New York quietly proposed a bill intended to protect children from advertising of unhealthy foods and the “disastrous health outcomes that follow the overconsumption of these products,” suggesting that such marketing is “inherently misleading.” While the law’s stated goal is to protect children from these negative health consequences, the law goes much further and would open the floodgates to litigation.

The law would expand New York’s Agricultural and Markets Law to state “[a]n advertisement concerning a food or food product shall not be false or misleading in any particular” and require courts to give special consideration to advertising directed at a child.

However, it would also amend New York GBL 350, New York’s general false advertising statute, by requiring courts to consider specific additional factors when determining whether any advertising is false or misleading. Specifically, a court would need to consider under GBL 350 such factors as “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.”

Thus, the law would reach advertising that is much broader than advertising to children and could reach nearly all advertising. Courts would also need to parse these various vague factors. For example, nearly every consumer could be “ignorant” if this term is interpreted to mean that the consumer is unfamiliar with the advertised product and service. Indeed, all advertising is intended to educate consumers to some degree.

The law would address advertising not only to this group, or to children, but also to “those acting on such a person’s behalf.” Accordingly, it is much broader than necessary to address advertising targeted only toward children.

The amendment would provide a right of action for “unfair” acts or practices. The law would incorporate the FTC’s definition of “unfair” practices by including an act, practice, or conduct as “unfair” where it:

  • Causes or is likely to cause substantial injury to such consumer
  • Cannot be reasonably avoided by such consumer
  • Is not outweighed by countervailing benefits to such consumer or to competition

Reminder: Private plaintiffs can sue under NY GBL 350. As a result, if passed, the law could open the floodgates to new litigation as class action plaintiffs ask courts to evaluate these additional expanded provisions.

To discuss New York’s bill, contact Shahin Rothermel or Claudia Lewis. And be sure to bookmark our All About Advertising Law blog and subscribe to our monthly newsletter.