i- The New York legislature has reintroduced S213B/A4424B to “protect children from junk food companies targeting them with false or misleading advertisements.” The bill passed the Senate last year, but failed to make it out of the Assembly’s Agriculture Committee. It has again advanced quickly out of committee in the Senate this year, but remains in committee in the Assembly.
- General Business Law §§ 350 and 350-A currently prohibit false advertising generally, and Agriculture and Markets Law § 202-A prohibits false or misleading advertisements for food. Key provisions of the proposed law would:
- Amend Section 202-A to require “special consideration” of whether food advertising is directed to children, in the analysis of whether food advertising is deceptive;
- Amend Section 350-A to require a court to consider, in its deception analysis of food advertising, whether the advertising (1) “targets 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,” or (2) is otherwise an “unfair act, practice, or conduct”;
- Further amend Section 350-A to require that “special consideration” be given to advertisements directed to children, defined in another section as those “actually or apparently under the age of eighteen years.” The bill defines “consumer” as both “a person who is targeted by an advertisement” and “those acting on such a person’s behalf.” Consequently, the law would apparently apply not only to advertising aimed at children but also advertising aimed at parents or other caregivers, regardless of their age.
- Conspicuously missing from the statute is any definition of “junk food,” making it difficult to interpret exactly what food advertising might be affected. These new provisions would be enforceable by state regulators, as well as the plaintiff’s bar, given language providing a private right of action.
- Apart from the advertising implications, another provision would amend the mission of the Childhood Obesity Prevention Program – a Department of Health program developed in cooperation with other state agencies, including the Education Department. The provision would (1) strike current statutory language barring the program from “specifically targeting the elimination of any particular food group, food product, or food-related industry,” and (2) require the program to provide “education on access and the nutritional value of locally grown foods.” No definition of “locally grown foods” is provided.
- Whether the law would survive a challenge based in the commercial speech doctrine remains to be seen. New York is currently litigating a lawsuit challenging its age restrictions on the sale of weight-loss and bodybuilding supplements to minors. The Bloomberg administration’s attempt to ban certain sales of sugary drinks in containers larger than 16 ounces garnered national attention before being struck down by the State Court of Appeals. On the other hand, the city’s 2006 ban on trans fats in restaurants ultimately caught on with other localities and eventually the FDA. In 2015, New York City began to require sodium requirements to be posted in chain restaurants, a practice upheld in court in 2017. More recently, New York reintroduced S6055A, a bill that would ban certain food additives in the state. That bill failed to pass last year.
The Return of the New York Junk Food Bill
Monday, March 11, 2024
