Protecting children from deceptive food advertising: The scope of NY’s S213-B bill

21-Feb-2024 - Last updated on 21-Feb-2024 at 14:58 GMT

Source: Getty/Images By Tang Ming Tung

Recently proposed legislation in New York seeks to expand the state’s deceptive food advertising regulations to include safeguarding children who may be susceptible to excessive consumption of unhealthy goods, but lawyers with the firm Venable argue the bill, if passed, could have sweeping repercussions and trigger class action ligitation.

The proposed S213-B bill, which was introduced last month into the New York Senate, would amend several laws related to food and beverage advertising, including the Agriculture and Markets Law, General Business Law and the Public Health Law. The proposed legislation argues that “children are an inherently vulnerable population,” and that the state “has a strong and substantial interest in protecting our children from negative health consequences,” including obesity and other diet-related diseases.

The proposed bill adds, “Additionally, the power of the state is at its greatest when protecting the health and welfare of its citizens, especially those most vulnerable. Thus, the legislature finds that unfair and deceptive marketing targeted at children can mislead and manipulate children into lifelong habits, and that such unfair and deceptive advertising should be regulated accordingly.”

One of the bill's authors, state Sen. Zellnor Myrie, told a local news outlet that the legislation is necessary even though New York already has laws that restrict misleading or false product advertising because research suggests "young people in communities like mine are inundated with deceptive and predatory marketing of unhealthy food. The industry spends billions researching the most efficient ways to sell their products to kids. The Predatory Marketing Prevention Act gives New York a chance to fight back."

Implications for S213-B extend beyond children

According to a Venable alert, the bill would also amend New York GBL 350 which covers the state’s false advertising statute, “by requiring courts to consider specific additional factors when determining whether any advertising is false or misleading.”

Factors, as outlined in GBL 350, include “whether the advertisement targets a consumer who is reasonably unable to protect their interests because of their age, physical infirmity, ignorance, illiteracy, inability to understand the language of an agreement, or similar factor.”

The Venable authors added that the implications of the amended GBL 350 would extend beyond children to almost all advertising, arguing that “courts would need to parse these various vague factors,” such as how familiar a consumer is with the advertised product or service.

If passed, “the law could open the floodgates to new litigation as class action plaintiffs ask courts to evaluate these additional expanded provisions,” the authors wrote.