S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   3173
 
                        2021-2022 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             January 22, 2021
                                ___________
 
 Introduced by M. of A. COOK, ZEBROWSKI -- Multi-Sponsored by -- M. of A.
   COLTON, CYMBROWITZ, DINOWITZ, GLICK, J. RIVERA, SIMON, SOLAGES -- read
   once and referred to the Committee on Consumer Affairs and Protection
 
 AN  ACT  to  amend  the  general  business law, in relation to requiring
   persons offering weight loss services to  provide  notice  of  certain
   risks
 
   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 article
 30-B to read as follows:
                                ARTICLE 30-B
                           WEIGHT LOSS SERVICES
 SECTION 641. WEIGHT LOSS SERVICES AND PRODUCTS.
         642. WEIGHT LOSS SERVICES; NOTICE.
         643. DECEPTIVE PRACTICES.
         644. LOCAL REGULATION.
         645. PENALTIES.
   § 641. WEIGHT LOSS SERVICES AND PRODUCTS. FOR  THE  PURPOSES  OF  THIS
 ARTICLE:
   1. "WEIGHT LOSS SERVICES" SHALL MEAN COUNSELING AND EDUCATIONAL ACTIV-
 ITIES,  INCLUDING,  BUT  NOT  LIMITED TO, RECOMMENDING THE USE OF WEIGHT
 LOSS PRODUCTS, WHICH HAVE THE PRIMARY  PURPOSE  OF  HELPING  INDIVIDUALS
 REDUCE  BODY  WEIGHT.    WEIGHT LOSS SERVICES DOES NOT INCLUDE PROVIDING
 INFORMATION TO THE PUBLIC REGARDING INDIVIDUAL WEIGHT LOSS  PRODUCTS  IF
 THE PERSON, FIRM OR CORPORATION IS NOT ALSO ENGAGED IN COUNSELING ACTIV-
 ITIES.
   2.  "WEIGHT LOSS PRODUCTS" SHALL MEAN ANY FOODS, INGREDIENTS OR COMPO-
 NENTS OF FOODS, NUTRITIONAL FORMULAS OR SUPPLEMENTS, DRUGS, EQUIPMENT OR
 ANY OTHER PRODUCTS SOLD OR OFFERED FOR THE PRIMARY  PURPOSE  OF  HELPING
 INDIVIDUALS REDUCE BODY WEIGHT.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD07791-01-1
              

 A. 3173                             2
 
   3.  "DIRECT  SELLER"  SHALL  MEAN ANY PERSON IF (A) SUCH PERSON IS (I)
 ENGAGED IN THE TRADE OR BUSINESS OF SELLING OR SOLICITING  THE  SALE  OF
 CONSUMER  PRODUCTS TO ANY BUYER ON A BUY-SELL BASIS OR A DEPOSIT-COMMIS-
 SION BASIS FOR RESALE BY THE BUYER OR ANY OTHER PERSON IN  THE  HOME  OR
 OTHERWISE  THAN  IN A PERMANENT RETAIL ESTABLISHMENT, OR (II) ENGAGED IN
 THE TRADE OR BUSINESS OF SELLING OR  SOLICITING  THE  SALE  OF  CONSUMER
 PRODUCTS  IN THE HOME OR OTHERWISE THAN IN A PERMANENT RETAIL ESTABLISH-
 MENT;
   (B) SUBSTANTIALLY ALL THE REMUNERATION, WHETHER OR NOT PAID  IN  CASH,
 FOR  THE  PERFORMANCE OF THE SERVICES DESCRIBED IN PARAGRAPH (A) OF THIS
 SUBDIVISION IS DIRECTLY RELATED TO SALES OR OTHER OUTPUT, INCLUDING  THE
 PERFORMANCE OF SERVICES, RATHER THAN TO THE NUMBER OF HOURS WORKED; AND
   (C)  THE  SERVICES PERFORMED BY THE PERSON ARE PERFORMED PURSUANT TO A
 WRITTEN CONTRACT BETWEEN  SUCH  PERSON  AND  THE  PERSON  FOR  WHOM  THE
 SERVICES  ARE  PERFORMED AND SUCH CONTRACT PROVIDES THAT THE PERSON WILL
 NOT BE TREATED AS AN EMPLOYEE WITH RESPECT TO SUCH  SERVICES  FOR  STATE
 AND FEDERAL TAX PURPOSES.
   §  642.  WEIGHT  LOSS  SERVICES; NOTICE. 1. ANY PERSON, FIRM OR CORPO-
 RATION OFFERING  WEIGHT  LOSS  SERVICES  OR  WEIGHT  LOSS  SERVICES  AND
 PRODUCTS  IN  THIS  STATE  BY  MEANS OF SELLING OR OFFERING TO SELL SUCH
 SERVICES OR PRODUCTS TO THE PUBLIC SHALL EITHER (I) CONSPICUOUSLY POST A
 SIGN, MEASURING AT LEAST NINE INCHES BY FOURTEEN INCHES, WHERE CONSUMERS
 ARE OFFERED THE SERVICES OR PRODUCTS, IN WRITING, IN AT LEAST TEN  POINT
 PRINT, OR (II) PROVIDE IN WRITING, IN AT LEAST TEN POINT PRINT, TO INDI-
 VIDUALS  AND  CONSUMERS  PRIOR TO THE PURCHASE OF SUCH GOODS OR SERVICES
 THE FOLLOWING NOTICE OR SOME OTHER NOTICE WHICH  SUBSTANTIALLY  CONTAINS
 OR PROVIDES THE FOLLOWING INFORMATION.
                     WEIGHT LOSS AND DIETING INFORMATION
   A. WARNING! RAPID WEIGHT LOSS MAY CAUSE SERIOUS HEALTH PROBLEMS. RAPID
 WEIGHT  LOSS  IS  WEIGHT LOSS OF MORE THAN 1 1/2 TO 2 POUNDS PER WEEK OR
 WEIGHT LOSS OF MORE THAN 1 PERCENT OF BODY WEIGHT  PER  WEEK  AFTER  THE
 SECOND WEEK OF PARTICIPATION IN A WEIGHT LOSS PROGRAM.
   B.  CONSULT  YOUR PHYSICIAN BEFORE STARTING ANY WEIGHT LOSS PROGRAM OR
 USING ANY DIET MEDICATIONS OR FORMULAS.
   C. LONG TERM WEIGHT CONTROL IS THE SAFEST AND MOST IMPORTANT  GOAL  OF
 ANY  DIET PROGRAM. PERMANENT LIFESTYLE CHANGES SUCH AS EATING NUTRITIOUS
 FOODS, CALORIE CONTROL AND INCREASING  PHYSICAL  ACTIVITY  HELP  PROMOTE
 LONG TERM WEIGHT LOSS ACCORDING TO MEDICAL EXPERTS.
   D.  ASK THE PERSON PROVIDING OR SELLING YOU WEIGHT LOSS ADVICE OR DIET
 PRODUCTS, MEDICATIONS OR FORMULAS ABOUT THEIR QUALIFICATIONS AND  TRAIN-
 ING IN NUTRITION AND HEALTH.
   E. YOU HAVE THE RIGHT TO:
   (I)  ASK QUESTIONS ABOUT THE POTENTIAL HEALTH RISKS OF THIS PROGRAM OR
 PRODUCT, ITS NUTRITIONAL  CONTENT,  AND  ITS  PSYCHOLOGICAL-SUPPORT  AND
 EDUCATIONAL COMPONENTS;
   (II)  KNOW  THE  PRICE  OF TREATMENT, INCLUDING THE PRICE OF ANY EXTRA
 PRODUCTS, SERVICES, SUPPLEMENTS AND LABORATORY TESTS; AND
   (III) KNOW THE PROGRAM DURATION OF THE PROGRAM RECOMMENDED TO YOU.
   2. THE PROVISIONS OF THIS SECTION SHALL NOT APPLY TO  DIRECT  SELLERS,
 RETAIL  STORES  OR PHARMACIES SELLING WEIGHT LOSS PRODUCTS AND PROVIDING
 INFORMATION TO THE PUBLIC REGARDING  INDIVIDUAL  PRODUCTS,  UNLESS  SUCH
 BUSINESSES  OFFER  BOTH  WEIGHT  LOSS SERVICES AND WEIGHT LOSS PRODUCTS.
 FURTHERMORE, THE PROVISIONS OF THIS SECTION SHALL NOT  APPLY  TO  WEIGHT
 LOSS  SERVICES  PROVIDED  TO AN INDIVIDUAL BY ANY PERSON, FIRM OR CORPO-
 RATION WHICH PROVIDES WEIGHT LOSS SERVICES INCIDENTAL TO  THEIR  PRIMARY

 A. 3173                             3
 
 PROFESSIONAL  SERVICES  TO  SUCH  INDIVIDUAL AND WHICH DOES NOT OFFER TO
 SELL WEIGHT LOSS SERVICES OR WEIGHT LOSS PRODUCTS TO THE PUBLIC.
   § 643. DECEPTIVE PRACTICES. IT SHALL BE A DECEPTIVE TRADE PRACTICE FOR
 ANY  PERSON,  FIRM  OR  CORPORATION  OFFERING  OR  PROVIDING WEIGHT LOSS
 SERVICES OR WEIGHT LOSS PRODUCTS TO MISREPRESENT, DIRECTLY OR  INDIRECT-
 LY:
   1.  THE POTENTIAL HEALTH RISKS OF THE WEIGHT LOSS SERVICES OR PRODUCTS
 OFFERED;
   2. THE SUCCESS OF PARTICIPANTS  USING  THE  WEIGHT  LOSS  SERVICES  OR
 PRODUCTS  OFFERED  IN  ACHIEVING  OR  MAINTAINING  WEIGHT LOSS OR WEIGHT
 CONTROL. ANY REPRESENTATION OF SUCCESSFUL WEIGHT LOSS OR WEIGHT  CONTROL
 BY  PARTICIPANTS  WILL  BE  CONSIDERED MISLEADING IF THE PERSON, FIRM OR
 CORPORATION DOES NOT POSSESS OR RELY UPON A  REASONABLE  BASIS  FOR  THE
 REPRESENTATION  AT  THE TIME IT IS DISSEMINATED. IF A CLAIM IS MADE THAT
 SCIENTIFIC EVIDENCE SUPPORTS THE REPRESENTATION,  THE  PERSON,  FIRM  OR
 CORPORATION  MUST  POSSESS  COMPETENT  AND  RELIABLE SCIENTIFIC EVIDENCE
 SUBSTANTIATING SUCH CLAIM. FOR THE PURPOSES OF THIS SUBDIVISION, "COMPE-
 TENT AND RELIABLE SCIENTIFIC EVIDENCE" SHALL MEAN THOSE TESTS, ANALYSES,
 RESEARCH, STUDIES OR OTHER EVIDENCE BASED ON THE  EXPERTISE  OF  PROFES-
 SIONALS  IN THE RELEVANT AREA, THAT HAVE BEEN CONDUCTED AND EVALUATED IN
 AN OBJECTIVE MANNER BY PERSONS QUALIFIED  TO  DO  SO,  USING  PROCEDURES
 GENERALLY  ACCEPTED  IN  THE  PROFESSION  TO YIELD ACCURATE AND RELIABLE
 RESULTS;
   3. THE  EDUCATIONAL  AND  PROFESSIONAL  EXPERIENCE  OF  THE  PERSONNEL
 PROVIDING WEIGHT LOSS SERVICES OR WEIGHT LOSS PRODUCTS;
   4. THE TOTAL CHARGES FOR ANY WEIGHT LOSS SERVICES AND PRODUCTS; OR
   5.  THE  ACTUAL  OR  ESTIMATED  DURATION OF THE USE OF THE WEIGHT LOSS
 SERVICES OR PRODUCTS OFFERED.
   § 644. LOCAL REGULATION. NOTHING IN THIS ARTICLE SHALL BE CONSTRUED TO
 RESTRICT THE POWER OF ANY COUNTY, CITY, TOWN OR  VILLAGE  TO  ADOPT  AND
 ENFORCE  LOCAL  LAWS, ORDINANCES OR REGULATIONS WHICH EXCEED THE MINIMUM
 REQUIREMENTS OF THIS ARTICLE, AS LONG AS SUCH LOCAL LAWS, ORDINANCES  OR
 REGULATIONS  ARE  NOT  INCONSISTENT WITH THE PROVISIONS OF THIS ARTICLE.
 ANY LOCAL LAWS OR RULES REGULATING WEIGHT LOSS SERVICES AND PRODUCTS  IN
 A  CITY  HAVING  A  POPULATION  OF ONE MILLION OR MORE AND WHICH WERE IN
 EFFECT PRIOR TO THE EFFECTIVE  DATE  OF  THIS  ARTICLE  AND  ANY  NOTICE
 PROVIDED  PURSUANT TO SUCH LAW OR RULE, SHALL BE DEEMED TO BE CONSISTENT
 WITH THE PROVISIONS OF THIS ARTICLE.
   § 645. PENALTIES. EACH DAY A PERSON, FIRM OR CORPORATION VIOLATES  ANY
 PROVISION  OF THIS ARTICLE SHALL CONSTITUTE A SINGLE VIOLATION. WHENEVER
 THERE SHALL BE A VIOLATION OF THIS ARTICLE, 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
 VIOLATIONS.  IF IT SHALL APPEAR TO THE COURT OR JUSTICE THAT THE DEFEND-
 ANT 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. WHENEVER THE COURT SHALL DETERMINE THAT A VIOLATION OF
 THIS ARTICLE HAS OCCURRED, THE COURT MAY IMPOSE A CIVIL PENALTY  OF  NOT
 MORE  THAN  ONE  HUNDRED DOLLARS FOR THE FIRST VIOLATION AND TWO HUNDRED
 DOLLARS FOR EACH VIOLATION THEREAFTER, BUT IN NO EVENT SHALL  THE  TOTAL
 PENALTY  THEREFOR  EXCEED  ONE  THOUSAND DOLLARS. IN CONNECTION WITH ANY
 SUCH APPLICATION, THE ATTORNEY GENERAL IS AUTHORIZED TO TAKE  PROOF  AND

 A. 3173                             4
 
 MAKE  A  DETERMINATION  OF  THE RELEVANT FACTS AND TO ISSUE SUBPOENAS IN
 ACCORDANCE WITH THE CIVIL PRACTICE LAW AND RULES.
   § 2. This act shall take effect on the one hundred eightieth day after
 it shall have become a law.