Bill Text: NY A04424 | 2023-2024 | General Assembly | Amended

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Bill Title: 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.

Spectrum: Partisan Bill (Democrat 12-0)

Status: (Introduced) 2024-01-03 - referred to agriculture [A04424 Detail]

Download: New_York-2023-A04424-Amended.html

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                STATE OF NEW YORK
        ________________________________________________________________________

                                         4424--B

                               2023-2024 Regular Sessions

                   IN ASSEMBLY

                                    February 14, 2023
                                       ___________

        Introduced  by  M.  of A. REYES, KELLES -- read once and referred to the
          Committee  on  Agriculture  --  committee  discharged,  bill  amended,
          ordered  reprinted  as  amended  and  recommitted to said committee --
          again reported from said committee with amendments, 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
          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 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.   New York has  a  strong  and  substantial  interest  in
     9  protecting our children from negative health consequences. Additionally,
    10  the power of the state is at its greatest when protecting the health and
    11  welfare  of  its  citizens,  especially those most vulnerable. Thus, the
    12  legislature finds that unfair and deceptive marketing targeted at  chil-
    13  dren  can mislead and manipulate children into lifelong habits, and that
    14  such unfair and deceptive advertising should be regulated accordingly.
    15    § 2. Section 202-a of the agriculture and markets law  is  amended  by
    16  adding a new subdivision 4 to read as follows:
    17    4.  In  determining  whether a violation of this section has occurred,
    18  the court shall consider factors  and  special  consideration  given  to
    19  advertising  directed  at  a  child  pursuant  to  section three hundred
    20  fifty-a of general business law.

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD01982-05-3
        A. 4424--B                          2

     1    § 3. Section 350-a of the general business law is  amended  by  adding
     2  three new subdivisions 4, 5 and 6 to read as follows:
     3    4.    In determining whether any advertising concerning a food or food
     4  product is false or misleading, factors shall include, but not be limit-
     5  ed to:
     6    (a) Whether the advertisement targets a  consumer  who  is  reasonably
     7  unable to protect their interests because of their age, physical infirm-
     8  ity,  ignorance,  illiteracy, inability to understand the language of an
     9  agreement, or similar factor.
    10    (b) Whether the advertisement is an unfair act, practice or conduct.
    11    (c) For the purposes of this subdivision and subdivision six  of  this
    12  section,  a  "consumer"  is  defined  as  a person who is targeted by an
    13  advertisement, or those acting on such a person's behalf.
    14    5. For the purposes of this section, for a consumer:   an  act,  prac-
    15  tice, or conduct is "unfair" where it:
    16    (a)    causes or is likely to cause substantial injury to such consum-
    17  er;
    18    (b)   cannot be reasonably avoided by such consumer; and
    19    (c)  is  not outweighed by countervailing benefits to such consumer or
    20  to competition.
    21    6. For purposes of paragraph (a) of subdivision four of this  section,
    22  special  consideration  shall  be  given to advertisements directed at a
    23  child as defined in section three  hundred  seventy-one  of  the  social
    24  services  law. In determining whether an advertisement concerning a food
    25  or food product is directed at a child, factors shall include,  but  not
    26  be limited to:
    27    (a) Subject matter;
    28    (b) Visual content;
    29    (c) Use of animated characters or child-oriented activities and incen-
    30  tives;
    31    (d) Music or other audio content;
    32    (e) Age of models;
    33    (f)  Presence  of child celebrities or celebrities who appeal to chil-
    34  dren;
    35    (g) Language;
    36    (h) Competent  and  reliable  empirical  evidence  regarding  audience
    37  composition and evidence regarding the intended audience;
    38    (i) Physical location of advertisement, including, but not limited to,
    39  proximity to schools or other institutions frequented by children;
    40    (j)  Medium by which the advertisement is communicated, including, but
    41  not limited to, social media; or
    42    (k) Other similar factors.
    43    § 4. Subdivision 1 of section 2599-b of  the  public  health  law,  as
    44  amended  by  section  1 of part A of chapter 469 of the laws of 2015, is
    45  amended to read as follows:
    46    1. The program shall be designed to prevent and reduce  the  incidence
    47  and  prevalence of obesity in children and adolescents, especially among
    48  populations with  high  rates  of  obesity  and  obesity-related  health
    49  complications  including,  but  not limited to, diabetes, heart disease,
    50  cancer, osteoarthritis, asthma,  emphysema,  chronic  bronchitis,  other
    51  chronic respiratory diseases and other conditions. The program shall use
    52  recommendations  and  goals of the United States departments of agricul-
    53  ture and health and human services, the surgeon general and centers  for
    54  disease control and prevention in developing and implementing guidelines
    55  for nutrition education and physical activity projects as part of obesi-
    56  ty  prevention  efforts.  The  content and implementation of the program
        A. 4424--B                          3

     1  shall stress the benefits of choosing a balanced,  healthful  diet  from
     2  the many options available to consumers[, without specifically targeting
     3  the  elimination  of any particular food group, food product or food-re-
     4  lated industry] while specifically including education on access and the
     5  nutritional  value  of  locally grown foods and food products including,
     6  but not limited to dairy,  fruit  and  vegetable  food  products.    The
     7  program  shall  cooperate with the department of agriculture and markets
     8  to add access to locally grown foods and food  products  including,  but
     9  not  limited  to  dairy,  fruit  and  vegetable food products within the
    10  guidelines and framework of the program.
    11    § 5. Severability.  If any part or provision of this act or its appli-
    12  cation to a person  is  held  invalid,  the  invalidity  of  that  part,
    13  provision  or  application  does  not  affect other parts, provisions or
    14  applications of this act that can be given effect  without  the  invalid
    15  provision or application.
    16    §  6.  This  act shall take effect on the thirtieth day after it shall
    17  have become a law.