New York weight loss/muscle building bill signed into law
Oct 27, 2023
To: UNPA Members
From: Trisha Knight and Peter Reinecke, UNPA Senior Advisors
Re: New York weight loss/muscle building bill signed into law
Date: October 27, 2023
Yesterday, New York Governor Kathy Hochul (D) signed into law a bill (S.5823/A.5601, copy attached) that bans the sale of certain dietary supplements and OTC drugs labeled or promoted as intended for weight loss or muscle-building to consumers 17 years-old and younger. The new law becomes effective in 6 months. While the sponsors of the new law argue it is necessary to protect children from unregulated and dangerous products, others argue the bill’s specific wording and how it will be implemented raises question about general access to a range of dietary supplement products. Enactment by a large state like New York will likely spur other states to try to adopt this legislative approach in the 2024 state legislative cycle.
Here is what the sponsors Senator Shelley B. Mayer and Assemblywoman Nily Rozic said about their bill:
“S.5823C/A.5610D will protect children under 18 from the risks of over-the-counter diet pills and supplements for weight loss or muscle building. Dietary supplements are dangerously under-regulated. Studies have found these products are laced with unapproved pharmaceutical ingredients, illicit anabolic steroids, experimental and banned stimulants, and other dangerous chemicals. And research demonstrates that use of these products may be a warning sign for the presence or risk of an eating disorder. Young people who take over-the-counter diet pills are more likely to develop an eating disorder than those who do not.”
Generally, the bill would prohibit the in-person and internet/mail order sale of dietary supplements and other “diet pills” to consumers under the age of 18 and require age verification as a means of enforcement. The definition of the products subject to the ban is broad, including a interpretive paragraph that seems to include any product containing creatine, green tea extract or green coffee bean extract. Here is the wording from the new law:
(a) “Dietary supplements for weight loss or muscle building” means a class of dietary supplement as defined in section three hundred ninety-one of this article that is labeled, marketed, or otherwise represented for the purpose of achieving weight loss or muscle building, but shall not include protein powders, protein drinks and foods marketed as containing protein unless the protein powder, protein drink or food marketed as containing protein contains an ingredient other than protein which would, considered alone, constitute a dietary supplement for weight loss or muscle building.
(b) whether the product’s labeling or marketing bears statements or images that express or imply that the product will help: (i) modify, maintain, or reduce body weight, fat, appetite, overall metabolism, or the process by which nutrients are metabolized; or (ii) maintain or increase muscle or strength;
(c) whether the product or its ingredients are otherwise represented for the purpose of achieving weight loss or building muscle; or
(d) whether the retailer has categorized the dietary supplement for weight loss or muscle building by: (i) placing signs, categorizing, or tagging the supplement with statements described in paragraph (b) of this subdivision; (ii) grouping the supplements with other weight loss or muscle building products in a display, advertisement, webpage, or area of the store; or (iii) otherwise representing that the product is for weight loss or muscle building. § 2.
When determining whether an over-the-counter diet pill or dietary supplement is labeled, marketed, or otherwise represented for the purpose of achieving weight loss or muscle building, the court shall consider, but is not limited to, the following factors:
(a) whether the product contains: (i) an ingredient approved by the federal Food and Drug Administration for weight loss or muscle building; (ii) a steroid; or (iii) creatine, green tea extract, raspberry ketone, garcinia cambogia, green coffee bean extract;
Another important aspect of the new law is its application to internet/mail order sales. It requires that the person receiving the product to be present and provide age verification. This could substantially impact access to these products by adults. Here is the specific wording:
Notwithstanding subdivision two of this section, a delivery seller, including an online retailer, who mails or ships over-the-counter diet pills or dietary supplements for weight loss or muscle building to consumers:
(a) shall not sell, deliver, or cause to be delivered any over-the-counter diet pills or dietary supplements for weight loss or muscle building to a person under eighteen years of age; and
(b) shall use a method of mailing or shipping:
(i) that requires the purchaser placing the delivery sale order, or an adult who is at least eighteen years of age to sign to accept delivery of the shipping container at the delivery address; and
(ii) that requires the person who signs to accept delivery of the shipping container to provide proof, in the form of a valid, government-issued identification bearing a photograph of the individual, that the person is at least eighteen years of age.
We will continue to keep you updated on the implementation of this significant new state law.
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