S T A T E O F N E W Y O R K
________________________________________________________________________
4424--A
2023-2024 Regular Sessions
I N A S S E M B L Y
February 14, 2023
___________
Introduced by M. of A. REYES, KELLES -- read once and referred to the
Committee on Agriculture -- 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. 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 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.
§ 2. Section 202-a of the agriculture and markets law is amended by
adding a new subdivision 4 to read as follows:
4. IN DETERMINING WHETHER 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 the general business law is amended by adding
three new subdivisions 4, 5 and 6 to read as follows:
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD01982-03-3
A. 4424--A 2
4. IN DETERMINING WHETHER ANY ADVERTISING CONCERNING A FOOD OR FOOD
PRODUCT IS FALSE OR MISLEADING, FACTORS SHALL INCLUDE, BUT NOT BE LIMIT-
ED TO:
(A) WHETHER THE ADVERTISEMENT TARGETS A CONSUMER WHO IS REASONABLY
UNABLE TO PROTECT THEIR INTERESTS BECAUSE OF THEIR AGE, PHYSICAL INFIRM-
ITY, IGNORANCE, ILLITERACY, INABILITY TO UNDERSTAND THE LANGUAGE OF AN
AGREEMENT, OR SIMILAR FACTOR.
(B) WHETHER THE ADVERTISEMENT IS AN UNFAIR ACT, PRACTICE OR CONDUCT.
(C) FOR THE PURPOSES OF THIS SUBDIVISION AND SUBDIVISION SIX OF THIS
SECTION, A "CONSUMER" IS DEFINED AS A PERSON WHO IS TARGETED BY AN
ADVERTISEMENT, OR THOSE ACTING ON SUCH A PERSON'S BEHALF.
5. FOR THE PURPOSES OF THIS SECTION, FOR A CONSUMER: AN ACT, PRAC-
TICE, OR CONDUCT IS "UNFAIR" WHERE IT:
(A) CAUSES OR IS LIKELY TO CAUSE SUBSTANTIAL INJURY TO SUCH CONSUM-
ER;
(B) CANNOT BE REASONABLY AVOIDED BY SUCH CONSUMER; AND
(C) IS NOT OUTWEIGHED BY COUNTERVAILING BENEFITS TO SUCH CONSUMER OR
TO COMPETITION.
6. FOR PURPOSES OF PARAGRAPH (A) 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.
§ 4. Subdivision 3 of section 350-e of the general business law, as
amended by chapter 328 of the laws of 2007, is amended to read as
follows:
3. Any person who has been injured by reason of any violation of
section three hundred fifty or three hundred fifty-a of this article may
bring an action in his or her own name to enjoin such unlawful act or
practice, an action to recover his or her actual damages or five hundred
dollars, whichever is greater, or both such actions. The court may, in
its discretion, increase the award of damages to an amount not to exceed
three times the actual damages, up to ten thousand dollars, if the court
finds that the defendant willfully or knowingly violated this section OR
ENGAGED IN ADVERTISING DIRECTED AT A CHILD PURSUANT TO SECTION THREE
HUNDRED FIFTY-A OF THIS ARTICLE. The court may award reasonable attor-
ney's fees to a prevailing plaintiff.
A. 4424--A 3
§ 5. 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 AND FOOD PRODUCTS INCLUDING,
BUT NOT LIMITED TO DAIRY, FRUIT AND VEGETABLE FOOD PRODUCTS. THE
PROGRAM SHALL COOPERATE WITH THE DEPARTMENT OF AGRICULTURE AND MARKETS
TO ADD ACCESS TO LOCALLY GROWN FOODS AND FOOD PRODUCTS INCLUDING, BUT
NOT LIMITED TO DAIRY, FRUIT AND VEGETABLE FOOD PRODUCTS WITHIN THE
GUIDELINES AND FRAMEWORK OF THE PROGRAM.
§ 6. Severability. If any part or provision of this act or its appli-
cation to a person is held invalid, the invalidity of that part,
provision or application does not affect other parts, provisions or
applications of this act that can be given effect without the invalid
provision or application.
§ 7. This act shall take effect on the thirtieth day after it shall
have become a law.