Bill Text: NY A06884 | 2019-2020 | General Assembly | Introduced

Bill Title: Requires persons selling or offering to sell weight loss services or weight loss products to provide consumers with a weight loss and dieting information notice; sets forth such notice shall include the dangers of rapid weight loss, dieting information, and risks associated with certain medications used with weight loss programs; delineates deceptive practices; provides for penalties, including fines and injunctions; further provides for attorney general enforcement.

Spectrum: Partisan Bill (Democrat 10-0)

Status: (Engrossed) 2019-05-15 - REFERRED TO CONSUMER PROTECTION [A06884 Detail]

Download: New_York-2019-A06884-Introduced.html

                STATE OF NEW YORK
                               2019-2020 Regular Sessions
                   IN ASSEMBLY
                                     March 25, 2019
        Introduced  by  M. of A. COOK, ORTIZ, ZEBROWSKI -- Multi-Sponsored by --
          --  read  once  and  referred to the Committee on Consumer Affairs and
        AN ACT to amend the general  business  law,  in  relation  to  requiring
          persons  offering  weight  loss  services to provide notice of certain
          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    §  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
    21  any  other  products  sold or offered for the primary purpose of helping
    22  individuals reduce body weight.
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.

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     1    3. "Direct seller" shall mean any person if (a)  such  person  is  (i)
     2  engaged  in  the  trade or business of selling or soliciting the sale of
     3  consumer products to any buyer on a buy-sell basis or a  deposit-commis-
     4  sion  basis  for  resale by the buyer or any other person in the home or
     5  otherwise  than  in a permanent retail establishment, or (ii) engaged in
     6  the trade or business of selling or  soliciting  the  sale  of  consumer
     7  products  in the home or otherwise than in a permanent retail establish-
     8  ment;
     9    (b) substantially all the remuneration, whether or not paid  in  cash,
    10  for  the  performance of the services described in paragraph (a) of this
    11  subdivision is directly related to sales or other output, including  the
    12  performance of services, rather than to the number of hours worked; and
    13    (c)  the  services performed by the person are performed pursuant to a
    14  written contract between  such  person  and  the  person  for  whom  the
    15  services  are  performed and such contract provides that the person will
    16  not be treated as an employee with respect to such  services  for  state
    17  and federal tax purposes.
    18    §  642.  Weight  loss  services; notice. 1. Any person, firm or corpo-
    19  ration offering  weight  loss  services  or  weight  loss  services  and
    20  products  in  this  state  by  means of selling or offering to sell such
    21  services or products to the public shall either (i) conspicuously post a
    22  sign, measuring at least nine inches by fourteen inches, where consumers
    23  are offered the services or products, in writing, in at least ten  point
    24  print, or (ii) provide in writing, in at least ten point print, to indi-
    25  viduals  and  consumers  prior to the purchase of such goods or services
    26  the following notice or some other notice which  substantially  contains
    27  or provides the following information.
    28                      WEIGHT LOSS AND DIETING INFORMATION
    29    a. WARNING! Rapid weight loss may cause serious health problems. Rapid
    30  weight  loss  is  weight loss of more than 1 1/2 to 2 pounds per week or
    31  weight loss of more than 1 percent of body weight  per  week  after  the
    32  second week of participation in a weight loss program.
    33    b.  Consult  your physician before starting any weight loss program or
    34  using any diet medications or formulas.
    35    c. Long term weight control is the safest and most important  goal  of
    36  any  diet program. Permanent lifestyle changes such as eating nutritious
    37  foods, calorie control and increasing  physical  activity  help  promote
    38  long term weight loss according to medical experts.
    39    d.  Ask the person providing or selling you weight loss advice or diet
    40  products, medications or formulas about their qualifications and  train-
    41  ing in nutrition and health.
    42    e. You have the right to:
    43    (i)  Ask questions about the potential health risks of this program or
    44  product, its nutritional  content,  and  its  psychological-support  and
    45  educational components;
    46    (ii)  Know  the  price  of treatment, including the price of any extra
    47  products, services, supplements and laboratory tests; and
    48    (iii) Know the program duration of the program recommended to you.
    49    2. The provisions of this section shall not apply to  direct  sellers,
    50  retail  stores  or pharmacies selling weight loss products and providing
    51  information to the public regarding  individual  products,  unless  such
    52  businesses  offer  both  weight  loss services and weight loss products.
    53  Furthermore, the provisions of this section shall not  apply  to  weight
    54  loss  services  provided  to an individual by any person, firm or corpo-
    55  ration which provides weight loss services incidental to  their  primary

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     1  professional  services  to  such  individual and which does not offer to
     2  sell weight loss services or weight loss products to the public.
     3    § 643. Deceptive practices. It shall be a deceptive trade practice for
     4  any  person,  firm  or  corporation  offering  or  providing weight loss
     5  services or weight loss products to misrepresent, directly or  indirect-
     6  ly:
     7    1.  the potential health risks of the weight loss services or products
     8  offered;
     9    2. the success of participants  using  the  weight  loss  services  or
    10  products  offered  in  achieving  or  maintaining  weight loss or weight
    11  control. Any representation of successful weight loss or weight  control
    12  by  participants  will  be  considered misleading if the person, firm or
    13  corporation does not possess or rely upon a  reasonable  basis  for  the
    14  representation  at  the time it is disseminated. If a claim is made that
    15  scientific evidence supports the representation,  the  person,  firm  or
    16  corporation  must  possess  competent  and  reliable scientific evidence
    17  substantiating such claim. For the purposes of this subdivision, "compe-
    18  tent and reliable scientific evidence" shall mean those tests, analyses,
    19  research, studies or other evidence based on the  expertise  of  profes-
    20  sionals  in the relevant area, that have been conducted and evaluated in
    21  an objective manner by persons qualified  to  do  so,  using  procedures
    22  generally  accepted  in  the  profession  to yield accurate and reliable
    23  results;
    24    3. the  educational  and  professional  experience  of  the  personnel
    25  providing weight loss services or weight loss products;
    26    4. the total charges for any weight loss services and products; or
    27    5.  the  actual  or  estimated  duration of the use of the weight loss
    28  services or products offered.
    29    § 644. Local regulation. Nothing in this article shall be construed to
    30  restrict the power of any county, city, town or  village  to  adopt  and
    31  enforce  local  laws, ordinances or regulations which exceed the minimum
    32  requirements of this article, as long as such local laws, ordinances  or
    33  regulations  are  not  inconsistent with the provisions of this article.
    34  Any local laws or rules regulating weight loss services and products  in
    35  a  city  having  a  population  of one million or more and which were in
    36  effect prior to the effective  date  of  this  article  and  any  notice
    37  provided  pursuant to such law or rule, shall be deemed to be consistent
    38  with the provisions of this article.
    39    § 645. Penalties. Each day a person, firm or corporation violates  any
    40  provision  of this article shall constitute a single violation. Whenever
    41  there shall be a violation of this article, an application may  be  made
    42  by  the  attorney  general in the name of the people of the state of New
    43  York to a court or justice having jurisdiction by a  special  proceeding
    44  to  issue  an  injunction,  and upon notice to the defendant of not less
    45  than  five  days,  to  enjoin  and  restrain  the  continuance  of  such
    46  violations.  If it shall appear to the court or justice that the defend-
    47  ant has in fact, violated this article, an injunction may be  issued  by
    48  such  court or justice, enjoining and restraining any further violation,
    49  without requiring proof that any person has, in  fact  been  injured  or
    50  damaged  thereby. Whenever the court shall determine that a violation of
    51  this article has occurred, the court may impose a civil penalty  of  not
    52  more  than  one  hundred dollars for the first violation and two hundred
    53  dollars for each violation thereafter, but in no event shall  the  total
    54  penalty  therefor  exceed  one  thousand dollars. In connection with any
    55  such application, the attorney general is authorized to take  proof  and

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     1  make  a  determination  of  the relevant facts and to issue subpoenas in
     2  accordance with the civil practice law and rules.
     3    § 2. This act shall take effect on the one hundred eightieth day after
     4  it shall have become a law.