S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   8583
 
                        2021-2022 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             December 13, 2021
                                ___________
 
 Introduced  by M. of A. REYES -- read once and referred to the Committee
   on Agriculture
 
 AN ACT to amend the agriculture and markets law and  the  public  health
   law, in relation to food and food product advertising
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:

   Section 1. Legislative findings and  intent.  The  legislature  hereby
 finds  that  children and adolescents are an inherently vulnerable popu-
 lation, and that marketing unhealthy foods in a targeted and  persistent
 manner  to  this group is inconsistent with this state's efforts to curb
 the disastrous health outcomes that follow the overconsumption of  these
 products. Such marketing is inherently misleading, as children and young
 adults  often  lack  the  same  ability  to  resist  the  rewarding cues
 presented in unhealthy food marketing as adults.  This predatory commer-
 cial speech has contributed to an epidemic of obesity  and  its  related
 co-morbidities, particularly in the children of black and brown communi-
 ties.  Furthermore,  there is a growing consensus that processed food is
 habit forming, increasing the danger to public  health  that  can  arise
 from  succumbing  to  misleading  advertising. New York has a strong and
 substantial interest in protecting our  children  from  negative  health
 consequences.  Additionally,  the  power of the state is at its greatest
 when protecting the health and welfare of its citizens, especially those
 most vulnerable. Thus, the  legislature  finds  that  certain  types  of
 marketing  targeted at children can mislead and manipulate children into
 lifelong habits, and that such advertising should be  regulated  accord-
 ingly.
   §  2.  Subdivision  1  of section 202-a of the agriculture and markets
 law, as added by chapter 797 of the laws of 1939, is amended and two new
 subdivisions 4 and 5 are added to read as follows:
   1. An advertisement concerning a food or food  product  shall  not  be
 false  or  misleading  in  any  particular.   IN DETERMINING WHETHER ANY

  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD13338-05-1
              

 A. 8583                             2
 
 ADVERTISING CONCERNING A FOOD OR FOOD PRODUCT IS  FALSE  OR  MISLEADING,
 FACTORS SHALL INCLUDE, BUT NOT BE LIMITED TO:
   (A)  REPRESENTATIONS  DISSEMINATED  IN  ANY  MANNER  OR  BY ANY MEANS,
 INCLUDING DIGITALLY, OR BY STATEMENT, WORD, DESIGN, DEVICE, SOUND OR ANY
 COMBINATION THEREOF, FOR THE PURPOSE OF INDUCING, OR WHICH ARE LIKELY TO
 INDUCE, DIRECTLY OR INDIRECTLY, THE PURCHASE OF FOOD OR FOOD PRODUCT;
   (B) THE EXTENT TO WHICH THE ADVERTISING FAILS TO REVEAL FACTS MATERIAL
 IN THE LIGHT OF SUCH REPRESENTATIONS WITH RESPECT TO THE  FOOD  OR  FOOD
 PRODUCT TO WHICH THE ADVERTISING RELATES UNDER THE CONDITIONS PRESCRIBED
 IN  SAID  ADVERTISEMENT,  OR  UNDER  SUCH CONDITIONS AS ARE CUSTOMARY OR
 USUAL; AND
   (C) WHETHER THE ENTITY RESPONSIBLE FOR THE ADVERTISEMENT KNOWINGLY  OR
 WITH  REASON  TO  KNOW,  USED  FALSE  OR  MISLEADING CONTENT TO TARGET A
 CONSUMER REASONABLY UNABLE TO PROTECT THEIR INTERESTS BECAUSE  OF  THEIR
 AGE,  PHYSICAL INFIRMITY, IGNORANCE, ILLITERACY, INABILITY TO UNDERSTAND
 THE LANGUAGE OF AN AGREEMENT, OR SIMILAR FACTOR.
   4. FOR PURPOSES OF PARAGRAPH (C) OF SUBDIVISION ONE OF  THIS  SECTION,
 SPECIAL  CONSIDERATION  SHALL  BE  GIVEN TO ADVERTISEMENTS DIRECTED AT A
 CHILD AS DEFINED IN SECTION THREE  HUNDRED  SEVENTY-ONE  OF  THE  SOCIAL
 SERVICES  LAW. IN DETERMINING WHETHER AN ADVERTISEMENT CONCERNING A FOOD
 OR FOOD PRODUCT IS DIRECTED AT A CHILD, FACTORS SHALL INCLUDE,  BUT  NOT
 BE LIMITED TO:
   (A) SUBJECT MATTER;
   (B) VISUAL CONTENT;
   (C) USE OF ANIMATED CHARACTERS OR CHILD-ORIENTED ACTIVITIES AND INCEN-
 TIVES;
   (D) MUSIC OR OTHER AUDIO CONTENT;
   (E) AGE OF MODELS;
   (F)  PRESENCE  OF CHILD CELEBRITIES OR CELEBRITIES WHO APPEAL TO CHIL-
 DREN;
   (G) LANGUAGE;
   (H) COMPETENT  AND  RELIABLE  EMPIRICAL  EVIDENCE  REGARDING  AUDIENCE
 COMPOSITION AND EVIDENCE REGARDING THE INTENDED AUDIENCE;
   (I) PHYSICAL LOCATION OF ADVERTISEMENT, INCLUDING, BUT NOT LIMITED TO,
 PROXIMITY TO SCHOOLS OR OTHER INSTITUTIONS FREQUENTED BY CHILDREN;
   (J)  MEDIUM BY WHICH THE ADVERTISEMENT IS COMMUNICATED, INCLUDING, BUT
 NOT LIMITED TO, SOCIAL MEDIA; OR
   (K) OTHER SIMILAR FACTORS.
   5. (A) WHENEVER THERE SHALL BE A VIOLATION OF THIS SECTION, THE ATTOR-
 NEY GENERAL, IN THE NAME OF THE PEOPLE OF THE STATE OF NEW  YORK,  OR  A
 CITY  CORPORATION COUNSEL ON BEHALF OF THE LOCALITY, MAY BRING AN ACTION
 IN THE SUPREME COURT OR FEDERAL DISTRICT COURT TO  ENJOIN  AND  RESTRAIN
 SUCH VIOLATIONS AND TO OBTAIN RESTITUTION AND DAMAGES.
   (B) ANY PERSON, FIRM, CORPORATION OR ASSOCIATION THAT HAS BEEN DAMAGED
 AS  A RESULT OF VIOLATIONS OF THIS SECTION SHALL BE ENTITLED TO BRING AN
 ACTION FOR RECOVERY OF DAMAGES OR TO ENFORCE THIS SECTION IN THE SUPREME
 COURT OR FEDERAL DISTRICT COURT.
   § 3. Subdivision 24 of section 16 of the agriculture and markets  law,
 as  amended  by  chapter  108 of the laws of 1974, is amended to read as
 follows:
   24. [Co-operate] COOPERATE with local  health  departments  and  other
 local agencies in preventing the production, manufacture, sale or offer-
 ing  for  sale  of  fraudulent,  deleterious  or unwholesome food.   THE
 DEPARTMENT, IN CONJUNCTION WITH THE DEPARTMENT OF HEALTH, SHALL ANNUALLY
 PRODUCE TO THE LEGISLATURE A REPORT  DETAILING  A  DETERMINATION  AS  TO
 WHICH  FOODS  MAY  BE  UNWHOLESOME OR DELETERIOUS ACCORDING TO GENERALLY
 A. 8583                             3
 
 ACCEPTED NUTRITIONAL STANDARDS. The commissioner may contract  with  any
 such  local  health department or other local agency for the performance
 of inspections with respect to any food or other product over  which  he
 OR  SHE has jurisdiction, powers and duties under the provisions of this
 chapter.
   § 4. Subdivision 1 of section 2599-b of  the  public  health  law,  as
 amended  by  section  1 of part A of chapter 469 of the laws of 2015, is
 amended to read as follows:
   1. The program shall be designed to prevent and reduce  the  incidence
 and  prevalence of obesity in children and adolescents, especially among
 populations with  high  rates  of  obesity  and  obesity-related  health
 complications  including,  but  not limited to, diabetes, heart disease,
 cancer, osteoarthritis, asthma,  emphysema,  chronic  bronchitis,  other
 chronic respiratory diseases and other conditions. The program shall use
 recommendations  and  goals of the United States departments of agricul-
 ture and health and human services, the surgeon general and centers  for
 disease control and prevention in developing and implementing guidelines
 for nutrition education and physical activity projects as part of obesi-
 ty  prevention  efforts.  The  content and implementation of the program
 shall stress the benefits of choosing a balanced,  healthful  diet  from
 the many options available to consumers[, without specifically targeting
 the  elimination  of any particular food group, food product or food-re-
 lated industry].
   § 5. This act shall take effect on the thirtieth day  after  it  shall
 have become a law.

                             
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  8583--B
 
                        2021-2022 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             December 13, 2021
                                ___________
 
 Introduced  by  M. of A. REYES, SOLAGES -- read once and referred to the
   Committee on Agriculture -- recommitted to the Committee  on  Agricul-
   ture  in  accordance  with  Assembly  Rule  3,  sec.  2  --  committee
   discharged, bill amended, ordered reprinted as amended and recommitted
   to said committee -- again reported from said  committee  with  amend-
   ments, ordered reprinted as amended and recommitted to said committee
 
 AN  ACT  to  amend the agriculture and markets law and the public health
   law, in relation to food and food product advertising
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1.  Legislative  findings  and intent. The legislature hereby
 finds that children are an inherently vulnerable  population,  and  that
 marketing  unhealthy  foods  in a targeted and persistent manner to this
 group is inconsistent with this state's efforts to curb  the  disastrous
 health  outcomes that follow the overconsumption of these products. Such
 marketing is inherently misleading, as  children  often  lack  the  same
 ability to resist the rewarding cues presented in unhealthy food market-
 ing  as adults.   This predatory commercial speech has contributed to an
 epidemic of obesity and its related co-morbidities, particularly in  the
 children of black and brown communities. Furthermore, there is a growing
 consensus  that  highly  processed food is habit forming, increasing the
 danger to public health that can arise  from  succumbing  to  misleading
 advertising.  New York has a strong and substantial interest in protect-
 ing our children from negative health  consequences.  Additionally,  the
 power  of  the  state  is at its greatest when protecting the health and
 welfare of its citizens, especially those  most  vulnerable.  Thus,  the
 legislature  finds that unfair and deceptive marketing targeted at chil-
 dren can mislead and manipulate children into lifelong habits, and  that
 such unfair and deceptive advertising should be regulated accordingly.

  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD13338-14-2
 A. 8583--B                          2
 
              

   §  2.  Subdivision  1  of section 202-a of the agriculture and markets
 law, as added by chapter 797 of the laws of 1939, is  amended  and  four
 new subdivisions 4, 5, 6 and 7 are added to read as follows:
   1.  [An advertisement concerning a food or food product] ANY REPRESEN-
 TATIONS DISSEMINATED IN ANY MANNER OR BY ANY MEANS INCLUDING  DIGITALLY,
 OR BY STATEMENT, WORD, DESIGN, DEVICE, SOUND OR ANY COMBINATION THEREOF,
 FOR  THE PURPOSE OF INDUCING, OR WHICH ARE LIKELY TO INDUCE, DIRECTLY OR
 INDIRECTLY, THE PURCHASE OF FOOD OR FOOD PRODUCTS shall not be false  or
 misleading  in  any  [particular]  MANNER.    IN DETERMINING WHETHER ANY
 ADVERTISING CONCERNING A FOOD OR FOOD PRODUCT IS  FALSE  OR  MISLEADING,
 FACTORS SHALL INCLUDE, BUT NOT BE LIMITED TO:
   (A) THE EXTENT TO WHICH THE ADVERTISING FAILS TO REVEAL FACTS MATERIAL
 IN  THE  LIGHT  OF SUCH REPRESENTATIONS WITH RESPECT TO THE FOOD OR FOOD
 PRODUCT TO WHICH THE ADVERTISING RELATES UNDER THE CONDITIONS PRESCRIBED
 IN SAID ADVERTISEMENT, OR UNDER SUCH  CONDITIONS  AS  ARE  CUSTOMARY  OR
 USUAL;
   (B)  WHETHER  THE ENTITY RESPONSIBLE FOR THE ADVERTISEMENT TARGETING A
 CONSUMER WHO IS REASONABLY UNABLE TO PROTECT THEIR INTERESTS BECAUSE  OF
 THEIR  AGE,  PHYSICAL  INFIRMITY,  IGNORANCE,  ILLITERACY,  INABILITY TO
 UNDERSTAND THE LANGUAGE OF AN AGREEMENT, OR SIMILAR FACTOR USED:
   (I) AN UNFAIR ACT, PRACTICE, OR CONDUCT; OR
   (II) A DECEPTIVE REPRESENTATION, OMISSION, PRACTICE, OR CONTENT; AND
   (C) WHETHER: (I) THE  ADVERTISEMENT  CAUSES  OR  IS  LIKELY  TO  CAUSE
 SUBSTANTIAL  INJURY  TO  CONSUMERS;  (II)  THE  INJURY IS NOT REASONABLY
 AVOIDABLE BY CONSUMERS; AND (III) THE INJURY IS NOT OUTWEIGHED BY  COUN-
 TERVAILING BENEFITS TO CONSUMERS OR TO COMPETITION.
   (D)  FOR THE PURPOSES OF THIS SUBDIVISION AND SUBDIVISION FIVE OF THIS
 SECTION, A "CONSUMER" IS DEFINED AS A PERSON  WHO  IS  TARGETED  BY  AND
 EXPOSED TO AN ADVERTISEMENT, OR THOSE ACTING ON SUCH A PERSON'S BEHALF.
   4.  FOR  THE  PURPOSES  OF  PARAGRAPH  (A)  OF SUBDIVISION ONE OF THIS
 SECTION, A TRUE STATEMENT OF INFORMATION IN BRIEF  SUMMARY  RELATING  TO
 EFFECTS  OF  SUBSTANTIAL  CONSUMPTION  OF  THIS  PRODUCT  IS SUFFICIENT.
 UNTRUE OR MISLEADING INFORMATION IN ANY PART OF THE  ADVERTISEMENT  WILL
 NOT BE CORRECTED BY THE INCLUSION IN ANOTHER DISTINCT PART OF THE ADVER-
 TISEMENT  OF  A  BRIEF STATEMENT CONTAINING TRUE INFORMATION RELATING TO
 THE EFFECTS OF CONSUMPTION.
   5. FOR THE PURPOSES OF THIS SECTION, FOR A CONSUMER:
   (A) AN ACT, PRACTICE, OR CONDUCT IS "UNFAIR" WHERE IT:
   (I)    CAUSES OR IS LIKELY TO CAUSE SUBSTANTIAL INJURY TO SUCH CONSUM-
 ER;
   (II)   CANNOT BE REASONABLY AVOIDED BY SUCH CONSUMER; AND
   (III) IS NOT OUTWEIGHED BY COUNTERVAILING BENEFITS TO SUCH CONSUMER OR
 TO COMPETITION.
   (B) A REPRESENTATION, OMISSION, OR PRACTICE IS "DECEPTIVE" WHERE:
   (I) IT IS LIKELY TO MISLEAD SUCH CONSUMER;
   (II) SUCH CONSUMER'S INTERPRETATION OF THE  REPRESENTATION,  OMISSION,
 OR PRACTICE IS CONSIDERED REASONABLE UNDER THE CIRCUMSTANCES; AND
   (III)  THE MISLEADING REPRESENTATION, OMISSION, OR PRACTICE IS MATERI-
 AL.
   6. FOR PURPOSES OF PARAGRAPH (B) OF SUBDIVISION ONE OF  THIS  SECTION,
 SPECIAL  CONSIDERATION  SHALL  BE  GIVEN TO ADVERTISEMENTS DIRECTED AT A
 CHILD AS DEFINED IN SECTION THREE  HUNDRED  SEVENTY-ONE  OF  THE  SOCIAL
 SERVICES  LAW. IN DETERMINING WHETHER AN ADVERTISEMENT CONCERNING A FOOD
 OR FOOD PRODUCT IS DIRECTED AT A CHILD, FACTORS SHALL INCLUDE,  BUT  NOT
 BE LIMITED TO:
   (A) SUBJECT MATTER;
 A. 8583--B                          3
 
   (B) VISUAL CONTENT;
   (C) USE OF ANIMATED CHARACTERS OR CHILD-ORIENTED ACTIVITIES AND INCEN-
 TIVES;
   (D) MUSIC OR OTHER AUDIO CONTENT;
   (E) AGE OF MODELS;
   (F)  PRESENCE  OF CHILD CELEBRITIES OR CELEBRITIES WHO APPEAL TO CHIL-
 DREN;
   (G) LANGUAGE;
   (H) COMPETENT  AND  RELIABLE  EMPIRICAL  EVIDENCE  REGARDING  AUDIENCE
 COMPOSITION AND EVIDENCE REGARDING THE INTENDED AUDIENCE;
   (I) PHYSICAL LOCATION OF ADVERTISEMENT, INCLUDING, BUT NOT LIMITED TO,
 PROXIMITY TO SCHOOLS OR OTHER INSTITUTIONS FREQUENTED BY CHILDREN;
   (J)  MEDIUM BY WHICH THE ADVERTISEMENT IS COMMUNICATED, INCLUDING, BUT
 NOT LIMITED TO, SOCIAL MEDIA; OR
   (K) OTHER SIMILAR FACTORS.
   7. (A) WHENEVER THERE SHALL BE A VIOLATION OF THIS SECTION, THE ATTOR-
 NEY GENERAL, IN THE NAME OF THE PEOPLE OF THE STATE OF NEW  YORK,  OR  A
 CITY  CORPORATION COUNSEL ON BEHALF OF THE LOCALITY, MAY BRING AN ACTION
 IN THE SUPREME COURT OR FEDERAL DISTRICT COURT TO  ENJOIN  AND  RESTRAIN
 SUCH VIOLATIONS AND TO OBTAIN RESTITUTION AND DAMAGES.
   (B) ANY PERSON, FIRM, CORPORATION OR ASSOCIATION THAT HAS BEEN DAMAGED
 AS  A RESULT OF VIOLATIONS OF THIS SECTION SHALL BE ENTITLED TO BRING AN
 ACTION FOR RECOVERY OF DAMAGES OR TO ENFORCE THIS SECTION IN THE SUPREME
 COURT OR FEDERAL DISTRICT COURT BY SEEKING AN INJUNCTION.
   (C) THE COURT MAY AWARD REASONABLE ATTORNEYS'  FEES  TO  A  PREVAILING
 PLAINTIFF.
   §  3. Subdivision 24 of section 16 of the agriculture and markets law,
 as amended by chapter 108 of the laws of 1974, is  amended  to  read  as
 follows:
   24.  [Co-operate]  COOPERATE  with  local health departments and other
 local agencies in preventing the production, manufacture, sale or offer-
 ing for sale of  fraudulent,  deleterious  or  unwholesome  food.    THE
 DEPARTMENT, IN CONJUNCTION WITH THE DEPARTMENT OF HEALTH, SHALL ANNUALLY
 PRODUCE  TO  THE  LEGISLATURE  A  REPORT DETAILING A DETERMINATION AS TO
 WHICH FOODS MAY BE UNWHOLESOME OR  DELETERIOUS  ACCORDING  TO  GENERALLY
 ACCEPTED  NUTRITIONAL  STANDARDS. The commissioner may contract with any
 such local health department or other local agency for  the  performance
 of  inspections  with respect to any food or other product over which he
 OR SHE has jurisdiction, powers and duties under the provisions of  this
 chapter.
   §  4.  Subdivision  1  of  section 2599-b of the public health law, as
 amended by section 1 of part A of chapter 469 of the laws  of  2015,  is
 amended to read as follows:
   1.  The  program shall be designed to prevent and reduce the incidence
 and prevalence of obesity in children and adolescents, especially  among
 populations  with  high  rates  of  obesity  and  obesity-related health
 complications including, but not limited to,  diabetes,  heart  disease,
 cancer,  osteoarthritis,  asthma,  emphysema,  chronic bronchitis, other
 chronic respiratory diseases and other conditions. The program shall use
 recommendations and goals of the United States departments  of  agricul-
 ture  and health and human services, the surgeon general and centers for
 disease control and prevention in developing and implementing guidelines
 for nutrition education and physical activity projects as part of obesi-
 ty prevention efforts. The content and  implementation  of  the  program
 shall  stress  the  benefits of choosing a balanced, healthful diet from
 the many options available to consumers[, without specifically targeting
 A. 8583--B                          4

 the elimination of any particular food group, food product  or  food-re-
 lated industry].
   § 5. Severability.  If any part or provision of this act or its appli-
 cation  to a person is held invalid, the invalidity of that provision or
 application does not affect other provisions or applications of this act
 that can be given effect without the invalid provision or application.
   § 6. This act shall take effect on the thirtieth day  after  it  shall
 have become a law.

                             
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  8583--C
 
                        2021-2022 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             December 13, 2021
                                ___________
 
 Introduced  by  M. of A. REYES, SOLAGES -- read once and referred to the
   Committee on Agriculture -- recommitted to the Committee  on  Agricul-
   ture  in  accordance  with  Assembly  Rule  3,  sec.  2  --  committee
   discharged, bill amended, ordered reprinted as amended and recommitted
   to said committee -- again reported from said  committee  with  amend-
   ments,  ordered reprinted as amended and recommitted to said committee
   -- recommitted to the Committee  on  Agriculture  in  accordance  with
   Assembly Rule 3, sec. 2 -- committee discharged, bill amended, ordered
   reprinted as amended and recommitted to said committee
 
 AN  ACT  to  amend the agriculture and markets law, the general business
   law and the public health law, in relation to food  and  food  product
   advertising
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Legislative findings and  intent.  The  legislature  hereby
 finds  that  children  are an inherently vulnerable population, and that
 marketing unhealthy foods in a targeted and persistent  manner  to  this
 group  is  inconsistent with this state's efforts to curb the disastrous
 health outcomes that follow the overconsumption of these products.  Such
 marketing  is  inherently  misleading,  as  children often lack the same
 ability to resist the rewarding cues presented in unhealthy food market-
 ing as adults.  This predatory commercial speech has contributed  to  an
 epidemic  of obesity and its related co-morbidities, particularly in the
 children of black and brown communities. Furthermore, there is a growing
 consensus that highly processed food is habit  forming,  increasing  the
 danger  to  public  health  that can arise from succumbing to misleading
 advertising. New York has a strong and substantial interest in  protect-
 ing  our  children  from negative health consequences. Additionally, the
 power of the state is at its greatest when  protecting  the  health  and
 welfare  of  its  citizens,  especially those most vulnerable. Thus, the
 legislature finds that unfair and deceptive marketing targeted at  chil-
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD13338-16-2
              

 A. 8583--C                          2
 
 dren  can mislead and manipulate children into lifelong habits, and that
 such unfair and deceptive advertising should be regulated accordingly.
   §  2.  Section  202-a of the agriculture and markets law is amended by
 adding a new subdivision 4 to read as follows:
   4. WHENEVER THE COURT SHALL DETERMINE THAT A VIOLATION OF THIS SECTION
 HAS OCCURRED, THE COURT SHALL CONSIDER FACTORS AND SPECIAL CONSIDERATION
 GIVEN TO ADVERTISING DIRECTED AT  A  CHILD  PURSUANT  TO  SECTION  THREE
 HUNDRED FIFTY-A OF GENERAL BUSINESS LAW.
   §  3.  Section 350-a of general business law is amended by adding five
 new subdivisions 4, 5, 6, 7, and 8 to read as follows:
   4. IN DETERMINING WHETHER ADVERTISING OF A FOOD  OR  FOOD  PRODUCT  IS
 MISLEADING,  THERE  SHALL  BE  TAKEN  INTO  ACCOUNT  ANY REPRESENTATIONS
 DISSEMINATED IN ANY MANNER OR BY ANY MEANS INCLUDING  DIGITALLY,  OR  BY
 STATEMENT,  WORD,  DESIGN, DEVICE, SOUND OR ANY COMBINATION THEREOF, FOR
 THE PURPOSE OF INDUCING, OR WHICH ARE  LIKELY  TO  INDUCE,  DIRECTLY  OR
 INDIRECTLY,  THE PURCHASE OF FOOD OR FOOD PRODUCTS SHALL NOT BE FALSE OR
 MISLEADING IN ANY  MANNER.    IN  DETERMINING  WHETHER  ANY  ADVERTISING
 CONCERNING  A FOOD OR FOOD PRODUCT IS FALSE OR MISLEADING, FACTORS SHALL
 INCLUDE, BUT NOT BE LIMITED TO:
   (A) THE EXTENT TO WHICH THE ADVERTISING FAILS TO REVEAL FACTS MATERIAL
 IN THE LIGHT OF SUCH REPRESENTATIONS WITH RESPECT TO THE  FOOD  OR  FOOD
 PRODUCT TO WHICH THE ADVERTISING RELATES UNDER THE CONDITIONS PRESCRIBED
 IN  SAID  ADVERTISEMENT,  OR  UNDER  SUCH CONDITIONS AS ARE CUSTOMARY OR
 USUAL;
   (B) WHETHER THE ENTITY RESPONSIBLE FOR THE ADVERTISEMENT  TARGETING  A
 CONSUMER  WHO IS REASONABLY UNABLE TO PROTECT THEIR INTERESTS BECAUSE OF
 THEIR AGE,  PHYSICAL  INFIRMITY,  IGNORANCE,  ILLITERACY,  INABILITY  TO
 UNDERSTAND THE LANGUAGE OF AN AGREEMENT, OR SIMILAR FACTOR USED:
   (I) AN UNFAIR ACT, PRACTICE, OR CONDUCT; OR
   (II) A DECEPTIVE REPRESENTATION, OMISSION, PRACTICE, OR CONTENT; AND
   (C)  WHETHER:  (I)  THE  ADVERTISEMENT  CAUSES  OR  IS LIKELY TO CAUSE
 SUBSTANTIAL INJURY TO CONSUMERS;  (II)  THE  INJURY  IS  NOT  REASONABLY
 AVOIDABLE  BY CONSUMERS; AND (III) THE INJURY IS NOT OUTWEIGHED BY COUN-
 TERVAILING BENEFITS TO CONSUMERS OR TO COMPETITION.
   (D) FOR THE PURPOSES OF THIS SUBDIVISION AND SUBDIVISION SIX  OF  THIS
 SECTION,  A  "CONSUMER"  IS  DEFINED  AS A PERSON WHO IS TARGETED BY AND
 EXPOSED TO AN ADVERTISEMENT, OR THOSE ACTING ON SUCH A PERSON'S BEHALF.
   5. FOR THE PURPOSES OF PARAGRAPH  (A)  OF  SUBDIVISION  FOUR  OF  THIS
 SECTION,  A  TRUE  STATEMENT OF INFORMATION IN BRIEF SUMMARY RELATING TO
 EFFECTS OF  SUBSTANTIAL  CONSUMPTION  OF  THIS  PRODUCT  IS  SUFFICIENT.
 UNTRUE  OR  MISLEADING INFORMATION IN ANY PART OF THE ADVERTISEMENT WILL
 NOT BE CORRECTED BY THE INCLUSION IN ANOTHER DISTINCT PART OF THE ADVER-
 TISEMENT OF A BRIEF STATEMENT CONTAINING TRUE  INFORMATION  RELATING  TO
 THE EFFECTS OF CONSUMPTION.
   6. FOR THE PURPOSES OF THIS SECTION, FOR A CONSUMER:
   (A) AN ACT, PRACTICE, OR CONDUCT IS "UNFAIR" WHERE IT:
   (I)    CAUSES OR IS LIKELY TO CAUSE SUBSTANTIAL INJURY TO SUCH CONSUM-
 ER;
   (II)   CANNOT BE REASONABLY AVOIDED BY SUCH CONSUMER; AND
   (III) IS NOT OUTWEIGHED BY COUNTERVAILING BENEFITS TO SUCH CONSUMER OR
 TO COMPETITION.
   (B) A REPRESENTATION, OMISSION, OR PRACTICE IS "DECEPTIVE" WHERE:
   (I) IT IS LIKELY TO MISLEAD SUCH CONSUMER;
   (II)  SUCH  CONSUMER'S INTERPRETATION OF THE REPRESENTATION, OMISSION,
 OR PRACTICE IS CONSIDERED REASONABLE UNDER THE CIRCUMSTANCES; AND
 A. 8583--C                          3
 
   (III) THE MISLEADING REPRESENTATION, OMISSION, OR PRACTICE IS  MATERI-
 AL.
   7.  FOR PURPOSES OF PARAGRAPH (B) OF SUBDIVISION FOUR OF THIS SECTION,
 SPECIAL CONSIDERATION SHALL BE GIVEN TO  ADVERTISEMENTS  DIRECTED  AT  A
 CHILD  AS  DEFINED  IN  SECTION  THREE HUNDRED SEVENTY-ONE OF THE SOCIAL
 SERVICES LAW. IN DETERMINING WHETHER AN ADVERTISEMENT CONCERNING A  FOOD
 OR  FOOD  PRODUCT IS DIRECTED AT A CHILD, FACTORS SHALL INCLUDE, BUT NOT
 BE LIMITED TO:
   (A) SUBJECT MATTER;
   (B) VISUAL CONTENT;
   (C) USE OF ANIMATED CHARACTERS OR CHILD-ORIENTED ACTIVITIES AND INCEN-
 TIVES;
   (D) MUSIC OR OTHER AUDIO CONTENT;
   (E) AGE OF MODELS;
   (F) PRESENCE OF CHILD CELEBRITIES OR CELEBRITIES WHO APPEAL  TO  CHIL-
 DREN;
   (G) LANGUAGE;
   (H)  COMPETENT  AND  RELIABLE  EMPIRICAL  EVIDENCE  REGARDING AUDIENCE
 COMPOSITION AND EVIDENCE REGARDING THE INTENDED AUDIENCE;
   (I) PHYSICAL LOCATION OF ADVERTISEMENT, INCLUDING, BUT NOT LIMITED TO,
 PROXIMITY TO SCHOOLS OR OTHER INSTITUTIONS FREQUENTED BY CHILDREN;
   (J) MEDIUM BY WHICH THE ADVERTISEMENT IS COMMUNICATED, INCLUDING,  BUT
 NOT LIMITED TO, SOCIAL MEDIA; OR
   (K) OTHER SIMILAR FACTORS.
   8. (A) WHENEVER THERE SHALL BE A VIOLATION OF THIS SECTION, THE ATTOR-
 NEY  GENERAL,  IN  THE NAME OF THE PEOPLE OF THE STATE OF NEW YORK, OR A
 CITY CORPORATION COUNSEL ON BEHALF OF THE LOCALITY, MAY BRING AN  ACTION
 IN  THE  SUPREME  COURT OR FEDERAL DISTRICT COURT TO ENJOIN AND RESTRAIN
 SUCH VIOLATIONS AND TO OBTAIN RESTITUTION AND DAMAGES.
   (B) ANY PERSON, FIRM, CORPORATION OR ASSOCIATION THAT HAS BEEN DAMAGED
 AS A RESULT OF VIOLATIONS OF THIS SECTION SHALL BE ENTITLED TO BRING  AN
 ACTION FOR RECOVERY OF DAMAGES OR TO ENFORCE THIS SECTION IN THE SUPREME
 COURT OR FEDERAL DISTRICT COURT BY SEEKING AN INJUNCTION.
   (C)  THE  COURT  MAY  AWARD REASONABLE ATTORNEYS' FEES TO A PREVAILING
 PLAINTIFF.
   § 4. Subdivision 1 of section 2599-b of  the  public  health  law,  as
 amended  by  section  1 of part A of chapter 469 of the laws of 2015, is
 amended to read as follows:
   1. The program shall be designed to prevent and reduce  the  incidence
 and  prevalence of obesity in children and adolescents, especially among
 populations with  high  rates  of  obesity  and  obesity-related  health
 complications  including,  but  not limited to, diabetes, heart disease,
 cancer, osteoarthritis, asthma,  emphysema,  chronic  bronchitis,  other
 chronic respiratory diseases and other conditions. The program shall use
 recommendations  and  goals of the United States departments of agricul-
 ture and health and human services, the surgeon general and centers  for
 disease control and prevention in developing and implementing guidelines
 for nutrition education and physical activity projects as part of obesi-
 ty  prevention  efforts.  The  content and implementation of the program
 shall stress the benefits of choosing a balanced,  healthful  diet  from
 the many options available to consumers[, without specifically targeting
 the  elimination  of any particular food group, food product or food-re-
 lated industry] WHILE SPECIFICALLY INCLUDING EDUCATION ON ACCESS AND THE
 NUTRITIONAL VALUE OF LOCALLY GROWN FOODS.  THE PROGRAM  SHALL  COOPERATE
 WITH  THE DEPARTMENT OF AGRICULTURE AND MARKETS TO ADD ACCESS TO LOCALLY
 GROWN FOODS WITHIN THE GUIDELINES AND FRAMEWORK OF THE PROGRAM.
 A. 8583--C                          4
 
   § 5. Severability.  If any part or provision of this act or its appli-
 cation to a person is held invalid, the invalidity of that provision  or
 application does not affect other provisions or applications of this act
 that can be given effect without the invalid provision or application.
   §  6.  This  act shall take effect on the thirtieth day after it shall
 have become a law.