BILL NUMBER: S8880A

SPONSOR: SANDERS
 
TITLE OF BILL:

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

 
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 subdivisions 1 and 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 (0-T-C) drug or
cosmetic as such label is required by the federal Food, Drug and Cosmet-
ic Art, and by the Food and Drug Administration's (FDA) rules and regu-
lations that implement the Act's label requirements for such products.
Violators would be subject to the existing enforcement remedy contained
in GBL, Section 821. Under that provision, compliance with FDA rules and
regu- lations constitutes a complete defense to any enforcement action.
Also adds a new subdivision 3 to the section providing definitions for
label and cosmetic.

 
JUSTIFICATION:

At the very foundation of consumer protection for purchasers of 0-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. (0-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 1920, 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 "Colly rium Fresh
Sterile Eye Drops" manufactured by Wyeth Laboratories. 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
product except under the advice and supervision of a physician.  Overuse
of this product may produce increased redness of the eye. To avoid
contamination, do not touch tip of container to any surface.  Replace
cap after using. If you experience eye pain, changes in vision, contin-
ued redness or irritation of the eye, or if the condition worsens or
persists for more than 72 hours, discontinue use and consult a physi-
cian. Keep this and all medication out of the reach of children. Retain
this carton for complete product information. Keep bottle lightly closed
at Room Temperature; 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 aide, 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-TheCounter Drugs in New York, a report
by New York State Attorney General Robert Abrams (January 1985)). Subse-
quently, the Legislature adopted an Attorney General's Program bill
(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:.

2023: referred to rules

2021/2022: referred to consumer affairs and protection

2019/2020: referred to consumer affairs and protection

2017/2018: referred to consumer affairs and protection

 
FISCAL IMPLICATIONS:

None.

 
EFFECTIVE DATE:
This act shall take effect immediately.