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--A
2025-2026 Regular Sessions
IN SENATE(Prefiled)
January 8, 2025
___________
Introduced by Sens. MYRIE, BAILEY, BROUK, CLEARE, COMRIE, FAHY,
KAVANAGH, MAY, RAMOS, SEPULVEDA, SKOUFIS, WEBB -- read twice and
ordered printed, and when printed to be committed to the Committee on
Agriculture -- recommitted to the Committee on Agriculture in accord-
ance with Senate Rule 6, sec. 8 -- committee discharged, bill amended,
ordered reprinted as amended and recommitted to said committee
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
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD00461-07-6
S. 397--A 2
1 manipulate children into lifelong habits, and that such unfair and
2 deceptive advertising should be regulated accordingly.
3 § 2. Section 350-a of the general business law is amended by adding a
4 new subdivision 5 to read as follows:
5 5. For purposes of this section, factors for determining whether an
6 advertisement is false advertising shall include, but not be limited to,
7 whether the advertisement is directed at a child as defined in section
8 seventy-five-a of the domestic relations law, or a parent or guardian
9 acting on a child's behalf. In determining whether an advertisement
10 concerning a food or food product is directed at a child or a parent or
11 guardian acting on a child's behalf, factors shall include, but not be
12 limited to:
13 (a) Subject matter;
14 (b) Visual content;
15 (c) Use of bright colors and animated characters or child-oriented
16 activities and incentives;
17 (d) Music or other audio content;
18 (e) Age of models;
19 (f) Presence of child celebrities or celebrities who appeal to chil-
20 dren;
21 (g) Language including claims, buzzwords, sayings, and/or phrases that
22 are trending such as common colloquial words specific to the age group;
23 (h) Competent and reliable empirical evidence regarding audience
24 composition and evidence regarding the intended audience composition and
25 evidence regarding the intended audience;
26 (i) Physical location of advertisement, including, but not limited to,
27 proximity to schools or other institutions frequented by children;
28 (j) Medium by which the advertisement is communicated, including, but
29 not limited to, social media, or television/commercial advertising; and
30 (k) Other related factors including, but not limited to, the ease of
31 accessibility of the product for children.
32 § 3. Section 202-a of the agriculture and markets law is amended by
33 adding a new subdivision 4 to read as follows:
34 4. In determining whether a violation of this section has occurred,
35 the court shall consider the factors set forth in section three hundred
36 fifty-a of the general business law, and special consideration shall be
37 given to advertising directed at a child or a parent or guardian acting
38 on a child's behalf.
39 § 4. Subdivision 1 of section 2599-b of the public health law, as
40 amended by section 1 of part A of chapter 469 of the laws of 2015, is
41 amended to read as follows:
42 1. The program shall be designed to prevent and reduce the incidence
43 and prevalence of obesity in children and adolescents, especially among
44 populations with high rates of obesity and obesity-related health
45 complications including, but not limited to, diabetes, heart disease,
46 cancer, osteoarthritis, asthma, emphysema, chronic bronchitis, other
47 chronic respiratory diseases and other conditions. The program shall use
48 recommendations and goals of the United States departments of agricul-
49 ture and health and human services, the surgeon general and centers for
50 disease control and prevention in developing and implementing guidelines
51 for nutrition education and physical activity projects as part of obesi-
52 ty prevention efforts. The content and implementation of the program
53 shall stress the benefits of choosing a balanced, healthful diet from
54 the many options available to consumers, [without specifically targeting
55 the elimination of any particular food group, food product or food-re-
56 lated industry] that specifically includes education on access and the
S. 397--A 3
1 nutritional value of locally grown foods and food products. This shall
2 include but not be limited to, dairy, fruit and vegetable food products.
3 The program shall cooperate with the department of agriculture and
4 markets to add access to locally grown foods and food products. This
5 shall include but not be limited to, dairy, fruit and vegetable food
6 products within the guidelines and framework of the program.
7 § 5. Severability. If any part or provision of this act or its appli-
8 cation to a person is held invalid, the invalidity of that part,
9 provision or application does not affect other parts, provisions or
10 applications of this act that can be given effect without the invalid
11 provision or application.
12 § 6. This act shall take effect on the thirtieth day after it shall
13 have become a law.
