Bill Text: NY S08876 | 2019-2020 | General Assembly | Introduced


Bill Title: Requires persons selling or offering to sell weight loss services or weight loss products to provide consumers with a weight loss and dieting information notice; sets forth such notice shall include the dangers of rapid weight loss, dieting information, and risks associated with certain medications used with weight loss programs; delineates deceptive practices; provides for penalties, including fines and injunctions; further provides for attorney general enforcement.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced - Dead) 2020-08-05 - REFERRED TO RULES [S08876 Detail]

Download: New_York-2019-S08876-Introduced.html



                STATE OF NEW YORK
        ________________________________________________________________________

                                          8876

                    IN SENATE

                                     August 5, 2020
                                       ___________

        Introduced  by  Sen.  COMRIE -- read twice and ordered printed, and when
          printed to be committed to the Committee on Rules

        AN ACT to amend the general  business  law,  in  relation  to  requiring
          persons  offering  weight  loss  services to provide notice of certain
          risks

          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:

     1    Section 1. The general business law is amended by adding a new article
     2  30-B to read as follows:
     3                                 ARTICLE 30-B
     4                            WEIGHT LOSS SERVICES
     5  Section 641. Weight loss services and products.
     6          642. Weight loss services; notice.
     7          643. Deceptive practices.
     8          644. Local regulation.
     9          645. Penalties.
    10    §  641.  Weight  loss  services and products. For the purposes of this
    11  article:
    12    1. "Weight loss services" shall mean counseling and educational activ-
    13  ities, including, but not limited to, recommending  the  use  of  weight
    14  loss  products,  which  have  the primary purpose of helping individuals
    15  reduce body weight.   Weight loss services does  not  include  providing
    16  information  to  the public regarding individual weight loss products if
    17  the person, firm or corporation is not also engaged in counseling activ-
    18  ities.
    19    2. "Weight loss products" shall mean any foods, ingredients or  compo-
    20  nents of foods, nutritional formulas or supplements, drugs, equipment or
    21  any  other  products  sold or offered for the primary purpose of helping
    22  individuals reduce body weight.
    23    3. "Direct seller" shall mean any person if (a)  such  person  is  (i)
    24  engaged  in  the  trade or business of selling or soliciting the sale of
    25  consumer products to any buyer on a buy-sell basis or a  deposit-commis-
    26  sion  basis  for  resale by the buyer or any other person in the home or
    27  otherwise than in a permanent retail establishment, or (ii)  engaged  in

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD08044-01-9

        S. 8876                             2

     1  the  trade  or  business  of  selling or soliciting the sale of consumer
     2  products in the home or otherwise than in a permanent retail  establish-
     3  ment;
     4    (b)  substantially  all the remuneration, whether or not paid in cash,
     5  for the performance of the services described in paragraph (a)  of  this
     6  subdivision  is directly related to sales or other output, including the
     7  performance of services, rather than to the number of hours worked; and
     8    (c) the services performed by the person are performed pursuant  to  a
     9  written  contract  between  such  person  and  the  person  for whom the
    10  services are performed and such contract provides that the  person  will
    11  not  be  treated  as an employee with respect to such services for state
    12  and federal tax purposes.
    13    § 642. Weight loss services; notice. 1. Any  person,  firm  or  corpo-
    14  ration  offering  weight  loss  services  or  weight  loss  services and
    15  products in this state by means of selling  or  offering  to  sell  such
    16  services or products to the public shall either (i) conspicuously post a
    17  sign, measuring at least nine inches by fourteen inches, where consumers
    18  are  offered the services or products, in writing, in at least ten point
    19  print, or (ii) provide in writing, in at least ten point print, to indi-
    20  viduals and consumers prior to the purchase of such  goods  or  services
    21  the  following  notice or some other notice which substantially contains
    22  or provides the following information.
    23                      WEIGHT LOSS AND DIETING INFORMATION
    24    a. WARNING! Rapid weight loss may cause serious health problems. Rapid
    25  weight loss is weight loss of more than 1 1/2 to 2 pounds  per  week  or
    26  weight  loss  of  more  than 1 percent of body weight per week after the
    27  second week of participation in a weight loss program.
    28    b. Consult your physician before starting any weight loss  program  or
    29  using any diet medications or formulas.
    30    c.  Long  term weight control is the safest and most important goal of
    31  any diet program. Permanent lifestyle changes such as eating  nutritious
    32  foods,  calorie  control  and  increasing physical activity help promote
    33  long term weight loss according to medical experts.
    34    d. Ask the person providing or selling you weight loss advice or  diet
    35  products,  medications or formulas about their qualifications and train-
    36  ing in nutrition and health.
    37    e. You have the right to:
    38    (i) Ask questions about the potential health risks of this program  or
    39  product,  its  nutritional  content,  and  its psychological-support and
    40  educational components;
    41    (ii) Know the price of treatment, including the  price  of  any  extra
    42  products, services, supplements and laboratory tests; and
    43    (iii) Know the program duration of the program recommended to you.
    44    2.  The  provisions of this section shall not apply to direct sellers,
    45  retail stores or pharmacies selling weight loss products  and  providing
    46  information  to  the  public  regarding individual products, unless such
    47  businesses offer both weight loss services  and  weight  loss  products.
    48  Furthermore,  the  provisions  of this section shall not apply to weight
    49  loss services provided to an individual by any person,  firm  or  corpo-
    50  ration  which  provides weight loss services incidental to their primary
    51  professional services to such individual and which  does  not  offer  to
    52  sell weight loss services or weight loss products to the public.
    53    § 643. Deceptive practices. It shall be a deceptive trade practice for
    54  any  person,  firm  or  corporation  offering  or  providing weight loss
    55  services or weight loss products to misrepresent, directly or  indirect-
    56  ly:

        S. 8876                             3

     1    1.  the potential health risks of the weight loss services or products
     2  offered;
     3    2.  the  success  of  participants  using  the weight loss services or
     4  products offered in achieving  or  maintaining  weight  loss  or  weight
     5  control.  Any representation of successful weight loss or weight control
     6  by participants will be considered misleading if  the  person,  firm  or
     7  corporation  does  not  possess  or rely upon a reasonable basis for the
     8  representation at the time it is disseminated. If a claim is  made  that
     9  scientific  evidence  supports  the  representation, the person, firm or
    10  corporation must possess  competent  and  reliable  scientific  evidence
    11  substantiating such claim. For the purposes of this subdivision, "compe-
    12  tent and reliable scientific evidence" shall mean those tests, analyses,
    13  research,  studies  or  other evidence based on the expertise of profes-
    14  sionals in the relevant area, that have been conducted and evaluated  in
    15  an  objective  manner  by  persons  qualified to do so, using procedures
    16  generally accepted in the profession  to  yield  accurate  and  reliable
    17  results;
    18    3.  the  educational  and  professional  experience  of  the personnel
    19  providing weight loss services or weight loss products;
    20    4. the total charges for any weight loss services and products; or
    21    5. the actual or estimated duration of the  use  of  the  weight  loss
    22  services or products offered.
    23    § 644. Local regulation. Nothing in this article shall be construed to
    24  restrict  the  power  of  any county, city, town or village to adopt and
    25  enforce local laws, ordinances or regulations which exceed  the  minimum
    26  requirements  of this article, as long as such local laws, ordinances or
    27  regulations are not inconsistent with the provisions  of  this  article.
    28  Any  local laws or rules regulating weight loss services and products in
    29  a city having a population of one million or  more  and  which  were  in
    30  effect  prior  to  the  effective  date  of  this article and any notice
    31  provided pursuant to such law or rule, shall be deemed to be  consistent
    32  with the provisions of this article.
    33    §  645. Penalties. Each day a person, firm or corporation violates any
    34  provision of this article shall constitute a single violation.  Whenever
    35  there  shall  be a violation of this article, an application may be made
    36  by the attorney general in the name of the people of the  state  of  New
    37  York  to  a court or justice having jurisdiction by a special proceeding
    38  to issue an injunction, and upon notice to the  defendant  of  not  less
    39  than  five  days,  to  enjoin  and  restrain  the  continuance  of  such
    40  violations. If it shall appear to the court or justice that the  defend-
    41  ant  has  in fact, violated this article, an injunction may be issued by
    42  such court or justice, enjoining and restraining any further  violation,
    43  without  requiring  proof  that  any person has, in fact been injured or
    44  damaged thereby. Whenever the court shall determine that a violation  of
    45  this  article  has occurred, the court may impose a civil penalty of not
    46  more than one hundred dollars for the first violation  and  two  hundred
    47  dollars  for  each violation thereafter, but in no event shall the total
    48  penalty therefor exceed one thousand dollars.  In  connection  with  any
    49  such  application,  the attorney general is authorized to take proof and
    50  make a determination of the relevant facts and  to  issue  subpoenas  in
    51  accordance with the civil practice law and rules.
    52    § 2. This act shall take effect on the one hundred eightieth day after
    53  it shall have become a law.
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