House Bill 4677

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    Florida House of Representatives - 1998                HB 4677

        By Representative Wasserman Schultz






  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, and

  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. 468.829, F.S.; requiring

22         display of permits; creating s. 468.519, F.S.;

23         prohibiting sexual misconduct in the practice

24         of dietetics and nutrition; amending s.

25         455.604, F.S.; requiring instruction in HIV and

26         AIDS for persons licensed as dietitians and

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

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

29         employed by a hospital, nursing home, assisted

30         living facility, or continuing care facility

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  1         from dietitian/nutritionist licensure;

  2         providing an effective date.

  3

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

  5

  6         Section 1.  Section 501.057, Florida Statutes, is

  7  renumbered as section 468.821, Florida Statutes, and amended

  8  to read:

  9         468.821 501.057  Commercial Weight-Loss Practices Act;

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

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

12         Section 2.  Section 501.0571, Florida Statutes, is

13  renumbered as section 468.822, Florida Statutes, and amended

14  to read:

15         468.822 501.0571  Commercial Weight-Loss Practices Act;

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

17  501.057-501.0581:

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

19  psychological, or nutritional review of a consumer.

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

21         (3)(2)  "Supplement" means any type of vitamin,

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

23  taken by a weight-loss provider.

24         (4)(3)  "Weight-loss location" means any place where a

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

26         (5)(4)  "Weight-loss program" means a general program

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

28  food plan designed for clients from one or more healthy

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

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

31  on an individual nutrition assessment and is not

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  1  individualized to provide nutrition care services to manage,

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

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

  4  to encourage weight loss.

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

  6  in the business of offering services to consumers to assist

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

  8  visual descriptions, advertisements, or other representations

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

10  consumers to believe that participation in a weight-loss

11  program will result in weight loss.

12         Section 3.  Section 501.0573, Florida Statutes, is

13  renumbered as section 468.823, Florida Statutes, and amended

14  to read:

15         468.823 501.0573  Weight-loss provider

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

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

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

19  is being recommended, including all additional products,

20  services, supplements, examinations, or laboratory tests the

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

22  part of such program.

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

24  recommended weight-loss program.

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

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

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

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

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

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  1         (5)  Produce and distribute to all consumers who

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

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

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

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

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

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

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

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

10  which a product or treatment is offered for sale.

11         Section 4.  Section 501.0575, Florida Statutes, is

12  renumbered as section 468.824, Florida Statutes, and amended

13  to read:

14         468.824 501.0575  Weight-Loss Consumer Bill of

15  Rights.--

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

17  consist of the following provisions:

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

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

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

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

22  OF PARTICIPATION IN A WEIGHT-LOSS PROGRAM.

23         (B)  CONSULT YOUR PERSONAL PHYSICIAN BEFORE STARTING

24  ANY WEIGHT-LOSS PROGRAM.

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

26  HEALTHFUL FOOD CHOICES AND INCREASING PHYSICAL ACTIVITY,

27  PROMOTE LONG-TERM WEIGHT LOSS.

28         (D)  QUALIFICATIONS OF THIS PROVIDER SHALL BE PROVIDED

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

30  AVAILABLE UPON REQUEST.

31         (E)  YOU HAVE A RIGHT TO:

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  1         1.  ASK QUESTIONS ABOUT THE POTENTIAL HEALTH RISKS OF

  2  THIS PROGRAM AND ITS NUTRITIONAL CONTENT, PSYCHOLOGICAL

  3  SUPPORT, AND EDUCATIONAL COMPONENTS.

  4         2.  RECEIVE AN ITEMIZED STATEMENT OF THE ACTUAL OR

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

  6  PRODUCTS, SERVICES, SUPPLEMENTS, EXAMINATIONS, AND LABORATORY

  7  TESTS.

  8         3.  KNOW THE ACTUAL OR ESTIMATED DURATION OF THE

  9  PROGRAM.

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

11  LICENSED DIETITIAN OR NUTRITIONIST WHO HAS REVIEWED AND

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

13  468.505(1)(j), FLORIDA STATUTES.

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

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

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

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

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

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

20  be responsible for producing and printing appropriate copies

21  of the Weight-Loss Consumer Bill of Rights.

22         Section 5.  Section 501.0577, Florida Statutes, is

23  renumbered as section 468.825, Florida Statutes, and amended

24  to read:

25         468.825 501.0577  Commercial Weight-Loss Practices Act;

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

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

28  chapter 461, chapter 462, chapter 463, chapter 465, chapter

29  468, or chapter 486 who may give weight-loss advice or provide

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

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

  2  the person's practice.

  3         Section 6.  Section 501.0579, Florida Statutes, is

  4  renumbered as section 468.826, Florida Statutes, and amended

  5  to read:

  6         468.826 501.0579  Commercial Weight-Loss Practices Act;

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

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

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

10  act.

11         Section 7.  Section 501.0581, Florida Statutes, is

12  renumbered as section 468.827, Florida Statutes, and amended

13  to read:

14         468.827 501.0581  Commercial Weight-Loss Practices Act;

15  civil remedies.--

16         (1)  The department of Agriculture and Consumer

17  Services may bring a civil action in circuit court for

18  temporary or permanent injunctive relief to enforce the

19  provisions of this act and may seek other appropriate civil

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

21  each violation, for restitution and damages for injured

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

23         (2)  The department of Agriculture and Consumer

24  Services may terminate any investigation or action upon

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

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

27  other relief authorized herein and requested by the

28  department.

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

30  addition to any other remedies provided by law.

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  1         Section 8.  Section 468.828, Florida Statutes, is

  2  created to read:

  3         468.828  Weight-loss provider permit.--

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

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

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

  7  prescribe an application form to be used by all persons

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

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

10  applicant who:

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

12  nonrefundable application fee set by the department in an

13  amount not to exceed $300.

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

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

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

17  has identified a registered agent or other person to receive

18  service of papers or other documents or perform other duties

19  as specified by the department.

20         (c)  Has identified the licensed or registered

21  dietitian/nutritionist who approved the weight-loss program

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

23  addresses, and telephone number.

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

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

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

27  partnership, sole proprietorship, or other business entity.

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

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

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

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

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

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

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

  4  provider shall be reviewed and approved by:

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

  6         (b)  A registered dietitian; or

  7         (c)  A dietitian/nutritionist licensed in another

  8  state, provided the requirements for licensure in that state

  9  are substantially equivalent to or more stringent than those

10  existing in this state.

11

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

13  and approval by one of the individuals listed in this

14  subsection.

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

16  shall review the provider's weight-loss program to determine

17  compliance with the law and rules and adherence to the minimum

18  safety standards for weight-loss programs and shall consider

19  the following points:

20         (a)  Appropriateness of the screening process;

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

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

23         (c)  Assurance of nutritional adequacy;

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

25  are not limited to, written nutrition education handouts,

26  recorded education materials, lesson or instructional plans,

27  food plans, and screening tools;

28         (e)  Appropriateness of the rate of weight change

29  promoted; and

30         (f)  Provision and appropriateness of any maintenance

31  or followup program.

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

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

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

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

  5  Practices Act, part II of chapter 501.

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

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

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

  9  demonstration of full compliance with the applicable laws and

10  payment of a new permit fee.

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

12  mean that a practitioner licensed under chapter 458, chapter

13  459, or part X of chapter 468 is required to secure a

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

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

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

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

18  public shall be reviewed and approved by one of the

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

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

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

22  and approved the weight-loss program.

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

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

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

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

27         Section 9.  Section 468.829, Florida Statutes, is

28  created to read:

29         468.829  Permit to be displayed.--Each weight-loss

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

31  such permit conspicuously displayed in the provider's office,

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

  2  shall exhibit such permit to any member or authorized

  3  representative of the department.

  4         Section 10.  Section 468.519, Florida Statutes, is

  5  created to read:

  6         468.519  Sexual misconduct in the practice of dietetics

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

  8  counselor-client relationship is founded on mutual trust.

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

10  means violation of the dietitian/nutritionist and nutrition

11  counselor-client relationship through which the

12  dietitian/nutritionist or nutrition counselor uses that

13  relationship to induce or attempt to induce the client to

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

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

16  generally accepted examination or treatment of the client.

17  Sexual misconduct in the practice of dietetics and nutrition

18  is prohibited.

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

20  Statutes, is amended to read:

21         455.604  Requirement for instruction for certain

22  licensees on human immunodeficiency virus and acquired immune

23  deficiency syndrome.--

24         (1)  The appropriate board shall require each person

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

26  459; chapter 460; chapter 461; chapter 463; chapter 464;

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

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

29  educational course, approved by the board, on human

30  immunodeficiency virus and acquired immune deficiency syndrome

31  as part of biennial relicensure or recertification. The course

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  1  shall consist of education on the modes of transmission,

  2  infection control procedures, clinical management, and

  3  prevention of human immunodeficiency virus and acquired immune

  4  deficiency syndrome. Such course shall include information on

  5  current Florida law on acquired immune deficiency syndrome and

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

  7  treatment of patients.

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

  9  468.505, Florida Statutes, is repealed.

10         Section 13.  This act shall take effect October 1 of

11  the year in which enacted.

12

13            *****************************************

14                          HOUSE SUMMARY

15
      Transfers regulation of commercial weight-loss programs
16    from ch. 501, F.S., relating to consumer protection, to
      ch. 468, F.S., relating to professions and occupations,
17    and from the Department of Agriculture and Consumer
      Services to the Department of Health.  Redefines the term
18    "weight-loss program."  Requires persons operating
      weight-loss programs to obtain a permit and provides
19    procedures and requirements therefor.

20
      Prohibits sexual misconduct in the practice of dietetics
21    and nutrition.  Requires dietitians, nutritionists, and
      nutrition counselors to complete courses in human
22    immunodeficiency virus and acquired immune deficiency
      syndrome.  Repeals an exemption from
23    dietitian/nutritionist licensure requirements for certain
      persons employed by a hospital, nursing home, assisted
24    living facility, or continuing care facility.

25

26

27

28

29

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