New York's Recipe for Food Marketing: Next Course of Restrictive State Actions?
In Short
The Situation: A New York Senate bill seeks to amend multiple state laws impacting food and beverage advertising to expand the scope of factors to be considered in determining whether an advertisement is false or misleading.
The Issue: The latest New York bill, as well as recently introduced legislation in New York and Illinois emulating the California Food Safety Act, demonstrates the states' continued pursuit of restrictive legislation directed at the food and beverage industry.
Looking Ahead: New factors proposed under NY S213-B determinative of whether an advertisement is false or misleading and whether it targets children are broad, and in some cases, vague. If the bill becomes law, it may spur litigation and potentially impact all food and beverage advertising in New York. As seen with the California Food Safety Act, legislation such as S213-B may also spur copy-cat bills in other states in conjunction with concerted efforts across multiple jurisdictions to introduce restrictive legislation impacting the food and beverage industry.
The New York State Senate is currently considering a bill, NY S213-B, that seeks to broaden the circumstances in which a food product advertisement can be found false or misleading. This bill comes on the heels of the California Food Safety Act (Cal. Health & Safety Code § 109025), which prohibits the manufacture, sale or distribution of food products containing red dye 3 and other common food additives beginning January 1, 2027. Both the Illinois and New York legislatures are considering legislation similar to the California Food Safety Act. This latest New York Senate bill reflects a continued, focused effort by states to increase regulatory controls over consumer products, including within the food industry.
California Food Safety Act
Governor Newsom signed the California Food Safety Act into law on October 7, 2023. Under the Act, beginning January 1, 2027, a person or entity cannot "manufacture, sell, deliver, distribute, hold, or offer for sale, in commerce a food product for human consumption" containing brominated vegetable oil, potassium bromate, propylparaben, or red dye 3. Cal. Health & Safety Code § 109025(a). First time violations are met with civil penalties up to $5,000 and each subsequent violation carries a penalty of up to $10,000. § 109025(b).
Copy-Cat Bills in Illinois and New York
The Illinois Food Safety Act (SB 2637) mirrors the language of the California Food Safety Act, banning the same four additives beginning in 2027. The proposed civil penalties for violations also track those in the California Food Safety Act. On February 20, 2024, SB 2637 passed the Senate Public Health Committee and will now go to the full Illinois Senate for further consideration. Senator Willie Preston, who is championing SB 2637, has indicated an intent to include additional additives in the scope of the bill in future amendments, including the common additive titanium dioxide, which was ultimately and controversially excluded from the California law.
The New York State Assembly is also currently considering a bill (A6424) that largely emulates the California Food Safety Act; however, the New York bill currently includes titanium dioxide among the prohibited substances, which would make it the most restrictive in the nation, if passed. Two other notable differences exist in A6424 compared to the California Food Safety Act: (i) the New York bill would take effect in 2025, two years ahead of the California Food Safety Act; and (ii) the New York bill expressly disallows the fact that any of the substances are recognized as safe by the Food and Drug Administration as a defense.
S213-B
This month, the New York Senate advanced to a third reading of S213-B to amend multiple laws relating to food and beverage advertising. While finding that children are "inherently vulnerable" and that "marketing unhealthy foods in a targeted and persistent manner to this group is inconsistent with [New York's] efforts to curb the disastrous health outcomes that follow the overconsumption of these products[,]" the Bill targets food more generally. New York Senate Bill S213-B will require courts to consider additional factors in determining whether advertising of food products is false or misleading. Among the new factors to be considered are "[w]hether the advertisement targets a consumer who is reasonably unable to protect their interests because of their age, physical infirmity, ignorance, [or] illiteracy … ." Additionally, under S213-B, special consideration will be given to advertisements directed at children, a determination made by considering, among others, such factors as the "subject matter[,] … use of animated characters[,] … music or other audio content[,] …[or] presence of child celebrities or celebrities that appeal to children" in the advertisement, as well as the proximity of an advertisement to a school or other institution frequented by children and the mode of communication, including social media.
S213-B provides a private right of action for consumers who are defined to be the persons "targeted by an advertisement, or those acting on such a person's behalf." If passed, the bill may spur litigation as courts analyze the new, vague factors both in determining whether advertisements are false or misleading and whether they target children.
Bottom Line
As states continue to pursue piecemeal legislation impacting foods and beverages, industry participants must closely monitor impactful proposals and stand ready to react when appropriate. Companies in the industry should consult with counsel on the potential impacts of proposed legislation, allowing them to anticipate issues, engage in advocacy, and maximize their competitiveness in an ever-changing landscape.
Four Key Takeaways
- The food and beverage landscape remains fertile soil for legislation as states continue to increase regulatory controls over consumer products, such as common food additives (California, with Illinois and New York to possibly follow), and food advertising (potentially New York with others to follow).
- The legislation in California, Illinois, and New York could be accompanied by further, similar legislation in other states, or expansion within the respective jurisdictions. And, given the collective size of the California, New York, and Illinois economies, such legislation is likely to have nationwide impact regardless of whether other states join with their own legislation.
- The states' legislation could spur change at the federal level—for example, the FDA has already announced it is proposing to revoke the regulation allowing brominated vegetable oil in food and is reviewing regulations authorizing red dye 3.
- If passed, New York Senate Bill S213-B may result in litigation, as courts are likely to grapple with the new, vague factors in determining whether food advertisements are false or misleading. The new factors would impact all advertisements in the food and beverage industry, not only those arguably targeting children, because the factors to be considered include, for example, whether the advertisements target persons unable to protect their interests due to "illiteracy" or "ignorance."
