Senate Bill 2188

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    Florida Senate - 1998                                  SB 2188

    By Senator Silver





    38-1008-98

  1                      A bill to be entitled

  2         An act relating to regulation of professions;

  3         transferring, renumbering, and amending ss.

  4         501.057, 501.0571, 501.0573, 501.0575,

  5         501.0577, 501.0581, F.S.; transferring the

  6         Florida Commercial Weight-Loss Practices Act

  7         from ch. 501, F.S., relating to consumer

  8         protection, to ch. 468, F.S., relating to

  9         professions and occupations; redefining the

10         activity that constitutes a weight-loss

11         program; revising notice requirements;

12         transferring authority from the Department of

13         Agriculture and Consumer Services to the

14         Department of Health; creating s. 468.826,

15         F.S.; describing what constitutes an unlawful

16         practice; creating s. 468.828, F.S.; requiring

17         weight-loss providers to obtain permits;

18         prescribing procedures for applying for

19         permits; providing for fees; creating s.

20         468.829, F.S.; requiring display of permits;

21         creating s. 468.519, F.S.; describing the

22         offense of sexual misconduct in the practice of

23         dietetics and nutrition; amending s. 455.604,

24         F.S.; requiring instruction in HIV and AIDS for

25         persons licensed as dietitians and

26         nutritionists; repealing s. 468.505(1)(k),

27         F.S., relating to exemption of certain persons

28         from dietitian/nutritionist licensure;

29         providing penalties; providing an effective

30         date.

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    Florida Senate - 1998                                  SB 2188
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  1  Be It Enacted by the Legislature of the State of Florida:

  2

  3         Section 1.  Section 501.057, Florida Statutes, is

  4  transferred, renumbered as section 468.821, Florida Statutes,

  5  and amended to read:

  6         468.821 501.057  Commercial Weight-Loss Practices Act;

  7  short title.--Sections 468.821-468.829 501.057-501.0581 may be

  8  cited as the "Florida Commercial Weight-Loss Practices Act."

  9         Section 2.  Section 501.0571, Florida Statutes, is

10  transferred, renumbered as section 468.822, Florida Statutes,

11  and amended to read:

12         468.822 501.0571  Commercial Weight-Loss Practices Act;

13  definitions.--As used in ss. 468.821-468.827, the term

14  501.057-501.0581:

15         (1)  "Examination" means any type of medical,

16  psychological, or nutritional review of a consumer.

17         (2)  "Department" means the Department of Health.

18         (3)(2)  "Supplement" means any type of vitamin,

19  mineral, or other dietary additive which is recommended to be

20  taken by a weight-loss provider.

21         (4)(3)  "Weight-loss location" means any place where a

22  weight-loss program is provided by a weight-loss provider.

23         (5)(4)  "Weight-loss program" means a general program

24  of instruction with food, supplements, food products, or a

25  food plan designed for one or more healthy population groups

26  in order to achieve or maintain a healthy weight.  A

27  weight-loss program is not based on an individual nutrition

28  assessment and is not individualized to provide nutrition care

29  services to manage, treat, or rehabilitate a medical

30  condition, illness, or injury for a specific person or group.

31  any plan or procedure offered to encourage weight loss.

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    Florida Senate - 1998                                  SB 2188
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  1         (6)(5)  "Weight-loss provider" means any person engaged

  2  in the business of offering services to consumers to assist

  3  them in losing weight and making oral or written statements,

  4  visual descriptions, advertisements, or other representations

  5  that have the capacity, tendency, or effect of leading

  6  consumers to believe that participation in a weight-loss

  7  program will result in weight loss.

  8         Section 3.  Section 501.0573, Florida Statutes, is

  9  transferred, renumbered as section 468.823, Florida Statutes,

10  and amended to read:

11         468.823 501.0573  Weight-loss provider

12  requirements.--Each weight-loss provider shall:

13         (1)  Provide to a consumer a written itemized statement

14  of the fixed or estimated cost of the weight-loss program that

15  is being recommended, including all additional products,

16  services, supplements, examinations, or laboratory tests the

17  consumer may have to purchase from the weight-loss provider as

18  part of such program.

19         (2)  Disclose the actual or estimated duration of the

20  recommended weight-loss program.

21         (3)  Provide a copy of the educational and professional

22  experience of the weight-loss provider's staff upon request.

23         (4)  Provide the name, address, and qualifications of

24  the person who has reviewed and approved the weight-loss

25  program according to s. 468.505(1)(j).

26         (5)  Produce and distribute to all consumers who

27  inquire about their weight-loss program a palm-sized card with

28  the Weight-Loss Consumer Bill of Rights printed on it.

29         (6)  Conspicuously post the Weight-Loss Consumer Bill

30  of Rights at the front registration desk or area in each

31  weight-loss location and require every agent, representative,

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    Florida Senate - 1998                                  SB 2188
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  1  franchisee, or independent contractor to post such a bill of

  2  rights in a prominent place in every room in which a

  3  presentation or sale of a weight-loss program is made or in

  4  which a product or treatment is offered for sale.

  5         Section 4.  Section 501.0575, Florida Statutes, is

  6  transferred, renumbered as section 468.824, Florida Statutes,

  7  and amended to read:

  8         468.824 501.0575  Weight-Loss Consumer Bill of

  9  Rights.--

10         (1)  The Weight-Loss Consumer Bill of Rights shall

11  consist of the following provisions:

12         (A)  WARNING: RAPID WEIGHT LOSS MAY CAUSE SERIOUS

13  HEALTH PROBLEMS.  RAPID WEIGHT LOSS IS WEIGHT LOSS OF MORE

14  THAN 1 1/2 POUNDS TO 2 POUNDS PER WEEK OR WEIGHT LOSS OF MORE

15  THAN 1 PERCENT OF BODY WEIGHT PER WEEK AFTER THE SECOND WEEK

16  OF PARTICIPATION IN A WEIGHT-LOSS PROGRAM.

17         (B)  CONSULT YOUR PERSONAL PHYSICIAN BEFORE STARTING

18  ANY WEIGHT-LOSS PROGRAM.

19         (C)  ONLY PERMANENT LIFESTYLE CHANGES, SUCH AS MAKING

20  HEALTHFUL FOOD CHOICES AND INCREASING PHYSICAL ACTIVITY,

21  PROMOTE LONG-TERM WEIGHT LOSS.

22         (D)  QUALIFICATIONS OF THIS PROVIDER SHALL BE PROVIDED

23  TO YOU BY THE PROVIDER PRIOR TO YOUR STARTING THE PROGRAM ARE

24  AVAILABLE UPON REQUEST.

25         (E)  YOU HAVE A RIGHT TO:

26         1.  ASK QUESTIONS ABOUT THE POTENTIAL HEALTH RISKS OF

27  THIS PROGRAM AND ITS NUTRITIONAL CONTENT, PSYCHOLOGICAL

28  SUPPORT, AND EDUCATIONAL COMPONENTS.

29         2.  RECEIVE AN ITEMIZED STATEMENT OF THE ACTUAL OR

30  ESTIMATED PRICE OF THE WEIGHT-LOSS PROGRAM, INCLUDING EXTRA

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    Florida Senate - 1998                                  SB 2188
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  1  PRODUCTS, SERVICES, SUPPLEMENTS, EXAMINATIONS, AND LABORATORY

  2  TESTS.

  3         3.  KNOW THE ACTUAL OR ESTIMATED DURATION OF THE

  4  PROGRAM.

  5         4.  KNOW THE NAME, ADDRESS, AND QUALIFICATIONS OF THE

  6  LICENSED DIETITIAN OR NUTRITIONIST WHO HAS REVIEWED AND

  7  APPROVED THE WEIGHT-LOSS PROGRAM PURSUANT ACCORDING TO s.

  8  468.505(1)(j), FLORIDA STATUTES.

  9         (2)  The copies of the Weight-Loss Consumer Bill of

10  Rights to be posted according to s. 468.823(6) s. 501.0573(6)

11  shall be printed in at least 24-point boldfaced type on one

12  side of a sign.  The palm-sized copies to be distributed

13  according to s. 501.0573(5) shall be in boldfaced type and

14  legible.  Each weight-loss provider shall be responsible for

15  producing and printing appropriate copies of the Weight-Loss

16  Consumer Bill of Rights.

17         Section 5.  Section 501.0577, Florida Statutes, is

18  transferred, renumbered as section 468.825, Florida Statutes,

19  and amended to read:

20         468.825 501.0577  Commercial Weight-Loss Practices Act;

21  exemptions.--The provisions of this act do not apply to

22  persons licensed under chapter 458, chapter 459, chapter 460,

23  chapter 461, chapter 462, chapter 463, chapter 465, chapter

24  468, or chapter 486 who may give weight-loss advice or provide

25  any weight-loss service which is incidental to the performance

26  of their profession and which is not the primary activity of

27  the person's practice.

28         Section 6.  Section 468.826, Florida Statutes, is

29  created to read:

30         468.826  Commercial Weight-Loss Practice Act; unlawful

31  practices.--It is unlawful and an unfair and deceptive trade

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    Florida Senate - 1998                                  SB 2188
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  1  practice under part II of chapter 501 to fail to comply with

  2  the provisions of ss. 468.821-468.829.

  3         Section 7.  Section 501.0581, Florida Statutes, is

  4  transferred, renumbered as section 468.827, Florida Statutes,

  5  and amended to read:

  6         468.827 501.0581  Commercial Weight-Loss Practices Act;

  7  civil remedies.--

  8         (1)  The department of Agriculture and Consumer

  9  Services may bring a civil action in circuit court for

10  temporary or permanent injunctive relief to enforce the

11  provisions of this act and may seek other appropriate civil

12  relief, including a civil penalty not to exceed $5,000 for

13  each violation, for restitution and damages for injured

14  customers, court costs, and reasonable attorney's fees.

15         (2)  The department of Agriculture and Consumer

16  Services may terminate any investigation or action upon

17  agreement by the offender to pay a stipulated civil penalty,

18  make restitution or pay damages to customers, or satisfy any

19  other relief authorized herein and requested by the

20  department.

21         (3)  Remedies provided in this section shall be in

22  addition to any other remedies provided by law.

23         Section 8.  Section 468.828, Florida Statutes, is

24  created to read:

25         468.828  Weight-loss provider permit.--

26         (1)  A weight-loss provider may not operate in this

27  state until such person has applied for and received from the

28  department a weight-loss provider permit. The department shall

29  prescribe an application form to be used by all persons

30  applying to obtain a weight-loss provider permit. The

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    Florida Senate - 1998                                  SB 2188
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  1  department shall issue a weight-loss provider permit for each

  2  applicant who:

  3         (a)  Has completed the application form and remitted a

  4  nonrefundable application fee set by the department in an

  5  amount not to exceed $300.

  6         (b)  Has identified the weight-loss provider by name,

  7  street and mailing addresses, and telephone number and, in the

  8  case of a partnership, corporation, association, or entity,

  9  has identified a registered agent or other person to receive

10  service of papers or other documents or perform other duties

11  as specified by the department.

12         (c)  Has identified the licensed or registered

13  dietitian/nutritionist who approved the weight-loss program

14  pursuant to subsection (3) by name, street and mailing

15  addresses, and telephone number.

16         (2)(a)  A weight-loss provider permit is not

17  transferable to another weight-loss provider by any means,

18  including, but not limited to, any sale of a corporation,

19  partnership, sole proprietorship, or other business entity.

20         (b)  A weight-loss provider shall notify the department

21  within 30 days after a change in ownership of the business and

22  at the same time return the permit to the department for

23  cancellation. Upon a change in ownership of a weight-loss

24  provider's business, the new owner shall file an application

25  for a new permit and shall pay the prescribed permit fee.

26         (3)  Any weight-loss program offered by a weight-loss

27  provider shall be reviewed and approved by:

28         (a)  A dietitian/nutritionist licensed in this state;

29         (b)  A registered dietitian; or

30         (c)  A dietitian/nutritionist licensed in another

31  state, provided the requirements for licensure in that state

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    Florida Senate - 1998                                  SB 2188
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  1  are substantially equivalent to or more stringent than those

  2  existing in this state.

  3

  4  A weight-loss program may not be changed without consultation

  5  and approval by one of the individuals listed in this

  6  subsection.

  7         (4)  The person selected pursuant to subsection (3)

  8  shall review the provider's weight-loss program in order to

  9  determine compliance with the law and rules and adherence to

10  the minimum safety standards for weight-loss programs and

11  shall consider the following points:

12         (a)  Appropriateness of the screening process;

13         (b)  Appropriateness of the weight-loss food plan,

14  supplements, food, or food products for the program's clients;

15         (c)  Assurance of nutritional adequacy;

16         (d)  Appropriateness of materials, which include, but

17  are not limited to, written nutrition education handouts,

18  recorded education materials, lesson or instructional plans,

19  food plans, and screening tools;

20         (e)  Appropriateness of rate of weight change promoted;

21  and

22         (f)  Provision and appropriateness of any maintenance

23  or followup program.

24         (5)  Each weight-loss provider shall comply with all

25  requirements of the Florida Drug and Cosmetic Act, part I of

26  chapter 499; the Florida Commercial Weight-Loss Practices Act,

27  ss. 468.821-468.829; and the Deceptive and Unfair Trade

28  Practices Act, part II of chapter 501.

29         (6)  Violation of subsection (5), in addition to other

30  remedies provided by law, shall result in suspension of the

31  weight-loss provider's permit. Reinstatement shall require

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    Florida Senate - 1998                                  SB 2188
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  1  demonstration of full compliance with the applicable laws and

  2  payment of a new permit fee.

  3         (7)  Nothing in ss. 468.821-468.829 may be construed to

  4  mean that a practitioner licensed under chapter 458, chapter

  5  459, or part X of chapter 468 is required to secure a

  6  weight-loss provider permit under ss. 468.821-468.829.

  7         (8)  The department shall by rule set a biennial

  8  weight-loss permit renewal fee in an amount not to exceed

  9  $300. The weight-loss program or programs being offered to the

10  public shall be reviewed and approved by one of the

11  individuals listed in subsection (3). Each applicant shall

12  submit to the department with his or her biennial renewal fee

13  the name, address, and phone number of the person who reviewed

14  and approved the weight-loss program.

15         (9)  Any weight-loss provider in business in this state

16  on October 1, 1998, shall be held harmless for any claim that

17  such provider has not obtained a weight-loss provider permit

18  as required herein until October 1, 1999.

19         Section 9.  Section 468.829, Florida Statutes, is

20  created to read:

21         468.829  Permit to be displayed.--Each weight-loss

22  provider to whom a weight-loss permit is issued shall keep

23  such permit conspicuously displayed in his office, place of

24  business, or place of employment and, when required, shall

25  exhibit such permit to any member or authorized representative

26  of the department.

27         Section 10.  Section 468.519, Florida Statutes, is

28  created to read:

29         468.519  Sexual misconduct in the practice of dietetics

30  and nutrition.--The dietitian/nutritionist and nutrition

31  counselor-client relationship is founded on mutual trust.

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  1  "Sexual misconduct in the practice of dietetics and nutrition

  2  counseling" means violation of the dietitian/nutritionist and

  3  nutrition counselor-client relationship through which the

  4  dietitian/nutritionist or nutrition counselor uses that

  5  relationship to induce or attempt to induce the patient to

  6  engage, or to engage or attempt to engage the patient, in

  7  sexual activity outside the scope of practice or the scope of

  8  generally accepted examination or treatment of the patient.

  9  Sexual misconduct in the practice of dietetics and nutrition

10  is prohibited.

11         Section 11.  Subsection (1) of section 455.604, Florida

12  Statutes, is amended to read:

13         455.604  Requirement for instruction for certain

14  licensees on human immunodeficiency virus and acquired immune

15  deficiency syndrome.--

16         (1)  The appropriate board shall require each person

17  licensed or certified under chapter 457; chapter 458; chapter

18  459; chapter 460; chapter 461; chapter 463; chapter 464;

19  chapter 465; chapter 466; part II, part III, or part V , or

20  part X of chapter 468; or chapter 486 to complete a continuing

21  educational course, approved by the board, on human

22  immunodeficiency virus and acquired immune deficiency syndrome

23  as part of biennial relicensure or recertification. The course

24  shall consist of education on the modes of transmission,

25  infection control procedures, clinical management, and

26  prevention of human immunodeficiency virus and acquired immune

27  deficiency syndrome. Such course shall include information on

28  current Florida law on acquired immune deficiency syndrome and

29  its impact on testing, confidentiality of test results, and

30  treatment of patients.

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  1         Section 12.  Paragraph (k) of subsection (1) of section

  2  468.505, Florida Statutes, is repealed.

  3         Section 13.  This act shall take effect October 1,

  4  1998.

  5

  6            *****************************************

  7                          SENATE SUMMARY

  8    Transfers regulation of commercial weight-loss programs
      from ch. 501, F.S., relating to consumer protection, to
  9    ch. 468, F.S., relating to professions and occupations
      and from the Department of Agriculture and Consumer
10    Services to the Department of Health.  Redefines the term
      "weight-loss program."  Requires programs to obtain a
11    permit.  Describes conduct that constitutes sexual
      misconduct in the practice of dietetics and nutrition.
12    Requires dietitians and nutritionists to complete courses
      in Human Immunodeficiency Virus and Acquired Immune
13    Deficiency Syndrome.  Repeals the exemption from
      licensure as a dietitian or nutritionist for certain
14    hospital employees.

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