S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  8400

                       2015-2016 Regular Sessions

                          I N  A S S E M B L Y

                             October 2, 2015
                               ___________

Introduced by M. of A. TITONE -- read once and referred to the Committee
  on Consumer Affairs and Protection

AN  ACT  to  amend  the  agriculture and markets law, in relation to the
  labeling of sugar-sweetened food items  and  beverages  with  warnings
  prescribed by the department of health

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Short title. This act shall be known and may  be  cited  as
the "sugar-sweetened food item and beverage safety warning act".
  S  2.  The  agriculture  and  markets  law  is amended by adding a new
section 204-e to read as follows:
  S 204-E. LABELING OF SUGAR-SWEETENED FOOD  ITEMS  AND  SUGAR-SWEETENED
BEVERAGES. 1. FOR THE PURPOSES OF THIS SECTION:
  (A)  "BEVERAGE  CONTAINER"  MEANS  ANY  SEALED  OR  UNSEALED CONTAINER
REGARDLESS OF SIZE OR SHAPE INCLUDING, BUT NOT LIMITED TO, THOSE MADE OF
GLASS, METAL, PAPER, PLASTIC, OR ANY OTHER MATERIAL  OR  COMBINATION  OF
MATERIALS  THAT IS USED OR INTENDED TO BE USED TO HOLD A SUGAR-SWEETENED
BEVERAGE FOR INDIVIDUAL SALE TO A CONSUMER.
  (B) "BEVERAGE DISPENSING MACHINE" MEANS ANY DEVICE THAT MIXES  CONCEN-
TRATE  WITH ANY ONE OR MORE OTHER INGREDIENTS, AND DISPENSES THE RESULT-
ING MIXTURE INTO AN UNSEALED CONTAINER AS A READY-TO-DRINK BEVERAGE.
  (C) "CALORIC SWEETENER" MEANS ANY SUBSTANCE CONTAINING CALORIES, SUIT-
ABLE FOR HUMAN CONSUMPTION, THAT HUMANS  PERCEIVE  AS  SWEET  AND  SHALL
INCLUDE,  BUT  NOT  BE LIMITED TO, SUCROSE, FRUCTOSE, GLUCOSE, AND OTHER
SUGARS AND FRUIT JUICE CONCENTRATES.
  (D) "CALORIC" MEANS A SUBSTANCE THAT ADDS CALORIES TO THE DIET OF  THE
INDIVIDUAL WHO CONSUMES SUCH SUBSTANCE.
  (E)  "CONCENTRATE" MEANS A SYRUP OR POWDER THAT IS USED OR INTENDED TO
BE USED FOR MIXING, COMPOUNDING OR MAKING A SUGAR-SWEETENED FOOD ITEM OR
A SUGAR-SWEETENED BEVERAGE.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD11906-02-5

              

A. 8400                             2

  (F) "CONSUMER" MEANS AN INDIVIDUAL  WHO  PURCHASES  A  SUGAR-SWEETENED
FOOD ITEM OR SUGAR-SWEETENED BEVERAGE FOR A PURPOSE OTHER THAN RESALE.
  (G)  "DISTRIBUTE"  MEANS TO SELL OR OTHERWISE PROVIDE A PRODUCT TO ANY
PERSON FOR RESALE.
  (H) "FOOD ITEM CONTAINER"  MEANS  ANY  SEALED  OR  UNSEALED  CONTAINER
REGARDLESS OF SIZE OR SHAPE INCLUDING, BUT NOT LIMITED TO, THOSE MADE OF
GLASS,  METAL,  PAPER,  PLASTIC, OR ANY OTHER MATERIAL OR COMBINATION OF
MATERIALS THAT IS USED OR INTENDED TO BE USED TO HOLD A  SUGAR-SWEETENED
FOOD ITEM FOR INDIVIDUAL SALE TO A CONSUMER.
  (I)  "FOOD  ITEM  DISPENSING  MACHINE" MEANS ANY DEVICE THAT DISPENSES
SUGAR-SWEETENED FOOD ITEMS.
  (J) "MENU OR MENU BOARD" MEANS THE PRIMARY WRITING OF  A  PUBLIC  FOOD
SERVICE  ESTABLISHMENT, AS DEFINED IN SUBDIVISION THREE OF SECTION THIR-
TEEN HUNDRED NINETY-NINE-N OF  THE  PUBLIC  HEALTH  LAW,  FROM  WHICH  A
CONSUMER  MAKES AN ORDER SELECTION, WHICH CAN BE IN DIFFERENT FORMS SUCH
AS BOOKLETS, PAMPHLETS, OR SINGLE SHEETS OF PAPER, AND  CAN  BE  LOCATED
INSIDE OR OUTSIDE OF SUCH PUBLIC FOOD SERVICE ESTABLISHMENT.
  (K) "NATURAL FRUIT JUICE" MEANS THE ORIGINAL LIQUID RESULTING FROM THE
PRESSING  OF  FRUIT,  THE  LIQUID  RESULTING  FROM THE RECONSTITUTION OF
NATURAL FRUIT JUICE CONCENTRATE OR THE LIQUID RESULTING FROM THE  RESTO-
RATION OF WATER TO DEHYDRATED NATURAL FRUIT JUICE.
  (L) "NATURAL VEGETABLE JUICE" MEANS THE ORIGINAL LIQUID RESULTING FROM
THE PRESSING OF VEGETABLES, THE LIQUID RESULTING FROM THE RECONSTITUTION
OF  NATURAL VEGETABLE JUICE CONCENTRATE OR THE LIQUID RESULTING FROM THE
RESTORATION OF WATER TO DEHYDRATED NATURAL VEGETABLE JUICE.
  (M) "POWDER" MEANS A SOLID MIXTURE WITH ADDED CALORIC  SWEETENER  USED
IN  MAKING,  MIXING  OR  COMPOUNDING  A  SUGAR-SWEETENED  FOOD  ITEM  OR
SUGAR-SWEETENED BEVERAGE BY MIXING SUCH SOLID MIXTURE WITH  ANY  ONE  OR
MORE OTHER INGREDIENTS INCLUDING, BUT NOT LIMITED TO, WATER, ICE, SYRUP,
SIMPLE  SYRUP,  FRUITS, VEGETABLES, FRUIT JUICE, OR CARBONATION OR OTHER
GAS.
  (N) "PRINCIPAL DISPLAY PANEL" MEANS THE PART OF A LABEL THAT  IS  MOST
LIKELY  TO  BE  DISPLAYED,  PRESENTED, SHOWN OR EXAMINED UNDER CUSTOMARY
CONDITIONS OF DISPLAY FOR RETAIL SALE.
  (O) "SEALED BEVERAGE CONTAINER" MEANS A BEVERAGE CONTAINER  HOLDING  A
BEVERAGE  THAT  IS  CLOSED  OR SEALED BEFORE BEING OFFERED FOR SALE TO A
CONSUMER.
  (P) "SEALED FOOD ITEM CONTAINER" MEANS A FOOD ITEM CONTAINER HOLDING A
FOOD ITEM THAT IS CLOSED OR SEALED BEFORE BEING OFFERED FOR  SALE  TO  A
CONSUMER.
  (Q)  (1)  "SUGAR-SWEETENED  BEVERAGE" MEANS ANY SWEETENED NONALCOHOLIC
BEVERAGE, CARBONATED OR NONCARBONATED, SOLD FOR HUMAN  CONSUMPTION  THAT
HAS ADDED CALORIC SWEETENERS AND WHICH CONTAINS SEVENTY-FIVE CALORIES OR
MORE PER TWELVE FLUID OUNCES.
  (2) SUCH TERM SHALL NOT INCLUDE:
  (A) ANY BEVERAGE CONTAINING ONE HUNDRED PERCENT NATURAL FRUIT JUICE OR
NATURAL VEGETABLE JUICE WITH NO ADDED CALORIC SWEETENERS;
  (B)  ANY LIQUID PRODUCT MANUFACTURED FOR ANY OF THE FOLLOWING USES AND
COMMONLY REFERRED TO AS A "DIETARY AID":
  (I) AN ORAL NUTRITIONAL THERAPY FOR PERSONS WHO CANNOT ABSORB OR META-
BOLIZE DIETARY NUTRIENTS FROM FOOD OR FOOD ITEMS AND BEVERAGES,
  (II) A SOURCE OF NECESSARY NUTRITION USED AS A  RESULT  OF  A  MEDICAL
CONDITION, OR
  (III) AN ORAL ELECTROLYTE SOLUTION FOR INFANTS AND CHILDREN FORMULATED
TO PREVENT DEHYDRATION DUE TO ILLNESS;

A. 8400                             3

  (C)  ANY  PRODUCT  FOR  CONSUMPTION  BY  INFANTS  AND THAT IS COMMONLY
REFERRED TO AS "INFANT FORMULA";
  (D) ANY BEVERAGE WHOSE PRINCIPAL INGREDIENT BY WEIGHT IS MILK; OR
  (E)  ANY ALCOHOLIC BEVERAGE THAT IS SUBJECT TO REGULATION BY THE ALCO-
HOLIC BEVERAGE CONTROL LAW.
  (R) "SUGAR-SWEETENED FOOD ITEM" MEANS ANY SWEETENED FOOD ITEM SOLD FOR
HUMAN CONSUMPTION THAT HAS ADDED CALORIC SWEETENERS AND  WHICH  CONTAINS
SEVENTY-FIVE CALORIES OR MORE PER FOUR OUNCES.
  (S)  "SYRUP"  MEANS A LIQUID MIXTURE WITH ADDED CALORIC SWEETENER USED
IN  MAKING,  MIXING  OR  COMPOUNDING  A  SUGAR-SWEETENED  FOOD  ITEM  OR
SUGAR-SWEETENED  BEVERAGE  BY MIXING SUCH LIQUID MIXTURE WITH ANY ONE OR
MORE OTHER INGREDIENTS, INCLUDING, BUT NOT LIMITED  TO,  WATER,  ICE,  A
POWDER,  SIMPLE SYRUP, FRUITS, VEGETABLES, FRUIT JUICE, VEGETABLE JUICE,
OR CARBONATION OR OTHER GAS.
  (T) "UNSEALED BEVERAGE CONTAINER"  MEANS  A  BEVERAGE  CONTAINER  INTO
WHICH A BEVERAGE IS DISPENSED OR POURED AT THE PREMISES WHERE THE BEVER-
AGE IS PURCHASED INCLUDING, BUT NOT LIMITED TO, A CONTAINER FOR FOUNTAIN
DRINKS.
  (U)  "UNSEALED  FOOD  ITEM CONTAINER" MEANS A FOOD ITEM CONTAINER INTO
WHICH A FOOD ITEM IS DISPENSED OR PLACED AT THE PREMISES WHERE THE  FOOD
ITEM IS PURCHASED.
  2.  (A)  NO  PERSON  SHALL  DISTRIBUTE,  SELL  OR  OFFER  FOR  SALE  A
SUGAR-SWEETENED FOOD ITEM OR SUGAR-SWEETENED BEVERAGE IN A  SEALED  FOOD
ITEM  CONTAINER  OR  A  SEALED  BEVERAGE CONTAINER UNLESS SUCH CONTAINER
BEARS A SAFETY WARNING AS PRESCRIBED BY THE  DEPARTMENT  OF  HEALTH  AND
OTHERWISE MEETS ALL OF THE REQUIREMENTS OF THIS SUBDIVISION.
  (B)  THE  SAFETY WARNING REQUIRED BY PARAGRAPH (A) OF THIS SUBDIVISION
SHALL BE DISPLAYED IN A CLEAR AND CONSPICUOUS MANNER AND READILY LEGIBLE
UNDER ORDINARY CONDITIONS ON THE PRINCIPAL DISPLAY PANEL OF  THE  SEALED
FOOD  ITEM  CONTAINER  OR  SEALED BEVERAGE CONTAINER, SEPARATE AND APART
FROM ALL OTHER INFORMATION, AND SHALL BE ON  A  CONTRASTING  BACKGROUND.
THE ENTIRE SAFETY WARNING SHALL APPEAR IN BOLD TYPE.
  (C)  IF  THE SAFETY WARNING REQUIRED BY PARAGRAPH (A) OF THIS SUBDIVI-
SION IS NOT PRINTED DIRECTLY ON THE  FOOD  ITEM  CONTAINER  OR  BEVERAGE
CONTAINER, THE SAFETY WARNING SHALL BE AFFIXED TO THE FOOD ITEM CONTAIN-
ER  OR  BEVERAGE  CONTAINER  IN  SUCH A MANNER THAT IT CANNOT BE REMOVED
WITHOUT THOROUGH APPLICATION OF WATER OR OTHER SOLVENTS.
  (D) NO PERSON SHALL DISTRIBUTE, SELL OR OFFER FOR SALE A MULTIPACK  OF
SUGAR-SWEETENED  FOOD  ITEMS OR SUGAR-SWEETENED BEVERAGES IN SEALED FOOD
ITEM CONTAINERS OR SEALED BEVERAGE CONTAINERS UNLESS  THE  MULTIPACK  OF
FOOD  ITEMS  OR BEVERAGES BEARS THE SAFETY WARNING REQUIRED BY PARAGRAPH
(A) OF THIS SUBDIVISION. THE SAFETY WARNING SHALL BE POSTED IN  A  CLEAR
AND  CONSPICUOUS  MANNER  ON THE PRINCIPAL DISPLAY PANEL AND ON AT LEAST
ONE OTHER SIDE OF THE MULTIPACK, IN ADDITION TO  BEING  POSTED  ON  EACH
INDIVIDUAL SEALED FOOD ITEM CONTAINER OR SEALED BEVERAGE CONTAINER.
  (E)  NO  PERSON SHALL DISTRIBUTE, SELL OR OFFER FOR SALE A CONCENTRATE
UNLESS THE PACKAGING OF THE CONCENTRATE, WHICH IS  INTENDED  FOR  RETAIL
SALE,  BEARS THE SAFETY WARNING REQUIRED BY PARAGRAPH (A) OF THIS SUBDI-
VISION. THE SAFETY WARNING SHALL BE POSTED IN A  CLEAR  AND  CONSPICUOUS
MANNER  ON  THE  PRINCIPAL DISPLAY PANEL OF THE PACKAGING OF THE CONCEN-
TRATE.
  (F) THIS SUBDIVISION SHALL NOT BE  CONSTRUED  TO  REQUIRE  THE  SAFETY
WARNING REQUIRED BY PARAGRAPH (A) OF THIS SUBDIVISION TO BE PLACED IMME-
DIATELY PRECEDING ANY COMMON NAME OR PRIMARY PRODUCT DESCRIPTOR.
  3.  (A)  EVERY PERSON WHO OWNS, LEASES OR OTHERWISE CONTROLS THE PREM-
ISES WHERE A VENDING MACHINE OR FOOD ITEM OR BEVERAGE DISPENSING MACHINE

A. 8400                             4

IS LOCATED, OR WHERE A  SUGAR-SWEETENED  FOOD  ITEM  OR  SUGAR-SWEETENED
BEVERAGE IS SOLD IN AN UNSEALED FOOD ITEM CONTAINER OR UNSEALED BEVERAGE
CONTAINER,  SHALL  PLACE OR CAUSE TO BE PLACED, A SAFETY WARNING IN EACH
OF THE FOLLOWING LOCATIONS:
  (1)   ON   THE  EXTERIOR  OF  ANY  VENDING  MACHINE  THAT  INCLUDES  A
SUGAR-SWEETENED FOOD ITEM OR SUGAR-SWEETENED BEVERAGE FOR SALE;
  (2) ON THE EXTERIOR OF ANY FOOD ITEM OR  BEVERAGE  DISPENSING  MACHINE
USED   BY  A  CONSUMER  TO  DISPENSE  A  SUGAR-SWEETENED  FOOD  ITEM  OR
SUGAR-SWEETENED BEVERAGE THROUGH SELF-SERVICE; AND
  (3) AT THE POINT-OF-PURCHASE, WHICH  MAY  INCLUDE  THE  MENU  OR  MENU
BOARD,  WHERE  ANY  CONSUMER  PURCHASES  A  SUGAR-SWEETENED FOOD ITEM OR
SUGAR-SWEETENED BEVERAGE IN AN UNSEALED FOOD ITEM CONTAINER OR  UNSEALED
BEVERAGE  CONTAINER,  WHEN  THE UNSEALED FOOD ITEM CONTAINER OR UNSEALED
BEVERAGE CONTAINER IS FILLED BY AN  EMPLOYEE  OF  A  FOOD  ESTABLISHMENT
RATHER THAN THE CONSUMER; PROVIDED, HOWEVER, THIS SUBPARAGRAPH SHALL NOT
APPLY  UNLESS  THE  PREMISES  WHERE  A  FOOD ITEM OR BEVERAGE DISPENSING
MACHINE  IS  LOCATED,  OR  WHERE  THE  SUGAR-SWEETENED  FOOD   ITEM   OR
SUGAR-SWEETENED  BEVERAGE  IS SOLD IN AN UNSEALED FOOD ITEM CONTAINER OR
UNSEALED BEVERAGE CONTAINER IS PART OF A NETWORK OF SUBSIDIARIES, AFFIL-
IATES OR OTHER MEMBER STORES, UNDER DIRECT OR INDIRECT  COMMON  CONTROL,
WITH THREE OR MORE STORES LOCATED IN NEW YORK.
  (B)  THE  SAFETY WARNING REQUIRED BY PARAGRAPH (A) OF THIS SUBDIVISION
SHALL BE DISPLAYED IN A CLEAR AND CONSPICUOUS MANNER AND READILY LEGIBLE
UNDER ORDINARY CONDITIONS, SEPARATE AND APART FROM  ALL  OTHER  INFORMA-
TION,  AND SHALL BE ON A CONTRASTING BACKGROUND. THE ENTIRE SAFETY WARN-
ING SHALL APPEAR IN BOLD TYPE.
  4. (A) WHENEVER IT SHALL APPEAR THAT THERE HAS  BEEN  A  VIOLATION  OF
THIS  SECTION, AN APPLICATION MAY BE MADE BY THE ATTORNEY GENERAL IN THE
NAME OF THE PEOPLE OF THE STATE OF NEW YORK TO A COURT OR JUSTICE HAVING
JURISDICTION BY A SPECIAL PROCEEDING TO ISSUE AN  INJUNCTION,  AND  UPON
NOTICE  TO  THE  DEFENDANT  OF  NOT  LESS  THAN FIVE DAYS, TO ENJOIN AND
RESTRAIN THE CONTINUANCE OF SUCH VIOLATION; AND IF IT  SHALL  APPEAR  TO
THE  SATISFACTION  OF  THE  COURT  OR JUSTICE THAT THE DEFENDANT HAS, IN
FACT, VIOLATED THIS ARTICLE, AN INJUNCTION MAY BE ISSUED BY  SUCH  COURT
OR  JUSTICE,  ENJOINING  AND  RESTRAINING ANY FURTHER VIOLATION, WITHOUT
REQUIRING PROOF THAT ANY PERSON HAS, IN FACT, BEEN  INJURED  OR  DAMAGED
THEREBY.  IN  ANY  SUCH PROCEEDING, THE COURT MAY MAKE ALLOWANCES TO THE
ATTORNEY GENERAL AS PROVIDED IN PARAGRAPH  SIX  OF  SUBDIVISION  (A)  OF
SECTION  EIGHTY-THREE HUNDRED THREE OF THE CIVIL PRACTICE LAW AND RULES,
AND DIRECT RESTITUTION.  WHENEVER  THE  COURT  SHALL  DETERMINE  THAT  A
VIOLATION  OF  THIS  ARTICLE  HAS OCCURRED, THE COURT MAY IMPOSE A CIVIL
PENALTY OF NOT LESS THAN  FIFTY  DOLLARS  NOR  MORE  THAN  FIVE  HUNDRED
DOLLARS  FOR  EACH  SUCH VIOLATION. IN CONNECTION WITH ANY SUCH PROPOSED
APPLICATION, THE ATTORNEY GENERAL IS AUTHORIZED TO TAKE PROOF AND MAKE A
DETERMINATION OF THE RELEVANT FACTS AND TO ISSUE SUBPOENAS IN ACCORDANCE
WITH THE CIVIL PRACTICE LAW AND RULES.
  (B) THE PROVISIONS OF THIS SECTION MAY BE ENFORCED CONCURRENTLY BY THE
DIRECTOR OF A MUNICIPAL CONSUMER AFFAIRS OFFICE, OR BY THE  TOWN  ATTOR-
NEY,  CITY  CORPORATION  COUNSEL,  OR OTHER LAWFUL DESIGNEE OF A MUNICI-
PALITY OR LOCAL GOVERNMENT, AND ALL MONEYS COLLECTED UNDER THIS  SECTION
SHALL BE RETAINED BY SUCH MUNICIPALITY OR LOCAL GOVERNMENT.
  5. A RETAILER SHALL NOT BE SUBJECT TO THE PENALTIES UNDER THIS SECTION
UNLESS: (A) THE RETAILER IS THE MANUFACTURER OF THE SUGAR-SWEETENED FOOD
ITEM  OR SUGAR-SWEETENED BEVERAGE, THE PACKAGER OF A MULTIPACK OF SUGAR-
SWEETENED FOOD ITEMS IN SEALED FOOD ITEM CONTAINERS  OR  SUGAR-SWEETENED
BEVERAGES  IN  SEALED  BEVERAGE  CONTAINERS,  OR  THE  MANUFACTURER OF A

A. 8400                             5

CONCENTRATE AND SELLS THE SUGAR-SWEETENED FOOD ITEM  OR  SUGAR-SWEETENED
BEVERAGE,  MULTIPACK  OF  SUGAR-SWEETENED  FOOD ITEMS OR SUGAR-SWEETENED
BEVERAGES, OR CONCENTRATE UNDER A BRAND IT OWNS; OR
  (B) THE RETAILER'S FAILURE TO LABEL WAS KNOWING AND WILLFUL.
  S 3. Severability clause. If any provision of this act or its applica-
tion  to  any person, legal entity, or circumstance is held invalid, the
remainder of the act or  the  application  of  the  provision  to  other
persons, legal entities or circumstances shall not be affected.
  S  4.  The  department  of  health shall prescribe safety warnings for
sugar-sweetened food items and sugar-sweetened beverages as required  by
section  two hundred four-e of the agriculture and markets law, as added
by section two of this act.
  S 5. This act shall take effect one year after it shall have become  a
law. Effective immediately, the addition, amendment and/or repeal of any
rule  or  regulation necessary for the implementation of this act on its
effective date is authorized to be made and completed on or before  such
effective date.