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

                                  7028

                            I N  S E N A T E

                              March 8, 2010
                               ___________

Introduced  by  Sen.  ESPADA -- read twice and ordered printed, and when
  printed to be committed to the Committee on Health

AN ACT to amend the public health law, the education law and  the  agri-
  culture and markets law, in relation to establishing nutritional stan-
  dards for certain foods and beverages sold in schools

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Short title. This act shall be known and may  be  cited  as
the "New York state healthy kids act".
  S 2. Section 2599-c of the public health law, as amended by section 88
of  part  B  of  chapter  58  of the laws of 2005, is amended to read as
follows:
  S 2599-c.  School-based  childhood  obesity  prevention  and  physical
activity programs. 1. The commissioner shall encourage the establishment
of  school-based  childhood  obesity  prevention  and  physical activity
programs that promote:
  [1.] (A) A healthy school environment, including physical and aesthet-
ic surroundings and culture designed to prevent and reduce the incidence
and prevalence of obesity; and
  [2.] (B) Parent/community involvement, including an integrated school,
parent, and community approach for enhancing the health  and  well-being
of students.
  2.  THE  COMMISSIONER  SHALL, IN CONSULTATION WITH THE COMMISSIONER OF
EDUCATION AND THE  COMMISSIONER  OF  AGRICULTURE  AND  MARKETS,  DEVELOP
RECOMMENDATIONS  FOR  NUTRITIONAL  AND  DIETARY  STANDARDS  FOR FOOD AND
BEVERAGES SOLD IN SCHOOLS CONSISTENT WITH SECTION NINE  HUNDRED  FIFTEEN
OF  THE  EDUCATION  LAW. IN DEVELOPING SUCH RECOMMENDATIONS, THE COMMIS-
SIONER AND THE COMMISSIONERS OF EDUCATION AND  AGRICULTURE  AND  MARKETS
SHALL REVIEW EXISTING SCIENCE AND EVIDENCE-BASED RESEARCH TO EXAMINE AND
EVALUATE  THE  USE  OF  FOOD COLORING, CHEMICAL ADDITIVES AND ARTIFICIAL
SWEETENERS IN FOODS AND BEVERAGES, AND MAKE SUCH RECOMMENDATIONS AS THEY
DEEM APPROPRIATE. THE RECOMMENDATIONS SHALL BE PROVIDED  IN  WRITING  TO
THE  COMMISSIONER  OF  EDUCATION  NO LATER THAN AUGUST THIRTY-FIRST, TWO

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD09207-03-0
              

S. 7028                             2

THOUSAND TEN, AND REVISED RECOMMENDATIONS SHALL BE  PROVIDED  AS  DEEMED
NECESSARY BY THE COMMISSIONER.
  S  3. Section 915 of the education law, as added by chapter 674 of the
laws of 1987, is amended to read as follows:
  S 915. [Prohibiting the sale of  certain  sweetened  foods.  From  the
beginning  of  the  school  day until the end of the last scheduled meal
period, no] HEALTHY SCHOOL FOODS AND BEVERAGES. 1. DEFINITIONS. FOR  THE
PURPOSES  OF  THIS SECTION, THE FOLLOWING TERMS SHALL HAVE THE FOLLOWING
MEANINGS:
  A. "SCHOOL MEALS" SHALL MEAN MEALS WHICH MEET THE NUTRITIONAL REQUIRE-
MENTS OF, AND ARE REIMBURSABLE UNDER,  ANY  PROGRAM  AUTHORIZED  BY  THE
RICHARD  B. RUSSELL NATIONAL SCHOOL LUNCH ACT OR THE CHILD NUTRITION ACT
OF 1966.
  B. "SNACKS AND A LA CARTE ITEMS" SHALL MEAN FOOD ITEMS THAT  ARE  SOLD
INDIVIDUALLY,  OUTSIDE  OF SCHOOL MEALS, FROM SOURCES INCLUDING, BUT NOT
LIMITED TO, SCHOOL CAFETERIAS, A LA CARTE LINES, SCHOOL STORES OR  VEND-
ING MACHINES.
  2.  APPLICABILITY.  A.  THIS  SECTION  AND THE REGULATIONS PROMULGATED
PURSUANT THERETO SHALL APPLY TO ELEMENTARY  AND  SECONDARY  SCHOOLS  AND
PROGRAMS  UNDER THE JURISDICTION OF THE FOLLOWING (COLLECTIVELY REFERRED
TO IN THIS SECTION AS "SCHOOL DISTRICTS"): SCHOOL DISTRICTS,  NON-PUBLIC
SCHOOLS  THAT  PARTICIPATE  IN  ANY PROGRAM AUTHORIZED BY THE RICHARD B.
RUSSELL NATIONAL SCHOOL LUNCH ACT OR THE CHILD NUTRITION  ACT  OF  1966,
BOARDS  OF COOPERATIVE EDUCATIONAL SERVICES, CHARTER SCHOOLS AND SCHOOLS
OPERATING PURSUANT TO ARTICLES EIGHTY-THREE,  EIGHTY-FIVE,  EIGHTY-SEVEN
AND  EIGHTY-EIGHT  OF  THIS  CHAPTER.  SUCH  SCHOOL  DISTRICTS  SHALL BE
REQUIRED TO ENSURE COMPLIANCE WITH THE PROVISIONS OF  THIS  SECTION  AND
REGULATIONS PROMULGATED PURSUANT THERETO.
  B.  EXCEPT  AS  OTHERWISE PROVIDED IN PARAGRAPH C OF THIS SUBDIVISION,
THIS SECTION AND REGULATIONS PROMULGATED PURSUANT THERETO SHALL APPLY TO
SNACKS AND A LA CARTE ITEMS AND BEVERAGES SOLD ON SCHOOL GROUNDS BEFORE,
DURING AND AFTER THE REGULAR SCHOOL DAY FROM ANY SOURCE  INCLUDING,  BUT
NOT  LIMITED  TO, SCHOOL CAFETERIAS, A LA CARTE LINES, SCHOOL STORES AND
VENDING MACHINES.
  C. NOTWITHSTANDING ANY  OTHER  PROVISION  OF  THIS  SUBDIVISION,  THIS
SECTION AND REGULATIONS PROMULGATED PURSUANT THERETO SHALL NOT APPLY TO:
(I)  FOODS  AND BEVERAGES SOLD AS SCHOOL MEALS; (II) FOODS AND BEVERAGES
SOLD AFTER SCHOOL ACTIVITIES ATTENDED BY BOTH ADULTS AND STUDENTS,  SUCH
AS  CONCERTS  AND  SPORTING  EVENTS,  SOLD  BY SOURCES OTHER THAN SCHOOL
STORES OR VENDING MACHINES; (III) FOODS AND BEVERAGES PROVIDED UNDER THE
FEDERAL CHILD AND ADULT CARE FOOD PROGRAM, WHICH SHALL BE SUBJECT TO THE
REQUIREMENTS IMPOSED UNDER THAT PROGRAM; OR (IV) CAFFEINATED  COFFEE  OR
TEA SOLD TO SCHOOL EMPLOYEES.
  3.  NUTRITIONAL  AND DIETARY STANDARDS. A. THE REGENTS AND THE COMMIS-
SIONER SHALL PROMULGATE REGULATIONS TO ESTABLISH NUTRITIONAL AND DIETARY
STANDARDS BASED UPON THE RECOMMENDATIONS DEVELOPED PURSUANT TO  SUBDIVI-
SION  TWO  OF  SECTION  TWENTY-FIVE  HUNDRED NINETY-NINE-C OF THE PUBLIC
HEALTH LAW.
  (I) THE NUTRITIONAL AND DIETARY STANDARDS MAY  BE  UPDATED  AS  DEEMED
NECESSARY  BY  THE  COMMISSION, IN CONSULTATION WITH THE COMMISSIONER OF
HEALTH, BUT NOT LESS FREQUENTLY THAN ONCE EVERY FIVE YEARS AND SHALL  BE
MADE  AVAILABLE  FOR  PUBLIC  COMMENT  AND  REVIEW PURSUANT TO THE STATE
ADMINISTRATIVE PROCEDURE ACT.
  (II) THE NUTRITIONAL AND DIETARY STANDARDS FOR HEALTHY SNACKS AND A LA
CARTE ITEMS AND BEVERAGES SHALL BE DEVELOPED TO PROMOTE A HEALTHFUL DIET
AND SHALL BE BASED ON THE PREPONDERANCE OF THE  NUTRITIONAL,  SCIENTIFIC

S. 7028                             3

AND  MEDICAL  KNOWLEDGE WHICH IS CURRENT AT THE TIME THE REGULATIONS ARE
BEING PROMULGATED.
  (III)  UNDER  NO CIRCUMSTANCE SHALL THE NUTRITIONAL AND DIETARY STAND-
ARDS INTERFERE WITH THE SPECIAL DIETARY NEEDS OF STUDENTS IN RELATION TO
HEALTH CONDITIONS, FOOD ALLERGIES, DIETARY  INTOLERANCES  AND  RELIGIOUS
MANDATES.
  (IV)  THE  NUTRITIONAL  AND DIETARY STANDARDS MAY REFLECT THE NEEDS OF
STUDENTS AT DIFFERING AGES AND GRADE LEVELS.
  (V) THE NUTRITIONAL AND DIETARY STANDARDS SHALL ENCOURAGE THE PURCHASE
OF FRESH FRUITS, VEGETABLES, MEAT AND DAIRY PRODUCTS WHICH ARE  PRODUCED
BY  LOCAL OR REGIONAL FARMS, CONSISTENT WITH APPLICABLE FEDERAL PROCURE-
MENT STANDARDS.
  B. THE NUTRITIONAL AND DIETARY  STANDARDS  SHALL  INCLUDE  APPROPRIATE
NUTRITIONAL  STANDARDS  AND CONSUMPTION AMOUNTS RELATED, BUT NOT LIMITED
TO: (I) DIETARY CHOLESTEROL; (II) SODIUM; (III) TOTAL  CALORIE  AMOUNTS;
(IV)  CALORIES  DERIVED FROM FAT AND SATURATED FAT; (V) CALORIES DERIVED
FROM SUGAR; (VI) SERVING SIZES; AND (VII) SUCH STANDARDS SHALL  PROHIBIT
ARTIFICIAL TRANS FATTY ACIDS.
  C.  THE REGULATIONS DESCRIBED IN PARAGRAPH A OF THIS SUBDIVISION SHALL
BE PROMULGATED NO LATER THAN DECEMBER THIRTY-FIRST, TWO THOUSAND TEN AND
SHALL BE EFFECTIVE ON AND AFTER SEPTEMBER FIRST,  TWO  THOUSAND  ELEVEN.
THE  REGULATIONS  SHALL  APPLY  ONLY  TO SNACKS AND A LA CARTE ITEMS AND
BEVERAGE CONTRACTS  BETWEEN  SCHOOL  DISTRICTS  AND  VENDORS  THAT  WERE
ISSUED,  RENEWED,  MODIFIED,  ALTERED  OR  AMENDED ON OR AFTER SEPTEMBER
FIRST, TWO THOUSAND ELEVEN.
  4. PROHIBITIONS. NO sweetened soda water, no  chewing  gum,  no  candy
including  hard  candy,  jellies,  gums,  marshmallow  candies, fondant,
licorice, spun candy and candy coated popcorn, and no water ices  except
those  which contain ONE HUNDRED PERCENT fruit or fruit juices, shall be
sold in any [public] school [within the state] DISTRICT  BEFORE,  DURING
AND  AFTER  THE  REGULAR  SCHOOL DAY FROM ANY SOURCE, INCLUDING, BUT NOT
LIMITED TO, SCHOOL CAFETERIAS, A LA CARTE LINES, SCHOOL STORES AND VEND-
ING MACHINES.
  5. COMPLIANCE. SCHOOL DISTRICTS SHALL MAKE AVAILABLE  TO  THE  DEPART-
MENT,  UPON  REQUEST,  DOCUMENTATION  SETTING  FORTH THE INGREDIENTS AND
NUTRIENTS OF ANY SNACK OR A LA CARTE ITEM OR  BEVERAGE  SOLD  BY  OR  ON
BEHALF  OF  SUCH DISTRICT OR IS USED AS AN INGREDIENT IN A SNACK OR A LA
CARTE ITEM OR BEVERAGE SOLD BY OR ON BEHALF OF SUCH DISTRICT. THE  STATE
COMPTROLLER  SHALL  REVIEW  SCHOOL  COMPLIANCE WITH THE REQUIREMENTS SET
FORTH IN THIS SECTION AND THE REGULATIONS PROMULGATED  PURSUANT  THERETO
AS  PART  OF  THE  ANNUAL AUDITS OF SCHOOL DISTRICTS AS AUTHORIZED UNDER
SUBDIVISION THREE-A OF SECTION TWENTY-ONE HUNDRED  SIXTEEN-A  AND  PARA-
GRAPH  (C) OF SUBDIVISION ONE OF SECTION TWENTY-EIGHT HUNDRED FIFTY-FOUR
OF THIS CHAPTER AND SECTION THIRTY-THREE OF THE GENERAL MUNICIPAL LAW.
  S 4. The agriculture and markets  law  is  amended  by  adding  a  new
section 28 to read as follows:
  S 28. SCHOOL NUTRITIONAL AND DIETARY STANDARDS. THE COMMISSIONER SHALL
PROVIDE  CONSULTATION  TO  THE  COMMISSIONERS OF EDUCATION AND HEALTH IN
ESTABLISHING AND REVISING NUTRITIONAL AND DIETARY STANDARDS FOR  HEALTHY
SCHOOL  SNACKS  AND  A  LA  CARTE  ITEMS  AND BEVERAGES, CONSISTENT WITH
SECTION NINE HUNDRED FIFTEEN OF THE EDUCATION LAW AND SUBDIVISION TWO OF
SECTION TWENTY-FIVE HUNDRED NINETY-NINE-C OF THE PUBLIC HEALTH LAW.
  S 5. Severability clause. If any clause, sentence, paragraph,  section
or  part  of this act shall be adjudged by any court of competent juris-
diction to be invalid, such judgment shall not affect, impair or invali-
date the remainder thereof, but shall be confined in  its  operation  to

S. 7028                             4

the  clause,  sentence,  paragraph,  section  or  part  thereof directly
involved in the controversy in  which  such  judgment  shall  have  been
rendered.
  S 6. This act shall take effect immediately.