KMK Law Cybersecurity & Privacy Blog

On October 25, 2023, New York Governor Kathy Hochul signed into law a bill (the “Act”) banning the sale of over-the-counter weight loss and muscle building supplements to children under the age of 18. This Act is the first law in the United States to ban the sale of such supplements to children and is set to take effect in April of 2024.

Overview of the Act
The Act bans entities and individuals alike from selling, offering to sell, or giving away, as a retail or wholesale promotion, over-the-counter diet pills or dietary supplements for weight loss or muscle building within New York to any person under the age of 18. The supplements covered under the Act include supplements labeled, marketed, or otherwise represented to help achieve weight loss or muscle building (“Covered Supplements”). The Act provides a number of factors to be considered in determining whether a supplement is a Covered Supplement, including whether the product contains creatine, a popular ingredient in muscle building supplements, green tea extract, raspberry ketone, garcinia cambogia, or green coffee bean extract, each of which is a popular ingredient in weight loss supplements.

The Act requires retail establishments, defined as entities that sell Covered Supplements to the public in the ordinary course of business (“Retail Establishments”), to require proof of legal age for the in-person purchase of Covered Supplements. The Act provides several acceptable methods of verifying age for in-person transactions involving Covered Supplements, including the following: (a) valid, government-issued driver’s license or identification card, (b) valid passport, (c) military identification card, or (d) student identification card. A Retail Establishment need not verify the age of an individual who reasonably appears to be over the age of 25. Notably, the Retail Establishment cannot use such appearance as an affirmative defense for violations of the Act.

For online transactions involving Covered Supplements, delivery sellers, defined as vendors, including online retailers, who make delivery sales (“Online Sellers”), must use a method of mailing or shipping that requires an individual who is eighteen years of age or older to sign to accept the delivery. This requirement is not accompanied by any exceptions or alternative methods of age verification.

Each violation of the Act is punishable by a civil penalty of up to $1,000, depending on the nature of the circumstances of the violation.

Implications
While businesses in the alcohol, tobacco, and similar industries are familiar with the ins and outs of age verification, the same is not necessarily true for Retail Establishments and Online Sellers in the wellness industry. While the implementation of age verification procedures for in-person transactions involving Covered Supplements may pose substantial challenges, especially to smaller entities, the implementation of online age verification procedures will likely be more disruptive for businesses that must comply with the Act. The Act provides a seemingly easy age verification method via the signed acceptance of delivery of Covered Supplements, however, there are no alternative avenues or exceptions to compliance with this requirement. In practice, this will require all customers that order Covered Supplements online to be present and sign for receipt of such delivery. This will be a substantial change to business practices for Online Sellers.

Online Sellers may also determine that, in order to further protect themselves, they will enable online age verification tools, such as those employed by online alcohol and tobacco sellers. If an Online Seller decides to employ such tools, they must strike a balance between stringent compliance with the Act and individual privacy, which may trigger compliance with other states’ data privacy laws, such as laws in California and Virginia. Businesses that are not familiar with the implementation of age verification procedures may have additional questions concerning cost, risk, analysis, and privacy implications.

We are more than happy to provide additional guidance in this area—please feel free to contact us should your business need assistance navigating compliance with the Act.