S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                    397
 
                        2025-2026 Regular Sessions
 
                             I N  S E N A T E
 
                                (PREFILED)
 
                              January 8, 2025
                                ___________
 
 Introduced by Sens. MYRIE, BAILEY, BROUK, CLEARE, COMRIE, HOYLMAN-SIGAL,
   KAVANAGH,  MAY,  RAMOS,  SEPULVEDA,  SKOUFIS,  WEBB  -- read twice and
   ordered printed, and when printed to be committed to the Committee  on
   Agriculture

 AN  ACT  to  amend the general business law, the agriculture and markets
   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 food and beverages high in saturated fatty acids,  trans-fatty
 acids, and free sugars 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 which include
 but are not limited to increased rates of malnutrition,  undernutrition,
 micronutrient  deficiencies,  obesity, and other diet-related illnesses.
 Such marketing is inherently misleading, aggressive,  and  pervasive  as
 children  often  lack  the  same  ability  to  resist the rewarding cues
 presented in unhealthy food marketing as adults.  New York has a  strong
 and substantial interest in protecting our children from negative health
 consequences  and remain aligned with the goals of the Convention on the
 Rights of the Child which ensures access to nutritious foods and freedom
 from exploitation of all kinds.  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  children  can  mislead  and
 manipulate  children  into  lifelong  habits,  and  that such unfair and
 deceptive advertising should be regulated accordingly.

  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD00461-02-5
              

 S. 397                              2
 
   § 2.  Section 350-a of the general business law is amended  by  adding
 two new subdivisions 4 and 5 to read as follows:
   4.  IN  DETERMINING  WHETHER ANY ADVERTISING CONCERNING A FOOD OR FOOD
 PRODUCT IS FALSE ADVERTISING, FACTORS SHALL INCLUDE, BUT NOT BE  LIMITED
 TO:
   (A)  WHETHER  THE  ADVERTISEMENT  TARGETS A CONSUMER WHO IS REASONABLY
 UNABLE TO PROTECT THEIR INTERESTS  BECAUSE  OF  THEIR  AGE,  ILLITERACY,
 INABILITY TO UNDERSTAND THE LANGUAGE OF AN AGREEMENT OR SIMILAR FACTOR.
   (B)  FOR THE PURPOSES OF THIS SUBDIVISION AND SUBDIVISION FIVE 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 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 BRIGHT COLORS AND  ANIMATED  CHARACTERS  OR  CHILD-ORIENTED
 ACTIVITIES AND INCENTIVES;
   (D) MUSIC OR OTHER AUDIO CONTENT;
   (E) AGE OF MODELS;
   (F)  PRESENCE  OF CHILD CELEBRITIES OR CELEBRITIES WHO APPEAL TO CHIL-
 DREN;
   (G) LANGUAGE INCLUDING CLAIMS, BUZZWORDS, SAYINGS, AND/OR PHRASES THAT
 ARE TRENDING SUCH AS COMMON COLLOQUIAL WORDS SPECIFIC TO THE AGE GROUP;
   (H) COMPETENT  AND  RELIABLE  EMPIRICAL  EVIDENCE  REGARDING  AUDIENCE
 COMPOSITION AND EVIDENCE REGARDING THE INTENDED 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 TELEVISION/COMMERCIAL ADVERTISING; AND
   (K) OTHER SIMILAR FACTORS INCLUDING PRICE, PRODUCTS THAT OFFER CONVEN-
 IENCE IN FINANCIAL SAVINGS, AND SAVING  TIME  SUCH  AS  EASY-TO-MAKE  OR
 PURCHASE MEALS.
   §  3.  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 THE GENERAL BUSINESS LAW.
   §  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-
 S. 397                              3

 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.
   § 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.