Legislation is moving in the New York Senate that could have a significant negative impact on food and food product advertising in New York. Legislation has been introduced in the Senate (S.213B) by Sen. Zellnore Myrie (Brooklyn) and in the Assembly (A.4424.B) by Assemblywoman Karines Reyes (Bronx). This legislation passed the Senate last year but was blocked in the Assembly during the closing days of the legislative session.
The legislation makes fundamental changes in what would be considered “unfair, false, and deceptive food or food product advertising." While styled as protecting children, the legislation would apply to any advertisement directed at those under 18 years of age. It would prohibit the use of music, actors, animation, age of models, language, visual content, or similar factors. It is not clear how one can differentiate advertising content directed at a 25 or 30-year-old that is also enjoyed by those under 18 years of age. To avoid potential legal jeopardy, all of these elements would have to be removed from all advertising.
The legislation would change legal standards for all NY food advertising. Specifically, the new § 350(a)(4) expands the definition of what is false and misleading and applies to “any advertising concerning food or food product,” not just children’s advertisements. This section creates potential liability if 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.” Similarly, §4(c) defines a consumer as a person who is targeted by an advertisement or acting on such person’s behalf. Thus, rather than focusing on whether an advertiser objectively makes false claims, liability will be based on whether a consumer can understand or comprehend the advertisement. It is simply impossible for any advertiser to know the comprehension abilities of everyone hearing or seeing an ad.
In today's economic environment, the last thing that broadcasters need is to have advertising pulled due to potential legal jeopardy. We are not alone in our concerns. The Association of National Advertisers and the 4 AAAAs (representing advertising agencies) have expressed concerns. This legislation may move after the Governor’s budget is voted on in early April.
You can see the legislation here.
You can find NYSBA’s memo in opposition to the legislation here.
You can find a joint opposition memo from the ANA and 4 AAAAs here.