STATE OF NEW YORK
________________________________________________________________________
4613--A
2013-2014 Regular Sessions
IN ASSEMBLY
February 6, 2013
___________
Introduced by M. of A. SCHIMEL, ENGLEBRIGHT, DINOWITZ, MONTESANO,
JAFFEE, BENEDETTO, SCARBOROUGH, OTIS, ROBERTS -- Multi-Sponsored by --
M. of A. COOK, JACOBS, McDONALD, McKEVITT, PERRY, RA, ROBINSON, WEIS-
ENBERG -- read once and referred to the Committee on Health -- commit-
tee discharged, bill amended, ordered reprinted as amended and recom-
mitted to said committee
AN ACT to amend the general business law and the public health law, in
relation to prohibiting sale and distribution of dietary supplements
containing DMAA and foods containing an unsafe DMAA food additive
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 section
2 391-s to read as follows:
3 § 391-s. DMAA dietary supplements and food additives; prohibition. 1.
4 No person, firm, corporation, partnership, association, limited liabil-
5 ity company or other entity shall sell, offer to sell or give away, for
6 either retail, wholesale or promotional purposes, a dietary supplement
7 containing any quantity of DMAA, or a food containing an unsafe DMAA
8 food additive.
9 2. For purposes of this section, the following terms have the follow-
10 ing meanings:
11 (a) "Dietary supplement" means a product (other than tobacco) that (1)
12 is intended to supplement the diet, and that bears or contains one or
13 more of the following dietary ingredients: a vitamin, a mineral, an herb
14 or other botanical, an amino acid, a dietary substance for the use by a
15 person to supplement the diet by increasing the total daily intake, or a
16 concentrate, metabolite, constituent, extract or combinations of these
17 ingredients; (2) is intended for ingestion in pill, capsule, tablet or
18 liquid form; and (3) is labeled as a "dietary supplement" pursuant to
19 the federal Dietary Supplement Health and Education Act, 21 U.S.C. 321,
20 as amended.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD07852-07-3
A. 4613--A 2
1 (b) "DMAA" means 1, 3-dimethylamylamine (also known as 1,3-DMAA, 1,3-
2 Dimethylpentylamine, 2-Amino-4-methylhexane, 2-Hexanamine, 4-Methyl-2-
3 hexanamine, 4-Methyl-2-hexylamine, 4-methylhexane-2-amine, 4-methyl-
4 (9CI), Dimethylamylamine, Geranamine, and Methylhexanamine).
5 (c) "Food" means all articles of food, drink, confectionery or condi-
6 ment, whether simple, mixed or compound, used or intended for use by
7 humans or animals, and shall also include all substances or ingredients
8 to be added to food for any purpose. Such term shall include chewing
9 gum.
10 (d) "Unsafe DMAA food additive" means a food additive that contains
11 DMAA that has not been recognized by the commissioner of agriculture and
12 markets as safe, for the purpose of enforcement of article seventeen of
13 the agriculture and markets law.
14 3. Nothing in this section shall apply to nonprescription over-the-
15 counter drugs approved or regulated by the Food and Drug Administration.
16 4. Any enforcement officer, as defined in section thirteen hundred
17 eleven of the public health law, shall have the power to impose upon any
18 person, firm, corporation, partnership, association, limited liability
19 company or other entity the civil penalties authorized by such section,
20 following a hearing conducted in the same manner as hearings conducted
21 pursuant to article thirteen-E of the public health law.
22 § 2. The public health law is amended by adding a new section 1311 to
23 read as follows:
24 § 1311. Regulation of DMAA. 1. For the purpose of this section, the
25 term "enforcement officer" shall mean any entity so designated by any
26 municipality or political subdivision. Such enforcement officers shall
27 have concurrent jurisdiction with the commissioner to enforce the
28 provisions of section three hundred ninety-one-s of the general business
29 law, pursuant to rules and regulations promulgated by the commissioner.
30 2. If an enforcement officer determines after a hearing that a
31 violation of section three hundred ninety-one-s of the general business
32 law has occurred, and subsequent to any appeal pursuant to subdivision
33 four of this section having been finally determined, a civil penalty may
34 be imposed by the enforcement officer; provided, however, that no such
35 penalty shall exceed five hundred dollars. When the enforcement officer
36 is the commissioner, the hearing shall be conducted pursuant to the
37 provisions of section twelve-a of this chapter. When the enforcement
38 officer is a board of health or in a city with a population of more than
39 one million, the department of health and mental hygiene, or an officer
40 designated to enforce the provisions of section three hundred ninety-
41 one-s of the general business law, the hearing shall be conducted pursu-
42 ant to procedures set forth in the county sanitary code, or health code
43 of such city, or in the absence thereof, pursuant to procedures estab-
44 lished by the elected county legislature or board of supervisors. No
45 other penalty, fine or sanction may be imposed, provided that nothing in
46 this section shall be construed to prohibit an enforcement officer from
47 commencing a proceeding for injunctive relief to compel compliance with
48 section three hundred ninety-one-s of the general business law.
49 3. Any person who desires to register a complaint for a violation of
50 section three hundred ninety-one-s of the general business law may do so
51 with the appropriate enforcement officer.
52 4. Any person aggrieved by the decision of an enforcement officer,
53 other than the commissioner, may appeal to the commissioner for a review
54 of such decision within thirty days of such decision. The decision of
55 any enforcement officer shall be reviewable pursuant to article seven-
56 ty-eight of the civil practice law and rules.
A. 4613--A 3
1 5. It shall be a defense that any person, firm, corporation, partner-
2 ship, association, limited liability company or other entity that sold,
3 offered for sale or gave away, for either retail, wholesale or promo-
4 tional purposes, a dietary supplement, did not have knowledge that the
5 dietary supplement contained any quantity of DMAA, or that the food
6 contained an unsafe DMAA food additive, if such knowledge was not
7 reasonably discoverable.
8 § 3. This act shall take effect on the sixtieth day after it shall
9 have become a law.
