Bill Text: NY S00577 | 2017-2018 | General Assembly | Introduced
Bill Title: Prohibits the sale and distribution of sexual performance dietary supplements or foods containing an unsafe sexual performance food additive; establishes penalties for violations; requires the department of agriculture and markets to perform inspections and the department of health to provide information on products on its website; requires the department of agriculture and markets to implement an outreach program to inform wholesalers, manufacturers, and retailers of the ban on sexual performance dietary supplements and food additives.
Sponsorship: Partisan Bill (Democrat 1)
Status: (Introduced - Dead) 2018-01-03 - REFERRED TO CONSUMER PROTECTION [S00577 Detail]
Download: New_York-2017-S00577-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 577 2017-2018 Regular Sessions IN SENATE (Prefiled) January 4, 2017 ___________ Introduced by Sen. PERALTA -- read twice and ordered printed, and when printed to be committed to the Committee on Consumer Protection AN ACT to amend the general business law, in relation to prohibiting the sale and distribution of sexual performance dietary supplements or foods containing an unsafe sexual performance food additive; and to amend the tax law and alcoholic beverage control law, in relation to the denial, suspension or cancellation of certain licenses for repeated violations of the ban on the sale of sexual performance dietary supplements or foods containing an unsafe sexual performance 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-u to read as follows: 3 § 391-u. Sexual performance dietary supplements and food additives; 4 prohibition. 1. No person, firm, corporation, partnership, association, 5 limited liability company or other entity shall sell or offer to sell or 6 give away, as either a retail or wholesale promotion, by any means 7 including via the internet, a sexual performance dietary supplement or a 8 food containing an unsafe sexual performance food additive to any 9 person, firm, corporation, partnership, association, limited liability 10 company or other entity located within the state. 11 2. For purposes of this section, the following terms have the follow- 12 ing meanings: 13 (a) "dietary supplement" means (1) a product that is intended to 14 supplement the diet and that bears or contains one or more of the 15 following dietary ingredients: a vitamin, a mineral, an herb or other 16 botanical, an amino acid, or any other dietary substance for the use by 17 a person to supplement the diet by increasing the total daily intake, or 18 a concentrate, metabolite, constituent, extract or combinations of these EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD00147-01-7S. 577 2 1 ingredients; (2) intended for ingestion in any manner including but not 2 limited to pill, capsule, tablet, powder or liquid form; and (3) labeled 3 as a "dietary supplement" pursuant to the federal Dietary Supplement 4 Health and Education Act, 21 U.S.C. 321, as amended. 5 (b) "sexual performance dietary supplement" means a dietary supple- 6 ment, which is sold, marketed or distributed to enhance or increase a 7 person's sexual performance or to treat erectile dysfunction including, 8 but not limited to, supplements containing the active ingredients tada- 9 lafil or sildenafil or analogs thereof. 10 (c) "food" means all articles of food, drink, confectionery or condi- 11 ment, whether simple, mixed or compound, used or intended for use by 12 humans, and shall also include all substances or ingredients to be added 13 to food for any purpose. Such term shall include chewing gum and oral 14 dissolvable strips. 15 (d) "unsafe sexual performance food additive" means a food additive 16 that contains ingredients marketed to enhance or increase sexual 17 performance or to treat erectile dysfunction that has not been recog- 18 nized by the commissioner of agriculture and markets as safe, for the 19 purpose of enforcement of article seventeen of the agriculture and 20 markets law. 21 3. Nothing in this section shall apply to nonprescription over-the- 22 counter drugs approved or regulated by the federal Food and Drug Admin- 23 istration. 24 4. (a) Any person, firm, corporation, partnership, association, limit- 25 ed liability company or other entity that violates the provisions of 26 this section by selling, offering to sell or giving away as either a 27 retail or wholesale promotion, a sexual performance dietary supplement 28 or a food that contained an unsafe sexual performance food additive, 29 shall be subject to a penalty of not more than two thousand dollars for 30 a first violation, a penalty of not more than five thousand dollars for 31 a second violation, and upon a third or subsequent violation, the 32 denial, suspension or cancellation of any state issued license for the 33 sale of alcohol, cigarettes or lottery tickets for a period of five 34 years, recoverable in an action by any enforcement authority designated 35 by any municipality or political subdivision. The enforcement authority 36 shall notify the department of agriculture and markets of any violation 37 of this section. 38 (b) The department of agriculture and markets shall establish and 39 maintain an internal database of violations of this section including 40 the name and address of the violator, the number of violations committed 41 by such person or entity and a description of each violation. Upon a 42 third or subsequent violation, after notification by the enforcement 43 authority, the department of agriculture and markets shall notify the 44 appropriate state agency to deny, suspend or cancel a violator's license 45 for the sale of alcohol, cigarettes or lottery tickets for a period of 46 five years. 47 5. It shall be a defense that any person, firm, corporation, partner- 48 ship, association, limited liability company or other entity that sold, 49 offered for sale or gave away, for either retail, wholesale or promo- 50 tional purposes, a dietary supplement, did not have knowledge that the 51 dietary supplement was a sexual performance dietary supplement, or that 52 the food contained an unsafe sexual performance food additive, if such 53 knowledge was not reasonably discoverable. 54 6. Every place located within this state, where dietary supplements 55 and food are sold, shall be subject to inspection by the department of 56 agriculture and markets which shall have the power to inspect theS. 577 3 1 products covered by this section, to open and examine the contents ther- 2 eof and the power to seize and hold for evidence any product, in whole 3 or in part, which the department of agriculture and markets has reason 4 to believe is sold in violation of this section. 5 7. The department of health, in conjunction with the department of 6 agriculture and markets, shall establish and maintain a database of 7 known sexual performance dietary supplements or unsafe sexual perform- 8 ance food additives. The database shall be published on the department 9 of health's website so that consumers, retailers and law enforcement 10 agencies can access information including, but not limited to, a list of 11 the brand names of products known to violate this section and images of 12 their packaging. The website shall include a statement indicating that 13 such information is being provided as a resource for consumers, retail- 14 ers and law enforcement; and such information may not be comprehensive. 15 Neither the department of health nor the department of agriculture and 16 markets shall be liable for any economic harm, personal injury or death 17 that may result from information included in or omitted from the data- 18 base. 19 8. (a) Within thirty days of the effective date of this section, the 20 department of agriculture and markets shall develop and implement an 21 outreach program, in the manner it deems most effective, to inform 22 wholesalers, manufacturers and retailers of the prohibition on the sale 23 of sexual performance dietary supplements and food containing unsafe 24 sexual performance food additives under this section and the penalties 25 for a violation of this section. 26 (b) The department of agriculture and markets is authorized and 27 empowered to enter into contractual agreements with public and private 28 organizations to develop and implement such an outreach program. 29 § 2. Paragraphs (e) and (f) of subdivision 2 of section 480 of the tax 30 law, as amended by chapter 744 of the laws of 1990, are amended and a 31 new paragraph (g) is added to read as follows: 32 (e) Any controlling person of such applicant has committed any of the 33 acts specified in subdivision three of this section within the preceding 34 five years, [or] 35 (f) Such applicant or any controlling person has been finally deter- 36 mined to have violated any of the provisions of this article or article 37 twenty-A of this chapter, or any rule or regulation adopted pursuant to 38 this article or article twenty-A of this chapter[.], or 39 (g) Such applicant or any controlling person has been determined to 40 have violated subdivision one of section three hundred ninety-one-u of 41 the general business law, three or more times during a period of five 42 years, in such case the violator shall be denied a license for a period 43 of five years after the last such violation. 44 § 3. Subparagraphs (iii) and (iv) of paragraph (b) of subdivision 3 of 45 section 480 of the tax law, subparagraph (iii) as added by chapter 860 46 of the laws of 1987 and subparagraph (iv) as amended by chapter 61 of 47 the laws of 1989, are amended and a new subparagraph (v) is added to 48 read as follows: 49 (iii) Has impersonated any person represented to be a wholesale dealer 50 under this article but not in fact licensed under this section, [or] 51 (iv) Has knowingly aided and abetted the sale of cigarettes or tobacco 52 products by a person which such licensee or controlling person knows (A) 53 has not been licensed by the commissioner of taxation and finance and 54 (B) is a wholesale dealer pursuant to the terms of subdivision eight of 55 section four hundred seventy of this chapter[.], orS. 577 4 1 (v) Has been determined to have violated subdivision one of section 2 three hundred ninety-one-u of the general business law, three or more 3 times during a period of five years, in such case the violator's license 4 shall be cancelled or suspended for a period of five years. 5 § 4. Subdivision a of section 1605 of the tax law, as amended by chap- 6 ter 217 of the laws of 2011, is amended to read as follows: 7 a. The division may license as agents to sell lottery tickets such 8 persons as in its opinion will best serve public convenience, except 9 that no license shall be issued to any person to engage in business 10 exclusively as a lottery sales agent; and provided, further, that no 11 license shall be issued to any person who has been determined to have 12 violated subdivision one of section three hundred ninety-one-u of the 13 general business law, three or more times during a period of five years, 14 in such case the violator shall be denied a license for a period of five 15 years after the last such violation. The division may license such 16 persons as in its opinion are suitable to participate in video lottery 17 gaming pursuant to section sixteen hundred seventeen-a of this article. 18 § 5. Section 1607 of the tax law is amended by adding a new subdivi- 19 sion i to read as follows: 20 i. Three or more violations of subdivision one of section three 21 hundred ninety-one-u of the general business law, within any period of 22 five years, in which case, the division shall suspend the violator's 23 license for a period of five years. 24 § 6. Section 105 of the alcoholic beverage control law is amended by 25 adding a new subdivision 4 to read as follows: 26 4. No person shall receive a license to engage in the retail sale of 27 alcoholic beverages for off-premises consumption, who has been deter- 28 mined to have violated subdivision one of section three hundred ninety- 29 one-u of the general business law, three or more times during a period 30 of five years, in such case the violator shall be denied a license for a 31 period of five years after the last such violation. 32 § 7. Section 106 of the alcoholic beverage control law is amended by 33 adding a new subdivision 4-b to read as follows: 34 4-b. No person shall receive a license to engage in the retail sale of 35 alcoholic beverages for on premises consumption, who has been determined 36 to have violated subdivision one of section three hundred ninety-one-u 37 of the general business law, three or more times during a period of five 38 years, in such case the violator shall be denied a license for a period 39 of five years after the last such violation. 40 § 8. Section 118 of the alcoholic beverage control law is amended by 41 adding a new subdivision 1-a to read as follows: 42 1-a. A license or permit issued pursuant to this chapter shall be 43 suspended for a period of five years when the holder thereof has been 44 determined to have violated subdivision one of section three hundred 45 ninety-one-u of the general business law, three or more times during a 46 period of five years. 47 § 9. This act shall take effect on the one hundred eightieth day after 48 it shall have become a law.
