NY State Senate Bill 2015-S6074

Senate Bill S6074

2015-2016 Legislative Session

Prohibits the sale and distribution of sexual performance dietary supplements or foods containing an unsafe sexual performance food additive

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Archive: Last Bill Status - In Senate Committee Consumer Protection Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 06, 2016	referred to consumer protection
Oct 26, 2015	referred to rules

co-Sponsors

2015-S6074 (ACTIVE) - Details

Current Committee:: Senate Consumer Protection
Law Section:: General Business Law
Laws Affected:: Add §391-t, Gen Bus L; amd §§480, 1605 & 1607, Tax L; amd §§105, 106 & 118, ABC L
Versions Introduced in 2017-2018 Legislative Session:: S577

2015-S6074 (ACTIVE) - Summary

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.

2015-S6074 (ACTIVE) - Sponsor Memo

                                 BILL NUMBER:  S6074

 TITLE OF BILL :  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

 PURPOSE OR GENERAL IDEA OF BILL :

This bill amends the General Business Law, with regard to prohibiting
the sale of unregulated dietary supplements in New York State that are
marketed for the purposes of enhancing sexual performance and/or
curing the symptoms of erectile dysfunction. Where the U.S. Food and
Drug Administration has issued a series of public safety notifications
regarding hidden ingredients in these products, many of which are
manufactured overseas, their continued sale represents an unreasonable
threat to the health and safety of New Yorkers.

 SUMMARY OF SPECIFIC PROVISIONS :

Section 1 amends the General Business Law by adding a new Section
391-t, relating to a prohibition upon "sexual performance dietary

supplements and food additives in New York State. The Section defines
products covered by this legislation, including "dietary supplement,"
"sexual performance dietary supplement," "food," and "unsafe sexual
performance food additive." The Section further enumerates penalties
for violations of the Section by retailers and creates enforcement
power at the Department of Agriculture and Markets, including routine
inspections that may be conducted by this Department. Section 1 also
mandates that the New York State Department of Health create a website
containing information and images pertaining to violating products
that are in the marketplace.

Section 2 sets forth the effective date of this legislation.

 JUSTIFICATION :

The sale of unregulated dietary supplements marketed to enhance sexual
performance and/or cure the symptoms of erectile dysfunction has
become an all too common practice in the State of New York. In every
corner of the State, consumers can obtain these potentially dangerous
products at neighborhood convenience stores. Often sold in packaging
that includes explicit sexual imagery and claims appealing to a
consumer's desire to achieve heightened sexual satisfaction, many of
these dietary supplements are wholly manufactured abroad or contain
ingredients that are produced overseas with little to no regulatory
oversight. During two months alone in 2015, the U.S. Food and Drug
Administration ("FDA") issued twenty-five public safety notifications
warning that these commonly available products contained "hidden drug
ingredient s ." Among the ingredients not included on product labels
were sildenafil and tadalafil, the active ingredients in FDA-approved
Viagra and Cialis, as well as dapoxetine, an anti-depressant not
approved for use in the United States. In fact, the FDA found that
some supplements contained a pooling of up to six ingredients that did
not readily appear on product labeling.

Where effective FDA-approved medications to treat erectile dysfunction
are available for sale in the United States, the continued sale of
unevaluated and unapproved over-the-counter supplements represents an
unnecessary harm to the people of New York. In the recent case of
basketball star Lamar Odom in Nevada, the inherent danger of these
supplements was made abundantly clear as Odom fell into a coma after
ingesting several of these supplement pills over the course of a few
days. The FDA itself warns of potentially dangerous interactions
between Viagra and Cialis with other common medical conditions,
including a weak heart, further necessitating the need for a patient
to obtain treatment under the care of a doctor.

 PRIOR LEGISLATIVE HISTORY :

This is a new bill.

 FISCAL IMPLICATIONS :

To be determined.

 EFFECTIVE DATE :
This act shall take effect on the one hundred eightieth day after it
shall have become a law.

2015-S6074 (ACTIVE) - Bill Text download pdf

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  6074

                       2015-2016 Regular Sessions

                            I N  S E N A T E

                            October 26, 2015
                               ___________

Introduced  by  Sens.  PERALTA, KLEIN -- read twice and ordered printed,
  and when printed to be committed to the Committee on Rules

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:

  Section 1. The general business law is amended by adding a new section
391-t to read as follows:
  S  391-T.  SEXUAL  PERFORMANCE DIETARY SUPPLEMENTS AND FOOD ADDITIVES;
PROHIBITION. 1. NO PERSON, FIRM, CORPORATION, PARTNERSHIP,  ASSOCIATION,
LIMITED  LIABILITY  COMPANY, OR OTHER ENTITY SHALL SELL OR OFFER TO SELL
OR GIVE AWAY, AS EITHER A RETAIL OR WHOLESALE PROMOTION,  BY  ANY  MEANS
INCLUDING VIA THE INTERNET, A SEXUAL PERFORMANCE DIETARY SUPPLEMENT OR A
FOOD  CONTAINING  AN  UNSAFE  SEXUAL  PERFORMANCE  FOOD  ADDITIVE TO ANY
PERSON, FIRM, CORPORATION, PARTNERSHIP, ASSOCIATION,  LIMITED  LIABILITY
COMPANY, OR OTHER ENTITY LOCATED WITHIN NEW YORK STATE.
  2.  FOR PURPOSES OF THIS SECTION, THE FOLLOWING TERMS HAVE THE FOLLOW-
ING MEANINGS:
  (A) "DIETARY SUPPLEMENT" MEANS (1)  A  PRODUCT  THAT  IS  INTENDED  TO
SUPPLEMENT  THE  DIET  AND  THAT  BEARS  OR  CONTAINS ONE OR MORE OF THE
FOLLOWING DIETARY INGREDIENTS: A VITAMIN, A MINERAL, AN  HERB  OR  OTHER
BOTANICAL,  AN AMINO ACID, OR ANY OTHER DIETARY SUBSTANCE FOR THE USE BY
A PERSON TO SUPPLEMENT THE DIET BY INCREASING THE TOTAL DAILY INTAKE, OR
A CONCENTRATE, METABOLITE,  CONSTITUENT,  EXTRACT,  OR  COMBINATIONS  OF
THESE  INGREDIENTS;  (2)  INTENDED FOR INGESTION IN ANY MANNER INCLUDING

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD13054-05-5

S. 6074                             2

BUT NOT LIMITED TO PILL, CAPSULE, TABLET, POWDER, OR  LIQUID  FORM;  AND
(3)  LABELED  AS  A "DIETARY SUPPLEMENT" PURSUANT TO THE FEDERAL DIETARY
SUPPLEMENT HEALTH AND EDUCATION ACT, 21 U.S.C. 321, AS AMENDED.
  (B)  "SEXUAL  PERFORMANCE  DIETARY SUPPLEMENT" MEANS A DIETARY SUPPLE-
MENT, WHICH IS SOLD, MARKETED OR DISTRIBUTED TO ENHANCE  OR  INCREASE  A
PERSON'S  SEXUAL PERFORMANCE OR TO TREAT ERECTILE DYSFUNCTION INCLUDING,
BUT NOT LIMITED TO, SUPPLEMENTS CONTAINING THE ACTIVE INGREDIENTS  TADA-
LAFIL OR SILDENAFIL OR ANALOGS THEREOF.
  (C)  "FOOD" MEANS ALL ARTICLES OF FOOD, DRINK, CONFECTIONERY OR CONDI-
MENT, WHETHER SIMPLE, MIXED OR COMPOUND, USED OR  INTENDED  FOR  USE  BY
HUMANS, AND SHALL ALSO INCLUDE ALL SUBSTANCES OR INGREDIENTS TO BE ADDED
TO  FOOD  FOR  ANY PURPOSE. SUCH TERM SHALL INCLUDE CHEWING GUM AND ORAL
DISSOLVABLE STRIPS.
  (D) "UNSAFE SEXUAL PERFORMANCE FOOD ADDITIVE" MEANS  A  FOOD  ADDITIVE
THAT  CONTAINS  INGREDIENTS  MARKETED  TO  ENHANCE  OR  INCREASE  SEXUAL
PERFORMANCE OR TO TREAT ERECTILE DYSFUNCTION THAT HAS  NOT  BEEN  RECOG-
NIZED  BY  THE  COMMISSIONER OF AGRICULTURE AND MARKETS AS SAFE, FOR THE
PURPOSE OF ENFORCEMENT OF  ARTICLE  SEVENTEEN  OF  THE  AGRICULTURE  AND
MARKETS LAW.
  3.   NOTHING   IN   THIS   SECTION   SHALL  APPLY  TO  NONPRESCRIPTION
OVER-THE-COUNTER DRUGS APPROVED OR REGULATED BY THE FOOD AND DRUG ADMIN-
ISTRATION.
  4. (A) ANY PERSON, FIRM, CORPORATION, PARTNERSHIP, ASSOCIATION, LIMIT-
ED LIABILITY COMPANY, OR OTHER ENTITY THAT VIOLATES  THE  PROVISIONS  OF
THIS  SECTION  BY  SELLING, OFFERING TO SELL, OR GIVING AWAY AS EITHER A
RETAIL OR WHOLESALE PROMOTION, A SEXUAL PERFORMANCE  DIETARY  SUPPLEMENT
OR  A  FOOD  THAT  CONTAINED AN UNSAFE SEXUAL PERFORMANCE FOOD ADDITIVE,
SHALL BE SUBJECT TO A PENALTY OF NOT MORE THAN TWO THOUSAND DOLLARS  FOR
A  FIRST VIOLATION, A PENALTY OF NOT MORE THAN FIVE THOUSAND DOLLARS FOR
A SECOND VIOLATION, AND UPON A THIRD VIOLATION, THE  DENIAL,  SUSPENSION
OR  CANCELLATION  OF  ANY  STATE ISSUED LICENSE FOR THE SALE OF ALCOHOL,
CIGARETTES OR LOTTERY TICKETS FOR A PERIOD OF FIVE YEARS, RECOVERABLE IN
AN ACTION BY ANY ENFORCEMENT AUTHORITY DESIGNATED BY ANY MUNICIPALITY OR
POLITICAL  SUBDIVISION.  THE  ENFORCEMENT  AUTHORITY  SHALL  NOTIFY  THE
DEPARTMENT OF AGRICULTURE AND MARKETS OF ANY VIOLATION OF THIS SECTION.
  (B)  THE  DEPARTMENT  OF  AGRICULTURE  AND MARKETS SHALL ESTABLISH AND
MAINTAIN AN INTERNAL DATABASE OF VIOLATIONS OF  THIS  SECTION  INCLUDING
THE NAME AND ADDRESS OF THE VIOLATOR, THE NUMBER OF VIOLATIONS COMMITTED
BY  SUCH  PERSON  OR  ENTITY AND A DESCRIPTION OF EACH VIOLATION. UPON A
THIRD VIOLATION, AFTER NOTIFICATION BY THE  ENFORCEMENT  AUTHORITY,  THE
DEPARTMENT OF AGRICULTURE AND MARKETS SHALL NOTIFY THE APPROPRIATE STATE
AGENCY  TO  DENY, SUSPEND OR CANCEL A VIOLATOR'S LICENSE FOR THE SALE OF
ALCOHOL, CIGARETTES OR LOTTERY TICKETS FOR A PERIOD OF FIVE YEARS.
  5. IT SHALL BE A DEFENSE THAT ANY PERSON, FIRM, CORPORATION,  PARTNER-
SHIP,  ASSOCIATION, LIMITED LIABILITY COMPANY OR OTHER ENTITY THAT SOLD,
OFFERED FOR SALE OR GAVE AWAY, FOR EITHER RETAIL,  WHOLESALE  OR  PROMO-
TIONAL  PURPOSES,  A DIETARY SUPPLEMENT, DID NOT HAVE KNOWLEDGE THAT THE
DIETARY SUPPLEMENT WAS A SEXUAL PERFORMANCE DIETARY SUPPLEMENT, OR  THAT
THE  FOOD  CONTAINED AN UNSAFE SEXUAL PERFORMANCE FOOD ADDITIVE, IF SUCH
KNOWLEDGE WAS NOT REASONABLY DISCOVERABLE.
  6. EVERY PLACE LOCATED WITHIN THIS STATE,  WHERE  DIETARY  SUPPLEMENTS
AND  FOOD  ARE SOLD, SHALL BE SUBJECT TO INSPECTION BY THE DEPARTMENT OF
AGRICULTURE AND MARKETS WHICH  SHALL  HAVE  THE  POWER  TO  INSPECT  THE
PRODUCTS COVERED BY THIS SECTION, TO OPEN AND EXAMINE THE CONTENTS THER-
EOF  AND  THE POWER TO SEIZE AND HOLD FOR EVIDENCE ANY PRODUCT, IN WHOLE

S. 6074                             3

OR IN PART, WHICH THE DEPARTMENT OF AGRICULTURE AND MARKETS  HAS  REASON
TO BELIEVE IS SOLD IN VIOLATION OF THIS SECTION.
  7.  THE  DEPARTMENT  OF  HEALTH, IN CONJUNCTION WITH THE DEPARTMENT OF
AGRICULTURE AND MARKETS, SHALL ESTABLISH  AND  MAINTAIN  A  DATABASE  OF
KNOWN  SEXUAL  PERFORMANCE DIETARY SUPPLEMENTS OR UNSAFE SEXUAL PERFORM-
ANCE FOOD ADDITIVES. THE DATABASE SHALL BE PUBLISHED ON  THE  DEPARTMENT
OF  HEALTH'S  WEBSITE  SO THAT CONSUMERS, RETAILERS, AND LAW ENFORCEMENT
AGENCIES CAN ACCESS INFORMATION INCLUDING, BUT NOT LIMITED TO, A LIST OF
THE BRAND NAMES OF PRODUCTS KNOWN TO VIOLATE THIS SECTION AND IMAGES  OF
THEIR  PACKAGING.  THE WEBSITE SHALL INCLUDE A STATEMENT INDICATING THAT
SUCH INFORMATION IS BEING PROVIDED AS A RESOURCE FOR CONSUMERS,  RETAIL-
ERS, AND LAW ENFORCEMENT; AND SUCH INFORMATION MAY NOT BE COMPREHENSIVE.
NEITHER  THE  DEPARTMENT OF HEALTH NOR THE DEPARTMENT OF AGRICULTURE AND
MARKETS SHALL BE LIABLE FOR ANY ECONOMIC HARM, PERSONAL INJURY, OR DEATH
THAT MAY RESULT FROM INFORMATION INCLUDED IN, OR OMITTED FROM, THE DATA-
BASE.
  8. (A) WITHIN THIRTY DAYS OF THE EFFECTIVE DATE OF THIS  SECTION,  THE
DEPARTMENT  OF  AGRICULTURE  AND  MARKETS SHALL DEVELOP AND IMPLEMENT AN
OUTREACH PROGRAM, IN THE MANNER  IT  DEEMS  MOST  EFFECTIVE,  TO  INFORM
WHOLESALERS,  MANUFACTURERS AND RETAILERS OF THE PROHIBITION ON THE SALE
OF SEXUAL PERFORMANCE DIETARY SUPPLEMENTS  AND  FOOD  CONTAINING  UNSAFE
SEXUAL  PERFORMANCE  FOOD ADDITIVES UNDER THIS SECTION AND THE PENALTIES
FOR A VIOLATION OF THIS SECTION.
  (B) THE DEPARTMENT  OF  AGRICULTURE  AND  MARKETS  IS  AUTHORIZED  AND
EMPOWERED  TO  ENTER INTO CONTRACTUAL AGREEMENTS WITH PUBLIC AND PRIVATE
ORGANIZATIONS TO DEVELOP AND IMPLEMENT SUCH AN OUTREACH PROGRAM.
  S 2. Paragraphs (e) and (f) of subdivision 2 of section 480 of the tax
law, as amended by chapter 744 of the laws of 1990, are  amended  and  a
new paragraph (g) is added to read as follows:
  (e)  Any controlling person of such applicant has committed any of the
acts specified in subdivision three of this section within the preceding
five years, [or]
  (f) Such applicant or any controlling person has been  finally  deter-
mined  to have violated any of the provisions of this article or article
twenty-A of this chapter, or any rule or regulation adopted pursuant  to
this article or article twenty-A of this chapter[.], OR
  (G)  SUCH  APPLICANT  OR ANY CONTROLLING PERSON HAS BEEN DETERMINED TO
HAVE VIOLATED SUBDIVISION ONE OF SECTION THREE HUNDRED  NINETY-ONE-T  OF
THE  GENERAL  BUSINESS  LAW, THREE OR MORE TIMES DURING A PERIOD OF FIVE
YEARS, IN SUCH CASE THE VIOLATOR SHALL BE DENIED A LICENSE FOR A  PERIOD
OF FIVE YEARS AFTER THE LAST SUCH VIOLATION.
  S 3. Subparagraphs (iii) and (iv) of paragraph (b) of subdivision 3 of
section  480  of the tax law, subparagraph (iii) as added by chapter 860
of the laws of 1987 and subparagraph (iv) as amended by  chapter  61  of
the  laws  of  1989,  are amended and a new subparagraph (v) is added to
read as follows:
  (iii) Has impersonated any person represented to be a wholesale dealer
under this article but not in fact licensed under this section, [or]
  (iv) Has knowingly aided and abetted the sale of cigarettes or tobacco
products by a person which such licensee or controlling person knows (A)
has not been licensed by the commissioner of taxation  and  finance  and
(B)  is a wholesale dealer pursuant to the terms of subdivision eight of
section four hundred seventy of this chapter[.], OR
  (V) HAS BEEN DETERMINED TO HAVE VIOLATED SUBDIVISION  ONE  OF  SECTION
THREE  HUNDRED  NINETY-ONE-T  OF THE GENERAL BUSINESS LAW, THREE OR MORE

S. 6074                             4

TIMES DURING A PERIOD OF FIVE YEARS, IN SUCH CASE THE VIOLATOR'S LICENSE
SHALL BE CANCELLED OR SUSPENDED FOR A PERIOD OF FIVE YEARS.
  S 4. Subdivision a of section 1605 of the tax law, as amended by chap-
ter 217 of the laws of 2011, is amended to read as follows:
  a.  The  division  may  license as agents to sell lottery tickets such
persons as in its opinion will best  serve  public  convenience,  except
that  no  license  shall  be  issued to any person to engage in business
exclusively as a lottery sales agent; AND  PROVIDED,  FURTHER,  THAT  NO
LICENSE  SHALL  BE  ISSUED TO ANY PERSON WHO HAS BEEN DETERMINED TO HAVE
VIOLATED SUBDIVISION ONE OF SECTION THREE HUNDRED  NINETY-ONE-T  OF  THE
GENERAL BUSINESS LAW, THREE OR MORE TIMES DURING A PERIOD OF FIVE YEARS,
IN SUCH CASE THE VIOLATOR SHALL BE DENIED A LICENSE FOR A PERIOD OF FIVE
YEARS  AFTER  THE  LAST  SUCH VIOLATION.   The division may license such
persons as in its opinion are suitable to participate in  video  lottery
gaming pursuant to section sixteen hundred seventeen-a of this article.
  S  5.  Section 1607 of the tax law is amended by adding a new subdivi-
sion i to read as follows:
  I. THREE OR MORE  VIOLATIONS  OF  SUBDIVISION  ONE  OF  SECTION  THREE
HUNDRED  NINETY-ONE-T  OF THE GENERAL BUSINESS LAW, WITHIN ANY PERIOD OF
FIVE YEARS, IN WHICH CASE, THE DIVISION  SHALL  SUSPEND  THE  VIOLATOR'S
LICENSE FOR A PERIOD OF FIVE YEARS.
  S  6.  Section 105 of the alcoholic beverage control law is amended by
adding a new subdivision 4 to read as follows:
  4. NO PERSON SHALL RECEIVE A LICENSE TO ENGAGE IN THE RETAIL  SALE  OF
ALCOHOLIC  BEVERAGES  FOR  OFF-PREMISES CONSUMPTION, WHO HAS BEEN DETER-
MINED TO HAVE VIOLATED SUBDIVISION ONE OF SECTION THREE HUNDRED  NINETY-
ONE-T  OF  THE GENERAL BUSINESS LAW, THREE OR MORE TIMES DURING A PERIOD
OF FIVE YEARS, IN SUCH CASE THE VIOLATOR SHALL BE DENIED A LICENSE FOR A
PERIOD OF FIVE YEARS AFTER THE LAST SUCH VIOLATION.
  S 7. Section 106 of the alcoholic beverage control law is  amended  by
adding a new subdivision 4-b to read as follows:
  4-B. NO PERSON SHALL RECEIVE A LICENSE TO ENGAGE IN THE RETAIL SALE OF
ALCOHOLIC BEVERAGES FOR ON PREMISES CONSUMPTION, WHO HAS BEEN DETERMINED
TO  HAVE  VIOLATED SUBDIVISION ONE OF SECTION THREE HUNDRED NINETY-ONE-T
OF THE GENERAL BUSINESS LAW, THREE OR MORE TIMES DURING A PERIOD OF FIVE
YEARS, IN SUCH CASE THE VIOLATOR SHALL BE DENIED A LICENSE FOR A  PERIOD
OF FIVE YEARS AFTER THE LAST SUCH VIOLATION.
  S  8.  Section 118 of the alcoholic beverage control law is amended by
adding a new  subdivision 1-a to read as follows:
  1-A. A LICENSE OR PERMIT ISSUED PURSUANT  TO  THIS  CHAPTER  SHALL  BE
SUSPENDED  FOR  A  PERIOD OF FIVE YEARS WHEN THE HOLDER THEREOF HAS BEEN
DETERMINED TO HAVE VIOLATED SUBDIVISION ONE  OF  SECTION  THREE  HUNDRED
NINETY-ONE-T  OF  THE GENERAL BUSINESS LAW, THREE OR MORE TIMES DURING A
PERIOD OF FIVE YEARS.
  S 9. This act shall take effect on the one hundred eightieth day after
it shall have become a law.

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