Amd §202-a, Ag & Mkts L; amd §350-a, Gen Bus L; amd §2599-b, Pub Health L
Relates to false or misleading advertisements of food and food products; provides factors to determine whether an advertisement is false or misleading; provides for enforcement and a private right of action.
STATE OF NEW YORK
________________________________________________________________________
397
2025-2026 Regular Sessions
IN SENATE(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:
1 Section 1. Legislative findings and intent. The legislature hereby
2 finds that children are an inherently vulnerable population, and that
3 marketing food and beverages high in saturated fatty acids, trans-fatty
4 acids, and free sugars in a targeted and persistent manner to this group
5 is inconsistent with this state's efforts to curb the disastrous health
6 outcomes that follow the overconsumption of these products which include
7 but are not limited to increased rates of malnutrition, undernutrition,
8 micronutrient deficiencies, obesity, and other diet-related illnesses.
9 Such marketing is inherently misleading, aggressive, and pervasive as
10 children often lack the same ability to resist the rewarding cues
11 presented in unhealthy food marketing as adults. New York has a strong
12 and substantial interest in protecting our children from negative health
13 consequences and remain aligned with the goals of the Convention on the
14 Rights of the Child which ensures access to nutritious foods and freedom
15 from exploitation of all kinds. Additionally, the power of the state is
16 at its greatest when protecting the health and welfare of its citizens,
17 especially those most vulnerable. Thus, the legislature finds that
18 unfair and deceptive marketing targeted at children can mislead and
19 manipulate children into lifelong habits, and that such unfair and
20 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
1 § 2. Section 350-a of the general business law is amended by adding
2 two new subdivisions 4 and 5 to read as follows:
3 4. In determining whether any advertising concerning a food or food
4 product is false advertising, factors shall include, but not be limited
5 to:
6 (a) Whether the advertisement targets a consumer who is reasonably
7 unable to protect their interests because of their age, illiteracy,
8 inability to understand the language of an agreement or similar factor.
9 (b) For the purposes of this subdivision and subdivision five of this
10 section, a "consumer" is defined as a person who is targeted by an
11 advertisement, or those acting on such a person's behalf.
12 5. For purposes of paragraph (a) of subdivision four of this section,
13 special consideration shall be given to advertisements directed at a
14 child as defined in section three hundred seventy-one of the social
15 services law. In determining whether an advertisement concerning a food
16 or food product is directed at a child, factors shall include, but not
17 be limited to:
18 (a) Subject matter;
19 (b) Visual content;
20 (c) Use of bright colors and animated characters or child-oriented
21 activities and incentives;
22 (d) Music or other audio content;
23 (e) Age of models;
24 (f) Presence of child celebrities or celebrities who appeal to chil-
25 dren;
26 (g) Language including claims, buzzwords, sayings, and/or phrases that
27 are trending such as common colloquial words specific to the age group;
28 (h) Competent and reliable empirical evidence regarding audience
29 composition and evidence regarding the intended audience composition and
30 evidence regarding the intended audience;
31 (i) Physical location of advertisement, including, but not limited to,
32 proximity to schools or other institutions frequented by children;
33 (j) Medium by which the advertisement is communicated, including, but
34 not limited to, social media, or television/commercial advertising; and
35 (k) Other similar factors including price, products that offer conven-
36 ience in financial savings, and saving time such as easy-to-make or
37 purchase meals.
38 § 3. Section 202-a of the agriculture and markets law is amended by
39 adding a new subdivision 4 to read as follows:
40 4. In determining whether a violation of this section has occurred,
41 the court shall consider factors and special consideration given to
42 advertising directed at a child pursuant to section three hundred
43 fifty-a of the general business law.
44 § 4. Subdivision 1 of section 2599-b of the public health law, as
45 amended by section 1 of part A of chapter 469 of the laws of 2015, is
46 amended to read as follows:
47 1. The program shall be designed to prevent and reduce the incidence
48 and prevalence of obesity in children and adolescents, especially among
49 populations with high rates of obesity and obesity-related health
50 complications including, but not limited to, diabetes, heart disease,
51 cancer, osteoarthritis, asthma, emphysema, chronic bronchitis, other
52 chronic respiratory diseases and other conditions. The program shall use
53 recommendations and goals of the United States departments of agricul-
54 ture and health and human services, the surgeon general and centers for
55 disease control and prevention in developing and implementing guidelines
56 for nutrition education and physical activity projects as part of obesi-
S. 397 3
1 ty prevention efforts. The content and implementation of the program
2 shall stress the benefits of choosing a balanced, healthful diet from
3 the many options available to consumers[, without specifically targeting
4 the elimination of any particular food group, food product or food-re-
5 lated industry] while specifically including education on access and the
6 nutritional value of locally grown foods and food products including,
7 but not limited to dairy, fruit and vegetable food products. The
8 program shall cooperate with the department of agriculture and markets
9 to add access to locally grown foods and food products including, but
10 not limited to dairy, fruit and vegetable food products within the
11 guidelines and framework of the program.
12 § 5. Severability. If any part or provision of this act or its appli-
13 cation to a person is held invalid, the invalidity of that part,
14 provision or application does not affect other parts, provisions or
15 applications of this act that can be given effect without the invalid
16 provision or application.
17 § 6. This act shall take effect on the thirtieth day after it shall
18 have become a law.
