House Bill 4763

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    Florida House of Representatives - 1998                HB 4763

        By the Committee on Business Regulation & Consumer Affairs
    and Representatives Ogles, Lynn and Dawson-White





  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; providing an effective date.

28

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

30

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  1         Section 1.  Section 501.057, Florida Statutes, is

  2  renumbered as section 468.821, Florida Statutes, and amended

  3  to read:

  4         468.821 501.057  Commercial Weight-Loss Practices Act;

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

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

  7         Section 2.  Section 501.0571, Florida Statutes, is

  8  renumbered as section 468.822, Florida Statutes, and amended

  9  to read:

10         468.822 501.0571  Commercial Weight-Loss Practices Act;

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

12  501.057-501.0581:

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

14  psychological, or nutritional review of a consumer.

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

16         (3)(2)  "Supplement" means any type of vitamin,

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

18  taken by a weight-loss provider.

19         (4)(3)  "Weight-loss location" means any place where a

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

21         (5)(4)  "Weight-loss program" means a general program

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

23  food plan designed for clients from one or more healthy

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

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

26  on an individual nutrition assessment and is not

27  individualized to provide nutrition care services to manage,

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

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

30  to encourage weight loss.

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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  renumbered as section 468.823, Florida Statutes, and amended

10  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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  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  renumbered as section 468.824, Florida Statutes, and amended

  7  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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  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. 468.823(5) s. 501.0573(5) shall be in

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

15  be responsible for producing and printing appropriate copies

16  of the Weight-Loss Consumer Bill of Rights.

17         Section 5.  Section 501.0577, Florida Statutes, is

18  renumbered as section 468.825, Florida Statutes, and amended

19  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 501.0579, Florida Statutes, is

29  renumbered as section 468.826, Florida Statutes, and amended

30  to read:

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  1         468.826 501.0579  Commercial Weight-Loss Practices Act;

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

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

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

  5  act.

  6         Section 7.  Section 501.0581, Florida Statutes, is

  7  renumbered as section 468.827, Florida Statutes, and amended

  8  to read:

  9         468.827 501.0581  Commercial Weight-Loss Practices Act;

10  civil remedies.--

11         (1)  The department of Agriculture and Consumer

12  Services may bring a civil action in circuit court for

13  temporary or permanent injunctive relief to enforce the

14  provisions of this act and may seek other appropriate civil

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

16  each violation, for restitution and damages for injured

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

18         (2)  The department of Agriculture and Consumer

19  Services may terminate any investigation or action upon

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

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

22  other relief authorized herein and requested by the

23  department.

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

25  addition to any other remedies provided by law.

26         Section 8.  Section 468.828, Florida Statutes, is

27  created to read:

28         468.828  Weight-loss provider permit.--

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

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

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

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  1  prescribe an application form to be used by all persons

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

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

  4  applicant who:

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

  6  nonrefundable application fee set by the department in an

  7  amount not to exceed $300.

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

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

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

11  has identified a registered agent or other person to receive

12  service of papers or other documents or perform other duties

13  as specified by the department.

14         (c)  Has identified the licensed or registered

15  dietitian/nutritionist who approved the weight-loss program

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

17  addresses, and telephone number.

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

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

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

21  partnership, sole proprietorship, or other business entity.

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

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

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

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

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

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

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

29  provider shall be reviewed and approved by:

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

31         (b)  A registered dietitian; or

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  1         (c)  A dietitian/nutritionist licensed in another

  2  state, provided the requirements for licensure in that state

  3  are substantially equivalent to or more stringent than those

  4  existing in this state.

  5

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

  7  and approval by one of the individuals listed in this

  8  subsection.

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

10  shall consider the following minimum standards in reviewing a

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

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

13  with the provisions of ss. 468.821-465.829:

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

15  wide variety of foods based on government recommendations for

16  healthy eating;

17         (b)  Mechanisms for screening out those persons for

18  whom there is a scientific consensus that weight loss is

19  inappropriate, such as pregnant women;

20         (c)  Requiring medical permission for children under 10

21  years of age and recognizing that physician consultation is

22  appropriate for anyone starting a weight-loss program;

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

24  the provisions of ss. 468.821-468.829;

25         (e)  Providing a weight maintenance component designed

26  to help weight-loss program participants sustain their weight

27  losses, consistent with government standards for healthy

28  eating; and

29         (f)  Providing participants with materials

30  demonstrating the weight-loss program provider's compliance

31  with ss. 468.821-468.829.

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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 at least biennially by

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

20  applicant shall submit to the department with his or her

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

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

23  Biennial review shall not be required for those providers who

24  have a licensed or registered dietitian/nutritionist meeting

25  the requirements of ss. 468.821-468.829 available for

26  consultation on a regular basis.

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

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

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

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

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  1         Section 9.  Section 468.829, Florida Statutes, is

  2  created to read:

  3         468.829  Permit to be displayed.--Each weight-loss

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

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

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

  7  shall exhibit such permit to any member or authorized

  8  representative of the department.

  9         Section 10.  Section 468.519, Florida Statutes, is

10  created to read:

11         468.519  Sexual misconduct in the practice of dietetics

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

13  counselor-client relationship is founded on mutual trust.

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

15  means violation of the dietitian/nutritionist and nutrition

16  counselor-client relationship through which the

17  dietitian/nutritionist or nutrition counselor uses that

18  relationship to induce or attempt to induce the client to

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

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

21  generally accepted examination or treatment of the client.

22  Sexual misconduct in the practice of dietetics and nutrition

23  is prohibited.

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

25  Statutes, is amended to read:

26         455.604  Requirement for instruction for certain

27  licensees on human immunodeficiency virus and acquired immune

28  deficiency syndrome.--

29         (1)  The appropriate board shall require each person

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

31  459; chapter 460; chapter 461; chapter 463; chapter 464;

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

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

  3  educational course, approved by the board, on human

  4  immunodeficiency virus and acquired immune deficiency syndrome

  5  as part of biennial relicensure or recertification. The course

  6  shall consist of education on the modes of transmission,

  7  infection control procedures, clinical management, and

  8  prevention of human immunodeficiency virus and acquired immune

  9  deficiency syndrome. Such course shall include information on

10  current Florida law on acquired immune deficiency syndrome and

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

12  treatment of patients.

13         Section 12.  This act shall take effect October 1 of

14  the year in which enacted.

15

16            *****************************************

17                          HOUSE SUMMARY

18
      Transfers the Florida Commercial Weight-Loss Practices
19    Act from ch. 501, F.S., relating to consumer protection,
      to ch. 468, F.S., relating to professions and
20    occupations. Redefines the activity that constitutes a
      weight-loss program. Revises certain notice requirements.
21    Provides an exemption from regulation. Conforms
      references and cross references. Transfers regulatory
22    authority from the Department of Agriculture and Consumer
      Services to the Department of Health. Requires
23    weight-loss providers to obtain permits. Prescribes
      procedures and requirements. Provides a penalty. Provides
24    for fees. Provides a grace period for certain providers.
      Requires display of permits.
25

26    Prohibits sexual misconduct in the practice of dietetics
      and nutrition. Requires instruction in HIV and AIDS for
27    persons licensed as dietitians and nutritionists.

28

29

30

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