Bill Text: NY S07487 | 2021-2022 | General Assembly | Amended
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 6-0)
Status: (Introduced - Dead) 2022-05-25 - PRINT NUMBER 7487C [S07487 Detail]
Download: New_York-2021-S07487-Amended.html
STATE OF NEW YORK ________________________________________________________________________ 7487--C 2021-2022 Regular Sessions IN SENATE October 27, 2021 ___________ Introduced by Sens. MYRIE, BIAGGI, BROUK, HOYLMAN, RAMOS -- read twice and ordered printed, and when printed to be committed to the Committee on Rules -- recommitted to the Committee on Agriculture in accordance with Senate Rule 6, sec. 8 -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee -- reported favorably from said commit- tee and committed to the Committee on Health -- 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 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. 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 EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD13338-15-2S. 7487--C 2 1 legislature finds that unfair and deceptive marketing targeted at chil- 2 dren can mislead and manipulate children into lifelong habits, and that 3 such unfair and deceptive advertising should be regulated accordingly. 4 § 2. Section 202-a of the agriculture and markets law is amended by 5 adding a new subdivision 4 to read as follows: 6 4. Whenever the court shall determine that a violation of this section 7 has occurred, the court shall consider factors and special consideration 8 given to advertising directed at a child pursuant to section three 9 hundred fifty-a of general business law. 10 § 3. Section 350-a of general business law is amended by adding five 11 new subdivisions 4, 5, 6, 7, and 8 to read as follows: 12 4. In determining whether advertising of a food or food product is 13 misleading, there shall be taken into account any representations 14 disseminated in any manner or by any means including digitally, or by 15 statement, word, design, device, sound or any combination thereof, for 16 the purpose of inducing, or which are likely to induce, directly or 17 indirectly, the purchase of food or food products shall not be false or 18 misleading in any manner. In determining whether any advertising 19 concerning a food or food product is false or misleading, factors shall 20 include, but not be limited to: 21 (a) The extent to which the advertising fails to reveal facts material 22 in the light of such representations with respect to the food or food 23 product to which the advertising relates under the conditions prescribed 24 in said advertisement, or under such conditions as are customary or 25 usual; 26 (b) Whether the entity responsible for the advertisement targeting a 27 consumer who is reasonably unable to protect their interests because of 28 their age, physical infirmity, ignorance, illiteracy, inability to 29 understand the language of an agreement, or similar factor used: 30 (i) an unfair act, practice, or conduct; or 31 (ii) a deceptive representation, omission, practice, or content; and 32 (c) Whether: (i) the advertisement causes or is likely to cause 33 substantial injury to consumers; (ii) the injury is not reasonably 34 avoidable by consumers; and (iii) the injury is not outweighed by coun- 35 tervailing benefits to consumers or to competition. 36 (d) For the purposes of this subdivision and subdivision six of this 37 section, a "consumer" is defined as a person who is targeted by and 38 exposed to an advertisement, or those acting on such a person's behalf. 39 5. For the purposes of paragraph (a) of subdivision four of this 40 section, a true statement of information in brief summary relating to 41 effects of substantial consumption of this product is sufficient. 42 Untrue or misleading information in any part of the advertisement will 43 not be corrected by the inclusion in another distinct part of the adver- 44 tisement of a brief statement containing true information relating to 45 the effects of consumption. 46 6. For the purposes of this section, for a consumer: 47 (a) an act, practice, or conduct is "unfair" where it: 48 (i) causes or is likely to cause substantial injury to such consum- 49 er; 50 (ii) cannot be reasonably avoided by such consumer; and 51 (iii) is not outweighed by countervailing benefits to such consumer or 52 to competition. 53 (b) a representation, omission, or practice is "deceptive" where: 54 (i) it is likely to mislead such consumer; 55 (ii) such consumer's interpretation of the representation, omission, 56 or practice is considered reasonable under the circumstances; andS. 7487--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 targeting52the elimination of any particular food group, food product or food-re-53lated 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.S. 7487--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.
