§ 391-OO — Sale of over-the-counter diet pills and dietary supplements for weight loss or muscle building

§ 391-oo. Sale of over-the-counter diet pills and dietary supplements\nfor weight loss or muscle building. 1. For purposes of this section the\nfollowing terms shall have the following meanings:\n (a) "Dietary supplements for weight loss or muscle building" means a\nclass of dietary supplement as defined in section three hundred\nninety-one-o of this article that is labeled, marketed, or otherwise\nrepresented for the purpose of achieving weight loss or muscle building,\nbut shall not include protein powders, protein drinks and foods marketed\nas containing protein unless the protein powder, protein drink or food\nmarketed as containing protein contains an ingredient other than protein\nwhich would, considered alone, constitute a dietary supplement for\nweight loss or muscle building.\n (b) "Over-the-counter diet pills" means a class of drugs labeled,\nmarketed, or otherwise represented for the purpose of achieving weight\nloss that are lawfully sold, transferred, or furnished over-the-counter\nwith or without a prescription pursuant to the federal food, drug, and\ncosmetic act, 21 U.S.C. section 301 et seq., or regulations adopted\nthereunder.\n (c) "Retail establishment" means any vendor that, in the regular\ncourse of business, sells dietary supplements for weight loss or muscle\nbuilding or over-the-counter diet pills at retail directly to the\npublic, including, but not limited to, pharmacies, grocery stores, other\nretail stores, and vendors that accept orders placed by mail, telephone,\nelectronic mail, internet website, online catalog, or software\napplication.\n (d) "Delivery sale" means any sale of over-the-counter diet pills or\ndietary supplements for weight loss or muscle building to a consumer if:\n (i) the consumer submits the order for the sale by means of a\ntelephone or other method of voice transmission, mail, or the internet\nor other online service, or the seller is otherwise not in the physical\npresence of the buyer when the request for purchase or order is made; or\n (ii) the over-the-counter diet pills or dietary supplements for weight\nloss or muscle building are delivered to the buyer by common carrier,\nprivate delivery service, or other method of remote delivery, or the\nseller is not in the physical presence of the buyer when the buyer\nobtains possession of the over-the-counter diet pills or dietary\nsupplements for weight loss or muscle building.\n (e) "Delivery seller" means a vendor, including online retailers, who\nmakes delivery sales of over-the-counter diet pills or dietary\nsupplements for weight loss or muscle building. Such vendors shall\ninclude persons who accept orders placed by mail, telephone, electronic\nmail, internet website, online catalog, or software application.\n 2. No person, firm, corporation, partnership, association, limited\nliability company, or other entity shall sell or offer to sell or give\naway, as either a retail or wholesale promotion, an over-the-counter\ndiet pill or dietary supplement for weight loss or muscle building\nwithin this state to any person under eighteen years of age. Retail\nestablishments shall require proof of legal age for purchase of such\nproducts. For purposes of this section, proof of legal age shall mean\n(a) a valid driver's license or non-driver's identification card issued\nby the commissioner of motor vehicles, the federal government, any\nUnited States territory, commonwealth or possession, the District of\nColumbia, a state government within the United States, a provincial\ngovernment of the dominion of Canada, or the city of New York, or (b) a\nvalid passport issued by the United States government or any other\ncountry, or (c) an identification card issued by the armed forces of the\nUnited States, indicating that the individual is at least eighteen years\nof age, or (d) a student identification card, provided such card\nindicates the date of birth of the individual. Such identification need\nnot be required of any individual who reasonably appears to be at least\ntwenty-five years of age; provided, however, that such appearance shall\nnot constitute a defense in any proceeding alleging the sale of any\nover-the-counter diet pills and dietary supplements for weight loss or\nmuscle building to an individual under eighteen years of age.\n 3. (a) Any person operating a retail establishment may perform a\ntransaction scan as a precondition for the purchase of over-the-counter\ndiet pills or dietary supplements for weight loss or muscle building.\n (b) In any instance where the information deciphered by the\ntransaction scan fails to match the information printed on the driver's\nlicense or non-driver identification card, or if the transaction scan\nindicates that the information is false or fraudulent, the attempted\ntransaction shall be denied.\n (c) In any proceeding pursuant to subdivision five of this section, it\nshall be an affirmative defense that such person had produced a driver's\nlicense or non-driver identification card apparently issued by a\ngovernmental entity, successfully completed that transaction scan, and\nthat over-the-counter diet pills or dietary supplements for weight loss\nof muscle building were sold, delivered or given to such person in\nreasonable reliance upon such identification and transaction scan. In\nevaluating the applicability of such affirmative defense, the court\nshall take into consideration any written policy adopted and implemented\nby the seller to effectuate the provisions of this section. Use of a\ntransaction scan shall not excuse any person operating a retail\nestablishment from the exercise of reasonable diligence otherwise\nrequired by this section.\n (d) A retail establishment or employee of such establishment shall\nonly use a device capable of deciphering any electronically readable\nformat, and shall only use the information recorded and maintained\nthrough the use of such devices, for the purposes contained in this\nsubdivision. No retail establishment or employee of such establishment\nshall resell or disseminate the information recorded during such a scan\nto any third person. Such prohibited resale or dissemination includes\nbut is not limited to any advertising, marketing or promotional\nactivities. Notwithstanding the restrictions imposed by this\nsubdivision, such records may be released pursuant to a court ordered\nsubpoena or pursuant to any other statute that specifically authorizes\nthe release of such information. Each violation of this subdivision\nshall be punishable by a civil penalty of not more than one thousand\ndollars.\n (e) A retail establishment or employee of such establishment may\nelectronically or mechanically record and maintain only the information\nfrom a transaction scan necessary to effectuate this section. Such\ninformation shall be limited to the following: (i) name, (ii) date of\nbirth, (iii) driver's license or non-driver identification number, and\n(iv) expiration date.\n 4. Notwithstanding subdivision two of this section, a delivery seller,\nincluding an online retailer, who mails or ships over-the-counter diet\npills or dietary supplements for weight loss or muscle building to\nconsumers:\n (a) shall not sell, deliver, or cause to be delivered any\nover-the-counter diet pills or dietary supplements for weight loss or\nmuscle building to a person under eighteen years of age; and\n (b) shall use a method of mailing or shipping:\n (i) that requires the purchaser placing the delivery sale order, or an\nadult who is at least eighteen years of age to sign to accept delivery\nof the shipping container at the delivery address; and\n (ii) that requires the person who signs to accept delivery of the\nshipping container to provide proof, in the form of a valid,\ngovernment-issued identification bearing a photograph of the individual,\nthat the person is at least eighteen years of age.\n 5. Whenever there shall be a violation of this section, an application\nmay be made by the attorney general in the name of the people of the\nstate of New York, to a court or justice having jurisdiction by a\nspecial proceeding to issue an injunction, and upon notice to the\ndefendant of not less than five days, to enjoin and restrain the\ncontinuance of such violation; and if it shall appear to the\nsatisfaction of the court or justice that the defendant has, in fact,\nviolated this section, an injunction may be issued by the court or\njustice, enjoining and restraining any further violations, without\nrequiring proof that any person has, in fact, been injured or damaged\nthereby. Whenever a court shall determine that a violation of this\nsection has occurred, the court may impose a civil penalty of not more\nthan five hundred dollars.\n 6. When determining whether an over-the-counter diet pill or dietary\nsupplement is labeled, marketed, or otherwise represented for the\npurpose of achieving weight loss or muscle building, the court shall\nconsider, but is not limited to, the following factors:\n (a) whether the product contains:\n (i) an ingredient approved by the federal Food and Drug Administration\nfor weight loss or muscle building;\n (ii) a steroid; or\n (iii) creatine, green tea extract, raspberry ketone, garcinia\ncambogia, green coffee bean extract;\n (b) whether the product's labeling or marketing bears statements or\nimages that express or imply that the product will help:\n (i) modify, maintain, or reduce body weight, fat, appetite, overall\nmetabolism, or the process by which nutrients are metabolized; or\n (ii) maintain or increase muscle or strength;\n (c) whether the product or its ingredients are otherwise represented\nfor the purpose of achieving weight loss or building muscle; or\n (d) whether the retailer has categorized the dietary supplement for\nweight loss or muscle building by:\n (i) placing signs, categorizing, or tagging the supplement with\nstatements described in paragraph (b) of this subdivision;\n (ii) grouping the supplements with other weight loss or muscle\nbuilding products in a display, advertisement, webpage, or area of the\nstore; or\n (iii) otherwise representing that the product is for weight loss or\nmuscle building.\n