N.Y. General Business Law Section 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.

Source: Section 391-OO — Sale of over-the-counter diet pills and dietary supplements for weight loss or muscle building, https://www.­nysenate.­gov/legislation/laws/GBS/391-OO (updated Apr. 26, 2024; accessed Jun. 15, 2024).

390
Substitution of spurious oils for internal combustion engines
390‑A
Optical discs
390‑B
Anti-phishing act of 2006
390‑BB
Cramming prohibited
390‑C
Prohibit persons under eighteen years of age in certain facilities
390‑C*2
Posting of warnings by commercial entities offering internet access to the public
390‑D
Information concerning services for human trafficking victims in facilities at truck stops
390‑E
Unauthorized installation of certain security devices prohibited
390‑E*2
Skimming awareness notice
391
Marking retreaded, recapped or recut tires
391‑A
Unlawful acts relating to liquid fuels, lubricating oils and similar products
391‑B
Prohibit any sale of dangerous clothing articles
391‑C
Sale of bicycles
391‑D
Sale of matchbooks
391‑E
Promotion of camps by certain organizations
391‑F
Promotion of private schools by certain organizations
391‑G
Rental of motor vehicles
391‑H
Lubricating oils
391‑I
Sale of urea-formaldehyde foam insulation
391‑J
Sale of fire extinguishers
391‑JJ
Sale of electric space heaters
391‑K
Automatic garage door opening systems
391‑L
Personal emergency response service agreements
391‑L*2
Rental of motor vehicles
391‑M
Manufacture and sale of in-line skates
391‑N
Sale of reptiles
391‑OO
Sale of over-the-counter diet pills and dietary supplements for weight loss or muscle building
391‑P
Prohibit the rental of clothing articles previously worn
391‑Q
Rebates
391‑S
Sale and distribution of novelty lighters prohibited
391‑T
Sale of small animals
391‑U
Pricing goods and services on the basis of gender prohibited
391‑U*2
Restrictions on the sale and use of firefighting equipment containing PFAS chemicals
391‑V
Third-party food delivery agreements
392
Second-hand watches
392‑A
Sale of new computers
392‑B
False labels and misrepresentations
392‑C
Obliteration of marks of origin
392‑D
Using false marks as to manufacture
392‑E
Using false statements or altering mileage registering devices
392‑F
Taximeters
392‑G
Sale of ultraviolet radiation devices
392‑H
Trash receptacles
392‑I
Prices reduced to reflect change in sales tax computation
392‑J
Sales of sparkling devices
393
Lime
393‑A
Non fire rated wood paneling
393‑B
Written solicitation
393‑C
Sale of required labor postings
393‑D
Sale of certified copies of property deeds
393‑E
Sale of abandoned property location services
393‑F
Voluntary third-party notification
394
Lost or destroyed certificate of stock
394‑A
Proof of lost negotiable paper
394‑B
Limitations on certain contracts for instruction or use of physical or social training facilities
394‑C
Limitations on certain contracts involving social referral services
394‑CC
Internet dating safety
394‑CCC
Social media networks
394‑D
Privity of contract between franchise seller and customer or patron of dealer
394‑E
Report on request for abortional services
394‑F
Warrants for reproductive health related electronic data
395
Required disclosure of prior use
395‑A
Maintenance agreements
395‑B
Unlawfully installing or maintaining a two-way mirror or other viewing device
396
Unlawful selling practices
396‑A
Representation by savings and loan association of insurance on accounts
396‑AA
Simulated check
396‑AA*2
Unsolicited telefacsimile advertising
396‑AAA
Public display of tobacco and electronic cigarette advertisements and smoking paraphernalia prohibited
396‑B
Advertisements
396‑BB
Sale of motor fuels to disabled persons
396‑C
Advertisements by persons engaged in dental business relating to dentures and bridges
396‑CC
Notification of enclosure requirements for swimming pools
396‑CC*2
Senior citizen discounts
396‑D
Advertisement and description of real property
396‑DD
Renting of horses
396‑E
Marking articles made of linen
396‑EE
Sale of certain weapons
396‑EEE
Unlawful sale or delivery of body armor
396‑F
Sale of blind made products
396‑G
Sale of products processed by the blind
396‑H
Fraudulent sale of poppies, forget-me-nots, daisies, flags and other articles sold for patriotic purposes
396‑HH
Sale of poppies, forget-me-nots, daisies, flags and other articles for patriotic purposes
396‑I
Acceptance of unexpired gift certificates
396‑J
Sale or possession of master or manipulative keys for motor vehicles
396‑K
Hazardous toys and other articles intended primarily for use by children
396‑K*2
Sale of certain motor vehicles damaged by the ravages of natural disaster
396‑KK
Sale of video game consoles
396‑L
Shopping carts
396‑M
Mail-order or telephone-order merchandise
396‑MM
Unlawful trial offers
396‑N
Sales with “money back guarantee” and with “limited guarantee”
396‑O
Sales by persons offering credits or refunds in certain cases
396‑P
Rates to be posted in taxicabs
396‑P*2
Contracts for the sale of new motor vehicles
396‑Q
New motor vehicles
396‑QQ
New and used motor vehicles
396‑R
Price gouging
396‑RR
Price gouging
396‑S
Individual sewage disposal system
396‑SS
Access number notification
396‑T
Unlawful practices relating to layaway plans
396‑TT
Listing of business location in directory or database
396‑U
Merchandise delivery
396‑V
Operation of public automated blood pressure machines
396‑W
Loitering for the purpose of soliciting passengers for transportation
396‑X
Gasoline stations
396‑X*2
Unauthorized removal or destruction of newspapers
396‑Y
Sale of certain personal property
396‑Z
Rental vehicle protections
397
Unlawful use of name or other identification of certain non-profit organizations
397‑A
Distributing unsolicited advertising on private property prohibited
397‑B
Digital billboards
398
Bills of lading to be issued by vessels transporting merchandise within the state
398‑A
Shipment of motor vehicles outside the continental United States
398‑B
Discrimination in car rentals prohibited
398‑C
Children attending roller skating rinks and indoor ice skating rinks under certain conditions
398‑D
Disposal of abandoned molds
398‑E
Indemnity provision in motor carrier transportation contracts
398‑F
Children’s non-regulated camp
399
Cigarette package labeling
399‑A
Pay toilets
399‑AA
Prohibition of the selling of fur, hair, skin or flesh of a dog or cat
399‑AAA
Selling and manufacturing of fur-bearing articles of clothing
399‑AAAA
Menstrual product labeling
399‑AAAAA
Selling of animal tested cosmetics
399‑B
Contracts for the use of the streets for hack stands
399‑BB
Certain dry cleaning institutions
399‑BBB
Solicitations by container
399‑C
Mandatory arbitration clauses in certain consumer contracts prohibited
399‑CC
Wireless telephone numbers
399‑CC*2
Transcripts and stenographic services
399‑CCC
Smoke detecting devices
399‑CCCC
Wireless telephone services
399‑D
Children attending public bowling alleys under certain conditions
399‑DD
Sale of alcohol vaporizing devices prohibited
399‑DD*2
Construction or installation of playground or playground equipment
399‑DD*3
Consumer communications records privacy
399‑DDD
Confidentiality of social security account number
399‑DDD*2
Disclosure of social security number
399‑E
Prohibition of the importation, manufacturing, distribution, or sale of yo-yo waterball toys
399‑E*2
Actions
399‑EE
Zone pricing of gasoline prohibited
399‑F
Laundromat refund procedures
399‑FF
Petting zoos
399‑GG
Packaging of electronic liquid
399‑H
Disposal of records containing personal identifying information
399‑I
Prohibit the sale of unsafe cribs and restrict use of such cribs in certain settings
399‑II
Furniture tip restraint device
399‑II*2
Prohibit the sale of crib bumper pads and restrict use of such pads in certain settings
399‑J
Safety standards
399‑K
Access to toilet facilities for utility workers
399‑M
Disclosures in advertisement and sale of unassembled goods
399‑N
Approval of electrical devices
399‑NN
Sale of digital electronic equipment
399‑O
Selling prices and container deposits
399‑OO
Deceptive solicitation of vehicle warranty policies
399‑P
Telemarketing
399‑PP
Telemarketing and consumer fraud and abuse prevention act
399‑Q
Use of carts, cases, trays, baskets, boxes and other containers
399‑QQ
Sale or promotional distribution of utility knives, box cutters, or box cart cutters
399‑R
Sale of paint pellet guns
399‑RR
September eleventh victim compensation fund and World Trade Center health program notification
399‑S
Posting of notice when air rifles or guns are sold
399‑T
Sale of certain chlorofluorocarbons and halons prohibited
399‑T*2
Vending machine disclosure
399‑U
Motor vehicle alarms
399‑V
Parking facilities
399‑W
Total loss notice and waiver of the gap amount for non-motor vehicle retail lease agreements
399‑W*2
Notice requirements for renters of personal property
399‑X
Towed motor vehicles
399‑XX
Towing of motor vehicles
399‑Y
Child safety devices for hot water dispensers
399‑Y‑1
Automated teller machines transaction denial
399‑Y*2
Automated teller machine fee disclosure
399‑YY
Cable television company providing telephone services
399‑YYY
Satellite television company providing television and/or telephone services
399‑Z
Telemarketing
399‑Z‑1
Telecommunication companies blocking certain numbers
399‑Z‑1*2
STIR/SHAKEN authentication framework
399‑ZZ
Telephone bills
399‑ZZZ
Prohibition of certain fee charges
399‑ZZZZ
Prohibition of certain fee charges for termination or early cancellation
399‑ZZZZZ
Broadband service for low-income consumers
399‑ZZZZZ*2
Use of preferred name and pronouns

Accessed:
Jun. 15, 2024

Last modified:
Apr. 26, 2024

§ 391-OO’s source at nysenate​.gov

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