratory diseases and other conditions. The program shall use
 recommendations  and  goals of the United States departments of agricul-
 ture and health and human services, the surgeon general and centers  for
 disease control and prevention in developing and implementing guidelines
 for nutrition education and physical activity projects as part of obesi-
 ty  prevention  efforts.  The  content and implementation of the program
 A. 4424--B                          3
 
 shall stress the benefits of choosing a balanced,  healthful  diet  from
 the many options available to consumers[, without specifically targeting
 the  elimination  of any particular food group, food product or food-re-
 lated industry] WHILE SPECIFICALLY INCLUDING EDUCATION ON ACCESS AND THE
 NUTRITIONAL  VALUE  OF  LOCALLY GROWN FOODS AND FOOD PRODUCTS INCLUDING,
 BUT NOT LIMITED TO DAIRY,  FRUIT  AND  VEGETABLE  FOOD  PRODUCTS.    THE
 PROGRAM  SHALL  COOPERATE WITH THE DEPARTMENT OF AGRICULTURE AND MARKETS
 TO ADD ACCESS TO LOCALLY GROWN FOODS AND FOOD  PRODUCTS  INCLUDING,  BUT
 NOT  LIMITED  TO  DAIRY,  FRUIT  AND  VEGETABLE FOOD PRODUCTS WITHIN THE
 GUIDELINES AND FRAMEWORK OF THE PROGRAM.
   § 5. Severability.  If any part or provision of this act or its appli-
 cation to a person  is  held  invalid,  the  invalidity  of  that  part,
 provision  or  application  does  not  affect other parts, provisions or
 applications of this act that can be given effect  without  the  invalid
 provision or application.
   §  6.  This  act shall take effect on the thirtieth day after it shall
 have become a law.