S T A T E O F N E W Y O R K
________________________________________________________________________
8359
2015-2016 Regular Sessions
I N A S S E M B L Y
August 12, 2015
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Introduced by M. of A. TITONE -- read once and referred to the Committee
on Consumer Affairs and Protection
AN ACT to amend the agriculture and markets law, in relation to the
labeling of sugar-sweetened food items and beverages with warnings
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 "sugar-sweetened food item and beverage safety warning act".
S 2. The agriculture and markets law is amended by adding a new
section 204-e to read as follows:
S 204-E. LABELING OF SUGAR-SWEETENED FOOD ITEMS AND SUGAR-SWEETENED
BEVERAGES. 1. FOR THE PURPOSES OF THIS SECTION:
(A) "BEVERAGE CONTAINER" MEANS ANY SEALED OR UNSEALED CONTAINER
REGARDLESS OF SIZE OR SHAPE INCLUDING, BUT NOT LIMITED TO, THOSE MADE OF
GLASS, METAL, PAPER, PLASTIC, OR ANY OTHER MATERIAL OR COMBINATION OF
MATERIALS THAT IS USED OR INTENDED TO BE USED TO HOLD A SUGAR-SWEETENED
BEVERAGE FOR INDIVIDUAL SALE TO A CONSUMER.
(B) "BEVERAGE DISPENSING MACHINE" MEANS ANY DEVICE THAT MIXES CONCEN-
TRATE WITH ANY ONE OR MORE OTHER INGREDIENTS, AND DISPENSES THE RESULT-
ING MIXTURE INTO AN UNSEALED CONTAINER AS A READY-TO-DRINK BEVERAGE.
(C) "CALORIC SWEETENER" MEANS ANY SUBSTANCE CONTAINING CALORIES, SUIT-
ABLE FOR HUMAN CONSUMPTION, THAT HUMANS PERCEIVE AS SWEET AND SHALL
INCLUDE, BUT NOT BE LIMITED TO, SUCROSE, FRUCTOSE, GLUCOSE, AND OTHER
SUGARS AND FRUIT JUICE CONCENTRATES.
(D) "CALORIC" MEANS A SUBSTANCE THAT ADDS CALORIES TO THE DIET OF THE
INDIVIDUAL WHO CONSUMES SUCH SUBSTANCE.
(E) "CONCENTRATE" MEANS A SYRUP OR POWDER THAT IS USED OR INTENDED TO
BE USED FOR MIXING, COMPOUNDING OR MAKING A SUGAR-SWEETENED FOOD ITEM OR
A SUGAR-SWEETENED BEVERAGE.
(F) "CONSUMER" MEANS AN INDIVIDUAL WHO PURCHASES A SUGAR-SWEETENED
FOOD ITEM OR SUGAR-SWEETENED BEVERAGE FOR A PURPOSE OTHER THAN RESALE.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD11771-01-5
A. 8359 2
(G) "DISTRIBUTE" MEANS TO SELL OR OTHERWISE PROVIDE A PRODUCT TO ANY
PERSON FOR RESALE.
(H) "FOOD ITEM CONTAINER" MEANS ANY SEALED OR UNSEALED CONTAINER
REGARDLESS OF SIZE OR SHAPE INCLUDING, BUT NOT LIMITED TO, THOSE MADE OF
GLASS, METAL, PAPER, PLASTIC, OR ANY OTHER MATERIAL OR COMBINATION OF
MATERIALS THAT IS USED OR INTENDED TO BE USED TO HOLD A SUGAR-SWEETENED
FOOD ITEM FOR INDIVIDUAL SALE TO A CONSUMER.
(I) "FOOD ITEM DISPENSING MACHINE" MEANS ANY DEVICE THAT DISPENSES
SUGAR-SWEETENED FOOD ITEMS.
(J) "MENU OR MENU BOARD" MEANS THE PRIMARY WRITING OF A PUBLIC FOOD
SERVICE ESTABLISHMENT, AS DEFINED IN SUBDIVISION THREE OF SECTION THIR-
TEEN HUNDRED NINETY-NINE-N OF THE PUBLIC HEALTH LAW, FROM WHICH A
CONSUMER MAKES AN ORDER SELECTION, WHICH CAN BE IN DIFFERENT FORMS SUCH
AS BOOKLETS, PAMPHLETS, OR SINGLE SHEETS OF PAPER, AND CAN BE LOCATED
INSIDE OR OUTSIDE OF SUCH PUBLIC FOOD SERVICE ESTABLISHMENT.
(K) "NATURAL FRUIT JUICE" MEANS THE ORIGINAL LIQUID RESULTING FROM THE
PRESSING OF FRUIT, THE LIQUID RESULTING FROM THE RECONSTITUTION OF
NATURAL FRUIT JUICE CONCENTRATE OR THE LIQUID RESULTING FROM THE RESTO-
RATION OF WATER TO DEHYDRATED NATURAL FRUIT JUICE.
(L) "NATURAL VEGETABLE JUICE" MEANS THE ORIGINAL LIQUID RESULTING FROM
THE PRESSING OF VEGETABLES, THE LIQUID RESULTING FROM THE RECONSTITUTION
OF NATURAL VEGETABLE JUICE CONCENTRATE OR THE LIQUID RESULTING FROM THE
RESTORATION OF WATER TO DEHYDRATED NATURAL VEGETABLE JUICE.
(M) "POWDER" MEANS A SOLID MIXTURE WITH ADDED CALORIC SWEETENER USED
IN MAKING, MIXING OR COMPOUNDING A SUGAR-SWEETENED FOOD ITEM OR
SUGAR-SWEETENED BEVERAGE BY MIXING SUCH SOLID MIXTURE WITH ANY ONE OR
MORE OTHER INGREDIENTS INCLUDING, BUT NOT LIMITED TO, WATER, ICE, SYRUP,
SIMPLE SYRUP, FRUITS, VEGETABLES, FRUIT JUICE, OR CARBONATION OR OTHER
GAS.
(N) "PRINCIPAL DISPLAY PANEL" MEANS THE PART OF A LABEL THAT IS MOST
LIKELY TO BE DISPLAYED, PRESENTED, SHOWN OR EXAMINED UNDER CUSTOMARY
CONDITIONS OF DISPLAY FOR RETAIL SALE.
(O) "SEALED BEVERAGE CONTAINER" MEANS A BEVERAGE CONTAINER HOLDING A
BEVERAGE THAT IS CLOSED OR SEALED BEFORE BEING OFFERED FOR SALE TO A
CONSUMER.
(P) "SEALED FOOD ITEM CONTAINER" MEANS A FOOD ITEM CONTAINER HOLDING A
FOOD ITEM THAT IS CLOSED OR SEALED BEFORE BEING OFFERED FOR SALE TO A
CONSUMER.
(Q) (1) "SUGAR-SWEETENED BEVERAGE" MEANS ANY SWEETENED NONALCOHOLIC
BEVERAGE, CARBONATED OR NONCARBONATED, SOLD FOR HUMAN CONSUMPTION THAT
HAS ADDED CALORIC SWEETENERS AND WHICH CONTAINS SEVENTY-FIVE CALORIES OR
MORE PER TWELVE FLUID OUNCES.
(2) SUCH TERM SHALL NOT INCLUDE:
(A) ANY BEVERAGE CONTAINING ONE HUNDRED PERCENT NATURAL FRUIT JUICE OR
NATURAL VEGETABLE JUICE WITH NO ADDED CALORIC SWEETENERS;
(B) ANY LIQUID PRODUCT MANUFACTURED FOR ANY OF THE FOLLOWING USES AND
COMMONLY REFERRED TO AS A "DIETARY AID":
(I) AN ORAL NUTRITIONAL THERAPY FOR PERSONS WHO CANNOT ABSORB OR META-
BOLIZE DIETARY NUTRIENTS FROM FOOD OR FOOD ITEMS AND BEVERAGES,
(II) A SOURCE OF NECESSARY NUTRITION USED AS A RESULT OF A MEDICAL
CONDITION, OR
(III) AN ORAL ELECTROLYTE SOLUTION FOR INFANTS AND CHILDREN FORMULATED
TO PREVENT DEHYDRATION DUE TO ILLNESS;
(C) ANY PRODUCT FOR CONSUMPTION BY INFANTS AND THAT IS COMMONLY
REFERRED TO AS "INFANT FORMULA";
(D) ANY BEVERAGE WHOSE PRINCIPAL INGREDIENT BY WEIGHT IS MILK; OR
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(E) ANY ALCOHOLIC BEVERAGE THAT IS SUBJECT TO REGULATION BY THE ALCO-
HOLIC BEVERAGE CONTROL LAW.
(R) "SUGAR-SWEETENED FOOD ITEM" MEANS ANY SWEETENED FOOD ITEM SOLD FOR
HUMAN CONSUMPTION THAT HAS ADDED CALORIC SWEETENERS AND WHICH CONTAINS
SEVENTY-FIVE CALORIES OR MORE PER FOUR OUNCES.
(S) "SYRUP" MEANS A LIQUID MIXTURE WITH ADDED CALORIC SWEETENER USED
IN MAKING, MIXING OR COMPOUNDING A SUGAR-SWEETENED FOOD ITEM OR
SUGAR-SWEETENED BEVERAGE BY MIXING SUCH LIQUID MIXTURE WITH ANY ONE OR
MORE OTHER INGREDIENTS, INCLUDING, BUT NOT LIMITED TO, WATER, ICE, A
POWDER, SIMPLE SYRUP, FRUITS, VEGETABLES, FRUIT JUICE, VEGETABLE JUICE,
OR CARBONATION OR OTHER GAS.
(T) "UNSEALED BEVERAGE CONTAINER" MEANS A BEVERAGE CONTAINER INTO
WHICH A BEVERAGE IS DISPENSED OR POURED AT THE PREMISES WHERE THE BEVER-
AGE IS PURCHASED INCLUDING, BUT NOT LIMITED TO, A CONTAINER FOR FOUNTAIN
DRINKS.
(U) "UNSEALED FOOD ITEM CONTAINER" MEANS A FOOD ITEM CONTAINER INTO
WHICH A FOOD ITEM IS DISPENSED OR PLACED AT THE PREMISES WHERE THE FOOD
ITEM IS PURCHASED.
2. (A) NO PERSON SHALL DISTRIBUTE, SELL OR OFFER FOR SALE A
SUGAR-SWEETENED FOOD ITEM OR SUGAR-SWEETENED BEVERAGE IN A SEALED FOOD
ITEM CONTAINER OR A SEALED BEVERAGE CONTAINER UNLESS SUCH CONTAINER
BEARS THE FOLLOWING SAFETY WARNING AND OTHERWISE MEETS ALL OF THE
REQUIREMENTS OF THIS SUBDIVISION:
"SAFETY WARNING: CONSUMING FOOD ITEMS AND BEVERAGES WITH ADDED SUGAR
CONTRIBUTES TO OBESITY, DIABETES AND TOOTH DECAY."
(B) THE SAFETY WARNING REQUIRED BY PARAGRAPH (A) OF THIS SUBDIVISION
SHALL BE DISPLAYED IN A CLEAR AND CONSPICUOUS MANNER AND READILY LEGIBLE
UNDER ORDINARY CONDITIONS ON THE PRINCIPAL DISPLAY PANEL OF THE SEALED
FOOD ITEM CONTAINER OR SEALED BEVERAGE CONTAINER, SEPARATE AND APART
FROM ALL OTHER INFORMATION, AND SHALL BE ON A CONTRASTING BACKGROUND.
THE ENTIRE SAFETY WARNING SHALL APPEAR IN BOLD TYPE.
(C) IF THE SAFETY WARNING REQUIRED BY PARAGRAPH (A) OF THIS SUBDIVI-
SION IS NOT PRINTED DIRECTLY ON THE FOOD ITEM CONTAINER OR BEVERAGE
CONTAINER, THE SAFETY WARNING SHALL BE AFFIXED TO THE FOOD ITEM CONTAIN-
ER OR BEVERAGE CONTAINER IN SUCH A MANNER THAT IT CANNOT BE REMOVED
WITHOUT THOROUGH APPLICATION OF WATER OR OTHER SOLVENTS.
(D) NO PERSON SHALL DISTRIBUTE, SELL OR OFFER FOR SALE A MULTIPACK OF
SUGAR-SWEETENED FOOD ITEMS OR SUGAR-SWEETENED BEVERAGES IN SEALED FOOD
ITEM CONTAINERS OR SEALED BEVERAGE CONTAINERS UNLESS THE MULTIPACK OF
FOOD ITEMS OR BEVERAGES BEARS THE SAFETY WARNING REQUIRED BY PARAGRAPH
(A) OF THIS SUBDIVISION. THE SAFETY WARNING SHALL BE POSTED IN A CLEAR
AND CONSPICUOUS MANNER ON THE PRINCIPAL DISPLAY PANEL AND ON AT LEAST
ONE OTHER SIDE OF THE MULTIPACK, IN ADDITION TO BEING POSTED ON EACH
INDIVIDUAL SEALED FOOD ITEM CONTAINER OR SEALED BEVERAGE CONTAINER.
(E) NO PERSON SHALL DISTRIBUTE, SELL OR OFFER FOR SALE A CONCENTRATE
UNLESS THE PACKAGING OF THE CONCENTRATE, WHICH IS INTENDED FOR RETAIL
SALE, BEARS THE SAFETY WARNING REQUIRED BY PARAGRAPH (A) OF THIS SUBDI-
VISION. THE SAFETY WARNING SHALL BE POSTED IN A CLEAR AND CONSPICUOUS
MANNER ON THE PRINCIPAL DISPLAY PANEL OF THE PACKAGING OF THE CONCEN-
TRATE.
(F) THIS SUBDIVISION SHALL NOT BE CONSTRUED TO REQUIRE THE SAFETY
WARNING REQUIRED BY PARAGRAPH (A) OF THIS SUBDIVISION TO BE PLACED IMME-
DIATELY PRECEDING ANY COMMON NAME OR PRIMARY PRODUCT DESCRIPTOR.
3. (A) EVERY PERSON WHO OWNS, LEASES OR OTHERWISE CONTROLS THE PREM-
ISES WHERE A VENDING MACHINE OR FOOD ITEM OR BEVERAGE DISPENSING MACHINE
IS LOCATED, OR WHERE A SUGAR-SWEETENED FOOD ITEM OR SUGAR-SWEETENED
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BEVERAGE IS SOLD IN AN UNSEALED FOOD ITEM CONTAINER OR UNSEALED BEVERAGE
CONTAINER, SHALL PLACE OR CAUSE TO BE PLACED, A SAFETY WARNING IN EACH
OF THE FOLLOWING LOCATIONS:
(1) ON THE EXTERIOR OF ANY VENDING MACHINE THAT INCLUDES A
SUGAR-SWEETENED FOOD ITEM OR SUGAR-SWEETENED BEVERAGE FOR SALE;
(2) ON THE EXTERIOR OF ANY FOOD ITEM OR BEVERAGE DISPENSING MACHINE
USED BY A CONSUMER TO DISPENSE A SUGAR-SWEETENED FOOD ITEM OR
SUGAR-SWEETENED BEVERAGE THROUGH SELF-SERVICE; AND
(3) AT THE POINT-OF-PURCHASE, WHICH MAY INCLUDE THE MENU OR MENU
BOARD, WHERE ANY CONSUMER PURCHASES A SUGAR-SWEETENED FOOD ITEM OR
SUGAR-SWEETENED BEVERAGE IN AN UNSEALED FOOD ITEM CONTAINER OR UNSEALED
BEVERAGE CONTAINER, WHEN THE UNSEALED FOOD ITEM CONTAINER OR UNSEALED
BEVERAGE CONTAINER IS FILLED BY AN EMPLOYEE OF A FOOD ESTABLISHMENT
RATHER THAN THE CONSUMER; PROVIDED, HOWEVER, THIS SUBPARAGRAPH SHALL NOT
APPLY UNLESS THE PREMISES WHERE A FOOD ITEM OR BEVERAGE DISPENSING
MACHINE IS LOCATED, OR WHERE THE SUGAR-SWEETENED FOOD ITEM OR
SUGAR-SWEETENED BEVERAGE IS SOLD IN AN UNSEALED FOOD ITEM CONTAINER OR
UNSEALED BEVERAGE CONTAINER IS PART OF A NETWORK OF SUBSIDIARIES, AFFIL-
IATES OR OTHER MEMBER STORES, UNDER DIRECT OR INDIRECT COMMON CONTROL,
WITH THREE OR MORE STORES LOCATED IN NEW YORK.
(B) THE SAFETY WARNING REQUIRED BY PARAGRAPH (A) OF THIS SUBDIVISION
SHALL CONTAIN THE FOLLOWING LANGUAGE:
"SAFETY WARNING: CONSUMING FOOD ITEMS AND BEVERAGES WITH ADDED SUGAR
CONTRIBUTES TO OBESITY, DIABETES AND TOOTH DECAY."
(C) THE SAFETY WARNING REQUIRED BY PARAGRAPH (A) OF THIS SUBDIVISION
SHALL BE DISPLAYED IN A CLEAR AND CONSPICUOUS MANNER AND READILY LEGIBLE
UNDER ORDINARY CONDITIONS, SEPARATE AND APART FROM ALL OTHER INFORMA-
TION, AND SHALL BE ON A CONTRASTING BACKGROUND. THE ENTIRE SAFETY WARN-
ING SHALL APPEAR IN BOLD TYPE.
4. (A) WHENEVER IT SHALL APPEAR THAT THERE HAS BEEN A VIOLATION OF
THIS SECTION, AN APPLICATION MAY BE MADE BY THE ATTORNEY GENERAL IN THE
NAME OF THE PEOPLE OF THE STATE OF NEW YORK TO A COURT OR JUSTICE HAVING
JURISDICTION BY A SPECIAL PROCEEDING TO ISSUE AN INJUNCTION, AND UPON
NOTICE TO THE DEFENDANT OF NOT LESS THAN FIVE DAYS, TO ENJOIN AND
RESTRAIN THE CONTINUANCE OF SUCH VIOLATION; AND IF IT SHALL APPEAR TO
THE SATISFACTION OF THE COURT OR JUSTICE THAT THE DEFENDANT HAS, IN
FACT, VIOLATED THIS ARTICLE, AN INJUNCTION MAY BE ISSUED BY SUCH COURT
OR JUSTICE, ENJOINING AND RESTRAINING ANY FURTHER VIOLATION, WITHOUT
REQUIRING PROOF THAT ANY PERSON HAS, IN FACT, BEEN INJURED OR DAMAGED
THEREBY. IN ANY SUCH PROCEEDING, THE COURT MAY MAKE ALLOWANCES TO THE
ATTORNEY GENERAL AS PROVIDED IN PARAGRAPH SIX OF SUBDIVISION (A) OF
SECTION EIGHTY-THREE HUNDRED THREE OF THE CIVIL PRACTICE LAW AND RULES,
AND DIRECT RESTITUTION. WHENEVER THE COURT SHALL DETERMINE THAT A
VIOLATION OF THIS ARTICLE HAS OCCURRED, THE COURT MAY IMPOSE A CIVIL
PENALTY OF NOT LESS THAN FIFTY DOLLARS NOR MORE THAN FIVE HUNDRED
DOLLARS FOR EACH SUCH VIOLATION. IN CONNECTION WITH ANY SUCH PROPOSED
APPLICATION, THE ATTORNEY GENERAL IS AUTHORIZED TO TAKE PROOF AND MAKE A
DETERMINATION OF THE RELEVANT FACTS AND TO ISSUE SUBPOENAS IN ACCORDANCE
WITH THE CIVIL PRACTICE LAW AND RULES.
(B) THE PROVISIONS OF THIS SECTION MAY BE ENFORCED CONCURRENTLY BY THE
DIRECTOR OF A MUNICIPAL CONSUMER AFFAIRS OFFICE, OR BY THE TOWN ATTOR-
NEY, CITY CORPORATION COUNSEL, OR OTHER LAWFUL DESIGNEE OF A MUNICI-
PALITY OR LOCAL GOVERNMENT, AND ALL MONEYS COLLECTED UNDER THIS SECTION
SHALL BE RETAINED BY SUCH MUNICIPALITY OR LOCAL GOVERNMENT.
5. A RETAILER SHALL NOT BE SUBJECT TO THE PENALTIES UNDER THIS SECTION
UNLESS: (A) THE RETAILER IS THE MANUFACTURER OF THE SUGAR-SWEETENED FOOD
A. 8359 5
ITEM OR SUGAR-SWEETENED BEVERAGE, THE PACKAGER OF A MULTIPACK OF SUGAR-
SWEETENED FOOD ITEMS IN SEALED FOOD ITEM CONTAINERS OR SUGAR-SWEETENED
BEVERAGES IN SEALED BEVERAGE CONTAINERS, OR THE MANUFACTURER OF A
CONCENTRATE AND SELLS THE SUGAR-SWEETENED FOOD ITEM OR SUGAR-SWEETENED
BEVERAGE, MULTIPACK OF SUGAR-SWEETENED FOOD ITEMS OR SUGAR-SWEETENED
BEVERAGES, OR CONCENTRATE UNDER A BRAND IT OWNS; OR
(B) THE RETAILER'S FAILURE TO LABEL WAS KNOWING AND WILLFUL.
S 3. Severability clause. If any provision of this act or its applica-
tion to any person, legal entity, or circumstance is held invalid, the
remainder of the act or the application of the provision to other
persons, legal entities or circumstances shall not be affected.
S 4. This act shall take effect one year after it shall have become a
law.