Makes it illegal to knowingly alter, mutilate, destroy, obliterate, obstruct or remove by means of a price sticker or otherwise the whole or any part of the label, including where applicable the expiration date displayed thereon, of any over-the-counter drug or cosmetic.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A1010B
SPONSOR: Weprin TITLE OF BILL:
An act to amend the general business law, in relation to the sale of
over-the-counter drugs and cosmetic products
PURPOSE:
To promote and protect the health and safety of purchasers of O-T-C
drugs and cosmetics by enabling them to read such products' packaging or
labels in a complete, unaltered and unobstructed condition, at the time
of purchase or thereafter. Such labels are required by federal law and
regulations.
SUMMARY OF PROVISIONS:
Section 1. Changes the article heading of Article 38-A of the General
Business law.
Section 2. Amends subdivisions 1 and 2 of Section 820 of the General
Business law, to make it unlawful for any retailer to knowingly alter,
obstruct, obscure or remove, by means of a sticker, tag or other device
used to deter theft, or a price sticker, or otherwise, the whole or any
part of the label or packaging of any over-the-counter (0-T-C) drug or
cosmetic as such label is required by the federal Food, Drug and Cosmet-
ic Art, and by the Food and Drug Administration's (FDA) rules and regu-
lations that implement the Act's label requirements for such products.
Violators would be subject to the existing enforcement remedy contained
in GBL, Section 821. Under that provision, compliance with FDA rules and
regulations constitutes a complete defense to any enforcement action.
Also adds a new subdivision 3 to the section providing definitions for
label and cosmetic.
JUSTIFICATION:
At the very foundation of consumer protection for purchasers of 0-T-C
drugs and cosmetics are the labeling requirements of Chapters V and VI
of the Federal Food, Drug and Cosmetic Act and the implementing regu-
lations of the Food and Drug Administration. (See 21 C.F.R. Part 201,
Subchapter C, et seq. (0-T-C drugs) and 21 FR Part 701 cosmetics). Drug
labels provide vital health and safety information including indi-
cations, directions for use, warnings and precautions, drug interaction
information, cautions and list of ingredients. Cosmetic labels must
contain a designation of ingredients, a requirement of special impor-
tance for users who suffer particular allergic reactions.
In early 1920, the Department of Law's Bureau of Consumer Frauds and
Protection conducted a random survey of drug stores operated by eight
major chains located in the metropolitan New York City area in an effort
to determine whether the labels of O-T-C drugs or cosmetics offered for
sale to the public were being obscured or obstructed by the retailers'
practice of superimposing upon such labels the store's own price stick-
ers or security stickers or other devices intended to deter theft. The
survey revealed that in a significant number of instances, retailers
were obstructing or obscuring product labels by placing paper stickers
or plastic devices over the manufacturer's product labels. This practice
made it impossible, in many cases, for prospective purchasers to read
the labels before purchase. Even after purchase, consumers, in many
cases, would be unable to read the labels because the removal of the
retailer's stickers would result in the unintended destruction of the
manufacturer's label as well. Indeed, in one case, the cashier at a
major drug retail chain store tore off the store's sticker from the
principal display panel of an O-T-C drug product and, in doing so,
destroyed the manufacturer's label at the same time. In general, this
practice could have severe health and safety consequences.
For example, the product in question in this particular case was "Colly
rium Fresh Sterile Eye Drops" manufactured by Wyeth Laboratories. That
part of the manufacturer's label destroyed by the store's cashier
included crucial product warnings and cautions, as follows:
Warnings: Do not use if solution changes color or becomes cloudy.
Remove contact lenses before using if you have glaucoma do not use this
product except under the advice and supervision of a physician. Overuse
of this product may produce increased redness of the eye. To avoid
contamination, do not touch tip of container to any surface. Replace
cap after using. If you experience eye pain, changes in vision, contin-
ued redness or irritation of the eye, or if the condition worsens or
persists for more than 72 hours, discontinue use and consult a physi-
cian. Keep this and all medication out of the reach of children. Retain
this carton for complete product information. Keep bottle lightly closed
at Room Temperature; Approx. 77 degrees F/25 degrees C.
The Department of Law survey confirmed that the above-described practice
by retail drug stores is common and widespread. Case by case enforcement
would not offer consumers the full protection that a legislative initi-
ative offers. This bill builds upon an earlier law that addressed a
related problem. In 1985, a survey published by the Department of Law
revealed, inter aide, that retailers of O-T-C drugs were similarly
obstructing the expiration date of such drug products offered for sale.
(See Expiration. Dating of Over-TheCounter Drugs in New York, a report
by New York State Attorney General Robert Abrams (January 1985)). Subse-
quently, the Legislature adopted an Attorney General's Program bill
(1986, Ch. 697) that included GBL Section 820(2), a provision that makes
such practice unlawful. The present proposal would offer parallel
protection for consumers with regard to the obstruction of labels.
LEGISLATIVE HISTORY:
2023: referred to rules
2021/2022: referred to consumer affairs and protection
2019/2020: referred to consumer affairs and protection 2017/2018:
referred to consumer affairs and protection
FISCAL IMPLICATIONS:
None.
EFFECTIVE DATE:
This act shall take effect immediately.
STATE OF NEW YORK
________________________________________________________________________
1010--B
2023-2024 Regular Sessions
IN ASSEMBLY
January 13, 2023
___________
Introduced by M. of A. WEPRIN -- read once and referred to the Committee
on Consumer Affairs and Protection -- recommitted to the Committee on
Consumer Protection in accordance with Assembly Rule 3, sec. 2 --
reported and referred to the Committee on Codes -- committee
discharged, bill amended, ordered reprinted as amended and recommitted
to said committee -- again reported from said committee with amend-
ments, ordered reprinted as amended and recommitted to said committee
AN ACT to amend the general business law, in relation to the sale of
over-the-counter drugs and cosmetic products
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. The article heading of article 38-A of the general business
2 law, as added by chapter 697 of the laws of 1986, is amended to read as
3 follows:
4 SALE OF OUTDATED
5 AND LABEL OBSTRUCTED OVER-THE-COUNTER DRUGS AND
6 COSMETIC PRODUCTS
7 § 2. Section 820 of the general business law, as added by chapter 697
8 of the laws of 1986, is amended to read as follows:
9 § 820. Unlawful practices. 1. It shall be unlawful for any retailer:
10 [1.] (a) to knowingly sell or offer for sale, any drug or cosmetic
11 sold over-the-counter without the need of a prescription, later than the
12 date, if any, marked upon the label as indicative of the date beyond
13 which the contents cannot be expected beyond reasonable doubt to be safe
14 and effective; provided, however, that when such drug or cosmetic is
15 identified as an outdated drug or cosmetic by segregation from regular
16 stock or by other means, the holding of such drug or cosmetic beyond its
17 expiration date shall not be deemed a violation of this section. When
18 the expiration date is expressed by month and year, the expiration date
19 shall be the last day of the month indicated; or
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD01243-04-4
A. 1010--B 2
1 [2.] (b) to knowingly alter, mutilate, destroy, obliterate, obstruct
2 or remove by means of a price sticker or otherwise the whole or any part
3 of [the expiration date displayed on] the label or packaging, including,
4 where applicable, the expiration date displayed thereon, of any over-
5 the-counter drug or cosmetic.
6 2. For purposes of this section, the following terms shall have the
7 following meanings:
8 (a) "label" shall mean the label required by the statutes applicable
9 to and regulations issued by the federal food and drug administration;
10 and
11 (b) "cosmetic" shall mean articles intended to be rubbed,
12 poured, sprinkled or sprayed on, introduced into, or otherwise applied
13 to the human body or any part thereof for cleansing, beautifying,
14 promoting attractiveness, or altering the appearance, including but not
15 limited to personal hygiene products such as deodorant, shampoo or
16 conditioner.
17 § 3. This act shall take effect immediately.
