Bill Text: NY A03302 | 2009-2010 | General Assembly | Introduced
Bill Title: An act to amend the general business law, in relation to requiring persons offering weight loss services to provide notice of certain risks
Spectrum: Partisan Bill (Democrat 18-0)
Status: (Engrossed - Dead) 2010-02-23 - REFERRED TO CONSUMER PROTECTION [A03302 Detail]
Download: New_York-2009-A03302-Introduced.html
S T A T E O F N E W Y O R K
________________________________________________________________________
3302
2009-2010 Regular Sessions
I N A S S E M B L Y
January 26, 2009
___________
Introduced by M. of A. COOK, ORTIZ, CHRISTENSEN, PHEFFER, ZEBROWSKI,
JAFFEE -- Multi-Sponsored by -- M. of A. BOYLAND, COLTON, CYMBROWITZ,
DINOWITZ, GLICK, HIKIND, MARKEY, McENENY, J. RIVERA, SCARBOROUGH,
SCHROEDER, TOWNS -- read once and referred to the Committee on Consum-
er Affairs and Protection
AN ACT to amend the general business law, in relation to requiring
persons offering weight loss services to provide notice of certain
risks
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 article
2 30-B to read as follows:
3 ARTICLE 30-B
4 WEIGHT LOSS SERVICES
5 SECTION 641. WEIGHT LOSS SERVICES AND PRODUCTS.
6 642. WEIGHT LOSS SERVICES; NOTICE.
7 643. DECEPTIVE PRACTICES.
8 644. LOCAL REGULATION.
9 645. PENALTIES.
10 S 641. WEIGHT LOSS SERVICES AND PRODUCTS. FOR THE PURPOSES OF THIS
11 ARTICLE:
12 1. "WEIGHT LOSS SERVICES" SHALL MEAN COUNSELING AND EDUCATIONAL ACTIV-
13 ITIES, INCLUDING, BUT NOT LIMITED TO, RECOMMENDING THE USE OF WEIGHT
14 LOSS PRODUCTS, WHICH HAVE THE PRIMARY PURPOSE OF HELPING INDIVIDUALS
15 REDUCE BODY WEIGHT. WEIGHT LOSS SERVICES DOES NOT INCLUDE PROVIDING
16 INFORMATION TO THE PUBLIC REGARDING INDIVIDUAL WEIGHT LOSS PRODUCTS IF
17 THE PERSON, FIRM OR CORPORATION IS NOT ALSO ENGAGED IN COUNSELING ACTIV-
18 ITIES.
19 2. "WEIGHT LOSS PRODUCTS" SHALL MEAN ANY FOODS, INGREDIENTS OR COMPO-
20 NENTS OF FOODS, NUTRITIONAL FORMULAS OR SUPPLEMENTS, DRUGS, EQUIPMENT OR
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
A LBD05431-01-9
A. 3302 2
1 ANY OTHER PRODUCTS SOLD OR OFFERED FOR THE PRIMARY PURPOSE OF HELPING
2 INDIVIDUALS REDUCE BODY WEIGHT.
3 3. "DIRECT SELLER" SHALL MEAN ANY PERSON IF (A) SUCH PERSON IS (I)
4 ENGAGED IN THE TRADE OR BUSINESS OF SELLING OR SOLICITING THE SALE OF
5 CONSUMER PRODUCTS TO ANY BUYER ON A BUY-SELL BASIS OR A DEPOSIT-COMMIS-
6 SION BASIS FOR RESALE BY THE BUYER OR ANY OTHER PERSON IN THE HOME OR
7 OTHERWISE THAN IN A PERMANENT RETAIL ESTABLISHMENT, OR (II) ENGAGED IN
8 THE TRADE OR BUSINESS OF SELLING OR SOLICITING THE SALE OF CONSUMER
9 PRODUCTS IN THE HOME OR OTHERWISE THAN IN A PERMANENT RETAIL ESTABLISH-
10 MENT;
11 (B) SUBSTANTIALLY ALL THE REMUNERATION, WHETHER OR NOT PAID IN CASH,
12 FOR THE PERFORMANCE OF THE SERVICES DESCRIBED IN PARAGRAPH (A) OF THIS
13 SUBDIVISION IS DIRECTLY RELATED TO SALES OR OTHER OUTPUT, INCLUDING THE
14 PERFORMANCE OF SERVICES, RATHER THAN TO THE NUMBER OF HOURS WORKED; AND
15 (C) THE SERVICES PERFORMED BY THE PERSON ARE PERFORMED PURSUANT TO A
16 WRITTEN CONTRACT BETWEEN SUCH PERSON AND THE PERSON FOR WHOM THE
17 SERVICES ARE PERFORMED AND SUCH CONTRACT PROVIDES THAT THE PERSON WILL
18 NOT BE TREATED AS AN EMPLOYEE WITH RESPECT TO SUCH SERVICES FOR STATE
19 AND FEDERAL TAX PURPOSES.
20 S 642. WEIGHT LOSS SERVICES; NOTICE. 1. ANY PERSON, FIRM OR CORPO-
21 RATION OFFERING WEIGHT LOSS SERVICES OR WEIGHT LOSS SERVICES AND
22 PRODUCTS IN THIS STATE BY MEANS OF SELLING OR OFFERING TO SELL SUCH
23 SERVICES OR PRODUCTS TO THE PUBLIC SHALL EITHER (I) CONSPICUOUSLY POST A
24 SIGN, MEASURING AT LEAST NINE INCHES BY FOURTEEN INCHES, WHERE CONSUMERS
25 ARE OFFERED THE SERVICES OR PRODUCTS, IN WRITING, IN AT LEAST TEN POINT
26 PRINT, OR (II) PROVIDE IN WRITING, IN AT LEAST TEN POINT PRINT, TO INDI-
27 VIDUALS AND CONSUMERS PRIOR TO THE PURCHASE OF SUCH GOODS OR SERVICES
28 THE FOLLOWING NOTICE OR SOME OTHER NOTICE WHICH SUBSTANTIALLY CONTAINS
29 OR PROVIDES THE FOLLOWING INFORMATION.
30 WEIGHT LOSS AND DIETING INFORMATION
31 A. WARNING! RAPID WEIGHT LOSS MAY CAUSE SERIOUS HEALTH PROBLEMS. RAPID
32 WEIGHT LOSS IS WEIGHT LOSS OF MORE THAN 1 1/2 TO 2 POUNDS PER WEEK OR
33 WEIGHT LOSS OF MORE THAN 1 PERCENT OF BODY WEIGHT PER WEEK AFTER THE
34 SECOND WEEK OF PARTICIPATION IN A WEIGHT LOSS PROGRAM.
35 B. CONSULT YOUR PHYSICIAN BEFORE STARTING ANY WEIGHT LOSS PROGRAM OR
36 USING ANY DIET MEDICATIONS OR FORMULAS.
37 C. LONG TERM WEIGHT CONTROL IS THE SAFEST AND MOST IMPORTANT GOAL OF
38 ANY DIET PROGRAM. PERMANENT LIFESTYLE CHANGES SUCH AS EATING NUTRITIOUS
39 FOODS, CALORIE CONTROL AND INCREASING PHYSICAL ACTIVITY HELP PROMOTE
40 LONG TERM WEIGHT LOSS ACCORDING TO MEDICAL EXPERTS.
41 D. ASK THE PERSON PROVIDING OR SELLING YOU WEIGHT LOSS ADVICE OR DIET
42 PRODUCTS, MEDICATIONS OR FORMULAS ABOUT THEIR QUALIFICATIONS AND TRAIN-
43 ING IN NUTRITION AND HEALTH.
44 E. YOU HAVE THE RIGHT TO:
45 (I) ASK QUESTIONS ABOUT THE POTENTIAL HEALTH RISKS OF THIS PROGRAM OR
46 PRODUCT, ITS NUTRITIONAL CONTENT, AND ITS PSYCHOLOGICAL-SUPPORT AND
47 EDUCATIONAL COMPONENTS;
48 (II) KNOW THE PRICE OF TREATMENT, INCLUDING THE PRICE OF ANY EXTRA
49 PRODUCTS, SERVICES, SUPPLEMENTS AND LABORATORY TESTS; AND
50 (III) KNOW THE PROGRAM DURATION OF THE PROGRAM RECOMMENDED TO YOU.
51 2. THE PROVISIONS OF THIS SECTION SHALL NOT APPLY TO DIRECT SELLERS,
52 RETAIL STORES OR PHARMACIES SELLING WEIGHT LOSS PRODUCTS AND PROVIDING
53 INFORMATION TO THE PUBLIC REGARDING INDIVIDUAL PRODUCTS, UNLESS SUCH
54 BUSINESSES OFFER BOTH WEIGHT LOSS SERVICES AND WEIGHT LOSS PRODUCTS.
55 FURTHERMORE, THE PROVISIONS OF THIS SECTION SHALL NOT APPLY TO WEIGHT
56 LOSS SERVICES PROVIDED TO AN INDIVIDUAL BY ANY PERSON, FIRM OR CORPO-
A. 3302 3
1 RATION WHICH PROVIDES WEIGHT LOSS SERVICES INCIDENTAL TO THEIR PRIMARY
2 PROFESSIONAL SERVICES TO SUCH INDIVIDUAL AND WHICH DOES NOT OFFER TO
3 SELL WEIGHT LOSS SERVICES OR WEIGHT LOSS PRODUCTS TO THE PUBLIC.
4 S 643. DECEPTIVE PRACTICES. IT SHALL BE A DECEPTIVE TRADE PRACTICE FOR
5 ANY PERSON, FIRM OR CORPORATION OFFERING OR PROVIDING WEIGHT LOSS
6 SERVICES OR WEIGHT LOSS PRODUCTS TO MISREPRESENT, DIRECTLY OR INDIRECT-
7 LY:
8 1. THE POTENTIAL HEALTH RISKS OF THE WEIGHT LOSS SERVICES OR PRODUCTS
9 OFFERED;
10 2. THE SUCCESS OF PARTICIPANTS USING THE WEIGHT LOSS SERVICES OR
11 PRODUCTS OFFERED IN ACHIEVING OR MAINTAINING WEIGHT LOSS OR WEIGHT
12 CONTROL. ANY REPRESENTATION OF SUCCESSFUL WEIGHT LOSS OR WEIGHT CONTROL
13 BY PARTICIPANTS WILL BE CONSIDERED MISLEADING IF THE PERSON, FIRM OR
14 CORPORATION DOES NOT POSSESS OR RELY UPON A REASONABLE BASIS FOR THE
15 REPRESENTATION AT THE TIME IT IS DISSEMINATED. IF A CLAIM IS MADE THAT
16 SCIENTIFIC EVIDENCE SUPPORTS THE REPRESENTATION, THE PERSON, FIRM OR
17 CORPORATION MUST POSSESS COMPETENT AND RELIABLE SCIENTIFIC EVIDENCE
18 SUBSTANTIATING SUCH CLAIM. FOR THE PURPOSES OF THIS SUBDIVISION, "COMPE-
19 TENT AND RELIABLE SCIENTIFIC EVIDENCE" SHALL MEAN THOSE TESTS, ANALYSES,
20 RESEARCH, STUDIES OR OTHER EVIDENCE BASED ON THE EXPERTISE OF PROFES-
21 SIONALS IN THE RELEVANT AREA, THAT HAVE BEEN CONDUCTED AND EVALUATED IN
22 AN OBJECTIVE MANNER BY PERSONS QUALIFIED TO DO SO, USING PROCEDURES
23 GENERALLY ACCEPTED IN THE PROFESSION TO YIELD ACCURATE AND RELIABLE
24 RESULTS;
25 3. THE EDUCATIONAL AND PROFESSIONAL EXPERIENCE OF THE PERSONNEL
26 PROVIDING WEIGHT LOSS SERVICES OR WEIGHT LOSS PRODUCTS;
27 4. THE TOTAL CHARGES FOR ANY WEIGHT LOSS SERVICES AND PRODUCTS; OR
28 5. THE ACTUAL OR ESTIMATED DURATION OF THE USE OF THE WEIGHT LOSS
29 SERVICES OR PRODUCTS OFFERED.
30 S 644. LOCAL REGULATION. NOTHING IN THIS ARTICLE SHALL BE CONSTRUED TO
31 RESTRICT THE POWER OF ANY COUNTY, CITY, TOWN OR VILLAGE TO ADOPT AND
32 ENFORCE LOCAL LAWS, ORDINANCES OR REGULATIONS WHICH EXCEED THE MINIMUM
33 REQUIREMENTS OF THIS ARTICLE, AS LONG AS SUCH LOCAL LAWS, ORDINANCES OR
34 REGULATIONS ARE NOT INCONSISTENT WITH THE PROVISIONS OF THIS ARTICLE.
35 ANY LOCAL LAWS OR RULES REGULATING WEIGHT LOSS SERVICES AND PRODUCTS IN
36 A CITY HAVING A POPULATION OF ONE MILLION OR MORE AND WHICH WERE IN
37 EFFECT PRIOR TO THE EFFECTIVE DATE OF THIS ARTICLE AND ANY NOTICE
38 PROVIDED PURSUANT TO SUCH LAW OR RULE, SHALL BE DEEMED TO BE CONSISTENT
39 WITH THE PROVISIONS OF THIS ARTICLE.
40 S 645. PENALTIES. EACH DAY A PERSON, FIRM OR CORPORATION VIOLATES ANY
41 PROVISION OF THIS ARTICLE SHALL CONSTITUTE A SINGLE VIOLATION. WHENEVER
42 THERE SHALL BE A VIOLATION OF THIS ARTICLE, AN APPLICATION MAY BE MADE
43 BY THE ATTORNEY GENERAL IN THE NAME OF THE PEOPLE OF THE STATE OF NEW
44 YORK TO A COURT OR JUSTICE HAVING JURISDICTION BY A SPECIAL PROCEEDING
45 TO ISSUE AN INJUNCTION, AND UPON NOTICE TO THE DEFENDANT OF NOT LESS
46 THAN FIVE DAYS, TO ENJOIN AND RESTRAIN THE CONTINUANCE OF SUCH
47 VIOLATIONS. IF IT SHALL APPEAR TO THE COURT OR JUSTICE THAT THE DEFEND-
48 ANT HAS IN FACT, VIOLATED THIS ARTICLE, AN INJUNCTION MAY BE ISSUED BY
49 SUCH COURT OR JUSTICE, ENJOINING AND RESTRAINING ANY FURTHER VIOLATION,
50 WITHOUT REQUIRING PROOF THAT ANY PERSON HAS, IN FACT BEEN INJURED OR
51 DAMAGED THEREBY. WHENEVER THE COURT SHALL DETERMINE THAT A VIOLATION OF
52 THIS ARTICLE HAS OCCURRED, THE COURT MAY IMPOSE A CIVIL PENALTY OF NOT
53 MORE THAN ONE HUNDRED DOLLARS FOR THE FIRST VIOLATION AND TWO HUNDRED
54 DOLLARS FOR EACH VIOLATION THEREAFTER, BUT IN NO EVENT SHALL THE TOTAL
55 PENALTY THEREFOR EXCEED ONE THOUSAND DOLLARS. IN CONNECTION WITH ANY
56 SUCH APPLICATION, THE ATTORNEY GENERAL IS AUTHORIZED TO TAKE PROOF AND
A. 3302 4
1 MAKE A DETERMINATION OF THE RELEVANT FACTS AND TO ISSUE SUBPOENAS IN
2 ACCORDANCE WITH THE CIVIL PRACTICE LAW AND RULES.
3 S 2. This act shall take effect on the one hundred eightieth day after
4 it shall have become a law.
