Senate Bill S202

                                 BILL NUMBER:  S202

 TITLE OF BILL :  An act to amend the general business law, in
relation to the sale of over-the-counter drugs


 PURPOSE : To promote and protect the health and safety of purchasers
of O-T-C drugs and cosmetics by enabling them to read such products'
packaging or labels in a complete, unaltered and unobstructed
condition, at the time of purchase or thereafter. Such labels are
required by federal law and regulations.

 SUMMARY OF PROVISIONS : Section 1. Changes the article heading of
Article 38-A of the General Business law.

Section 2. Amends subdivision 2 of Section 820 of the General Business
law, to make it unlawful for any retailer to knowingly alter,
obstruct, obscure or remove, by means of a sticker, tag or other
device used to deter theft, or a price sticker, or otherwise, the
whole or any part of the label or packaging of any over-the-counter
(O-T-C) drug or cosmetic as such label is required by the federal
Food, Drug and Cosmetic Act, and by the Food and Drug Administration's
(FDA) rules and regulations that implement the Act's label
requirements for such products. Violators would be subject to the
existing enforcement remedy contained in GBL Section 821. Under that
provision, compliance with FDA rules and regulations constitutes a
              

complete defense to any enforcement action.

 JUSTIFICATION : At the very foundation of consumer protection for
purchasers of O-T-C drugs and cosmetics are the labeling requirements
of Chapters V and VI of the Federal Food, Drug and Cosmetic Act and
the implementing regulations of the Food and Drug Administration.
See, 21 C.F.R. Part 201, Subchapter C, et seq. (O-T-C drugs) and 21 FR
Part 701 (cosmetics). Drug labels provide vital health and safety
information including: indications, directions for use, warnings and
precautions, drug interaction information, cautions and list of
ingredients. Cosmetic labels must contain a designation of
ingredients, a requirement of special importance for users who suffer
particular allergic reactions.

In early 1990, the Department of Law's Bureau of Consumer Frauds and
Protection conducted a random survey of drug stores operated by eight
major chains located in the metropolitan New York City area in an
effort to determine whether the labels of O-T-C drugs or cosmetics
offered for sale to the public were being obscured or obstructed by
the retailers' practice of superimposing upon such labels the store's
own price stickers or security stickers or other devices intended to
deter theft. The survey revealed that in a significant number of
instances, retailers were obstructing or obscuring product labels by
placing paper stickers or plastic devices over the manufacturer's
product labels. This practice made it impossible, in many cases, for
prospective purchasers to read the labels before purchase. Even after
purchase, consumers, in many cases, would be unable to read the labels
because the removal of the retailer's stickers would result in the
unintended destruction of the manufacturer's label as well.

Indeed, in one case, the cashier at a major drug retail chain store
tore off the store's sticker from the principal display panel of an
O-T-C drug product and, in doing so, destroyed the manufacturer's
label at the same time. In general, this practice could have severe
health and safety consequences. For example, the product in question
in this particular case was "Collyrium Fresh Sterile Eye Drops"
manufactured by Wyeth Laboratories. That part of the manufacturer's
label destroyed by the store's cashier included crucial product
warnings and cautions, as follows: Warnings: Do not use if solution
changes color or becomes cloudy. Remove contact lenses before using.
If you have glaucoma do not use this product except under the advice
and supervision of a physician. Overuse of this product may produce
increased redness of the eye. To avoid contamination, do not touch tip
of container to any surface. Replace cap after using. If you
experience eye pain, changes in vision, continued redness or
irritation of the eye, or if the condition worsens or persists for
more than 72 hours, discontinue use and consult a physician. Keep this
and all medication out of the reach of children. Retain this carton
for complete product information. Keep bottle tightly closed at Room
Temperature, Approx. 77 degrees F/25 degrees C.

The Department of Law survey confirmed that the above described
practice by retail drug stores is common and widespread. Case by case
enforcement would not offer consumers the full protection that a
legislative initiative offers. This bill builds upon an earlier law
that addressed a related problem. In 1985, a survey published by the
Department of Law revealed, inter alia, that retailers of O-T-C drugs
were similarly obstructing the expiration date of such drug products
offered for sale. See, Expiration Dating Of Over-The-Counter Drugs In
New York, a Report by New York State Attorney General Robert Abrams,
(January, 1985). Subsequently, the Legislature adopted an Attorney
General's Program bill (L. 1986, Ch. 697) that included GBL Section
820(2), a provision that makes such practice unlawful. The present
proposal would offer parallel protection for consumers with regard to
the obstruction of labels.

 LEGISLATIVE HISTORY : S.905/A.2256, 2013-14; S.1936, 2011-12; S.2924,
2009-10; S. 1332, 2007-08; S.1547, 2005-06; S.6400, 2003-04.

 FISCAL IMPLICATIONS : None.

 EFFECTIVE DATE : This act shall take effect immediately.