CODING: Words stricken are deletions; words underlined are additions.





                                                  SENATE AMENDMENT

    Bill No. HB 4439, 1st Eng.

    Amendment No.      (unengrossed)

                            CHAMBER ACTION
              Senate                               House
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10                                                                

11  Senator Silver moved the following amendment:

12

13         Senate Amendment (with title amendment) 

14         On page 129, between lines 8 and 9,

15

16  insert:

17         Section 73.  Section 501.057, Florida Statutes, is

18  renumbered as section 468.821, Florida Statutes, and amended

19  to read:

20         468.821 501.057  Commercial Weight-Loss Practices Act;

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

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

23         Section 74.  Section 501.0571, Florida Statutes, is

24  renumbered as section 468.822, Florida Statutes, and amended

25  to read:

26         468.822 501.0571  Commercial Weight-Loss Practices Act;

27  definitions.--As used in ss. 468.821-468.829, the term

28  501.057-501.0581:

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

30  psychological, or nutritional review of a consumer.

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

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                                                  SENATE AMENDMENT

    Bill No. HB 4439, 1st Eng.

    Amendment No.      (unengrossed)





 1         (3)(2)  "Supplement" means any type of vitamin,

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

 3  taken by a weight-loss provider.

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

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

 6         (5)(4)  "Weight-loss program" means a general program

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

 8  food plan designed for clients from one or more healthy

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

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

11  on an individual nutrition assessment and is not

12  individualized to provide nutrition care services to manage,

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

14  for a specific person or group. A weight-loss program does not

15  include persons who only sell or distribute food, supplements,

16  or food products. any plan or procedure offered to encourage

17  weight loss.

18         (6)(5)  "Weight-loss provider" means the owner of any

19  person engaged in the business engaged in of offering services

20  to consumers to assist them in losing weight and making oral

21  or written statements, visual descriptions, advertisements, or

22  other representations that have the capacity, tendency, or

23  effect of leading consumers to believe that participation in a

24  weight-loss program will result in weight loss. A weight-loss

25  provider does not include a person who markets or distributes

26  food, food materials, or dietary supplements, or any person

27  who engages in the explanation of the use and benefits of

28  those products or the preparation of those products, if that

29  person does not engage for a fee in dietetics and nutrition

30  practice or nutrition counseling, and who is not offering a

31  weight-loss program to the public.

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                                                  SENATE AMENDMENT

    Bill No. HB 4439, 1st Eng.

    Amendment No.      (unengrossed)





 1         Section 75.  Section 501.0573, Florida Statutes, is

 2  renumbered as section 468.823, Florida Statutes, and amended

 3  to read:

 4         468.823 501.0573  Weight-loss provider

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

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

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

 8  is being recommended, including all additional products,

 9  services, supplements, examinations, or laboratory tests the

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

11  part of such program.

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

13  recommended weight-loss program.

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

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

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

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

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

19         (5)  Produce and distribute to all consumers who

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

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

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

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

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

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

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

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

28  which a product or treatment is offered for sale.

29         Section 76.  Section 501.0575, Florida Statutes, is

30  renumbered as section 468.824, Florida Statutes, and amended

31  to read:

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                                                  SENATE AMENDMENT

    Bill No. HB 4439, 1st Eng.

    Amendment No.      (unengrossed)





 1         468.824 501.0575  Weight-Loss Consumer Bill of

 2  Rights.--

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

 4  consist of the following provisions:

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

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

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

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

 9  OF PARTICIPATION IN A WEIGHT-LOSS PROGRAM.

10         (B)  CONSULT YOUR PERSONAL PHYSICIAN BEFORE STARTING

11  ANY WEIGHT-LOSS PROGRAM.

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

13  HEALTHFUL FOOD CHOICES AND INCREASING PHYSICAL ACTIVITY,

14  PROMOTE LONG-TERM WEIGHT LOSS.

15         (D)  QUALIFICATIONS OF THIS PROVIDER SHALL BE PROVIDED

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

17  AVAILABLE UPON REQUEST.

18         (E)  YOU HAVE A RIGHT TO:

19         1.  ASK QUESTIONS ABOUT THE POTENTIAL HEALTH RISKS OF

20  THIS PROGRAM AND ITS NUTRITIONAL CONTENT, PSYCHOLOGICAL

21  SUPPORT, AND EDUCATIONAL COMPONENTS.

22         2.  RECEIVE AN ITEMIZED STATEMENT OF THE ACTUAL OR

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

24  PRODUCTS, SERVICES, SUPPLEMENTS, EXAMINATIONS, AND LABORATORY

25  TESTS.

26         3.  KNOW THE ACTUAL OR ESTIMATED DURATION OF THE

27  PROGRAM.

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

29  LICENSED DIETITIAN OR NUTRITIONIST OR REGISTERED DIETITIAN WHO

30  HAS REVIEWED AND APPROVED THE WEIGHT-LOSS PROGRAM PURSUANT

31  ACCORDING TO s. 468.505(1)(j), FLORIDA STATUTES.

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                                                  SENATE AMENDMENT

    Bill No. HB 4439, 1st Eng.

    Amendment No.      (unengrossed)





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

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

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

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

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

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

 7  be responsible for producing and printing appropriate copies

 8  of the Weight-Loss Consumer Bill of Rights.

 9         Section 77.  Section 501.0577, Florida Statutes, is

10  renumbered as section 468.825, Florida Statutes, and amended

11  to read:

12         468.825 501.0577  Commercial Weight-Loss Practices Act;

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

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

15  chapter 461, chapter 462, chapter 463, chapter 464, chapter

16  465, parts III, V, and X of chapter 468, or chapter 486 who

17  may give weight-loss advice or provide any weight-loss service

18  which is within the scope of practice of the respective

19  profession incidental to the performance of their profession

20  and which is not the primary activity of the person's

21  practice.

22         Section 78.  Section 501.0579, Florida Statutes, is

23  renumbered as section 468.826, Florida Statutes, and amended

24  to read:

25         468.826 501.0579  Commercial Weight-Loss Practices Act;

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

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

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

29  act.

30         Section 79.  Section 501.0581, Florida Statutes, is

31  renumbered as section 468.827, Florida Statutes, and amended

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                                                  SENATE AMENDMENT

    Bill No. HB 4439, 1st Eng.

    Amendment No.      (unengrossed)





 1  to read:

 2         468.827 501.0581  Commercial Weight-Loss Practices Act;

 3  civil remedies.--

 4         (1)  The department of Agriculture and Consumer

 5  Services may bring a civil action in circuit court for

 6  temporary or permanent injunctive relief to enforce the

 7  provisions of this act and may seek other appropriate civil

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

 9  each violation, for restitution and damages for injured

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

11         (2)  The department of Agriculture and Consumer

12  Services may terminate any investigation or action upon

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

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

15  other relief authorized herein and requested by the

16  department.

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

18  addition to any other remedies provided by law.

19         Section 80.  Section 468.828, Florida Statutes, is

20  created to read:

21         468.828  Weight-loss provider registration.--

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

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

24  department a weight-loss provider registration. The department

25  shall prescribe an application form to be used by all persons

26  applying to obtain a weight-loss provider registration. The

27  department shall issue a weight-loss provider registration for

28  each applicant who:

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

30  nonrefundable application fee set by the department in an

31  amount not to exceed $300.

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                                                  SENATE AMENDMENT

    Bill No. HB 4439, 1st Eng.

    Amendment No.      (unengrossed)





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

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

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

 4  has identified a registered agent or other person to receive

 5  service of papers or other documents or perform other duties

 6  as specified by the department.

 7         (c)  Has identified the licensed or registered

 8  dietitian/nutritionist who approved the weight-loss program

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

10  addresses, and telephone number.

11         (2)(a)  A weight-loss provider registration is not

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

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

14  partnership, sole proprietorship, or other business entity.

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

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

17  at the same time return the registration to the department for

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

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

20  for a new registration and shall pay the prescribed fee.

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

22  provider shall be reviewed and approved by:

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

24         (b)  A registered dietitian; or

25         (c)  A dietitian/nutritionist licensed in another

26  state, provided the requirements for licensure in that state

27  are substantially equivalent to or more stringent than those

28  existing in this state.

29

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

31  and approval by one of the individuals listed in this

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                                                  SENATE AMENDMENT

    Bill No. HB 4439, 1st Eng.

    Amendment No.      (unengrossed)





 1  subsection.

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

 3  shall consider the following minimum standards in reviewing a

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

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

 6  with the provisions of ss. 468.821-468.829:

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

 8  wide variety of foods based on government recommendations for

 9  healthy eating;

10         (b)  Mechanisms for screening out those persons for

11  whom there is a scientific consensus that weight loss is

12  inappropriate, such as pregnant women;

13         (c)  Requiring medical permission for children under 10

14  years of age and recognizing that physician consultation is

15  appropriate for anyone starting a weight-loss program;

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

17  the provisions of ss. 468.821-468.829;

18         (e)  Providing a weight maintenance component designed

19  to help weight-loss program participants sustain their weight

20  losses, consistent with government standards for healthy

21  eating; and

22         (f)  Providing participants with materials

23  demonstrating the weight-loss program provider's compliance

24  with ss. 468.821-468.829.

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

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

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

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

29  Practices Act, part II of chapter 501.

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

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

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                                                  SENATE AMENDMENT

    Bill No. HB 4439, 1st Eng.

    Amendment No.      (unengrossed)





 1  weight-loss provider's registration under chapter 455.

 2  Reinstatement shall require demonstration of full compliance

 3  with the applicable laws and payment of a reinstatement fee

 4  not to exceed the initial application and registration fee.

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

 6  weight-loss registration renewal fee in an amount not to

 7  exceed $300. The weight-loss program or programs being offered

 8  to the public shall be reviewed and approved at least

 9  biennially by one of the individuals listed in subsection (3).

10  Each applicant shall submit to the department with his or her

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

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

13  Biennial review shall not be required for those providers who

14  have a licensed or registered dietitian/nutritionist meeting

15  the requirements of ss. 468.821-468.829 available for

16  consultation on a regular basis.

17         (8)  Any weight-loss provider in business in this state

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

19  such provider has not obtained a weight-loss provider

20  registration as required under this section, until October 1,

21  1999.

22         (9)  The department has all authority set forth in part

23  II of chapter 455 to enforce this act. Section 468.828(4) is

24  declared to be self-executing.

25         Section 81.  Section 468.8281, Florida Statutes, is

26  created to read:

27         468.8281  Availability of disciplinary records and

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

29  record maintained by the Department of Health pursuant to the

30  discipline of a registered weight-loss provider and any

31  proceeding held by the department to discipline a registered

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                                                  SENATE AMENDMENT

    Bill No. HB 4439, 1st Eng.

    Amendment No.      (unengrossed)





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

 2  public.

 3         Section 82.  Section 468.829, Florida Statutes, is

 4  created to read:

 5         468.829  Registration to be displayed;

 6  advertisement.--Each weight-loss provider to whom a

 7  weight-loss registration is issued shall keep such

 8  registration conspicuously displayed in the provider's office,

 9  place of business, or place of employment and, when required,

10  shall exhibit such registration to any member or authorized

11  representative of the department. In addition, each

12  weight-loss provider holding a registration under this act

13  must include the number of the registration in any

14  advertisement of weight-loss services which appears in any

15  newspaper, airwave transmission, telephone directory,

16  direct-mail advertisement, or other advertising medium. Each

17  weight-loss provider shall conspicuously display in the

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

19  the following statement that must appear in capital letters

20  clearly distinguishable from the rest of the text:  THE STATE

21  OF FLORIDA DEPARTMENT OF HEALTH HAS REGISTERED THIS

22  WEIGHT-LOSS PROVIDER TO OPERATE IN FLORIDA. HOWEVER, THE

23  REGISTRATION DOES NOT INDICATE THAT THE DEPARTMENT OF HEALTH

24  ENDORSES OR APPROVES THE CONTENT OF THIS WEIGHT-LOSS PROGRAM.

25         Section 83.  Section 468.519, Florida Statutes, is

26  created to read:

27         468.519  Sexual misconduct in the practice of dietetics

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

29  counselor-client relationship is founded on mutual trust.

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

31  means violation of the dietitian/nutritionist and nutrition

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                                                  SENATE AMENDMENT

    Bill No. HB 4439, 1st Eng.

    Amendment No.      (unengrossed)





 1  counselor-client relationship through which the

 2  dietitian/nutritionist or nutrition counselor uses that

 3  relationship to induce or attempt to induce the client to

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

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

 6  generally accepted examination or treatment of the client.

 7  Sexual misconduct in the practice of dietetics and nutrition

 8  is prohibited.

 9         Section 84.  Subsection (1) of section 455.604, Florida

10  Statutes, is amended to read:

11         455.604  Requirement for instruction for certain

12  licensees on human immunodeficiency virus and acquired immune

13  deficiency syndrome.--

14         (1)  The appropriate board shall require each person

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

16  459; chapter 460; chapter 461; chapter 463; chapter 464;

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

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

19  educational course, approved by the board, on human

20  immunodeficiency virus and acquired immune deficiency syndrome

21  as part of biennial relicensure or recertification. The course

22  shall consist of education on the modes of transmission,

23  infection control procedures, clinical management, and

24  prevention of human immunodeficiency virus and acquired immune

25  deficiency syndrome. Such course shall include information on

26  current Florida law on acquired immune deficiency syndrome and

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

28  treatment of patients.

29         Section 85.  (1)  There is created within the

30  Department of Health a Task Force on Regulation of the

31  Weight-Loss Industry. The Department of Health shall provide

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                                                  SENATE AMENDMENT

    Bill No. HB 4439, 1st Eng.

    Amendment No.      (unengrossed)





 1  staff support for the task force. The task force shall consist

 2  of not more than 20 members nominated by the associations and

 3  entities named in this section and appointed by the Secretary

 4  of Health. Members of the task force shall not receive

 5  compensation, per diem, or reimbursement for travel expenses

 6  for service on the task force. Participation in the task force

 7  is optional and at the discretion of each identified group or

 8  entity. If all identified groups and entities participate, the

 9  task force shall include:

10         (a)  One representative from each of the following

11  associations:

12         1.  The Florida Dietetic Association.

13         2.  The Florida Medical Association.

14         3.  The Florida Osteopathic Medical Association.

15         4.  The Florida Chiropractic Association.

16         5.  The Florida Podiatric Medical Association.

17         6.  The Florida Pharmacy Association.

18         7.  The Florida Society of Health System Pharmacists.

19         (b)  Three representatives from commercial weight-loss

20  programs.

21         (c)  One representative from each of the following

22  entities:

23         1.  The Department of Health.

24         2.  The Dietetics and Nutrition Practice Council.

25         3.  The Board of Medicine, which representative must be

26  a member of the board who is licensed under chapter 458,

27  Florida Statutes.

28         4.  The Board of Osteopathic Medicine, which

29  representative must be a member of the board who is licensed

30  under chapter 459, Florida Statutes.

31         5.  The Board of Chiropractic Medicine, which

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                                                  SENATE AMENDMENT

    Bill No. HB 4439, 1st Eng.

    Amendment No.      (unengrossed)





 1  representative must be a member of the board who is licensed

 2  under chapter 460, Florida Statutes.

 3         6.  The Board of Podiatric Medicine, which

 4  representative must be a member of the board who is licensed

 5  under chapter 461, Florida Statutes.

 6         7.  The Board of Pharmacy, which representative must be

 7  a member of the board who is licensed under chapter 465,

 8  Florida Statutes.

 9         8.  The Agency for Health Care Administration.

10         (d)  Two representatives from the dietary supplement

11  industry.

12         (2)  The task force shall hold its first meeting no

13  later than August 1, 1998, and shall report its findings to

14  the President of the Senate, the Speaker of the House of

15  Representatives, and the chairs of the applicable legislative

16  committees of substance not later than December 31, 1998. All

17  task force meetings must be held in Tallahassee at the

18  Department of Health in order to minimize costs to the state.

19         (3)  The task force shall study and make

20  recommendations to the Legislature regarding the appropriate

21  level of regulation and placement needed to enforce the

22  Florida Commercial Weight-Loss Practices Act as set forth in

23  sections 468.821-468.829, Florida Statutes, and other

24  weight-loss services.

25         (4)  The task force is dissolved effective January 1,

26  1999.

27         (5)  This section shall take effect upon this act

28  becoming a law.

29

30  (Redesignate subsequent sections.)

31

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                                                  SENATE AMENDMENT

    Bill No. HB 4439, 1st Eng.

    Amendment No.      (unengrossed)





 1  ================ T I T L E   A M E N D M E N T ===============

 2  And the title is amended as follows:

 3  (2nd Engrossed)

 4         On page 11, line 2, after the semicolon

 5

 6  insert:

 7         renumbering and amending ss. 501.057, 501.0571,

 8         501.0573, 501.0575, 501.0577, 501.0579,

 9         501.0581, F.S.; transferring the Florida

10         Commercial Weight-Loss Practices Act from ch.

11         501, F.S., relating to consumer protection, to

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

13         occupations; redefining the activity that

14         constitutes a weight-loss program; revising

15         certain notice requirements; providing an

16         exemption from regulation; conforming

17         references and cross-references; transferring

18         regulatory authority from the Department of

19         Agriculture and Consumer Services to the

20         Department of Health; creating s. 468.828,

21         F.S.; requiring weight-loss providers to

22         register; prescribing procedures and

23         requirements; providing a penalty; providing

24         for fees; providing a grace period for certain

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

26         providing requirements for records and meetings

27         held for disciplinary actions; creating s.

28         468.829, F.S.; requiring display of

29         registration; creating s. 468.519, F.S.;

30         prohibiting sexual misconduct in the practice

31         of dietetics and nutrition; amending s.

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                                                  SENATE AMENDMENT

    Bill No. HB 4439, 1st Eng.

    Amendment No.      (unengrossed)





 1         455.604, F.S.; requiring instruction in HIV and

 2         AIDS for persons licensed as dietitians and

 3         nutritionists; creating the Task Force on

 4         Regulation of the Weight-Loss Industry;

 5         providing for its membership and duties;

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