S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   5823
 
                        2023-2024 Regular Sessions
 
                             I N  S E N A T E
 
                              March 17, 2023
                                ___________
 
 Introduced  by  Sen.  MAYER  -- read twice and ordered printed, and when
   printed to be committed to the Committee on Consumer Protection
 
 AN ACT to amend the general business law, in  relation  to  establishing
   restrictions  on  the  sale of over-the-counter diet pills and dietary
   supplements for weight loss or muscle building

   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 section
 391-oo to read as follows:
   §  391-OO. SALE OF OVER-THE-COUNTER DIET PILLS AND DIETARY SUPPLEMENTS
 FOR WEIGHT LOSS OR MUSCLE BUILDING. 1.  FOR PURPOSES OF THIS SECTION THE
 FOLLOWING TERMS SHALL HAVE THE FOLLOWING MEANINGS:
   (A) "DIETARY SUPPLEMENTS FOR WEIGHT LOSS OR MUSCLE BUILDING"  MEANS  A
 CLASS  OF DIETARY SUPPLEMENT AS DEFINED IN SECTION THREE HUNDRED NINETY-
 ONE-O OF THIS ARTICLE THAT IS LABELED, MARKETED,  OR  OTHERWISE  REPRES-
 ENTED  FOR  THE PURPOSE OF ACHIEVING WEIGHT LOSS OR MUSCLE BUILDING, BUT
 SHALL NOT INCLUDE PROTEIN POWDERS, PROTEIN DRINKS AND FOODS MARKETED  AS
 CONTAINING  PROTEIN  UNLESS  THE  PROTEIN  POWDER, PROTEIN DRINK OR FOOD
 MARKETED AS CONTAINING PROTEIN CONTAINS AN INGREDIENT OTHER THAN PROTEIN
 WHICH WOULD, CONSIDERED  ALONE,  CONSTITUTE  A  DIETARY  SUPPLEMENT  FOR
 WEIGHT LOSS OR MUSCLE BUILDING.
   (B)  "OVER-THE-COUNTER  DIET  PILLS"  MEANS  A CLASS OF DRUGS LABELED,
 MARKETED, OR OTHERWISE REPRESENTED FOR THE PURPOSE OF  ACHIEVING  WEIGHT
 LOSS  THAT ARE LAWFULLY SOLD, TRANSFERRED, OR FURNISHED OVER-THE-COUNTER
 WITH OR WITHOUT A PRESCRIPTION PURSUANT TO THE FEDERAL FOOD,  DRUG,  AND
 COSMETIC  ACT,  21  U.S.C.  SECTION  301 ET SEQ., OR REGULATIONS ADOPTED
 THEREUNDER.
   (C) "RETAIL ESTABLISHMENT" MEANS  ANY  VENDOR  THAT,  IN  THE  REGULAR
 COURSE  OF BUSINESS, SELLS DIETARY SUPPLEMENTS FOR WEIGHT LOSS OR MUSCLE
 BUILDING OR OVER-THE-COUNTER  DIET  PILLS  AT  RETAIL  DIRECTLY  TO  THE
 PUBLIC, INCLUDING, BUT NOT LIMITED TO, PHARMACIES, GROCERY STORES, OTHER
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD02273-02-3
              

 S. 5823                             2
 
 RETAIL STORES, AND VENDORS THAT ACCEPT ORDERS PLACED BY MAIL, TELEPHONE,
 ELECTRONIC  MAIL, INTERNET WEBSITE, ONLINE CATALOG, OR SOFTWARE APPLICA-
 TION.
   (D)  "DELIVERY  SALE" MEANS ANY SALE OF OVER-THE-COUNTER DIET PILLS OR
 DIETARY SUPPLEMENTS FOR WEIGHT LOSS OR MUSCLE BUILDING TO A CONSUMER IF:
   (I) THE CONSUMER SUBMITS THE ORDER FOR THE SALE BY MEANS  OF  A  TELE-
 PHONE  OR  OTHER  METHOD OF VOICE TRANSMISSION, MAIL, OR THE INTERNET OR
 OTHER ONLINE SERVICE, OR THE SELLER IS OTHERWISE  NOT  IN  THE  PHYSICAL
 PRESENCE OF THE BUYER WHEN THE REQUEST FOR PURCHASE OR ORDER IS MADE; OR
   (II) THE OVER-THE-COUNTER DIET PILLS OR DIETARY SUPPLEMENTS FOR WEIGHT
 LOSS  OR  MUSCLE  BUILDING ARE DELIVERED TO THE BUYER BY COMMON CARRIER,
 PRIVATE DELIVERY SERVICE, OR OTHER METHOD OF  REMOTE  DELIVERY,  OR  THE
 SELLER  IS  NOT  IN  THE  PHYSICAL  PRESENCE OF THE BUYER WHEN THE BUYER
 OBTAINS POSSESSION OF THE OVER-THE-COUNTER DIET PILLS OR DIETARY SUPPLE-
 MENTS FOR WEIGHT LOSS OR MUSCLE BUILDING.
   (E) "DELIVERY SELLER" MEANS A VENDOR, INCLUDING ONLINE RETAILERS,  WHO
 MAKES  DELIVERY  SALES OF OVER-THE-COUNTER DIET PILLS OR DIETARY SUPPLE-
 MENTS FOR WEIGHT LOSS OR MUSCLE BUILDING.  SUCH  VENDORS  SHALL  INCLUDE
 PERSONS  WHO  ACCEPT  ORDERS PLACED BY MAIL, TELEPHONE, ELECTRONIC MAIL,
 INTERNET WEBSITE, ONLINE CATALOG, OR SOFTWARE APPLICATION.
   2. NO PERSON, FIRM,  CORPORATION,  PARTNERSHIP,  ASSOCIATION,  LIMITED
 LIABILITY  COMPANY,  OR OTHER ENTITY SHALL SELL OR OFFER TO SELL OR GIVE
 AWAY, AS EITHER A RETAIL OR  WHOLESALE  PROMOTION,  AN  OVER-THE-COUNTER
 DIET PILL OR DIETARY SUPPLEMENT FOR WEIGHT LOSS OR MUSCLE BUILDING WITH-
 IN  THIS  STATE  TO  ANY  PERSON  UNDER  EIGHTEEN  YEARS  OF  AGE UNLESS
 PRESCRIBED OR ORDERED BY A HEALTH CARE PROVIDER  LEGALLY  AUTHORIZED  TO
 PRESCRIBE  SUCH  PILLS OR SUPPLEMENTS UNDER TITLE EIGHT OF THE EDUCATION
 LAW. RETAIL ESTABLISHMENTS SHALL REQUIRE PROOF OF LEGAL AGE FOR PURCHASE
 OF SUCH PRODUCTS. SUCH IDENTIFICATION NEED NOT BE REQUIRED OF ANY  INDI-
 VIDUAL  WHO  REASONABLY APPEARS TO BE AT LEAST TWENTY-FIVE YEARS OF AGE;
 PROVIDED, HOWEVER, THAT SUCH APPEARANCE SHALL NOT CONSTITUTE  A  DEFENSE
 IN  ANY  PROCEEDING ALLEGING THE SALE OF ANY OVER-THE-COUNTER DIET PILLS
 AND DIETARY SUPPLEMENTS FOR WEIGHT LOSS OR MUSCLE BUILDING TO  AN  INDI-
 VIDUAL  UNDER  EIGHTEEN  YEARS  OF  AGE.  ANY RETAIL ESTABLISHMENT WHICH
 VIOLATES THE PROVISIONS OF THIS SECTION SHALL BE SUBJECT TO  A  FINE  OF
 NOT MORE THAN FIVE HUNDRED DOLLARS FOR EACH SUCH VIOLATION.
   3. NOTWITHSTANDING SUBDIVISION TWO OF THIS SECTION, A DELIVERY SELLER,
 INCLUDING  AN  ONLINE RETAILER, WHO MAILS OR SHIPS OVER-THE-COUNTER DIET
 PILLS OR DIETARY SUPPLEMENTS FOR  WEIGHT  LOSS  OR  MUSCLE  BUILDING  TO
 CONSUMERS:
   (A)  SHALL  NOT  SELL, DELIVER, OR CAUSE TO BE DELIVERED ANY OVER-THE-
 COUNTER DIET PILLS OR DIETARY SUPPLEMENTS  FOR  WEIGHT  LOSS  OR  MUSCLE
 BUILDING TO A PERSON UNDER EIGHTEEN YEARS OF AGE; AND
   (B) SHALL USE A METHOD OF MAILING OR SHIPPING:
   (I) THAT REQUIRES THE PURCHASER PLACING THE DELIVERY SALE ORDER, OR AN
 ADULT  WHO  IS AT LEAST EIGHTEEN YEARS OF AGE TO SIGN TO ACCEPT DELIVERY
 OF THE SHIPPING CONTAINER AT THE DELIVERY ADDRESS; AND
   (II) THAT REQUIRES THE PERSON WHO SIGNS  TO  ACCEPT  DELIVERY  OF  THE
 SHIPPING  CONTAINER  TO  PROVIDE  PROOF, IN THE FORM OF A VALID, GOVERN-
 MENT-ISSUED IDENTIFICATION BEARING A PHOTOGRAPH OF THE INDIVIDUAL,  THAT
 THE PERSON IS AT LEAST EIGHTEEN YEARS OF AGE.
   4. WHENEVER THERE SHALL BE 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 CONTIN-
 S. 5823                             3
 
 UANCE OF SUCH VIOLATION; AND IF IT SHALL APPEAR TO THE  SATISFACTION  OF
 THE  COURT  OR  JUSTICE  THAT  THE DEFENDANT HAS, IN FACT, VIOLATED THIS
 SECTION, AN INJUNCTION MAY BE ISSUED BY THE COURT OR JUSTICE,  ENJOINING
 AND RESTRAINING ANY FURTHER VIOLATIONS, WITHOUT REQUIRING PROOF THAT ANY
 PERSON  HAS, IN FACT, BEEN INJURED OR DAMAGED THEREBY.  WHENEVER A COURT
 SHALL DETERMINE THAT A VIOLATION OF THIS SECTION HAS OCCURED, THE  COURT
 MAY IMPOSE A CIVIL PENALTY OF NOT MORE THAN FIVE HUNDRED DOLLARS.
   5.  WHEN  DETERMINING WHETHER AN OVER-THE-COUNTER DIET PILL OR DIETARY
 SUPPLEMENT IS  LABELED,  MARKETED,  OR  OTHERWISE  REPRESENTED  FOR  THE
 PURPOSE  OF  ACHIEVING  WEIGHT  LOSS OR MUSCLE BUILDING, THE COURT SHALL
 CONSIDER, BUT IS NOT LIMITED TO, THE FOLLOWING FACTORS:
   (A) WHETHER THE PRODUCT CONTAINS:
   (I) AN INGREDIENT APPROVED BY THE FEDERAL FOOD AND DRUG ADMINISTRATION
 FOR WEIGHT LOSS OR MUSCLE BUILDING;
   (II) A STEROID; OR
   (III) CREATINE, GREEN TEA EXTRACT, RASPBERRY KETONE,  GARCINIA  CAMBO-
 GIA, GREEN COFFEE BEAN EXTRACT;
   (B)  WHETHER  THE  PRODUCT'S LABELING OR MARKETING BEARS STATEMENTS OR
 IMAGES THAT EXPRESS OR IMPLY THAT THE PRODUCT WILL HELP:
   (I) MODIFY, MAINTAIN, OR REDUCE BODY WEIGHT,  FAT,  APPETITE,  OVERALL
 METABOLISM, OR THE PROCESS BY WHICH NUTRIENTS ARE METABOLIZED, AND
   (II) MAINTAIN OR INCREASE MUSCLE OR STRENGTH; AND
   (C)  WHETHER  THE PRODUCT OR ITS INGREDIENTS ARE OTHERWISE REPRESENTED
 FOR THE PURPOSE OF ACHIEVING WEIGHT LOSS OR BUILDING MUSCLE.
   § 2.  This act shall take effect on  the  one  hundred  eightieth  day
 after it shall have become a law.

                             
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  5823--B
 
                        2023-2024 Regular Sessions
 
                             I N  S E N A T E
 
                              March 17, 2023
                                ___________
 
 Introduced  by  Sens.  MAYER,  HOYLMAN-SIGAL  --  read twice and ordered
   printed, and when printed to be committed to the Committee on Consumer
   Protection -- committee discharged, bill amended, ordered reprinted as
   amended and recommitted to said  committee  --  committee  discharged,
   bill  amended,  ordered  reprinted  as amended and recommitted to said
   committee
 
 AN ACT to amend the general business law, in  relation  to  establishing
   restrictions  on  the  sale of over-the-counter diet pills and dietary
   supplements for weight loss or muscle building
 
   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 section
 391-oo to read as follows:
   §  391-OO. SALE OF OVER-THE-COUNTER DIET PILLS AND DIETARY SUPPLEMENTS
 FOR WEIGHT LOSS OR MUSCLE BUILDING. 1.  FOR PURPOSES OF THIS SECTION THE
 FOLLOWING TERMS SHALL HAVE THE FOLLOWING MEANINGS:
   (A) "DIETARY SUPPLEMENTS FOR WEIGHT LOSS OR MUSCLE BUILDING"  MEANS  A
 CLASS  OF DIETARY SUPPLEMENT AS DEFINED IN SECTION THREE HUNDRED NINETY-
 ONE-O OF THIS ARTICLE THAT IS LABELED, MARKETED,  OR  OTHERWISE  REPRES-
 ENTED  FOR  THE PURPOSE OF ACHIEVING WEIGHT LOSS OR MUSCLE BUILDING, BUT
 SHALL NOT INCLUDE PROTEIN POWDERS, PROTEIN DRINKS AND FOODS MARKETED  AS
 CONTAINING  PROTEIN  UNLESS  THE  PROTEIN  POWDER, PROTEIN DRINK OR FOOD
 MARKETED AS CONTAINING PROTEIN CONTAINS AN INGREDIENT OTHER THAN PROTEIN
 WHICH WOULD, CONSIDERED  ALONE,  CONSTITUTE  A  DIETARY  SUPPLEMENT  FOR
 WEIGHT LOSS OR MUSCLE BUILDING.
   (B)  "OVER-THE-COUNTER  DIET  PILLS"  MEANS  A CLASS OF DRUGS LABELED,
 MARKETED, OR OTHERWISE REPRESENTED FOR THE PURPOSE OF  ACHIEVING  WEIGHT
 LOSS  THAT ARE LAWFULLY SOLD, TRANSFERRED, OR FURNISHED OVER-THE-COUNTER
 WITH OR WITHOUT A PRESCRIPTION PURSUANT TO THE FEDERAL FOOD,  DRUG,  AND
 COSMETIC  ACT,  21  U.S.C.  SECTION  301 ET SEQ., OR REGULATIONS ADOPTED
 THEREUNDER.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD02273-09-3
              

 S. 5823--B                          2
 
   (C) "RETAIL ESTABLISHMENT" MEANS  ANY  VENDOR  THAT,  IN  THE  REGULAR
 COURSE  OF BUSINESS, SELLS DIETARY SUPPLEMENTS FOR WEIGHT LOSS OR MUSCLE
 BUILDING OR OVER-THE-COUNTER  DIET  PILLS  AT  RETAIL  DIRECTLY  TO  THE
 PUBLIC, INCLUDING, BUT NOT LIMITED TO, PHARMACIES, GROCERY STORES, OTHER
 RETAIL STORES, AND VENDORS THAT ACCEPT ORDERS PLACED BY MAIL, TELEPHONE,
 ELECTRONIC  MAIL, INTERNET WEBSITE, ONLINE CATALOG, OR SOFTWARE APPLICA-
 TION.
   (D) "DELIVERY SALE" MEANS ANY SALE OF OVER-THE-COUNTER DIET  PILLS  OR
 DIETARY SUPPLEMENTS FOR WEIGHT LOSS OR MUSCLE BUILDING TO A CONSUMER IF:
   (I)  THE  CONSUMER  SUBMITS THE ORDER FOR THE SALE BY MEANS OF A TELE-
 PHONE OR OTHER METHOD OF VOICE TRANSMISSION, MAIL, OR  THE  INTERNET  OR
 OTHER  ONLINE  SERVICE,  OR  THE SELLER IS OTHERWISE NOT IN THE PHYSICAL
 PRESENCE OF THE BUYER WHEN THE REQUEST FOR PURCHASE OR ORDER IS MADE; OR
   (II) THE OVER-THE-COUNTER DIET PILLS OR DIETARY SUPPLEMENTS FOR WEIGHT
 LOSS OR MUSCLE BUILDING ARE DELIVERED TO THE BUYER  BY  COMMON  CARRIER,
 PRIVATE  DELIVERY  SERVICE,  OR  OTHER METHOD OF REMOTE DELIVERY, OR THE
 SELLER IS NOT IN THE PHYSICAL PRESENCE  OF  THE  BUYER  WHEN  THE  BUYER
 OBTAINS POSSESSION OF THE OVER-THE-COUNTER DIET PILLS OR DIETARY SUPPLE-
 MENTS FOR WEIGHT LOSS OR MUSCLE BUILDING.
   (E)  "DELIVERY SELLER" MEANS A VENDOR, INCLUDING ONLINE RETAILERS, WHO
 MAKES DELIVERY SALES OF OVER-THE-COUNTER DIET PILLS OR  DIETARY  SUPPLE-
 MENTS  FOR  WEIGHT  LOSS  OR MUSCLE BUILDING. SUCH VENDORS SHALL INCLUDE
 PERSONS WHO ACCEPT ORDERS PLACED BY MAIL,  TELEPHONE,  ELECTRONIC  MAIL,
 INTERNET WEBSITE, ONLINE CATALOG, OR SOFTWARE APPLICATION.
   2.  NO  PERSON,  FIRM,  CORPORATION, PARTNERSHIP, ASSOCIATION, LIMITED
 LIABILITY COMPANY, OR OTHER ENTITY SHALL SELL OR OFFER TO SELL  OR  GIVE
 AWAY,  AS  EITHER  A  RETAIL OR WHOLESALE PROMOTION, AN OVER-THE-COUNTER
 DIET PILL OR DIETARY SUPPLEMENT FOR WEIGHT LOSS OR MUSCLE BUILDING WITH-
 IN THIS STATE TO ANY PERSON UNDER EIGHTEEN YEARS OF AGE.  RETAIL  ESTAB-
 LISHMENTS  SHALL  REQUIRE  PROOF  OF  LEGAL  AGE  FOR  PURCHASE  OF SUCH
 PRODUCTS. SUCH IDENTIFICATION NEED NOT BE REQUIRED OF ANY INDIVIDUAL WHO
 REASONABLY APPEARS TO BE AT LEAST TWENTY-FIVE YEARS  OF  AGE;  PROVIDED,
 HOWEVER,  THAT  SUCH  APPEARANCE  SHALL  NOT CONSTITUTE A DEFENSE IN ANY
 PROCEEDING ALLEGING THE SALE OF  ANY  OVER-THE-COUNTER  DIET  PILLS  AND
 DIETARY  SUPPLEMENTS FOR WEIGHT LOSS OR MUSCLE BUILDING TO AN INDIVIDUAL
 UNDER EIGHTEEN YEARS OF AGE.
   3. NOTWITHSTANDING SUBDIVISION TWO OF THIS SECTION, A DELIVERY SELLER,
 INCLUDING AN ONLINE RETAILER, WHO MAILS OR SHIPS  OVER-THE-COUNTER  DIET
 PILLS  OR  DIETARY  SUPPLEMENTS  FOR  WEIGHT  LOSS OR MUSCLE BUILDING TO
 CONSUMERS:
   (A) SHALL NOT SELL, DELIVER, OR CAUSE TO BE  DELIVERED  ANY  OVER-THE-
 COUNTER  DIET  PILLS  OR  DIETARY  SUPPLEMENTS FOR WEIGHT LOSS OR MUSCLE
 BUILDING TO A PERSON UNDER EIGHTEEN YEARS OF AGE; AND
   (B) SHALL USE A METHOD OF MAILING OR SHIPPING:
   (I) THAT REQUIRES THE PURCHASER PLACING THE DELIVERY SALE ORDER, OR AN
 ADULT WHO IS AT LEAST EIGHTEEN YEARS OF AGE TO SIGN TO  ACCEPT  DELIVERY
 OF THE SHIPPING CONTAINER AT THE DELIVERY ADDRESS; AND
   (II)  THAT  REQUIRES  THE  PERSON  WHO SIGNS TO ACCEPT DELIVERY OF THE
 SHIPPING CONTAINER TO PROVIDE PROOF, IN THE FORM  OF  A  VALID,  GOVERN-
 MENT-ISSUED  IDENTIFICATION BEARING A PHOTOGRAPH OF THE INDIVIDUAL, THAT
 THE PERSON IS AT LEAST EIGHTEEN YEARS OF AGE.
   4. WHENEVER THERE SHALL BE 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 CONTIN-
 S. 5823--B                          3
 
 UANCE  OF  SUCH VIOLATION; AND IF IT SHALL APPEAR TO THE SATISFACTION OF
 THE COURT OR JUSTICE THAT THE DEFENDANT  HAS,  IN  FACT,  VIOLATED  THIS
 SECTION,  AN INJUNCTION MAY BE ISSUED BY THE COURT OR JUSTICE, ENJOINING
 AND RESTRAINING ANY FURTHER VIOLATIONS, WITHOUT REQUIRING PROOF THAT ANY
 PERSON  HAS, IN FACT, BEEN INJURED OR DAMAGED THEREBY.  WHENEVER A COURT
 SHALL DETERMINE THAT A VIOLATION OF THIS SECTION HAS OCCURRED, THE COURT
 MAY IMPOSE A CIVIL PENALTY OF NOT MORE THAN FIVE HUNDRED DOLLARS.
   5. WHEN DETERMINING WHETHER AN OVER-THE-COUNTER DIET PILL  OR  DIETARY
 SUPPLEMENT  IS  LABELED,  MARKETED,  OR  OTHERWISE  REPRESENTED  FOR THE
 PURPOSE OF ACHIEVING WEIGHT LOSS OR MUSCLE  BUILDING,  THE  COURT  SHALL
 CONSIDER, BUT IS NOT LIMITED TO, THE FOLLOWING FACTORS:
   (A) WHETHER THE PRODUCT CONTAINS:
   (I) AN INGREDIENT APPROVED BY THE FEDERAL FOOD AND DRUG ADMINISTRATION
 FOR WEIGHT LOSS OR MUSCLE BUILDING;
   (II) A STEROID; OR
   (III)  CREATINE,  GREEN TEA EXTRACT, RASPBERRY KETONE, GARCINIA CAMBO-
 GIA, GREEN COFFEE BEAN EXTRACT;
   (B) WHETHER THE PRODUCT'S LABELING OR MARKETING  BEARS  STATEMENTS  OR
 IMAGES THAT EXPRESS OR IMPLY THAT THE PRODUCT WILL HELP:
   (I)  MODIFY,  MAINTAIN,  OR REDUCE BODY WEIGHT, FAT, APPETITE, OVERALL
 METABOLISM, OR THE PROCESS BY WHICH NUTRIENTS ARE METABOLIZED; OR
   (II) MAINTAIN OR INCREASE MUSCLE OR STRENGTH;
   (C) WHETHER THE PRODUCT OR ITS INGREDIENTS ARE  OTHERWISE  REPRESENTED
 FOR THE PURPOSE OF ACHIEVING WEIGHT LOSS OR BUILDING MUSCLE; OR
   (D)  WHETHER  THE  RETAILER HAS CATEGORIZED THE DIETARY SUPPLEMENT FOR
 WEIGHT LOSS OR MUSCLE BUILDING BY:
   (I) PLACING SIGNS, CATEGORIZING, OR TAGGING THE SUPPLEMENT WITH STATE-
 MENTS DESCRIBED IN PARAGRAPH (B) OF THIS SUBDIVISION;
   (II) GROUPING THE SUPPLEMENTS WITH OTHER WEIGHT LOSS OR MUSCLE  BUILD-
 ING PRODUCTS IN A DISPLAY, ADVERTISEMENT, WEBPAGE, OR AREA OF THE STORE;
 OR
   (III)  OTHERWISE  REPRESENTING  THAT THE PRODUCT IS FOR WEIGHT LOSS OR
 MUSCLE BUILDING.
   § 2. This act shall take effect on the one hundred eightieth day after
 it shall have become a law.

                             
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  5823--C
     Cal. No. 663
 
                        2023-2024 Regular Sessions
 
                             I N  S E N A T E
 
                              March 17, 2023
                                ___________
 
 Introduced  by  Sens.  MAYER,  HOYLMAN-SIGAL  --  read twice and ordered
   printed, and when printed to be committed to the Committee on Consumer
   Protection -- committee discharged, bill amended, ordered reprinted as
   amended and recommitted to said  committee  --  committee  discharged,
   bill  amended,  ordered  reprinted  as amended and recommitted to said
   committee -- reported favorably from said committee, ordered to  first
   and  second  report,  ordered  to a third reading, amended and ordered
   reprinted, retaining its place in the order of third reading
 
 AN ACT to amend the general business law, in  relation  to  establishing
   restrictions  on  the  sale of over-the-counter diet pills and dietary
   supplements for weight loss or muscle building
 
   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 section
 391-oo to read as follows:
   §  391-OO. SALE OF OVER-THE-COUNTER DIET PILLS AND DIETARY SUPPLEMENTS
 FOR WEIGHT LOSS OR MUSCLE BUILDING. 1.  FOR PURPOSES OF THIS SECTION THE
 FOLLOWING TERMS SHALL HAVE THE FOLLOWING MEANINGS:
   (A) "DIETARY SUPPLEMENTS FOR WEIGHT LOSS OR MUSCLE BUILDING"  MEANS  A
 CLASS  OF DIETARY SUPPLEMENT AS DEFINED IN SECTION THREE HUNDRED NINETY-
 ONE-O OF THIS ARTICLE THAT IS LABELED, MARKETED,  OR  OTHERWISE  REPRES-
 ENTED  FOR  THE PURPOSE OF ACHIEVING WEIGHT LOSS OR MUSCLE BUILDING, BUT
 SHALL NOT INCLUDE PROTEIN POWDERS, PROTEIN DRINKS AND FOODS MARKETED  AS
 CONTAINING  PROTEIN  UNLESS  THE  PROTEIN  POWDER, PROTEIN DRINK OR FOOD
 MARKETED AS CONTAINING PROTEIN CONTAINS AN INGREDIENT OTHER THAN PROTEIN
 WHICH WOULD, CONSIDERED  ALONE,  CONSTITUTE  A  DIETARY  SUPPLEMENT  FOR
 WEIGHT LOSS OR MUSCLE BUILDING.
   (B)  "OVER-THE-COUNTER  DIET  PILLS"  MEANS  A CLASS OF DRUGS LABELED,
 MARKETED, OR OTHERWISE REPRESENTED FOR THE PURPOSE OF  ACHIEVING  WEIGHT
 LOSS  THAT ARE LAWFULLY SOLD, TRANSFERRED, OR FURNISHED OVER-THE-COUNTER
 WITH OR WITHOUT A PRESCRIPTION PURSUANT TO THE FEDERAL FOOD,  DRUG,  AND
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD02273-13-3
 S. 5823--C                          2
 
 COSMETIC  ACT,  21  U.S.C.  SECTION  301 ET SEQ., OR REGULATIONS ADOPTED
 THEREUNDER.
   (C)  "RETAIL  ESTABLISHMENT"  MEANS  ANY  VENDOR  THAT, IN THE REGULAR
 COURSE OF BUSINESS, SELLS DIETARY SUPPLEMENTS FOR WEIGHT LOSS OR  MUSCLE
 BUILDING  OR  OVER-THE-COUNTER  DIET  PILLS  AT  RETAIL  DIRECTLY TO THE
 PUBLIC, INCLUDING, BUT NOT LIMITED TO, PHARMACIES, GROCERY STORES, OTHER
 RETAIL STORES, AND VENDORS THAT ACCEPT ORDERS PLACED BY MAIL, TELEPHONE,
 ELECTRONIC MAIL, INTERNET WEBSITE, ONLINE CATALOG, OR SOFTWARE  APPLICA-
 TION.
   (D)  "DELIVERY  SALE" MEANS ANY SALE OF OVER-THE-COUNTER DIET PILLS OR
 DIETARY SUPPLEMENTS FOR WEIGHT LOSS OR MUSCLE BUILDING TO A CONSUMER IF:
   (I) THE CONSUMER SUBMITS THE ORDER FOR THE SALE BY MEANS  OF  A  TELE-
 PHONE  OR  OTHER  METHOD OF VOICE TRANSMISSION, MAIL, OR THE INTERNET OR
 OTHER ONLINE SERVICE, OR THE SELLER IS OTHERWISE  NOT  IN  THE  PHYSICAL
 PRESENCE OF THE BUYER WHEN THE REQUEST FOR PURCHASE OR ORDER IS MADE; OR
   (II) THE OVER-THE-COUNTER DIET PILLS OR DIETARY SUPPLEMENTS FOR WEIGHT
 LOSS  OR  MUSCLE  BUILDING ARE DELIVERED TO THE BUYER BY COMMON CARRIER,
 PRIVATE DELIVERY SERVICE, OR OTHER METHOD OF  REMOTE  DELIVERY,  OR  THE
 SELLER  IS  NOT  IN  THE  PHYSICAL  PRESENCE OF THE BUYER WHEN THE BUYER
 OBTAINS POSSESSION OF THE OVER-THE-COUNTER DIET PILLS OR DIETARY SUPPLE-
 MENTS FOR WEIGHT LOSS OR MUSCLE BUILDING.
   (E) "DELIVERY SELLER" MEANS A VENDOR, INCLUDING ONLINE RETAILERS,  WHO
 MAKES  DELIVERY  SALES OF OVER-THE-COUNTER DIET PILLS OR DIETARY SUPPLE-
 MENTS FOR WEIGHT LOSS OR MUSCLE BUILDING.  SUCH  VENDORS  SHALL  INCLUDE
 PERSONS  WHO  ACCEPT  ORDERS PLACED BY MAIL, TELEPHONE, ELECTRONIC MAIL,
 INTERNET WEBSITE, ONLINE CATALOG, OR SOFTWARE APPLICATION.
   2. NO PERSON, FIRM,  CORPORATION,  PARTNERSHIP,  ASSOCIATION,  LIMITED
 LIABILITY  COMPANY,  OR OTHER ENTITY SHALL SELL OR OFFER TO SELL OR GIVE
 AWAY, AS EITHER A RETAIL OR  WHOLESALE  PROMOTION,  AN  OVER-THE-COUNTER
 DIET PILL OR DIETARY SUPPLEMENT FOR WEIGHT LOSS OR MUSCLE BUILDING WITH-
 IN  THIS  STATE TO ANY PERSON UNDER EIGHTEEN YEARS OF AGE. RETAIL ESTAB-
 LISHMENTS SHALL  REQUIRE  PROOF  OF  LEGAL  AGE  FOR  PURCHASE  OF  SUCH
 PRODUCTS.  FOR  PURPOSES  OF THIS SECTION, PROOF OF LEGAL AGE SHALL MEAN
 (A) A VALID DRIVER'S LICENSE OR NON-DRIVER'S IDENTIFICATION CARD  ISSUED
 BY THE COMMISSIONER OF  MOTOR  VEHICLES,  THE  FEDERAL  GOVERNMENT,  ANY
 UNITED  STATES  TERRITORY,  COMMONWEALTH  OR POSSESSION, THE DISTRICT OF
 COLUMBIA, A STATE GOVERNMENT WITHIN  THE  UNITED  STATES,  A  PROVINCIAL
 GOVERNMENT  OF THE DOMINION OF CANADA, OR THE CITY OF NEW YORK, OR (B) A
 VALID PASSPORT ISSUED BY THE UNITED STATES GOVERNMENT OR ANY OTHER COUN-
 TRY, OR (C) AN IDENTIFICATION CARD ISSUED BY THE  ARMED  FORCES  OF  THE
 UNITED STATES, INDICATING THAT THE INDIVIDUAL IS AT LEAST EIGHTEEN YEARS
 OF  AGE,  OR (D) A STUDENT IDENTIFICATION CARD, PROVIDED SUCH CARD INDI-
 CATES THE DATE OF BIRTH OF THE INDIVIDUAL. SUCH IDENTIFICATION NEED  NOT
 BE  REQUIRED  OF  ANY  INDIVIDUAL  WHO REASONABLY APPEARS TO BE AT LEAST
 TWENTY-FIVE YEARS OF AGE; PROVIDED, HOWEVER, THAT SUCH APPEARANCE  SHALL
 NOT  CONSTITUTE  A  DEFENSE  IN  ANY PROCEEDING ALLEGING THE SALE OF ANY
 OVER-THE-COUNTER DIET PILLS AND DIETARY SUPPLEMENTS FOR WEIGHT  LOSS  OR
 MUSCLE BUILDING TO AN INDIVIDUAL UNDER EIGHTEEN YEARS OF AGE.
   3. (A) ANY PERSON OPERATING A RETAIL ESTABLISHMENT MAY PERFORM A TRAN-
 SACTION SCAN AS A PRECONDITION FOR THE PURCHASE OF OVER-THE-COUNTER DIET
 PILLS OR DIETARY SUPPLEMENTS FOR WEIGHT LOSS OR MUSCLE BUILDING.
   (B)  IN  ANY  INSTANCE  WHERE THE INFORMATION DECIPHERED BY THE TRANS-
 ACTION SCAN FAILS TO MATCH  THE  INFORMATION  PRINTED  ON  THE  DRIVER'S
 LICENSE  OR  NON-DRIVER  IDENTIFICATION CARD, OR IF THE TRANSACTION SCAN
 INDICATES THAT THE INFORMATION IS FALSE  OR  FRAUDULENT,  THE  ATTEMPTED
 TRANSACTION SHALL BE DENIED.
 S. 5823--C                          3

   (C) IN ANY PROCEEDING PURSUANT TO SUBDIVISION FIVE OF THIS SECTION, IT
 SHALL BE AN AFFIRMATIVE DEFENSE THAT SUCH PERSON HAD PRODUCED A DRIVER'S
 LICENSE OR NON-DRIVER IDENTIFICATION CARD APPARENTLY ISSUED BY A GOVERN-
 MENTAL  ENTITY,  SUCCESSFULLY  COMPLETED THAT TRANSACTION SCAN, AND THAT
 OVER-THE-COUNTER  DIET  PILLS  OR DIETARY SUPPLEMENTS FOR WEIGHT LOSS OF
 MUSCLE BUILDING WERE SOLD, DELIVERED OR GIVEN TO SUCH PERSON IN  REASON-
 ABLE  RELIANCE UPON SUCH IDENTIFICATION AND TRANSACTION SCAN.  IN EVALU-
 ATING THE APPLICABILITY OF SUCH AFFIRMATIVE  DEFENSE,  THE  COURT  SHALL
 TAKE  INTO  CONSIDERATION  ANY WRITTEN POLICY ADOPTED AND IMPLEMENTED BY
 THE SELLER TO EFFECTUATE THE PROVISIONS OF THIS SECTION. USE OF A TRANS-
 ACTION SCAN SHALL NOT EXCUSE ANY PERSON OPERATING A RETAIL ESTABLISHMENT
 FROM THE EXERCISE OF REASONABLE DILIGENCE  OTHERWISE  REQUIRED  BY  THIS
 SECTION.
   (D)  A  RETAIL  ESTABLISHMENT  OR EMPLOYEE OF SUCH ESTABLISHMENT SHALL
 ONLY USE A DEVICE CAPABLE OF  DECIPHERING  ANY  ELECTRONICALLY  READABLE
 FORMAT,  AND  SHALL  ONLY  USE  THE  INFORMATION RECORDED AND MAINTAINED
 THROUGH THE USE OF SUCH DEVICES, FOR  THE  PURPOSES  CONTAINED  IN  THIS
 SUBDIVISION.  NO  RETAIL ESTABLISHMENT OR EMPLOYEE OF SUCH ESTABLISHMENT
 SHALL RESELL OR DISSEMINATE THE INFORMATION RECORDED DURING SUCH A  SCAN
 TO  ANY  THIRD  PERSON. SUCH PROHIBITED RESALE OR DISSEMINATION INCLUDES
 BUT IS NOT LIMITED TO ANY ADVERTISING, MARKETING OR  PROMOTIONAL  ACTIV-
 ITIES.    NOTWITHSTANDING  THE RESTRICTIONS IMPOSED BY THIS SUBDIVISION,
 SUCH RECORDS MAY BE RELEASED PURSUANT TO A  COURT  ORDERED  SUBPOENA  OR
 PURSUANT  TO  ANY OTHER STATUTE THAT SPECIFICALLY AUTHORIZES THE RELEASE
 OF SUCH INFORMATION. EACH VIOLATION OF THIS SUBDIVISION SHALL BE PUNISH-
 ABLE BY A CIVIL PENALTY OF NOT MORE THAN ONE THOUSAND DOLLARS.
   (E) A RETAIL ESTABLISHMENT OR EMPLOYEE OF SUCH ESTABLISHMENT MAY ELEC-
 TRONICALLY OR MECHANICALLY RECORD AND MAINTAIN ONLY THE INFORMATION FROM
 A TRANSACTION SCAN NECESSARY TO EFFECTUATE THIS SECTION.  SUCH  INFORMA-
 TION  SHALL  BE  LIMITED TO THE FOLLOWING: (I) NAME, (II) DATE OF BIRTH,
 (III) DRIVER'S LICENSE OR NON-DRIVER  IDENTIFICATION  NUMBER,  AND  (IV)
 EXPIRATION DATE.
   4. NOTWITHSTANDING SUBDIVISION TWO OF THIS SECTION, A DELIVERY SELLER,
 INCLUDING  AN  ONLINE RETAILER, WHO MAILS OR SHIPS OVER-THE-COUNTER DIET
 PILLS OR DIETARY SUPPLEMENTS FOR  WEIGHT  LOSS  OR  MUSCLE  BUILDING  TO
 CONSUMERS:
   (A)  SHALL  NOT  SELL, DELIVER, OR CAUSE TO BE DELIVERED ANY OVER-THE-
 COUNTER DIET PILLS OR DIETARY SUPPLEMENTS  FOR  WEIGHT  LOSS  OR  MUSCLE
 BUILDING TO A PERSON UNDER EIGHTEEN YEARS OF AGE; AND
   (B) SHALL USE A METHOD OF MAILING OR SHIPPING:
   (I) THAT REQUIRES THE PURCHASER PLACING THE DELIVERY SALE ORDER, OR AN
 ADULT  WHO  IS AT LEAST EIGHTEEN YEARS OF AGE TO SIGN TO ACCEPT DELIVERY
 OF THE SHIPPING CONTAINER AT THE DELIVERY ADDRESS; AND
   (II) THAT REQUIRES THE PERSON WHO SIGNS  TO  ACCEPT  DELIVERY  OF  THE
 SHIPPING  CONTAINER  TO  PROVIDE  PROOF, IN THE FORM OF A VALID, GOVERN-
 MENT-ISSUED IDENTIFICATION BEARING A PHOTOGRAPH OF THE INDIVIDUAL,  THAT
 THE PERSON IS AT LEAST EIGHTEEN YEARS OF AGE.
   5. WHENEVER THERE SHALL BE 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 CONTIN-
 UANCE OF SUCH VIOLATION; AND IF IT SHALL APPEAR TO THE  SATISFACTION  OF
 THE  COURT  OR  JUSTICE  THAT  THE DEFENDANT HAS, IN FACT, VIOLATED THIS
 SECTION, AN INJUNCTION MAY BE ISSUED BY THE COURT OR JUSTICE,  ENJOINING
 AND RESTRAINING ANY FURTHER VIOLATIONS, WITHOUT REQUIRING PROOF THAT ANY
 S. 5823--C                          4
 
 PERSON  HAS, IN FACT, BEEN INJURED OR DAMAGED THEREBY.  WHENEVER A COURT
 SHALL DETERMINE THAT A VIOLATION OF THIS SECTION HAS OCCURRED, THE COURT
 MAY IMPOSE A CIVIL PENALTY OF NOT MORE THAN FIVE HUNDRED DOLLARS.
   6.  WHEN  DETERMINING WHETHER AN OVER-THE-COUNTER DIET PILL OR DIETARY
 SUPPLEMENT IS  LABELED,  MARKETED,  OR  OTHERWISE  REPRESENTED  FOR  THE
 PURPOSE  OF  ACHIEVING  WEIGHT  LOSS OR MUSCLE BUILDING, THE COURT SHALL
 CONSIDER, BUT IS NOT LIMITED TO, THE FOLLOWING FACTORS:
   (A) WHETHER THE PRODUCT CONTAINS:
   (I) AN INGREDIENT APPROVED BY THE FEDERAL FOOD AND DRUG ADMINISTRATION
 FOR WEIGHT LOSS OR MUSCLE BUILDING;
   (II) A STEROID; OR
   (III) CREATINE, GREEN TEA EXTRACT, RASPBERRY KETONE,  GARCINIA  CAMBO-
 GIA, GREEN COFFEE BEAN EXTRACT;
   (B)  WHETHER  THE  PRODUCT'S LABELING OR MARKETING BEARS STATEMENTS OR
 IMAGES THAT EXPRESS OR IMPLY THAT THE PRODUCT WILL HELP:
   (I) MODIFY, MAINTAIN, OR REDUCE BODY WEIGHT,  FAT,  APPETITE,  OVERALL
 METABOLISM, OR THE PROCESS BY WHICH NUTRIENTS ARE METABOLIZED; OR
   (II) MAINTAIN OR INCREASE MUSCLE OR STRENGTH;
   (C)  WHETHER  THE PRODUCT OR ITS INGREDIENTS ARE OTHERWISE REPRESENTED
 FOR THE PURPOSE OF ACHIEVING WEIGHT LOSS OR BUILDING MUSCLE; OR
   (D) WHETHER THE RETAILER HAS CATEGORIZED THE  DIETARY  SUPPLEMENT  FOR
 WEIGHT LOSS OR MUSCLE BUILDING BY:
   (I) PLACING SIGNS, CATEGORIZING, OR TAGGING THE SUPPLEMENT WITH STATE-
 MENTS DESCRIBED IN PARAGRAPH (B) OF THIS SUBDIVISION;
   (II)  GROUPING THE SUPPLEMENTS WITH OTHER WEIGHT LOSS OR MUSCLE BUILD-
 ING PRODUCTS IN A DISPLAY, ADVERTISEMENT, WEBPAGE, OR AREA OF THE STORE;
 OR
   (III) OTHERWISE REPRESENTING THAT THE PRODUCT IS FOR  WEIGHT  LOSS  OR
 MUSCLE BUILDING.
   § 2. This act shall take effect on the one hundred eightieth day after
 it shall have become a law.