Senate Bill 2188c1

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    Florida Senate - 1998                           CS for SB 2188

    By the Committee on Health Care and Senator Silver





    317-2009A-98

  1                      A bill to be entitled

  2         An act relating to regulation of professions;

  3         renumbering and amending ss. 501.057, 501.0571,

  4         501.0573, 501.0575, 501.0577, 501.0579,

  5         501.0581, F.S.; transferring the Florida

  6         Commercial Weight-Loss Practices Act from ch.

  7         501, F.S., relating to consumer protection, to

  8         ch. 468, F.S., relating to professions and

  9         occupations; redefining the activity that

10         constitutes a weight-loss program; revising

11         certain notice requirements; providing an

12         exemption from regulation; conforming

13         references and cross-references; transferring

14         regulatory authority from the Department of

15         Agriculture and Consumer Services to the

16         Department of Health; creating s. 468.828,

17         F.S.; requiring weight-loss providers to obtain

18         permits; prescribing procedures and

19         requirements; providing a penalty; providing

20         for fees; providing a grace period for certain

21         providers; creating s. 468.8281, F.S.;

22         providing requirements for records and meetings

23         held for disciplinary actions; creating s.

24         468.829, F.S.; requiring display of permits;

25         creating s. 468.519, F.S.; prohibiting sexual

26         misconduct in the practice of dietetics and

27         nutrition; amending s. 455.604, F.S.; requiring

28         instruction in HIV and AIDS for persons

29         licensed as dietitians and nutritionists;

30         providing an effective date.

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    Florida Senate - 1998                           CS for SB 2188
    317-2009A-98




  1  Be It Enacted by the Legislature of the State of Florida:

  2

  3         Section 1.  Section 501.057, Florida Statutes, is

  4  renumbered as section 468.821, Florida Statutes, and amended

  5  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  renumbered as section 468.822, Florida Statutes, and amended

11  to read:

12         468.822 501.0571  Commercial Weight-Loss Practices Act;

13  definitions.--As used in ss. 468.821-468.829, 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 clients from one or more healthy

26  population groups, in order that such clients may achieve or

27  maintain a healthy weight.  A weight-loss program is not based

28  on an individual nutrition assessment and is not

29  individualized to provide nutrition care services to manage,

30  treat, or rehabilitate a medical condition, illness, or injury

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    Florida Senate - 1998                           CS for SB 2188
    317-2009A-98




  1  for a specific person or group. any plan or procedure offered

  2  to encourage weight loss.

  3         (6)(5)  "Weight-loss provider" means any person engaged

  4  in the business of offering services to consumers to assist

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

  6  visual descriptions, advertisements, or other representations

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

  8  consumers to believe that participation in a weight-loss

  9  program will result in weight loss. A weight-loss provider

10  does not include a person described in s. 468.505(1)(g).

11         Section 3.  Section 501.0573, Florida Statutes, is

12  renumbered as section 468.823, Florida Statutes, and amended

13  to read:

14         468.823 501.0573  Weight-loss provider

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

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

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

18  is being recommended, including all additional products,

19  services, supplements, examinations, or laboratory tests the

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

21  part of such program.

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

23  recommended weight-loss program.

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

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

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

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

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

29         (5)  Produce and distribute to all consumers who

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

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

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    Florida Senate - 1998                           CS for SB 2188
    317-2009A-98




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

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

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

  4  franchisee, or independent contractor to post such a bill of

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

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

  7  which a product or treatment is offered for sale.

  8         Section 4.  Section 501.0575, Florida Statutes, is

  9  renumbered as section 468.824, Florida Statutes, and amended

10  to read:

11         468.824 501.0575  Weight-Loss Consumer Bill of

12  Rights.--

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

14  consist of the following provisions:

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

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

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

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

19  OF PARTICIPATION IN A WEIGHT-LOSS PROGRAM.

20         (B)  CONSULT YOUR PERSONAL PHYSICIAN BEFORE STARTING

21  ANY WEIGHT-LOSS PROGRAM.

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

23  HEALTHFUL FOOD CHOICES AND INCREASING PHYSICAL ACTIVITY,

24  PROMOTE LONG-TERM WEIGHT LOSS.

25         (D)  QUALIFICATIONS OF THIS PROVIDER SHALL BE PROVIDED

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

27  AVAILABLE UPON REQUEST.

28         (E)  YOU HAVE A RIGHT TO:

29         1.  ASK QUESTIONS ABOUT THE POTENTIAL HEALTH RISKS OF

30  THIS PROGRAM AND ITS NUTRITIONAL CONTENT, PSYCHOLOGICAL

31  SUPPORT, AND EDUCATIONAL COMPONENTS.

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    Florida Senate - 1998                           CS for SB 2188
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  1         2.  RECEIVE AN ITEMIZED STATEMENT OF THE ACTUAL OR

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

  3  PRODUCTS, SERVICES, SUPPLEMENTS, EXAMINATIONS, AND LABORATORY

  4  TESTS.

  5         3.  KNOW THE ACTUAL OR ESTIMATED DURATION OF THE

  6  PROGRAM.

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

  8  LICENSED DIETITIAN OR NUTRITIONIST WHO HAS REVIEWED AND

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

10  468.505(1)(j), FLORIDA STATUTES.

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

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

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

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

15  according to s. 468.823(5) s. 501.0573(5) shall be in

16  boldfaced type and legible.  Each weight-loss provider shall

17  be responsible for producing and printing appropriate copies

18  of the Weight-Loss Consumer Bill of Rights.

19         Section 5.  Section 501.0577, Florida Statutes, is

20  renumbered as section 468.825, Florida Statutes, and amended

21  to read:

22         468.825 501.0577  Commercial Weight-Loss Practices Act;

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

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

25  chapter 461, chapter 462, chapter 463, chapter 465, chapter

26  468, or chapter 486 who may give weight-loss advice or provide

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

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

29  the person's practice.

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    Florida Senate - 1998                           CS for SB 2188
    317-2009A-98




  1         Section 6.  Section 501.0579, Florida Statutes, is

  2  renumbered as section 468.826, Florida Statutes, and amended

  3  to read:

  4         468.826 501.0579  Commercial Weight-Loss Practices Act;

  5  unlawful practices.--It is unlawful and an unfair and

  6  deceptive trade practice under part II of this chapter 501 to

  7  fail to comply with the provisions of ss. 468.821-468.829 this

  8  act.

  9         Section 7.  Section 501.0581, Florida Statutes, is

10  renumbered as section 468.827, Florida Statutes, and amended

11  to read:

12         468.827 501.0581  Commercial Weight-Loss Practices Act;

13  civil remedies.--

14         (1)  The department of Agriculture and Consumer

15  Services may bring a civil action in circuit court for

16  temporary or permanent injunctive relief to enforce the

17  provisions of this act and may seek other appropriate civil

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

19  each violation, for restitution and damages for injured

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

21         (2)  The department of Agriculture and Consumer

22  Services may terminate any investigation or action upon

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

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

25  other relief authorized herein and requested by the

26  department.

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

28  addition to any other remedies provided by law.

29         Section 8.  Section 468.828, Florida Statutes, is

30  created to read:

31         468.828  Weight-loss provider permit.--

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    Florida Senate - 1998                           CS for SB 2188
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  1         (1)  A weight-loss provider may not operate in this

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

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

  4  prescribe an application form to be used by all persons

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

  6  department shall issue a weight-loss provider permit for each

  7  applicant who:

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

  9  nonrefundable application fee set by the department in an

10  amount not to exceed $300.

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

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

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

14  has identified a registered agent or other person to receive

15  service of papers or other documents or perform other duties

16  as specified by the department.

17         (c)  Has identified the licensed or registered

18  dietitian/nutritionist who approved the weight-loss program

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

20  addresses, and telephone number.

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

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

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

24  partnership, sole proprietorship, or other business entity.

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

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

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

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

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

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

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    Florida Senate - 1998                           CS for SB 2188
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  1         (3)  Any weight-loss program offered by a weight-loss

  2  provider shall be reviewed and approved by:

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

  4         (b)  A registered dietitian; or

  5         (c)  A dietitian/nutritionist licensed in another

  6  state, provided the requirements for licensure in that state

  7  are substantially equivalent to or more stringent than those

  8  existing in this state.

  9

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

11  and approval by one of the individuals listed in this

12  subsection.

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

14  shall consider the following minimum standards in reviewing a

15  provider's weight-loss program, to determine whether the

16  weight-loss program being advocated is safe and in compliance

17  with the provisions of ss. 468.821-465.829:

18         (a)  Nutritional adequacy, measured by consumption of a

19  wide variety of foods based on government recommendations for

20  healthy eating;

21         (b)  Mechanisms for screening out those persons for

22  whom there is a scientific consensus that weight loss is

23  inappropriate, such as pregnant women;

24         (c)  Requiring medical permission for children under 10

25  years of age and recognizing that physician consultation is

26  appropriate for anyone starting a weight-loss program;

27         (d)  Promoting a rate of weight loss consistent with

28  the provisions of ss. 468.821-468.829;

29         (e)  Providing a weight maintenance component designed

30  to help weight-loss program participants sustain their weight

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    Florida Senate - 1998                           CS for SB 2188
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  1  losses, consistent with government standards for healthy

  2  eating; and

  3         (f)  Providing participants with materials

  4  demonstrating the weight-loss program provider's compliance

  5  with ss. 468.821-468.829.

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

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

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

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

10  Practices Act, part II of chapter 501.

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

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

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

14  demonstration of full compliance with the applicable laws and

15  payment of a new permit fee.

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

17  mean that a practitioner licensed under chapter 458, chapter

18  459, or part X of chapter 468 is required to secure a

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

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

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

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

23  public shall be reviewed and approved at least biennially by

24  one of the individuals listed in subsection (3). Each

25  applicant shall submit to the department with his or her

26  biennial renewal fee the name, address, and phone number of

27  the person who reviewed and approved the weight-loss program.

28  Biennial review shall not be required for those providers who

29  have a licensed or registered dietitian/nutritionist meeting

30  the requirements of ss. 468.821-468.829 available for

31  consultation on a regular basis.

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    Florida Senate - 1998                           CS for SB 2188
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  1         (9)  Any weight-loss provider in business in this state

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

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

  4  as required under this section, until October 1, 1999.

  5         (10)  The department has all authority set forth in ss.

  6  455.627 and 455.621 to enforce this act. Section 468.828(4) is

  7  declared to be self-executing.

  8         Section 9.  Section 468.8281, Florida Statutes, is

  9  created to read:

10         468.8281  Availability of disciplinary records and

11  proceedings.--Notwithstanding s. 455.621, any complaint or

12  record maintained by the Department of Health pursuant to the

13  discipline of a permitted weight-loss provider and any

14  proceeding held by the department to discipline a permitted

15  weight-loss provider shall remain open and available to the

16  public.

17         Section 10.  Section 468.829, Florida Statutes, is

18  created to read:

19         468.829  Permit to be displayed; advertisement.--Each

20  weight-loss provider to whom a weight-loss permit is issued

21  shall keep such permit conspicuously displayed in the

22  provider's office, place of business, or place of employment

23  and, when required, shall exhibit such permit to any member or

24  authorized representative of the department. In addition, each

25  weight-loss provider holding a permit under this act must

26  include the number of the permit in any advertisement of

27  weight-loss services which appears in any newspaper, airwave

28  transmission, telephone directory, direct-mail advertisement,

29  or other advertising medium.

30         Section 11.  Section 468.519, Florida Statutes, is

31  created to read:

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    Florida Senate - 1998                           CS for SB 2188
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  1         468.519  Sexual misconduct in the practice of dietetics

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

  3  counselor-client relationship is founded on mutual trust.

  4  "Sexual misconduct in the practice of dietetics and nutrition"

  5  means violation of the dietitian/nutritionist and nutrition

  6  counselor-client relationship through which the

  7  dietitian/nutritionist or nutrition counselor uses that

  8  relationship to induce or attempt to induce the client to

  9  engage, or to engage or attempt to engage the client, in

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

11  generally accepted examination or treatment of the client.

12  Sexual misconduct in the practice of dietetics and nutrition

13  is prohibited.

14         Section 12.  Subsection (1) of section 455.604, Florida

15  Statutes, is amended to read:

16         455.604  Requirement for instruction for certain

17  licensees on human immunodeficiency virus and acquired immune

18  deficiency syndrome.--

19         (1)  The appropriate board shall require each person

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

21  459; chapter 460; chapter 461; chapter 463; chapter 464;

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

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

24  educational course, approved by the board, on human

25  immunodeficiency virus and acquired immune deficiency syndrome

26  as part of biennial relicensure or recertification. The course

27  shall consist of education on the modes of transmission,

28  infection control procedures, clinical management, and

29  prevention of human immunodeficiency virus and acquired immune

30  deficiency syndrome. Such course shall include information on

31  current Florida law on acquired immune deficiency syndrome and

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    Florida Senate - 1998                           CS for SB 2188
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  1  its impact on testing, confidentiality of test results, and

  2  treatment of patients.

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

  4  1998.

  5

  6          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
  7                         Senate Bill 2188

  8

  9  Under the committee substitute, a weight-loss provider does
    not include persons who market or distribute food, food
10  materials, or dietary supplements. The committee substitute
    revises the criteria that a dietitian/nutritionist must use to
11  determine a weight-loss program's compliance with minimum
    safety standards for weight-loss programs. The committee
12  substitute grants to the department the authority to implement
    and enforce the provisions of the Commercial Weight-Loss
13  Practices Act as it would regulate a health care professional.
    The criteria that dietitian/nutritionists must use to
14  determine a weight-loss program's compliance with minimum
    safety standards for weight-loss programs specified in s.
15  468.828(4), F.S., are self-executing; therefore, the
    Department of Health may not adopt any additional
16  administrative rules to enforce s. 468.828(4), F.S. Each
    weight-loss provider holding a permit must include the number
17  of the permit in advertisement of weight-loss services. The
    committee substitute no longer repeals s. 468.505(1)(k), F.S.,
18  which provides an exemption to the dietitian/nutritionist
    licensing requirements for persons employed by a licensed
19  hospital, nursing home, assisted living facility, or
    continuing care facility, if the person employed is in
20  compliance with the laws and rules adopted for the operation
    of the facility's dietetic department. The committee
21  substitute provides that any disciplinary complaints and
    records maintained by the Department of Health pursuant to the
22  discipline of a permitted weight-loss provider and any
    proceeding held by the department to discipline a permitted
23  weight-loss provider shall remain open and available to the
    public.
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