NY State Senate Bill 2017-S577

Senate Bill S577

2017-2018 Legislative Session

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

download bill text pdf

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 03, 2018	referred to consumer protection
Jan 04, 2017	referred to consumer protection

2017-S577 (ACTIVE) - Details

Current Committee:: Senate Consumer Protection
Law Section:: General Business Law
Laws Affected:: Add §391-u, Gen Bus L; amd §§480, 1605 & 1607, Tax L; amd §§105, 106 & 118, ABC L
Versions Introduced in 2015-2016 Legislative Session:: S6074

2017-S577 (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.

2017-S577 (ACTIVE) - Sponsor Memo

                                 BILL NUMBER:  S577

 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-u, 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 :

2015-2016--S6074

 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.

2017-S577 (ACTIVE) - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                    577
 
                        2017-2018 Regular Sessions
 
                             I N  S E N A T E
 
                                (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:
 
   Section 1. The general business law is amended by adding a new section
 391-u to read as follows:
   §  391-U.  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 THE 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
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets

                       [ ] is old law to be omitted.
                                                            LBD00147-01-7

 S. 577                              2
 
 INGREDIENTS;  (2) INTENDED FOR INGESTION IN ANY MANNER INCLUDING 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 FEDERAL 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  OR SUBSEQUENT 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 OR SUBSEQUENT 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

 S. 577                              3
 
 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
 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.
   § 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-U 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.
   § 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

 S. 577                              4
 
   (V)  HAS  BEEN  DETERMINED TO HAVE VIOLATED SUBDIVISION ONE OF SECTION
 THREE HUNDRED NINETY-ONE-U OF THE GENERAL BUSINESS LAW,  THREE  OR  MORE
 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.
   § 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-U  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.
   §  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-U  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.
   §  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-U  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.
   § 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-U
 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.
   §  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-U  OF  THE GENERAL BUSINESS LAW, THREE OR MORE TIMES DURING A
 PERIOD OF FIVE YEARS.
   § 9. This act shall take effect on the one hundred eightieth day after
 it shall have become a law.

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