Amd 202-a, Ag & Mkts L; amd 350-a, Gen Bus L; amd 2599-b, Pub Health L
 
Relates to false or misleading advertisements of food and food products; provides factors to determine whether an advertisement is false or misleading; provides for enforcement and a private right of action.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A4424B
SPONSOR: Reyes
 
TITLE OF BILL:
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
 
PURPOSE:
To protect children from junk food companies targeting them with false
or misleading advertisements.
 
SUMMARY OF PROVISIONS:
Section 1 provides legislative findings.
Section 2 amends subdivision 1 of section 202-a of the Agriculture and
Markets law by requiring courts to give special consideration to adver-
tising directed at children when determining a violation of this
section.
Section 3 amends section 350-a of the General Business Law by adding
subdivisions 4-8, which require consideration of representations made,
failure to reveal material facts, and the intended target when determin-
ing whether an advertisement is false or misleading. Additionally,
special consideration should be given when the target audience is chil-
dren in making this determination.
Section 4 amends subdivision 1 of section 2599-b of the Public Health
Law by allowing regulators to target specific food related industries
for implementation of the Childhood Obesity Prevention Program (COPP).
COPP should include, among other things, education on access and the
nutritional value of locally grown foods. This 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.
Section 5 of this act addresses severability: if any part or provision
of this act or its application to a person is held invalid, the invalid-
ity 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.
Section 6 provides the effective date.
 
JUSTIFICATION:
Currently, obesity and related comorbidities are the second leading
cause of preventable death in the United States. Obesity is closely
linked with impaired immune function, decreased lung capacity, and
increased risk of severe illness, all of which makes individuals more
vulnerable as we continue managing the onslaught of Coronavirus. Unfor-
tunately, the obesity epidemic continues to grow exponentially, espe-
cially amongst children. Nearly one-third of New York's children are
obese or overweight. In 2020, the World Health Organization (WHO),
UNICEF, and the Lancet Medical Journal jointly formed a commission that
found exploitative marketing practices as one of the most serious
threats to our childrens' future. In the United States, children see
roughly three to five fast food advertisements per day. Children are
particularly susceptible to these tactics because they are still forming
their personal preferences and habits, and they do not yet possess the
ability to detect ulterior motives. Furthermore, children are less like-
ly to practice restraint and can easily become addicted to the immediate
satisfaction junk food provides.
Like many comorbidities, obesity also disproportionately affects commu-
nities of color. The fast food industry specifically targets advertising
towards disadvantaged communities with just enough money to spend on
cheap fast food and little access to reliable nutrition information.
Food-related companies spend almost $14 billion per year on advertising,
of which 80% promotes fast food, surgery drinks, candy and other
unhealthy snacks. In New York, the trends are alarming. Research shows
that companies specifically target largely black and brown neighborhoods
to advertise for sugary products. A CUNY Urban Food Policy Institute
survey found that New Yorkers living and working in lower income neigh-
borhoods are almost twice as likely to fall victim to predatory market-
ing of unhealthy foods than those in higher income communities. Highly
processed foods share similar characteristics to alcohol, narcotics and
other addictive substances. Research indicates that the chemical compo-
sition of such foods may actually alter our physiology to promote over-
eating and metabolic dysfunction. Like the restrictions placed on the
consumption of drugs and alcohol, the legislature is morally obligated
to protect the public from predatory marketing of junk food consistent
with the state's efforts to curb the disastrous health outcomes associ-
ated with overconsumption of these products.
 
LEGISLATIVE HISTORY:
A8583C of 2021-22: Committed to Agriculture
 
FISCAL IMPLICATIONS:
To be determined.
 
EFFECTIVE DATE:
This act shall take effect on the thirtieth day after it shall have
STATE OF NEW YORK
________________________________________________________________________
4424--B
2023-2024 Regular Sessions
IN ASSEMBLY
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 --
again reported from said committee with amendments, 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:
1 Section 1. Legislative findings and intent. The legislature hereby
2 finds that children are an inherently vulnerable population, and that
3 marketing unhealthy foods in a targeted and persistent manner to this
4 group is inconsistent with this state's efforts to curb the disastrous
5 health outcomes that follow the overconsumption of these products. Such
6 marketing is inherently misleading, as children often lack the same
7 ability to resist the rewarding cues presented in unhealthy food market-
8 ing as adults. New York has a strong and substantial interest in
9 protecting our children from negative health consequences. Additionally,
10 the power of the state is at its greatest when protecting the health and
11 welfare of its citizens, especially those most vulnerable. Thus, the
12 legislature finds that unfair and deceptive marketing targeted at chil-
13 dren can mislead and manipulate children into lifelong habits, and that
14 such unfair and deceptive advertising should be regulated accordingly.
15 § 2. Section 202-a of the agriculture and markets law is amended by
16 adding a new subdivision 4 to read as follows:
17 4. In determining whether a violation of this section has occurred,
18 the court shall consider factors and special consideration given to
19 advertising directed at a child pursuant to section three hundred
20 fifty-a of general business law.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD01982-05-3
A. 4424--B 2
1 § 3. Section 350-a of the general business law is amended by adding
2 three new subdivisions 4, 5 and 6 to read as follows:
3 4. In determining whether any advertising concerning a food or food
4 product is false or misleading, factors shall include, but not be limit-
5 ed to:
6 (a) Whether the advertisement targets a consumer who is reasonably
7 unable to protect their interests because of their age, physical infirm-
8 ity, ignorance, illiteracy, inability to understand the language of an
9 agreement, or similar factor.
10 (b) Whether the advertisement is an unfair act, practice or conduct.
11 (c) For the purposes of this subdivision and subdivision six of this
12 section, a "consumer" is defined as a person who is targeted by an
13 advertisement, or those acting on such a person's behalf.
14 5. For the purposes of this section, for a consumer: an act, prac-
15 tice, or conduct is "unfair" where it:
16 (a) causes or is likely to cause substantial injury to such consum-
17 er;
18 (b) cannot be reasonably avoided by such consumer; and
19 (c) is not outweighed by countervailing benefits to such consumer or
20 to competition.
21 6. For purposes of paragraph (a) of subdivision four of this section,
22 special consideration shall be given to advertisements directed at a
23 child as defined in section three hundred seventy-one of the social
24 services law. In determining whether an advertisement concerning a food
25 or food product is directed at a child, factors shall include, but not
26 be limited to:
27 (a) Subject matter;
28 (b) Visual content;
29 (c) Use of animated characters or child-oriented activities and incen-
30 tives;
31 (d) Music or other audio content;
32 (e) Age of models;
33 (f) Presence of child celebrities or celebrities who appeal to chil-
34 dren;
35 (g) Language;
36 (h) Competent and reliable empirical evidence regarding audience
37 composition and evidence regarding the intended audience;
38 (i) Physical location of advertisement, including, but not limited to,
39 proximity to schools or other institutions frequented by children;
40 (j) Medium by which the advertisement is communicated, including, but
41 not limited to, social media; or
42 (k) Other similar factors.
43 § 4. Subdivision 1 of section 2599-b of the public health law, as
44 amended by section 1 of part A of chapter 469 of the laws of 2015, is
45 amended to read as follows:
46 1. The program shall be designed to prevent and reduce the incidence
47 and prevalence of obesity in children and adolescents, especially among
48 populations with high rates of obesity and obesity-related health
49 complications including, but not limited to, diabetes, heart disease,
50 cancer, osteoarthritis, asthma, emphysema, chronic bronchitis, other
51 chronic respiratory diseases and other conditions. The program shall use
52 recommendations and goals of the United States departments of agricul-
53 ture and health and human services, the surgeon general and centers for
54 disease control and prevention in developing and implementing guidelines
55 for nutrition education and physical activity projects as part of obesi-
56 ty prevention efforts. The content and implementation of the program
A. 4424--B 3
1 shall stress the benefits of choosing a balanced, healthful diet from
2 the many options available to consumers[, without specifically targeting
3 the elimination of any particular food group, food product or food-re-
4 lated industry] while specifically including education on access and the
5 nutritional value of locally grown foods and food products including,
6 but not limited to dairy, fruit and vegetable food products. The
7 program shall cooperate with the department of agriculture and markets
8 to add access to locally grown foods and food products including, but
9 not limited to dairy, fruit and vegetable food products within the
10 guidelines and framework of the program.
11 § 5. Severability. If any part or provision of this act or its appli-
12 cation to a person is held invalid, the invalidity of that part,
13 provision or application does not affect other parts, provisions or
14 applications of this act that can be given effect without the invalid
15 provision or application.
16 § 6. This act shall take effect on the thirtieth day after it shall
17 have become a law.