Bill S.2781

FILED ON: 2/22/2022

SENATE . . . . . . . . . . . . . . No. 2781

The Commonwealth of Massachusetts

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In the One Hundred and Ninety-Second General Court
(2021-2022)

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An Act to protect youth from the health risks of sugary drinks.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:

SECTION 1. Chapter 71 of the General Laws, as appearing in the 2020 Official Edition, is hereby amended by inserting after section 97 the following section:-

Section 98. (a) For the purposes of this section, the following words shall have the following meanings:

(1) “Advertising”, an oral, written or graphic statement or representation, including a company logo or trademark, made for the purpose of promoting the use or sale of a product by the producer, manufacturer, distributor, seller or any other entity with a commercial interest in the product.

(2) “Brand”, a corporate or product name, a business image or a mark, regardless of whether it may legally qualify as a trademark used by a seller or manufacturer to identify goods or services and to distinguish them from competitors’ goods.

(3) “Non-compliant beverage”, beverages that do not meet the minimum nutrition standards for foods sold or served under school meal programs as set forth by the United States Department of Agriculture under the Healthy, Hunger-Free Kids Act of 2010 and federal regulations implementing the Act [42 U.S.C. section 1779(b)].

(4) “Non-compliant beverage brand”, a beverage brand that has a beverage product manufactured, sold or distributed under the corporate brand name, or by any of the corporate brand’s subsidiaries and affiliated corporations, that is a non-compliant beverage.

(b) Except as provided in subsection (c), the department of education shall prohibit at any school within the commonwealth:

(1) The advertising of any non-compliant beverage or of any non-compliant beverage brand. Advertising of a non-compliant beverage or non-compliant beverage brand shall be prohibited on any property or facility owned or leased by the school district or school and used at any time for school-related activities, including, but not limited to, school buildings, athletic fields, facilities, signs, scoreboards, or parking lots, or any school buses or other vehicles, equipment, vending machines, uniforms, educational material or supplies.

(2) The participation in a corporate incentive program that rewards children with free or discounted non-compliant beverages when they reach certain academic goals.

(3) The participation in any corporate-sponsored program that provides funds to schools in exchange for consumer purchases of non-compliant beverages.

(1) Advertising on broadcast, digital, or print media, unless the media are produced or controlled by the local education agency, school, faculty, or its students;

(2) Advertising on clothing with brand images work on school grounds; or

(3) Advertising contained on product packaging.

(4) advertising at infrequent school fundraising events.

SECTION 2. Chapter 94 of the General Laws is hereby amended by inserting after section 329 the following section:-

Section 330. (a) For the purposes of this section, the following words shall have the following meanings:

(1) “Chain restaurant”, a restaurant or similar retail food establishment that is part of a chain with 20 or more locations doing business under the same name and offering for sale substantially the same menu items.

(2) “Daily Value”, the daily reference value established by the U.S. Food and Drug Administration based on the reference caloric intake of 2,000 calories per day.

(3) "Menu or menu board" means the primary writing of a chain restaurant from which a customer makes an order selection, including, but not limited to, breakfast, lunch, and dinner menus; dessert menus; beverage menus; children's menus; other specialty menus; electronic menus; and menus on the internet.

(4) "Standard menu item", means a food or beverage item, including multiple items priced together, that is listed on a menu or menu board. It shall not include temporary menu items appearing on the menu for less than 60 days per calendar year.

(1) The added sugars warning icon and accompanying text identified under subsection (b), at a height no smaller than the largest letter in the name of the item.

(2) The following factual statement explaining the warning: "[insert icon and accompanying text]: this item may exceed the Food and Drug Administration total daily recommended limit for added sugars based on a 2,000 calorie diet."

(d) Any chain restaurant that violates the provisions of this section shall be subject to a civil penalty of not more than $250 per day for each location not in compliance.

(e) The department of public health shall publish a guidance explaining the added sugars warning icon requirement and how to comply.

SECTION 3. Section 1 of Chapter 71 of the General Laws is hereby amended by adding the following paragraph: -

The department of elementary and secondary education shall encourage school districts to implement instruction in media literacy skills from the third grade to the twelfth grade, and in any of the core subjects or other subjects, to equip students with skills for accessing, analyzing, evaluating, and creating all types of media. Instruction shall include, but not be limited to, teaching of skills for analyzing and evaluating advertising content for food, beverages, drugs and alcohol.

SECTION 4. Chapter 111 of the General Laws is hereby amended by inserting after section 242 of the following section:-

Section 243. (a) For the purposes of this section, the following words shall have the following meanings:

(1) “Chain restaurant” a retail food establishment that prepares, serves, and vends food directly to the consumer that (a) operates 10 or more establishments in the commonwealth or (b) is a restaurant franchisee where the franchisor and the franchisees of that restaurant together operate 10 or more establishments in the commonwealth.

(2) “Chain restaurant franchisee,” an individual, corporation, partnership or other entity, or group of individuals or entities, that operates one or more restaurants in the commonwealth under a franchise agreement with another individual, corporation, partnership or other entity, or group of individuals or entities.

(3) “Chain restaurant franchisor,” an individual, corporation, partnership or other entity, or group of individuals or entities, that grants a franchisee the right to operate one or more fast food restaurants in the commonwealth under its trademark or trade name.

(4) “Children’s Meal” means a combination of food item or items and a beverage, sold together at a single price, primarily intended for consumption by children.

(5) “Default Beverage” means the beverage automatically included as part of a children’s meal, absent a specific request by the purchaser of the children’s meal for an alternative beverage.

(b) A chain restaurant may only sell a children’s meal if the default beverage is one of the following:

(1) Water, sparkling water or flavored water, with no added natural or artificial sweeteners;

(2) Nonfat or 1 per cent milk or non-dairy milk alternative containing no more than 130 calories per container and/or serving as offered for sale; or

(3) 100 per cent juice, with no added sweeteners, in a serving size of no more than 8 ounces.

(c) (1) The department of public health and local boards of health acting under the supervision of the department of public health shall implement, administer and enforce this section. The department of public health is hereby authorized to issue all rules and regulations consistent with this section and shall have all necessary powers to carry out the purpose of this section.

(2) All chain restaurants shall report annually to the department of public health whether they offer children’s meals and if so, that they understand their obligations under this section. Such reporting must be done on a form prescribed by the department and must be signed by a responsible agent or officer of the chain restaurant in order to confirm that the information provided on the form is accurate and complete. Failure to comply with this subsection shall constitute a violation of this section.

(d) Restaurants in violation of this section shall for the first offense be punished by a fine of not more than $100; and for any subsequent offense shall be punished by a fine of not less than $100 nor more than $500.

SECTION 5. (a) Section 330 of chapter 94 of the General Laws shall take effect 2 years after the enactment of this act.

(b) The department of public health shall promulgate regulations designating an icon with accompanying text that shall be displayed adjacent to the name of any standard menu item that exceeds the daily value for added sugars and shall publish its initial guidance on compliance with the added sugars warning icon requirement of said section 330 no later than 1 year after the enactment of this act.

(c) No later than 4 years after the enactment of this act, the department of public health shall issue a report reviewing evidence of the law's impact on menu item reformulation and consumer behavior, and recommending additional nutrients that should be considered for menu warning icons. The report shall be provided to the joint committee on public health and shall be posted on the public internet site of the department.

(d) Severability. If any provision of this act, or any application of any provision of this act, is held to be invalid, or to violate or be inconsistent with any federal law or regulation, that shall not affect the validity or effectiveness of any other provision of this act, or of any other application of any provision of this act, which can be given effect without that provision or application; and to that end, the provisions and applications of this act are severable.