Bill S.1396

SENATE DOCKET, NO. 960 FILED ON: 1/18/2023

SENATE . . . . . . . . . . . . . . No. 1396

By Mr. Lewis, a petition (accompanied by bill, Senate, No. 1396) of Jason M. Lewis and James B. Eldridge for legislation to prohibit the marketing of sugary drinks in schools. Public Health.

[SIMILAR MATTER FILED IN PREVIOUS SESSION
SEE SENATE, NO. 1464 OF 2021-2022.]

The Commonwealth of Massachusetts

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In the One Hundred and Ninety-Third General Court
(2023-2024)

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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 98 the following section:-Section 99.

(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”, a beverage that does 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 an incentive program that rewards children with free or discounted non-compliant beverages when they reach certain academic goals.

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

(b) shall not apply to

(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 worn on school grounds; or

(3) Advertising contained on product packaging.

(4) Advertising at infrequent events held outside of normal school hours for primary purpose of fundraising.

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) “Chain menu developer”, the person that owns and licenses the brand name under which the covered establishment does business, or any other person responsible for determining the formula or recipe for items displayed on the menu of a covered establishment.

(3) “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.

(4) “Food Tag”, a written or printed description of food or beverages

(5) "Menu or menu board", 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.

(6) “Self-serve dispensing point”, the location at which a customer may access food or beverages without the assistance of a staff member, including self-serve fountain beverage machines.

(7) "Standard menu item", 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.

(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 may exceed the daily value for added sugars.

(1) The added sugars warning icon and accompanying text identified under subsection

(b), which shall appear (a). next to or directly under each standard menu item that exceeds the daily value for added sugars and at a height no smaller than the largest letter in the name of the item. (b). prominently and conspicuously immediately adjacent to each self-serve dispensing point.

(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."

(3) For menus allowing customization through interactivity, including interactive electronic menus, chain restaurants may instead of displaying a static added sugars warning icon and factual statement, display such icon and statement dynamically, so long as each appears clearly (d) Any chain restaurant that violates the provisions of this section for every 6 months 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.

(f) Reporting Requirement. Once every 90 days, the chain menu developer shall report to the department the amount of added sugars in each menu item offered for sale in a covered establishment, or that no changes to the menu information have been made since the last report.

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 243 of the following section:- Section 244.

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

(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) “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.

(b) A chain restaurant may not sell a children’s meal unless the children’s meal meets the following nutrition standards.

(1) The children’s meal must contain no more than:

(a) 600 calories;

(b) 770 milligrams of sodium;

(d) 35 percent of calories from fat;

(e) 10 percent of calories from saturated fat; and

(f) 0.5 grams of trans fat.

(2) The children’s meal must include at least two of the following options:

(a) 0.5 cup (or equivalent unit of measurement) of fruit;

(b) 0.5 cup (or equivalent unit of measurement) of non-fried vegetable;

(c) A whole grain product that contains at least 50 percent whole grain ingredients or lists whole grains as the first ingredient;

(d) A lean protein food, consisting of at least two ounces of meat or meat alternative, one ounce of nuts, seeds, dry beans, or peas, or one egg.

(e) 0.5 cup of nonfat or 1 percent milk or low-fat yogurt, or 1 ounce of reduced fat cheese. Plant-based nondairy alternatives are allowed, but they must be calcium and Vitamin D fortified.

For purposes of this subsection, all juices, including 100 percent fruit or vegetable juice, condiments, and spreads shall not be considered fruits or vegetables and shall not be used as a fruit or vegetable substitute.

(3) If the children’s meal includes a beverage, that beverage must be:

(a) Water with no added natural or artificial sweeteners, of flavors;

(b) Unflavored nonfat or 1 percent milk with no added natural or artificial sweeteners;

(d) 100 percent fruit or vegetable juice or diluted juices, with no added sweeteners, in a serving size of no more than 6 ounces.

(e) 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 statue. The department of public health is hereby authorized to issue all rules and regulations consistent with this statue and shall have all necessary powers to carry out the purpose of this statue.

(f) Within 30 days of the effective date of this statue, or any amendments thereto, the department of public health shall send a copy of the statue or any such amendment and the written information resources created in accordance with subsection (g) below to all chain restaurants.

(g) Within 9 months of the effective date of this statute, the department of public health shall develop an annual report form and shall send a copy of such form to all chain restaurants. Within 30 days of any amendment to the annual report form, the department of health shall send a copy of such form to all chain restaurants.

(h) The department of public health shall create a written informational resource in English and Spanish summarizing the requirements of this statue.

(i) 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.

(j) Restaurant that violates the provisions of this section for every 6 months shall be subject to a civil penalty of not more than $250 per day for each location not in compliance.

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

(a)(b) The department of public health shall promulgate regulations designating an icon with accompanying text that shall be displayed next to or directly under the name of any standard menu item that exceeds the daily value for added sugars or immediately adjacent to each self-serve dispensing point 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.

Name:	District/Address:
Jason M. Lewis	Fifth Middlesex
James B. Eldridge	Middlesex and Worcester	3/6/2023
Michael O. Moore	Second Worcester	3/20/2023
Rebecca L. Rausch	Norfolk, Worcester and Middlesex	7/6/2023