§ 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
represented 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
retail stores, and vendors that accept orders placed by mail, telephone,
electronic mail, internet website, online catalog, or software
application.

(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
telephone 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
supplements 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
supplements 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
within this state to any person under eighteen years of age. Retail
establishments 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
country, 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
indicates 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
transaction 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
transaction 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.

(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
governmental 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
reasonable reliance upon such identification and transaction scan. In
evaluating 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
transaction 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
activities. 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 punishable by a civil penalty of not more than one thousand
dollars.

(e) A retail establishment or employee of such establishment may
electronically or mechanically record and maintain only the information
from a transaction scan necessary to effectuate this section. Such
information 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,
government-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
continuance 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.

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
cambogia, 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
statements described in paragraph (b) of this subdivision;

(ii) grouping the supplements with other weight loss or muscle
building 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.