S T A T E O F N E W Y O R K
________________________________________________________________________
7542
I N S E N A T E
January 22, 2018
___________
Introduced by Sen. MURPHY -- read twice and ordered printed, and when
printed to be committed to the Committee on Health
AN ACT to amend the public health law, in relation to first aid
instructions concerning allergic reaction emergencies in public eating
establishments
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Section 1352-b of the public health law, as added by chap-
ter 613 of the laws of 1980, is amended to read as follows:
§ 1352-b. Public eating establishments; first aid instructions
concerning food lodged in [throat; liability] THROATS AND ALLERGIC
REACTION EMERGENCIES. 1. FIRST AID INSTRUCTIONS CONCERNING FOOD LODGED
IN THROAT; LIABILITY.
A. Definitions. For purposes of this [section] SUBDIVISION:
[a.] (I) "Public eating establishment" shall mean a cafeteria or
lunchroom located in a school or educational institution and a restau-
rant, dining room, dining car or other place engaged in the preparation
and service on the premises of food for and to the general public;
[b.] (II) "Choking emergency" shall mean a situation occurring in a
public eating establishment in which food has become lodged in a
person's throat in such a manner as to prevent or severely inhibit the
continued breathing of such person.
[2] B. First aid instructions.
[a.] (I) The commissioner shall adopt and approve first aid
instructions designed and intended for use in removing food lodged in
the throat of a victim of a choking emergency. Such instructions shall
be limited to first aid techniques not involving the use of any physical
instrument or device to be inserted into the victim's mouth or throat.
[b.] (II) The commissioner shall, as soon as is practicable, supply to
the proprietor of every public eating establishment in this state such
adopted and approved instructions.
[3] C. Posting. The proprietor of every public eating establishment
in this state shall, upon receipt thereof, post such instructions in a
conspicuous place or places in order that the proprietor and employees
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD14278-01-8
S. 7542 2
may become familiar with them, and in order that the instructions may be
consulted by any person attempting to provide relief to the victim of a
choking emergency; provided, that the fact that such instructions shall
not have been posted as required by this section at the time of a chok-
ing emergency shall not in and of itself subject such a proprietor, or
his employees or agents, to liability in any civil action for damages
for personal injuries or wrongful death arising from such choking emer-
gency.
[4] D. No duty to act. Nothing contained in this section shall impose
any duty or obligation on any proprietor, employee or other person to
remove, assist in removing, or attempt to remove food from the throat of
the victim of a choking emergency.
[5] E. Immunity from liability. Notwithstanding any inconsistent
provision of law or ordinance, a proprietor, employee or other person
who voluntarily and without expectation of monetary compensation
removes, assists in removing, or attempts to remove food from the throat
of the victim of a choking emergency in accordance with the instructions
adopted by the commissioner shall not be liable for damages for injuries
alleged to have been sustained by such victim or for damages for the
death of such victim alleged to have occurred by reason of an act or
omission in the rendering of such emergency assistance unless it is
established that such injuries were, or such death was, caused by gross
negligence on the part of such proprietor, employee or person.
2. ALLERGIC REACTION EMERGENCIES. A. DEFINITIONS. FOR PURPOSES OF THIS
SUBDIVISION:
(I) "PUBLIC EATING ESTABLISHMENT" SHALL MEAN A CAFETERIA OR LUNCHROOM
LOCATED IN A SCHOOL OR EDUCATIONAL INSTITUTION AND A RESTAURANT, DINING
ROOM, DINING CAR OR OTHER PLACE ENGAGED IN THE PREPARATION AND SERVICE
ON THE PREMISES OF FOOD FOR AND TO THE GENERAL PUBLIC;
(II) "ALLERGIC REACTION EMERGENCY" SHALL MEAN A SITUATION OCCURRING IN
A PUBLIC EATING ESTABLISHMENT IN WHICH FOOD HAS CAUSED A PERSON IN SUCH
ESTABLISHMENT TO SUFFER AN ALLERGIC REACTION, THAT IF NOT IMMEDIATELY
TREATED COULD CAUSE SUCH PERSON DEATH, SERIOUS HARM, ILLNESS, INJURY OR
HARDSHIP.
(III) "EPINEPHRINE AUTO-INJECTOR DEVICE" SHALL MEAN A SINGLE-USE
DEVICE USED FOR THE AUTOMATIC INJECTION OF A PREMEASURED DOSE OF
EPINEPHRINE INTO THE HUMAN BODY FOR THE PURPOSE OF EMERGENCY TREATMENT
OF A PERSON APPEARING TO EXPERIENCE ANAPHYLACTIC SYMPTOMS APPROVED BY
THE FOOD AND DRUG ADMINISTRATION.
B. DUTY TO MAKE AN EPINEPHRINE AUTO-INJECTOR DEVICE AVAILABLE. EVERY
PUBLIC EATING ESTABLISHMENT SHALL HAVE A SERVICEABLE EPINEPHRINE AUTO-
INJECTOR DEVICE, READILY AVAILABLE FOR EMERGENCY USE, TO TREAT AN ALLER-
GIC REACTION EMERGENCY. SUCH EPINEPHRINE AUTO-INJECTOR DEVICE SHALL BE
CONTAINED WITHIN AN ALARMED, PROTECTED, BUT PUBLICLY ACCESSIBLE CASE,
WHICH IS AFFIXED TO THE WALL OF THE ESTABLISHMENT, IN A PROMINENT AND
READILY AVAILABLE LOCATION.
C. POSTING. (I) DIRECTLY ABOVE THE ALARMED, PROTECTED, BUT PUBLICLY
ACCESSIBLE CASE, CONTAINING THE SERVICEABLE EPINEPHRINE AUTO-INJECTOR
DEVICE, SHALL BE CLEAR INSTRUCTIONS ON HOW TO ACCESS THE EPINEPHRINE
AUTO-INJECTOR DEVICE, AND HOW TO PROPERLY OPERATE SUCH DEVICE, IN ORDER
TO INJECT THE PERSON WHO IS SUFFERING THE ALLERGIC REACTION WITH
EPINEPHRINE.
(II) THE COMMISSIONER SHALL, AS SOON AS IS PRACTICABLE, ADOPT AND
APPROVE INSTRUCTIONS ON HOW TO ACCESS THE EPINEPHRINE AUTO-INJECTOR
DEVICE, AND HOW TO PROPERLY OPERATE SUCH DEVICE, IN ORDER TO INJECT THE
PERSON WHO IS SUFFERING THE ALLERGIC REACTION WITH EPINEPHRINE.
S. 7542 3
D. PROCUREMENT OF SERVICEABLE EPINEPHRINE AUTO-INJECTOR DEVICES. THE
COMMISSIONER SHALL PROCURE ON STATE CONTRACT, AND MAKE AVAILABLE TO
EVERY PUBLIC EATING ESTABLISHMENT AT COST, SERVICEABLE EPINEPHRINE AUTO-
INJECTOR DEVICES, WITH ALARMED, PROTECTED, BUT PUBLICLY ACCESSIBLE
CASES, WHICH CAN BE AFFIXED TO THE WALL OF PUBLIC EATING ESTABLISHMENTS,
IN A PROMINENT AND READILY AVAILABLE LOCATION. THE COMMISSIONER SHALL
FURTHER DESIGN AND PROCURE ON STATE CONTRACT, AND MAKE AVAILABLE TO
EVERY PUBLIC EATING ESTABLISHMENT AT COST, SIGNS TO BE AFFIXED ABOVE THE
ALARMED, PROTECTED, BUT PUBLICLY ACCESSIBLE CASES, WHICH CONTAIN THE
CLEAR INSTRUCTIONS ADOPTED AND APPROVED IN ACCORDANCE WITH PARAGRAPH C
OF THIS SUBDIVISION.
E. NO DUTY TO ACT. NOTHING CONTAINED IN THIS SECTION SHALL IMPOSE ANY
DUTY OR OBLIGATION ON ANY PROPRIETOR, EMPLOYEE OR OTHER PERSON TO
INJECT, ASSIST IN INJECTING, OR ATTEMPT TO INJECT ANY PERSON SUFFERING
FROM AN ALLERGIC REACTION EMERGENCY WITH THE EPINEPHRINE AUTO-INJECTOR
DEVICE.
F. IMMUNITY FROM LIABILITY. NOTWITHSTANDING ANY INCONSISTENT PROVISION
OF LAW OR ORDINANCE, A PROPRIETOR, EMPLOYEE OR OTHER PERSON WHO VOLUN-
TARILY AND WITHOUT EXPECTATION OF MONETARY COMPENSATION, INJECTS,
ASSISTS IN INJECTING, OR ATTEMPTS TO INJECT ANY PERSON SUFFERING FROM AN
ALLERGIC REACTION EMERGENCY WITH THE EPINEPHRINE AUTO-INJECTOR DEVICE IN
ACCORDANCE WITH THE INSTRUCTIONS POSTED DIRECTLY ABOVE THE ALARMED,
PROTECTED, BUT PUBLICLY ACCESSIBLE CASE, CONTAINING THE SERVICEABLE
EPINEPHRINE AUTO-INJECTOR DEVICE, SHALL NOT BE LIABLE FOR DAMAGES FOR
INJURIES ALLEGED TO HAVE BEEN SUSTAINED BY SUCH VICTIM OR FOR DAMAGES
FOR THE DEATH OF SUCH VICTIM ALLEGED TO HAVE OCCURRED BY REASON OF AN
ACT OR OMISSION IN THE RENDERING OF SUCH EMERGENCY ASSISTANCE UNLESS IT
IS ESTABLISHED THAT SUCH INJURIES WERE, OR SUCH DEATH WAS, CAUSED BY
GROSS NEGLIGENCE ON THE PART OF SUCH PROPRIETOR, EMPLOYEE OR PERSON.
§ 2. Paragraph (a) of subdivision 1 of section 3000-c of the public
health law, as amended by chapter 200 of the laws of 2017, is amended to
read as follows:
(a) "Eligible person or entity" means (i) an ambulance service or
advanced life support first response service; a certified first respon-
der, emergency medical technician, or advanced emergency medical techni-
cian, who is employed by or an enrolled member of any such service; (ii)
a children's overnight camp as defined in subdivision one of section
thirteen hundred ninety-two of this chapter, a summer day camp as
defined in subdivision two of section thirteen hundred ninety-two of
this chapter, a traveling summer day camp as defined in subdivision
three of section thirteen hundred ninety-two of this chapter or a person
employed by such a camp; (iii) a school district, board of cooperative
educational services, county vocational education and extension board,
charter school, and non-public elementary and secondary school in this
state or any person employed by any such entity, or employed by a
contractor of such an entity while performing services for the entity;
or (iv) a sports, entertainment, amusement, education, government, day
care or retail facility; an educational institution, youth organization
or sports league; an establishment that serves food; or a person
employed by such entity; [and] (v) ANY PROPRIETOR OR EMPLOYEE OF, OR ANY
OTHER PERSON WITHIN OR AT, A PUBLIC EATING ESTABLISHMENT AS DEFINED IN
SUBPARAGRAPH (I) OF PARAGRAPH (A) OF SUBDIVISION TWO OF SECTION ONE
THOUSAND THREE HUNDRED FIFTY-TWO-B OF THIS CHAPTER; AND (VI) any other
person or entity designated or approved, or in a category designated or
approved pursuant to regulations of the commissioner in consultation
with other appropriate agencies.
S. 7542 4
§ 3. Paragraphs (d) and (e) of subdivision 2 of section 3000-c of the
public health law, as amended by chapter 373 of the laws of 2016, are
amended to read as follows:
(d) This section does not prohibit the use of an epinephrine auto-in-
jector device (i) by a health care practitioner or (ii) by a person
acting pursuant to a lawful patient-specific prescription OR (III) BY A
PERSON IN A PUBLIC EATING ESTABLISHMENT IN ACCORDANCE WITH THE
PROVISIONS OF SUBDIVISION TWO OF SECTION ONE THOUSAND THREE HUNDRED
FIFTY-TWO-B OF THIS CHAPTER.
(e) Every eligible person and entity authorized to possess and use
epinephrine auto-injector devices pursuant to this section, EXCEPT A
PERSON IN A PUBLIC EATING ESTABLISHMENT IN ACCORDANCE WITH THE
PROVISIONS OF SUBDIVISION TWO OF SECTION ONE THOUSAND THREE HUNDRED
FIFTY-TWO-B OF THIS CHAPTER, shall use, maintain and dispose of such
devices pursuant to regulations of the department.
§ 4. This act shall take effect on the one hundred eightieth day after
it shall have become a law.
