2023 New York Laws › GBS - General Business › Article 26 - Miscellaneous › 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
for weight loss or muscle building. 1. For purposes of this section  the
following terms shall have the following meanings:
(a)  "Dietary  supplements for weight loss or muscle building" means a
class  of  dietary  supplement  as  defined  in  section  three  hundred
ninety-one-o  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) "Over-the-counter diet pills" means  a  class  of  drugs  labeled,
marketed,  or  otherwise represented for the purpose of achieving weight
loss that are lawfully sold, transferred, or furnished  over-the-counter
with  or  without a prescription pursuant to the federal food, drug, and
cosmetic act, 21 U.S.C. section 301  et  seq.,  or  regulations  adopted
thereunder.
(c)  "Retail  establishment"  means  any  vendor  that, in the regular
course of business, sells dietary supplements for weight loss or  muscle
building  or  over-the-counter  diet  pills  at  retail  directly to the
public, including, but not limited to, pharmacies, grocery stores, other
retail stores, and vendors that accept orders placed by mail, telephone,
electronic  mail,  internet  website,  online   catalog,   or   software
application.
(d)  "Delivery  sale" means any sale of over-the-counter diet pills or
dietary supplements for weight loss or muscle building to a consumer if:
(i) the consumer submits  the  order  for  the  sale  by  means  of  a
telephone  or  other method of voice transmission, mail, or the internet
or other online service, or the seller is otherwise not in the  physical
presence of the buyer when the request for purchase or order is made; or
(ii) the over-the-counter diet pills or dietary supplements for weight
loss  or  muscle  building are delivered to the buyer by common carrier,
private delivery service, or other method of  remote  delivery,  or  the
seller  is  not  in  the  physical  presence of the buyer when the buyer
obtains  possession  of  the  over-the-counter  diet  pills  or  dietary
supplements for weight loss or muscle building.
(e)  "Delivery seller" means a vendor, including online retailers, who
makes  delivery  sales  of  over-the-counter  diet  pills   or   dietary
supplements  for  weight  loss  or  muscle  building. Such vendors shall
include persons who accept orders placed by mail, telephone,  electronic
mail, internet website, online catalog, or software application.
2.  No  person,  firm,  corporation, partnership, association, limited
liability company, or other entity shall sell or offer to sell  or  give
away,  as  either  a  retail or wholesale promotion, an over-the-counter
diet pill or dietary supplement  for  weight  loss  or  muscle  building
within  this  state  to  any  person under eighteen years of age. Retail
establishments shall require proof of legal age  for  purchase  of  such
products.  For  purposes  of this section, proof of legal age shall mean
(a) a valid driver's license or non-driver's identification card  issued
by  the  commissioner  of  motor  vehicles,  the federal government, any
United States territory, commonwealth or  possession,  the  District  of
Columbia,  a  state  government  within  the United States, a provincial
government of the dominion of Canada, or the city of New York, or (b)  a
valid  passport  issued  by  the  United  States government or any other
country, or (c) an identification card issued by the armed forces of the
United States, indicating that the individual is at least eighteen years
of age, or  (d)  a  student  identification  card,  provided  such  card

indicates  the date of birth of the individual. Such identification need
not be required of any individual who reasonably appears to be at  least
twenty-five  years of age; provided, however, that such appearance shall
not  constitute  a  defense  in  any proceeding alleging the sale of any
over-the-counter diet pills and dietary supplements for weight  loss  or
muscle building to an individual under eighteen years of age.
3.  (a)  Any  person  operating  a  retail establishment may perform a
transaction scan as a precondition for the purchase of  over-the-counter
diet pills or dietary supplements for weight loss or muscle building.
(b)   In   any  instance  where  the  information  deciphered  by  the
transaction scan fails to match the information printed on the  driver's
license  or  non-driver  identification card, or if the transaction scan
indicates that the information is false  or  fraudulent,  the  attempted
transaction shall be denied.
(c) In any proceeding pursuant to subdivision five of this section, it
shall be an affirmative defense that such person had produced a driver's
license  or  non-driver  identification  card  apparently  issued  by  a
governmental entity, successfully completed that transaction  scan,  and
that  over-the-counter diet pills or dietary supplements for weight loss
of muscle building were sold, delivered  or  given  to  such  person  in
reasonable  reliance  upon  such identification and transaction scan. In
evaluating the applicability of  such  affirmative  defense,  the  court
shall take into consideration any written policy adopted and implemented
by  the  seller  to  effectuate the provisions of this section. Use of a
transaction  scan  shall  not  excuse  any  person  operating  a  retail
establishment  from  the  exercise  of  reasonable  diligence  otherwise
required by this section.
(d) A retail establishment or employee  of  such  establishment  shall
only  use  a  device  capable of deciphering any electronically readable
format, and shall only  use  the  information  recorded  and  maintained
through  the  use  of  such  devices, for the purposes contained in this
subdivision. No retail establishment or employee of  such  establishment
shall  resell or disseminate the information recorded during such a scan
to any third person. Such prohibited resale  or  dissemination  includes
but  is  not  limited  to  any  advertising,  marketing  or  promotional
activities.     Notwithstanding  the  restrictions   imposed   by   this
subdivision,  such  records  may be released pursuant to a court ordered
subpoena or pursuant to any other statute that  specifically  authorizes
the  release  of  such  information.  Each violation of this subdivision
shall be punishable by a civil penalty of not  more  than  one  thousand
dollars.
(e)  A  retail  establishment  or  employee  of such establishment may
electronically or mechanically record and maintain only the  information
from  a  transaction  scan  necessary  to  effectuate this section. Such
information shall be limited to the following: (i) name,  (ii)  date  of
birth,  (iii)  driver's license or non-driver identification number, and
(iv) expiration date.
4. 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.
5. Whenever there shall be 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  section,  an  injunction  may  be issued by the court or
justice, enjoining  and  restraining  any  further  violations,  without
requiring  proof  that  any person has, in fact, been injured or damaged
thereby. Whenever a court shall  determine  that  a  violation  of  this
section  has  occurred, the court may impose a civil penalty of not more
than five hundred dollars.
6. 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;
(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.