NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A8400 REVISED MEMO 12/04/2015
SPONSOR: Titone TITLE OF BILL: An act to amend the agriculture and markets law, in
relation to the labeling of sugar-sweetened food items and beverages
with warnings prescribed by the department of health
PURPOSE OR GENERAL IDEA OF BILL:
Mandates that the New York State Department of Health is responsible for
the creation of the warning labels on sugar-sweetened food and beverage
products.
SUMMARY OF SPECIFIC PROVISIONS:
Section 1 sets forth the short title of the bill, which is the "sugar-
sweetened food item and beverage safety warning act."
Section 2 amends the agriculture and markets law by adding a new section
204-e, which provides for definitions relating to the implementation of
this act, the labeling requirements for sealed containers, multipacks of
sugar-sweetened food items, concentrates, vending machines, and food
item dispensing machines. In addition, Section 2 provides for enforce-
ment language, including certain penalty provisions, while also provid-
ing for clarification of violations as they relate to certain retailers.
It also mandates that the warning label be created by the Department of
Health.
Section 3 is a severability clause. Section 4 sets the effective date.
JUSTIFICATION:
The threat of obesity persists in New York State, and has become a
crisis for children in particular. It is critical that action be taken
to reverse this growth. Americans have been consuming too much sugar for
too long, according to findings by the 2015 Dietary Guidelines Advisory
Committee. In fact, two-thirds of the adult population is overweight or
obese.
In New York, the population under the categories of "obese" and "over-
weight" reached epidemic proportions over the past decade. In 2012,
nearly a quarter of adult New Yorkers were obese, and just over three-
fifths were overweight or obese.
Obesity is of particular concern because it opens the door to long-term,
potentially lethal medical issues including diabetes, heart disease,
arthritis, asthma, high blood cholesterol, high blood pressure and
certain types of cancer. A recent report by the White House Task Force
on Childhood Obesity indicates that "one third of all children born in
2000 are expected to develop diabetes during their lifetime," and "The
current generation may even be on track to have a shorter lifespan than
their parents."
Over the past 30 years, Americans have steadily consumed more and more
added sugars in their diets, contributing to the obesity epidemic. The
average American consumes 84 grams of sugar daily, far more then recom-
mended. The American Heart Association recommends men limit added sugar
to 36 grams per day, and women to 24 grams each day. These limits only
pertain to added sugars, not sugars that occur naturally in some foods
such as fruits, because added sugars contribute additional calories and
zero nutrients to food.
Added sugar goes by many different names, including high-fructose corn
syrup, brown sugar, sucrose, honey, molasses, raw sugar, corn sweetener,
invert sugar, corn syrup, malt syrup, fructose, glucose and dextrose.
Reducing the intake of added sugars cuts calories, improves heart
health, and helps to control weight gain. Evidence suggests that health
warnings can increase knowledge of harmful products such as sugar-sweet-
ened food items.
No group is safe from the obesity epidemic with low-income and minority
communities disproportionately affected. Low-income neighborhoods often
lack full-service grocery stores, have a greater density of fast food
restaurants and serve residents who often cannot afford healthy foods.
The rate of obese and overweight African-American and Latino adults is
significantly higher than the overall U.S. adult population. Fifty
percent of African-American women and 45 percent of Mexican-American
women are obese. 24 percent of African-American children and adolescents
and 21 percent of Latino children and adolescents are obese. Upsetting-
ly, New York's children are more likely to be obese or overweight
compared to their national peers, according to research conducted by the
National Survey of Children's Health.
Furthermore, the medical costs in New York State are staggering. In 2012
alone, obesity-related costs rose to an estimated tally of $11.8
billion. Of that total, over $4.3 billion came from taxpayer-funded
Medicaid. More troubling, overweight and obesity-related costs for New
York's children stood at $327 million. At its current pace, obesity-re-
lated medical costs are projected to reach $19.8 billion by 2018.
Sugar is dangerously addictive, something which many people are still
not aware of If consumption of sugar exceeds a threshold over a certain
period of time, the brains neurochemistry is altered and people experi-
ence dopamine depletion and sugar withdrawals. In addition, the dopamine
receptors start to down-regulate meaning that in the future, more
food/sugar is needed in order to get the same level of physiological
satisfaction. Sugar and junk foods, due to their powerful effect on the
reward centers of the brain, function similarly to drugs of abuse like
cocaine and nicotine.
It is important to note that the warning label that would be added to
the food items and drinks will have to be prescribed by the New York
State Department of Health. The Department of Health's chief responsi-
bility is to protect, improve and promote the health, productivity and
wellbeing of all New Yorkers. It is essential that the leading health
experts in the state are involved in the creation of this label. This
department would be able to utilize science based research to implement
a label that would give New Yorkers the tools to make the best decisions
when it comes to their health.
PRIOR LEGISLATIVE HISTORY:
None
FISCAL IMPLICATIONS:
To be determined.
EFFECTIVE DATE:
This act shall take effect one year after it shall have become a law.
STATE OF NEW YORK
________________________________________________________________________
8400
2015-2016 Regular Sessions
IN ASSEMBLY
October 2, 2015
___________
Introduced by M. of A. TITONE -- read once and referred to the Committee
on Consumer Affairs and Protection
AN ACT to amend the agriculture and markets law, in relation to the
labeling of sugar-sweetened food items and beverages with warnings
prescribed by the department of health
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Short title. This act shall be known and may be cited as
2 the "sugar-sweetened food item and beverage safety warning act".
3 § 2. The agriculture and markets law is amended by adding a new
4 section 204-e to read as follows:
5 § 204-e. Labeling of sugar-sweetened food items and sugar-sweetened
6 beverages. 1. For the purposes of this section:
7 (a) "Beverage container" means any sealed or unsealed container
8 regardless of size or shape including, but not limited to, those made of
9 glass, metal, paper, plastic, or any other material or combination of
10 materials that is used or intended to be used to hold a sugar-sweetened
11 beverage for individual sale to a consumer.
12 (b) "Beverage dispensing machine" means any device that mixes concen-
13 trate with any one or more other ingredients, and dispenses the result-
14 ing mixture into an unsealed container as a ready-to-drink beverage.
15 (c) "Caloric sweetener" means any substance containing calories, suit-
16 able for human consumption, that humans perceive as sweet and shall
17 include, but not be limited to, sucrose, fructose, glucose, and other
18 sugars and fruit juice concentrates.
19 (d) "Caloric" means a substance that adds calories to the diet of the
20 individual who consumes such substance.
21 (e) "Concentrate" means a syrup or powder that is used or intended to
22 be used for mixing, compounding or making a sugar-sweetened food item or
23 a sugar-sweetened beverage.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD11906-02-5
A. 8400 2
1 (f) "Consumer" means an individual who purchases a sugar-sweetened
2 food item or sugar-sweetened beverage for a purpose other than resale.
3 (g) "Distribute" means to sell or otherwise provide a product to any
4 person for resale.
5 (h) "Food item container" means any sealed or unsealed container
6 regardless of size or shape including, but not limited to, those made of
7 glass, metal, paper, plastic, or any other material or combination of
8 materials that is used or intended to be used to hold a sugar-sweetened
9 food item for individual sale to a consumer.
10 (i) "Food item dispensing machine" means any device that dispenses
11 sugar-sweetened food items.
12 (j) "Menu or menu board" means the primary writing of a public food
13 service establishment, as defined in subdivision three of section thir-
14 teen hundred ninety-nine-n of the public health law, from which a
15 consumer makes an order selection, which can be in different forms such
16 as booklets, pamphlets, or single sheets of paper, and can be located
17 inside or outside of such public food service establishment.
18 (k) "Natural fruit juice" means the original liquid resulting from the
19 pressing of fruit, the liquid resulting from the reconstitution of
20 natural fruit juice concentrate or the liquid resulting from the resto-
21 ration of water to dehydrated natural fruit juice.
22 (l) "Natural vegetable juice" means the original liquid resulting from
23 the pressing of vegetables, the liquid resulting from the reconstitution
24 of natural vegetable juice concentrate or the liquid resulting from the
25 restoration of water to dehydrated natural vegetable juice.
26 (m) "Powder" means a solid mixture with added caloric sweetener used
27 in making, mixing or compounding a sugar-sweetened food item or sugar-
28 sweetened beverage by mixing such solid mixture with any one or more
29 other ingredients including, but not limited to, water, ice, syrup,
30 simple syrup, fruits, vegetables, fruit juice, or carbonation or other
31 gas.
32 (n) "Principal display panel" means the part of a label that is most
33 likely to be displayed, presented, shown or examined under customary
34 conditions of display for retail sale.
35 (o) "Sealed beverage container" means a beverage container holding a
36 beverage that is closed or sealed before being offered for sale to a
37 consumer.
38 (p) "Sealed food item container" means a food item container holding a
39 food item that is closed or sealed before being offered for sale to a
40 consumer.
41 (q) (1) "Sugar-sweetened beverage" means any sweetened nonalcoholic
42 beverage, carbonated or noncarbonated, sold for human consumption that
43 has added caloric sweeteners and which contains seventy-five calories or
44 more per twelve fluid ounces.
45 (2) Such term shall not include:
46 (A) any beverage containing one hundred percent natural fruit juice or
47 natural vegetable juice with no added caloric sweeteners;
48 (B) any liquid product manufactured for any of the following uses and
49 commonly referred to as a "dietary aid":
50 (i) an oral nutritional therapy for persons who cannot absorb or meta-
51 bolize dietary nutrients from food or food items and beverages,
52 (ii) a source of necessary nutrition used as a result of a medical
53 condition, or
54 (iii) an oral electrolyte solution for infants and children formulated
55 to prevent dehydration due to illness;
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1 (C) any product for consumption by infants and that is commonly
2 referred to as "infant formula";
3 (D) any beverage whose principal ingredient by weight is milk; or
4 (E) any alcoholic beverage that is subject to regulation by the alco-
5 holic beverage control law.
6 (r) "Sugar-sweetened food item" means any sweetened food item sold for
7 human consumption that has added caloric sweeteners and which contains
8 seventy-five calories or more per four ounces.
9 (s) "Syrup" means a liquid mixture with added caloric sweetener used
10 in making, mixing or compounding a sugar-sweetened food item or sugar-
11 sweetened beverage by mixing such liquid mixture with any one or more
12 other ingredients, including, but not limited to, water, ice, a powder,
13 simple syrup, fruits, vegetables, fruit juice, vegetable juice, or
14 carbonation or other gas.
15 (t) "Unsealed beverage container" means a beverage container into
16 which a beverage is dispensed or poured at the premises where the bever-
17 age is purchased including, but not limited to, a container for fountain
18 drinks.
19 (u) "Unsealed food item container" means a food item container into
20 which a food item is dispensed or placed at the premises where the food
21 item is purchased.
22 2. (a) No person shall distribute, sell or offer for sale a sugar-
23 sweetened food item or sugar-sweetened beverage in a sealed food item
24 container or a sealed beverage container unless such container bears a
25 safety warning as prescribed by the department of health and otherwise
26 meets all of the requirements of this subdivision.
27 (b) The safety warning required by paragraph (a) of this subdivision
28 shall be displayed in a clear and conspicuous manner and readily legible
29 under ordinary conditions on the principal display panel of the sealed
30 food item container or sealed beverage container, separate and apart
31 from all other information, and shall be on a contrasting background.
32 The entire safety warning shall appear in bold type.
33 (c) If the safety warning required by paragraph (a) of this subdivi-
34 sion is not printed directly on the food item container or beverage
35 container, the safety warning shall be affixed to the food item contain-
36 er or beverage container in such a manner that it cannot be removed
37 without thorough application of water or other solvents.
38 (d) No person shall distribute, sell or offer for sale a multipack of
39 sugar-sweetened food items or sugar-sweetened beverages in sealed food
40 item containers or sealed beverage containers unless the multipack of
41 food items or beverages bears the safety warning required by paragraph
42 (a) of this subdivision. The safety warning shall be posted in a clear
43 and conspicuous manner on the principal display panel and on at least
44 one other side of the multipack, in addition to being posted on each
45 individual sealed food item container or sealed beverage container.
46 (e) No person shall distribute, sell or offer for sale a concentrate
47 unless the packaging of the concentrate, which is intended for retail
48 sale, bears the safety warning required by paragraph (a) of this subdi-
49 vision. The safety warning shall be posted in a clear and conspicuous
50 manner on the principal display panel of the packaging of the concen-
51 trate.
52 (f) This subdivision shall not be construed to require the safety
53 warning required by paragraph (a) of this subdivision to be placed imme-
54 diately preceding any common name or primary product descriptor.
55 3. (a) Every person who owns, leases or otherwise controls the prem-
56 ises where a vending machine or food item or beverage dispensing machine
A. 8400 4
1 is located, or where a sugar-sweetened food item or sugar-sweetened
2 beverage is sold in an unsealed food item container or unsealed beverage
3 container, shall place or cause to be placed, a safety warning in each
4 of the following locations:
5 (1) on the exterior of any vending machine that includes a sugar-
6 sweetened food item or sugar-sweetened beverage for sale;
7 (2) on the exterior of any food item or beverage dispensing machine
8 used by a consumer to dispense a sugar-sweetened food item or sugar-
9 sweetened beverage through self-service; and
10 (3) at the point-of-purchase, which may include the menu or menu
11 board, where any consumer purchases a sugar-sweetened food item or
12 sugar-sweetened beverage in an unsealed food item container or unsealed
13 beverage container, when the unsealed food item container or unsealed
14 beverage container is filled by an employee of a food establishment
15 rather than the consumer; provided, however, this subparagraph shall not
16 apply unless the premises where a food item or beverage dispensing
17 machine is located, or where the sugar-sweetened food item or sugar-
18 sweetened beverage is sold in an unsealed food item container or
19 unsealed beverage container is part of a network of subsidiaries, affil-
20 iates or other member stores, under direct or indirect common control,
21 with three or more stores located in New York.
22 (b) The safety warning required by paragraph (a) of this subdivision
23 shall be displayed in a clear and conspicuous manner and readily legible
24 under ordinary conditions, separate and apart from all other informa-
25 tion, and shall be on a contrasting background. The entire safety warn-
26 ing shall appear in bold type.
27 4. (a) Whenever it shall appear that there has been a violation of
28 this section, an application may be made by the attorney general in the
29 name of the people of the state of New York to a court or justice having
30 jurisdiction by a special proceeding to issue an injunction, and upon
31 notice to the defendant of not less than five days, to enjoin and
32 restrain the continuance of such violation; and if it shall appear to
33 the satisfaction of the court or justice that the defendant has, in
34 fact, violated this article, an injunction may be issued by such court
35 or justice, enjoining and restraining any further violation, without
36 requiring proof that any person has, in fact, been injured or damaged
37 thereby. In any such proceeding, the court may make allowances to the
38 attorney general as provided in paragraph six of subdivision (a) of
39 section eighty-three hundred three of the civil practice law and rules,
40 and direct restitution. Whenever the court shall determine that a
41 violation of this article has occurred, the court may impose a civil
42 penalty of not less than fifty dollars nor more than five hundred
43 dollars for each such violation. In connection with any such proposed
44 application, the attorney general is authorized to take proof and make a
45 determination of the relevant facts and to issue subpoenas in accordance
46 with the civil practice law and rules.
47 (b) The provisions of this section may be enforced concurrently by the
48 director of a municipal consumer affairs office, or by the town attor-
49 ney, city corporation counsel, or other lawful designee of a munici-
50 pality or local government, and all moneys collected under this section
51 shall be retained by such municipality or local government.
52 5. A retailer shall not be subject to the penalties under this section
53 unless: (a) the retailer is the manufacturer of the sugar-sweetened food
54 item or sugar-sweetened beverage, the packager of a multipack of sugar-
55 sweetened food items in sealed food item containers or sugar-sweetened
56 beverages in sealed beverage containers, or the manufacturer of a
A. 8400 5
1 concentrate and sells the sugar-sweetened food item or sugar-sweetened
2 beverage, multipack of sugar-sweetened food items or sugar-sweetened
3 beverages, or concentrate under a brand it owns; or
4 (b) the retailer's failure to label was knowing and willful.
5 § 3. Severability clause. If any provision of this act or its applica-
6 tion to any person, legal entity, or circumstance is held invalid, the
7 remainder of the act or the application of the provision to other
8 persons, legal entities or circumstances shall not be affected.
9 § 4. The department of health shall prescribe safety warnings for
10 sugar-sweetened food items and sugar-sweetened beverages as required by
11 section two hundred four-e of the agriculture and markets law, as added
12 by section two of this act.
13 § 5. This act shall take effect one year after it shall have become a
14 law. Effective immediately, the addition, amendment and/or repeal of any
15 rule or regulation necessary for the implementation of this act on its
16 effective date is authorized to be made and completed on or before such
17 effective date.
