HOUSE BILL NO. 5250

A bill to prohibit the sale to minors of certain dietary supplements for weight loss or muscle building and over-the-counter diet pills; to regulate the sale of certain dietary supplements for weight loss or muscle building and over-the-counter diet pills; to prescribe civil sanctions and provide remedies; to provide for the promulgation of rules; and to provide for the powers and duties of certain state and local governmental officers and entities.

the people of the state of michigan enact:

Sec. 1. This act may be cited as the "weight loss products and minors act".

Sec. 2. As used in this act:

(a) "Board" means the Michigan board of pharmacy created under section 17721 of the public health code, 1978 PA 368, MCL 333.17721.

(b) "Department" means the department of licensing and regulatory affairs.

(c) "Dietary supplement for weight loss or muscle building" means a dietary supplement, as that term is defined in 21 USC 321, that is labeled, marketed, or represented for the purpose of achieving weight loss, fat burning, appetite control, or muscle building, or that contains an ingredient that is regulated by the United States Food and Drug Administration for weight loss.

(d) "Minor" means an individual who is less than 18 years of age.

(e) "Over-the-counter diet pills" means a class of drugs labeled, marketed, or otherwise represented for the purpose of achieving weight loss, that are lawfully sold, transferred, or furnished over-the-counter with or without a prescription in accordance with the federal food, drug, and cosmetic act, 21 USC 301 to 399i.

(f) "Person" means an individual, partnership, corporation, limited liability company, association, governmental entity, or other legal entity.

(g) "Physical sale" means a sale of a dietary supplement for weight loss or muscle building or an over-the-counter diet pill by a retailer to a consumer at a physical location.

(h) "Retail clerk" means a retail employee who is responsible for assisting customers and managing transactions, who does not lead or manage any other store personnel, and who is not the owner of the store at which the individual is employed.

(i) "Retailer" means a person that, in the regular course of business, sells dietary supplements for weight loss or muscle building or over-the-counter diet pills directly to consumers in this state.

(j) "Transaction scan" means the process by which a retailer, using a transaction scan device, confirms the validity of an individual's driver license or nondriver identification card that is presented as a condition for purchasing dietary supplements for weight loss or muscle building or over-the-counter diet pills.

(k) "Virtual sale" means an online, mail order, or telephonic sale of a dietary supplement for weight loss or muscle building or over-the-counter diet pill by a retailer to a consumer.

Sec. 3. (1) A retailer shall not sell, offer to sell, or otherwise give a dietary supplement for weight loss or muscle building or an over-the-counter diet pill to a minor.

(2) A retailer shall require proof of legal age before making a physical sale. Proof of legal age includes any of the following forms of identification:

(a) A valid driver license or nondriver identification card issued by the secretary of state; the federal government; a United States territory, commonwealth, or possession; the District of Columbia; a state government within the United States; or a provincial government of the dominion of Canada; or a municipal ID of this state.

(b) A valid passport issued by the United States government or another country.

(c) An identification card issued by the Armed Forces of the United States.

(d) A student identification card if the card includes the date of birth of the individual.

(e) A tribal identification card.

(3) A retailer that makes a virtual sale shall not accept an order from a consumer unless both of the following occur:

(a) The consumer provides the consumer's full name, birth date, and residential address.

(b) The retailer verifies the identity and age of the consumer using a commercially available database or aggregate of databases to which all of the following apply:

(i) The database or databases consist primarily of data from government sources.

(ii) The database or databases are regularly used by governmental agencies or businesses for the purpose of age and identity verification.

(iii) The database or databases are not in the possession or control of the retailer or person responsible for delivery of the dietary supplements for weight loss or muscle building or over-the-counter diet pills.

(iv) The database or databases are not subject to change or supplementation by the retailer.

(4) A retailer that makes a virtual sale shall use a method of shipping that does both of the following:

(a) Prohibits a minor from accepting the delivery.

(b) Requires that the consumer accepting the delivery provide the person responsible for the delivery with valid identification that proves that the consumer is not a minor. Valid identification required under this subdivision includes any forms of proof of legal age under subsection (2).

Sec. 3a. (1) A retailer may perform a transaction scan as a precondition for the purchase of a dietary supplement for weight loss or muscle building or an over-the-counter diet pill.

(2) If information deciphered by a transaction scan under subsection (1) fails to match the information printed on a driver license or nondriver identification card provided as proof of legal age under section 3, or if the transaction scan indicates that the information is false or fraudulent, the attempted transaction must be denied.

(3) A retailer shall use only a device capable of deciphering information in an electronically readable format to conduct a transaction scan under subsection (1), and shall use the information recorded and maintained through the use of the device only for the purposes described under this section. Subject to subsection (4), a retailer shall not resell or disseminate any information recorded during a transaction scan under subsection (1) to a third party, including, but not limited to, through advertising, marketing, or promotional activities.

(4) Notwithstanding the restrictions under subsection (3), information recorded during a transaction scan may be released in accordance with a court-ordered subpoena or any law of this state that specifically authorizes the release of the information.

(5) A retailer shall electronically or mechanically record and maintain only the information from a transaction scan necessary to effectuate this act. Information recorded and maintained must be limited to the following:

(a) The name of the individual.

(b) The date of birth of the individual.

(c) The individual's driver license or nondriver identification number.

(d) The expiration date of the driver license or nondriver identification card.

(6) A retailer that violates this section is subject to a civil fine of not more than $1,000.00 per violation.

Sec. 4. A retailer may, but is not required to, maintain a dietary supplement for weight loss or muscle building or an over-the-counter diet pill behind a counter where the public is not permitted, or within a locked case so that a consumer wanting access to the product must ask a store employee for assistance.

Sec. 5. When determining if a product is labeled, marketed, or otherwise represented for the purpose of achieving weight loss or muscle building, the department shall consider at least all of the following factors:

(a) If the product contains any of the following:

(i) An ingredient approved by the United States Food and Drug Administration for weight loss or muscle building.

(ii) A steroid.

(iii) Creatine, green tea extract, raspberry ketone, garcinia cambogia, or coffee bean extract.

(b) If the product's labeling or marketing bears a statement or image that expresses or implies that the product will help do either of the following:

(i) Modify, maintain, or reduce body weight, fat, appetite, overall metabolism, or the process by which nutrients are metabolized.

(ii) Maintain or increase muscle strength.

(c) If the product or the product's ingredients are otherwise represented as being for the purpose of achieving weight loss or building muscle.

(d) If the retailer has categorized the dietary supplement for weight loss or muscle building or the over-the-counter diet pill by doing either of the following:

(i) Placing signs, categorizing, or tagging the product with statements as described in subdivision (b).

(ii) Grouping the products with other weight loss or muscle building products in a display, advertisement, webpage, or area of the store.

Sec. 6. The department, in consultation with the board, shall promulgate rules to implement this act under the administrative procedures act of 1969, 1969 PA 306, MCL 24.201 to 24.328.

Sec. 7. (1) If a retailer violates this act, the attorney general may bring a civil action against that retailer for 1 or more of the following:

(a) A civil fine of not more than $1,000.00.

(b) Injunctive relief.

(c) Any other relief the court considers appropriate.

(2) Subject to subsection (3), a retail clerk is not subject to any disciplinary action under this act or discharge by a retailer for a violation of this act.

(3) Subsection (2) does not apply to a retail clerk who is a willful participant in an ongoing conspiracy to violate this act.