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A08583 Summary:

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.
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A08583 Text:

                STATE OF NEW YORK
                               2021-2022 Regular Sessions
                   IN ASSEMBLY
                                    December 13, 2021
        Introduced  by  M. of A. REYES, SOLAGES -- read once and referred to the
          Committee on Agriculture -- recommitted to the Committee  on  Agricul-
          ture  in  accordance  with  Assembly  Rule  3,  sec.  2  --  committee
          discharged, bill amended, ordered reprinted as amended and recommitted
          to said committee -- again reported from said  committee  with  amend-
          ments,  ordered reprinted as amended and recommitted to said committee
          -- recommitted to the Committee  on  Agriculture  in  accordance  with
          Assembly Rule 3, sec. 2 -- committee discharged, bill amended, ordered
          reprinted as amended and recommitted to said committee
        AN  ACT  to  amend the agriculture and markets law, the general business
          law and the public health law, in relation to food  and  food  product
          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 unhealthy foods in a targeted and persistent  manner  to  this
     4  group  is  inconsistent with this state's efforts to curb the disastrous
     5  health outcomes that follow the overconsumption of these products.  Such
     6  marketing  is  inherently  misleading,  as  children often lack the same
     7  ability to resist the rewarding cues presented in unhealthy food market-
     8  ing as adults.  This predatory commercial speech has contributed  to  an
     9  epidemic  of obesity and its related co-morbidities, particularly in the
    10  children of black and brown communities. Furthermore, there is a growing
    11  consensus that highly processed food is habit  forming,  increasing  the
    12  danger  to  public  health  that can arise from succumbing to misleading
    13  advertising. New York has a strong and substantial interest in  protect-
    14  ing  our  children  from negative health consequences. Additionally, the
    15  power of the state is at its greatest when  protecting  the  health  and
    16  welfare  of  its  citizens,  especially those most vulnerable. Thus, the
    17  legislature finds that unfair and deceptive marketing targeted at  chil-
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.

        A. 8583--C                          2
     1  dren  can mislead and manipulate children into lifelong habits, and that
     2  such unfair and deceptive advertising should be regulated accordingly.
     3    §  2.  Section  202-a of the agriculture and markets law is amended by
     4  adding a new subdivision 4 to read as follows:
     5    4. Whenever the court shall determine that a violation of this section
     6  has occurred, the court shall consider factors and special consideration
     7  given to advertising directed at  a  child  pursuant  to  section  three
     8  hundred fifty-a of general business law.
     9    §  3.  Section 350-a of general business law is amended by adding five
    10  new subdivisions 4, 5, 6, 7, and 8 to read as follows:
    11    4. In determining whether advertising of a food  or  food  product  is
    12  misleading,  there  shall  be  taken  into  account  any representations
    13  disseminated in any manner or by any means including  digitally,  or  by
    14  statement,  word,  design, device, sound or any combination thereof, for
    15  the purpose of inducing, or which are  likely  to  induce,  directly  or
    16  indirectly,  the purchase of food or food products shall not be false or
    17  misleading in any  manner.    In  determining  whether  any  advertising
    18  concerning  a food or food product is false or misleading, factors shall
    19  include, but not be limited to:
    20    (a) The extent to which the advertising fails to reveal facts material
    21  in the light of such representations with respect to the  food  or  food
    22  product to which the advertising relates under the conditions prescribed
    23  in  said  advertisement,  or  under  such conditions as are customary or
    24  usual;
    25    (b) Whether the entity responsible for the advertisement  targeting  a
    26  consumer  who is reasonably unable to protect their interests because of
    27  their age,  physical  infirmity,  ignorance,  illiteracy,  inability  to
    28  understand the language of an agreement, or similar factor used:
    29    (i) an unfair act, practice, or conduct; or
    30    (ii) a deceptive representation, omission, practice, or content; and
    31    (c)  Whether:  (i)  the  advertisement  causes  or  is likely to cause
    32  substantial injury to consumers;  (ii)  the  injury  is  not  reasonably
    33  avoidable  by consumers; and (iii) the injury is not outweighed by coun-
    34  tervailing benefits to consumers or to competition.
    35    (d) For the purposes of this subdivision and subdivision six  of  this
    36  section,  a  "consumer"  is  defined  as a person who is targeted by and
    37  exposed to an advertisement, or those acting on such a person's behalf.
    38    5. For the purposes of paragraph  (a)  of  subdivision  four  of  this
    39  section,  a  true  statement of information in brief summary relating to
    40  effects of  substantial  consumption  of  this  product  is  sufficient.
    41  Untrue  or  misleading information in any part of the advertisement will
    42  not be corrected by the inclusion in another distinct part of the adver-
    43  tisement of a brief statement containing true  information  relating  to
    44  the effects of consumption.
    45    6. For the purposes of this section, for a consumer:
    46    (a) an act, practice, or conduct is "unfair" where it:
    47    (i)    causes or is likely to cause substantial injury to such consum-
    48  er;
    49    (ii)   cannot be reasonably avoided by such consumer; and
    50    (iii) is not outweighed by countervailing benefits to such consumer or
    51  to competition.
    52    (b) a representation, omission, or practice is "deceptive" where:
    53    (i) it is likely to mislead such consumer;
    54    (ii)  such  consumer's interpretation of the representation, omission,
    55  or practice is considered reasonable under the circumstances; and

        A. 8583--C                          3
     1    (iii) the misleading representation, omission, or practice is  materi-
     2  al.
     3    7.  For purposes of paragraph (b) of subdivision four of this section,
     4  special consideration shall be given to  advertisements  directed  at  a
     5  child  as  defined  in  section  three hundred seventy-one of the social
     6  services law. In determining whether an advertisement concerning a  food
     7  or  food  product is directed at a child, factors shall include, but not
     8  be limited to:
     9    (a) Subject matter;
    10    (b) Visual content;
    11    (c) Use of animated characters or child-oriented activities and incen-
    12  tives;
    13    (d) Music or other audio content;
    14    (e) Age of models;
    15    (f) Presence of child celebrities or celebrities who appeal  to  chil-
    16  dren;
    17    (g) Language;
    18    (h)  Competent  and  reliable  empirical  evidence  regarding audience
    19  composition and evidence regarding the intended audience;
    20    (i) Physical location of advertisement, including, but not limited to,
    21  proximity to schools or other institutions frequented by children;
    22    (j) Medium by which the advertisement is communicated, including,  but
    23  not limited to, social media; or
    24    (k) Other similar factors.
    25    8. (a) Whenever there shall be a violation of this section, the attor-
    26  ney  general,  in  the name of the people of the state of New York, or a
    27  city corporation counsel on behalf of the locality, may bring an  action
    28  in  the  supreme  court or federal district court to enjoin and restrain
    29  such violations and to obtain restitution and damages.
    30    (b) Any person, firm, corporation or association that has been damaged
    31  as a result of violations of this section shall be entitled to bring  an
    32  action for recovery of damages or to enforce this section in the supreme
    33  court or federal district court by seeking an injunction.
    34    (c)  The  court  may  award reasonable attorneys' fees to a prevailing
    35  plaintiff.
    36    § 4. Subdivision 1 of section 2599-b of  the  public  health  law,  as
    37  amended  by  section  1 of part A of chapter 469 of the laws of 2015, is
    38  amended to read as follows:
    39    1. The program shall be designed to prevent and reduce  the  incidence
    40  and  prevalence of obesity in children and adolescents, especially among
    41  populations with  high  rates  of  obesity  and  obesity-related  health
    42  complications  including,  but  not limited to, diabetes, heart disease,
    43  cancer, osteoarthritis, asthma,  emphysema,  chronic  bronchitis,  other
    44  chronic respiratory diseases and other conditions. The program shall use
    45  recommendations  and  goals of the United States departments of agricul-
    46  ture and health and human services, the surgeon general and centers  for
    47  disease control and prevention in developing and implementing guidelines
    48  for nutrition education and physical activity projects as part of obesi-
    49  ty  prevention  efforts.  The  content and implementation of the program
    50  shall stress the benefits of choosing a balanced,  healthful  diet  from
    51  the many options available to consumers[, without specifically targeting
    52  the  elimination  of any particular food group, food product or food-re-
    53  lated industry] while specifically including education on access and the
    54  nutritional value of locally grown foods.  The program  shall  cooperate
    55  with  the department of agriculture and markets to add access to locally
    56  grown foods within the guidelines and framework of the program.

        A. 8583--C                          4
     1    § 5. Severability.  If any part or provision of this act or its appli-
     2  cation to a person is held invalid, the invalidity of that provision  or
     3  application does not affect other provisions or applications of this act
     4  that can be given effect without the invalid provision or application.
     5    §  6.  This  act shall take effect on the thirtieth day after it shall
     6  have become a law.
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