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

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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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 14-0)

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--A

                               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

        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.
    21    § 3. Section 350-a of the general business law is  amended  by  adding
    22  three new subdivisions 4, 5 and 6 to read as follows:

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD01982-03-3
        A. 4424--A                          2

     1    4.    In determining whether any advertising concerning a food or food
     2  product is false or misleading, factors shall include, but not be limit-
     3  ed to:
     4    (a)  Whether  the  advertisement  targets a consumer who is reasonably
     5  unable to protect their interests because of their age, physical infirm-
     6  ity, ignorance, illiteracy, inability to understand the language  of  an
     7  agreement, or similar factor.
     8    (b) Whether the advertisement is an unfair act, practice or conduct.
     9    (c)  For  the purposes of this subdivision and subdivision six of this
    10  section, a "consumer" is defined as a  person  who  is  targeted  by  an
    11  advertisement, or those acting on such a person's behalf.
    12    5.  For  the  purposes of this section, for a consumer:  an act, prac-
    13  tice, or conduct is "unfair" where it:
    14    (a)    causes or is likely to cause substantial injury to such consum-
    15  er;
    16    (b)   cannot be reasonably avoided by such consumer; and
    17    (c) is not outweighed by countervailing benefits to such  consumer  or
    18  to competition.
    19    6.  For purposes of paragraph (a) of subdivision four of this section,
    20  special consideration shall be given to  advertisements  directed  at  a
    21  child  as  defined  in  section  three hundred seventy-one of the social
    22  services law. In determining whether an advertisement concerning a  food
    23  or  food  product is directed at a child, factors shall include, but not
    24  be limited to:
    25    (a) Subject matter;
    26    (b) Visual content;
    27    (c) Use of animated characters or child-oriented activities and incen-
    28  tives;
    29    (d) Music or other audio content;
    30    (e) Age of models;
    31    (f) Presence of child celebrities or celebrities who appeal  to  chil-
    32  dren;
    33    (g) Language;
    34    (h)  Competent  and  reliable  empirical  evidence  regarding audience
    35  composition and evidence regarding the intended audience;
    36    (i) Physical location of advertisement, including, but not limited to,
    37  proximity to schools or other institutions frequented by children;
    38    (j) Medium by which the advertisement is communicated, including,  but
    39  not limited to, social media; or
    40    (k) Other similar factors.
    41    §  4.  Subdivision  3 of section 350-e of the general business law, as
    42  amended by chapter 328 of the laws  of  2007,  is  amended  to  read  as
    43  follows:
    44    3.  Any  person  who  has  been  injured by reason of any violation of
    45  section three hundred fifty or three hundred fifty-a of this article may
    46  bring an action in his or her own name to enjoin such  unlawful  act  or
    47  practice, an action to recover his or her actual damages or five hundred
    48  dollars,  whichever  is greater, or both such actions. The court may, in
    49  its discretion, increase the award of damages to an amount not to exceed
    50  three times the actual damages, up to ten thousand dollars, if the court
    51  finds that the defendant willfully or knowingly violated this section or
    52  engaged in advertising directed at a child  pursuant  to  section  three
    53  hundred  fifty-a  of this article. The court may award reasonable attor-
    54  ney's fees to a prevailing plaintiff.
        A. 4424--A                          3

     1    § 5. Subdivision 1 of section 2599-b of  the  public  health  law,  as
     2  amended  by  section  1 of part A of chapter 469 of the laws of 2015, is
     3  amended to read as follows:
     4    1.  The  program shall be designed to prevent and reduce the incidence
     5  and prevalence of obesity in children and adolescents, especially  among
     6  populations  with  high  rates  of  obesity  and  obesity-related health
     7  complications including, but not limited to,  diabetes,  heart  disease,
     8  cancer,  osteoarthritis,  asthma,  emphysema,  chronic bronchitis, other
     9  chronic respiratory diseases and other conditions. The program shall use
    10  recommendations and goals of the United States departments  of  agricul-
    11  ture  and health and human services, the surgeon general and centers for
    12  disease control and prevention in developing and implementing guidelines
    13  for nutrition education and physical activity projects as part of obesi-
    14  ty prevention efforts. The content and  implementation  of  the  program
    15  shall  stress  the  benefits of choosing a balanced, healthful diet from
    16  the many options available to consumers[, without specifically targeting
    17  the elimination of any particular food group, food product  or  food-re-
    18  lated industry] while specifically including education on access and the
    19  nutritional  value  of  locally grown foods and food products including,
    20  but not limited to dairy,  fruit  and  vegetable  food  products.    The
    21  program  shall  cooperate with the department of agriculture and markets
    22  to add access to locally grown foods and food  products  including,  but
    23  not  limited  to  dairy,  fruit  and  vegetable food products within the
    24  guidelines and framework of the program.
    25    § 6. Severability.  If any part or provision of this act or its appli-
    26  cation to a person  is  held  invalid,  the  invalidity  of  that  part,
    27  provision  or  application  does  not  affect other parts, provisions or
    28  applications of this act that can be given effect  without  the  invalid
    29  provision or application.
    30    §  7.  This  act shall take effect on the thirtieth day after it shall
    31  have become a law.