STATE OF NEW YORK ________________________________________________________________________ 5823--A 2023-2024 Regular Sessions IN SENATE March 17, 2023 ___________ Introduced by Sen. MAYER -- read twice and ordered printed, and when printed to be committed to the Committee on Consumer Protection -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee AN ACT to amend the general business law, in relation to establishing restrictions on the sale of over-the-counter diet pills and dietary supplements for weight loss or muscle building The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. The general business law is amended by adding a new section 2 391-oo to read as follows: 3 § 391-oo. Sale of over-the-counter diet pills and dietary supplements 4 for weight loss or muscle building. 1. For purposes of this section the 5 following terms shall have the following meanings: 6 (a) "Dietary supplements for weight loss or muscle building" means a 7 class of dietary supplement as defined in section three hundred ninety- 8 one-o of this article that is labeled, marketed, or otherwise repres- 9 ented for the purpose of achieving weight loss or muscle building, but 10 shall not include protein powders, protein drinks and foods marketed as 11 containing protein unless the protein powder, protein drink or food 12 marketed as containing protein contains an ingredient other than protein 13 which would, considered alone, constitute a dietary supplement for 14 weight loss or muscle building. 15 (b) "Over-the-counter diet pills" means a class of drugs labeled, 16 marketed, or otherwise represented for the purpose of achieving weight 17 loss that are lawfully sold, transferred, or furnished over-the-counter 18 with or without a prescription pursuant to the federal food, drug, and 19 cosmetic act, 21 U.S.C. section 301 et seq., or regulations adopted 20 thereunder. 21 (c) "Retail establishment" means any vendor that, in the regular 22 course of business, sells dietary supplements for weight loss or muscle EXPLANATION--Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD02273-06-3
S. 5823--A 2 1 building or over-the-counter diet pills at retail directly to the 2 public, including, but not limited to, pharmacies, grocery stores, other 3 retail stores, and vendors that accept orders placed by mail, telephone, 4 electronic mail, internet website, online catalog, or software applica- 5 tion. 6 (d) "Delivery sale" means any sale of over-the-counter diet pills or 7 dietary supplements for weight loss or muscle building to a consumer if: 8 (i) the consumer submits the order for the sale by means of a tele- 9 phone or other method of voice transmission, mail, or the internet or 10 other online service, or the seller is otherwise not in the physical 11 presence of the buyer when the request for purchase or order is made; or 12 (ii) the over-the-counter diet pills or dietary supplements for weight 13 loss or muscle building are delivered to the buyer by common carrier, 14 private delivery service, or other method of remote delivery, or the 15 seller is not in the physical presence of the buyer when the buyer 16 obtains possession of the over-the-counter diet pills or dietary supple- 17 ments for weight loss or muscle building. 18 (e) "Delivery seller" means a vendor, including online retailers, who 19 makes delivery sales of over-the-counter diet pills or dietary supple- 20 ments for weight loss or muscle building. Such vendors shall include 21 persons who accept orders placed by mail, telephone, electronic mail, 22 internet website, online catalog, or software application. 23 2. No person, firm, corporation, partnership, association, limited 24 liability company, or other entity shall sell or offer to sell or give 25 away, as either a retail or wholesale promotion, an over-the-counter 26 diet pill or dietary supplement for weight loss or muscle building with- 27 in this state to any person under eighteen years of age unless 28 prescribed or ordered by a health care provider legally authorized to 29 prescribe such pills or supplements under title eight of the education 30 law. Retail establishments shall require proof of legal age for purchase 31 of such products. Such identification need not be required of any indi- 32 vidual who reasonably appears to be at least twenty-five years of age; 33 provided, however, that such appearance shall not constitute a defense 34 in any proceeding alleging the sale of any over-the-counter diet pills 35 and dietary supplements for weight loss or muscle building to an indi- 36 vidual under eighteen years of age. Any retail establishment which 37 violates the provisions of this section shall be subject to a fine of 38 not more than five hundred dollars for each such violation. 39 3. Notwithstanding subdivision two of this section, a delivery seller, 40 including an online retailer, who mails or ships over-the-counter diet 41 pills or dietary supplements for weight loss or muscle building to 42 consumers: 43 (a) shall not sell, deliver, or cause to be delivered any over-the- 44 counter diet pills or dietary supplements for weight loss or muscle 45 building to a person under eighteen years of age; and 46 (b) shall use a method of mailing or shipping: 47 (i) that requires the purchaser placing the delivery sale order, or an 48 adult who is at least eighteen years of age to sign to accept delivery 49 of the shipping container at the delivery address; and 50 (ii) that requires the person who signs to accept delivery of the 51 shipping container to provide proof, in the form of a valid, govern- 52 ment-issued identification bearing a photograph of the individual, that 53 the person is at least eighteen years of age. 54 4. Whenever there shall be a violation of this section, an application 55 may be made by the attorney general in the name of the people of the 56 state of New York, to a court or justice having jurisdiction by a
S. 5823--A 3 1 special proceeding to issue an injunction, and upon notice to the 2 defendant of not less than five days, to enjoin and restrain the contin- 3 uance of such violation; and if it shall appear to the satisfaction of 4 the court or justice that the defendant has, in fact, violated this 5 section, an injunction may be issued by the court or justice, enjoining 6 and restraining any further violations, without requiring proof that any 7 person has, in fact, been injured or damaged thereby. Whenever a court 8 shall determine that a violation of this section has occurred, the court 9 may impose a civil penalty of not more than five hundred dollars. 10 5. When determining whether an over-the-counter diet pill or dietary 11 supplement is labeled, marketed, or otherwise represented for the 12 purpose of achieving weight loss or muscle building, the court shall 13 consider, but is not limited to, the following factors: 14 (a) whether the product contains: 15 (i) an ingredient approved by the federal Food and Drug Administration 16 for weight loss or muscle building; 17 (ii) a steroid; or 18 (iii) creatine, green tea extract, raspberry ketone, garcinia cambo- 19 gia, green coffee bean extract; 20 (b) whether the product's labeling or marketing bears statements or 21 images that express or imply that the product will help: 22 (i) modify, maintain, or reduce body weight, fat, appetite, overall 23 metabolism, or the process by which nutrients are metabolized; or 24 (ii) maintain or increase muscle or strength; 25 (c) whether the product or its ingredients are otherwise represented 26 for the purpose of achieving weight loss or building muscle; or 27 (d) whether the retailer has categorized the dietary supplement for 28 weight loss or muscle building by: 29 (i) placing signs, categorizing, or tagging the supplement with state- 30 ments described in paragraph (b) of this subdivision; 31 (ii) grouping the supplements with other weight loss or muscle build- 32 ing products in a display, advertisement, webpage, or area of the store; 33 or 34 (iii) otherwise representing that the product is for weight loss or 35 muscle building. 36 § 2. This act shall take effect on the one hundred eightieth day after 37 it shall have become a law.