House Bill 4763e2

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                                         HB 4763, Second Engrossed



  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

18         register; 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

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

26         prohibiting sexual misconduct in the practice

27         of dietetics and nutrition; amending s.

28         455.604, F.S.; requiring instruction in HIV and

29         AIDS for persons licensed as dietitians and

30         nutritionists; creating the Task Force on

31         Regulation of the Weight-Loss Industry;


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                                         HB 4763, Second Engrossed



  1         providing for its membership and duties;

  2         providing effective dates.

  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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                                         HB 4763, Second Engrossed



  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. A weight-loss program does not

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

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

  6  weight loss.

  7         (6)(5)  "Weight-loss provider" means the owner of any

  8  person engaged in the business engaged in of offering services

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

10  or written statements, visual descriptions, advertisements, or

11  other representations that have the capacity, tendency, or

12  effect of leading consumers to believe that participation in a

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

14  provider does not include a person who markets or distributes

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

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

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

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

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

20  weight-loss program to the public.

21         Section 3.  Section 501.0573, Florida Statutes, is

22  renumbered as section 468.823, Florida Statutes, and amended

23  to read:

24         468.823 501.0573  Weight-loss provider

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

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

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

28  is being recommended, including all additional products,

29  services, supplements, examinations, or laboratory tests the

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

31  part of such program.


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                                         HB 4763, Second Engrossed



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

  2  recommended weight-loss program.

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

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

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

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

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

  8         (5)  Produce and distribute to all consumers who

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

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

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

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

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

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

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

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

17  which a product or treatment is offered for sale.

18         Section 4.  Section 501.0575, Florida Statutes, is

19  renumbered as section 468.824, Florida Statutes, and amended

20  to read:

21         468.824 501.0575  Weight-Loss Consumer Bill of

22  Rights.--

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

24  consist of the following provisions:

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

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

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

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

29  OF PARTICIPATION IN A WEIGHT-LOSS PROGRAM.

30         (B)  CONSULT YOUR PERSONAL PHYSICIAN BEFORE STARTING

31  ANY WEIGHT-LOSS PROGRAM.


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                                         HB 4763, Second Engrossed



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

  2  HEALTHFUL FOOD CHOICES AND INCREASING PHYSICAL ACTIVITY,

  3  PROMOTE LONG-TERM WEIGHT LOSS.

  4         (D)  QUALIFICATIONS OF THIS PROVIDER SHALL BE PROVIDED

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

  6  AVAILABLE UPON REQUEST.

  7         (E)  YOU HAVE A RIGHT TO:

  8         1.  ASK QUESTIONS ABOUT THE POTENTIAL HEALTH RISKS OF

  9  THIS PROGRAM AND ITS NUTRITIONAL CONTENT, PSYCHOLOGICAL

10  SUPPORT, AND EDUCATIONAL COMPONENTS.

11         2.  RECEIVE AN ITEMIZED STATEMENT OF THE ACTUAL OR

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

13  PRODUCTS, SERVICES, SUPPLEMENTS, EXAMINATIONS, AND LABORATORY

14  TESTS.

15         3.  KNOW THE ACTUAL OR ESTIMATED DURATION OF THE

16  PROGRAM.

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

18  LICENSED DIETITIAN OR NUTRITIONIST OR REGISTERED DIETITIAN WHO

19  HAS REVIEWED AND APPROVED THE WEIGHT-LOSS PROGRAM PURSUANT

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

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

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

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

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

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

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

27  be responsible for producing and printing appropriate copies

28  of the Weight-Loss Consumer Bill of Rights.

29         Section 5.  Section 501.0577, Florida Statutes, is

30  renumbered as section 468.825, Florida Statutes, and amended

31  to read:


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                                         HB 4763, Second Engrossed



  1         468.825 501.0577  Commercial Weight-Loss Practices Act;

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

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

  4  chapter 461, chapter 462, chapter 463, chapter 464, chapter

  5  465, parts III, V, and X of chapter 468, or chapter 486 who

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

  7  which is within the scope of practice of the respective

  8  profession incidental to the performance of their profession

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

10  practice.

11         Section 6.  Section 501.0579, Florida Statutes, is

12  renumbered as section 468.826, Florida Statutes, and amended

13  to read:

14         468.826 501.0579  Commercial Weight-Loss Practices Act;

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

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

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

18  act.

19         Section 7.  Section 501.0581, Florida Statutes, is

20  renumbered as section 468.827, Florida Statutes, and amended

21  to read:

22         468.827 501.0581  Commercial Weight-Loss Practices Act;

23  civil remedies.--

24         (1)  The department of Agriculture and Consumer

25  Services may bring a civil action in circuit court for

26  temporary or permanent injunctive relief to enforce the

27  provisions of this act and may seek other appropriate civil

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

29  each violation, for restitution and damages for injured

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

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                                         HB 4763, Second Engrossed



  1         (2)  The department of Agriculture and Consumer

  2  Services may terminate any investigation or action upon

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

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

  5  other relief authorized herein and requested by the

  6  department.

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

  8  addition to any other remedies provided by law.

  9         Section 8.  Section 468.828, Florida Statutes, is

10  created to read:

11         468.828  Weight-loss provider registration.--

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

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

14  department a weight-loss provider registration. The department

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

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

17  department shall issue a weight-loss provider registration for

18  each applicant who:

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

20  nonrefundable application fee set by the department in an

21  amount not to exceed $300.

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

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

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

25  has identified a registered agent or other person to receive

26  service of papers or other documents or perform other duties

27  as specified by the department.

28         (c)  Has identified the licensed or registered

29  dietitian/nutritionist who approved the weight-loss program

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

31  addresses, and telephone number.


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                                         HB 4763, Second Engrossed



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

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

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

  4  partnership, sole proprietorship, or other business entity.

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

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

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

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

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

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

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

12  provider shall be reviewed and approved by:

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

14         (b)  A registered dietitian; or

15         (c)  A dietitian/nutritionist licensed in another

16  state, provided the requirements for licensure in that state

17  are substantially equivalent to or more stringent than those

18  existing in this state.

19

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

21  and approval by one of the individuals listed in this

22  subsection.

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

24  shall consider the following minimum standards in reviewing a

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

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

27  with the provisions of ss. 468.821-468.829:

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

29  wide variety of foods based on government recommendations for

30  healthy eating;

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                                         HB 4763, Second Engrossed



  1         (b)  Mechanisms for screening out those persons for

  2  whom there is a scientific consensus that weight loss is

  3  inappropriate, such as pregnant women;

  4         (c)  Requiring medical permission for children under 10

  5  years of age and recognizing that physician consultation is

  6  appropriate for anyone starting a weight-loss program;

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

  8  the provisions of ss. 468.821-468.829;

  9         (e)  Providing a weight maintenance component designed

10  to help weight-loss program participants sustain their weight

11  losses, consistent with government standards for healthy

12  eating; and

13         (f)  Providing participants with materials

14  demonstrating the weight-loss program provider's compliance

15  with ss. 468.821-468.829.

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

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

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

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

20  Practices Act, part II of chapter 501.

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

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

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

24  Reinstatement shall require demonstration of full compliance

25  with the applicable laws and payment of a reinstatement fee

26  not to exceed the initial application and registration fee.

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

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

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

30  to the public shall be reviewed and approved at least

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


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                                         HB 4763, Second Engrossed



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

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

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

  4  Biennial review shall not be required for those providers who

  5  have a licensed or registered dietitian/nutritionist meeting

  6  the requirements of ss. 468.821-468.829 available for

  7  consultation on a regular basis.

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

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

10  such provider has not obtained a weight-loss provider

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

12  1999.

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

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

15  declared to be self-executing.

16         Section 9.  Section 468.8281, Florida Statutes, is

17  created to read:

18         468.8281  Availability of disciplinary records and

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

20  record maintained by the Department of Health pursuant to the

21  discipline of a registered weight-loss provider and any

22  proceeding held by the department to discipline a registered

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

24  public.

25         Section 10.  Section 468.829, Florida Statutes, is

26  created to read:

27         468.829  Registration to be displayed;

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

29  weight-loss registration is issued shall keep such

30  registration conspicuously displayed in the provider's office,

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


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                                         HB 4763, Second Engrossed



  1  shall exhibit such registration to any member or authorized

  2  representative of the department. In addition, each

  3  weight-loss provider holding a registration under this act

  4  must include the number of the registration in any

  5  advertisement of weight-loss services which appears in any

  6  newspaper, airwave transmission, telephone directory,

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

  8  weight-loss provider shall conspicuously display in the

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

10  the following statement that must appear in capital letters

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

12  OF FLORIDA DEPARTMENT OF HEALTH HAS REGISTERED THIS

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

14  REGISTRATION DOES NOT INDICATE THAT THE DEPARTMENT OF HEALTH

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

16         Section 11.  Section 468.519, Florida Statutes, is

17  created to read:

18         468.519  Sexual misconduct in the practice of dietetics

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

20  counselor-client relationship is founded on mutual trust.

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

22  means violation of the dietitian/nutritionist and nutrition

23  counselor-client relationship through which the

24  dietitian/nutritionist or nutrition counselor uses that

25  relationship to induce or attempt to induce the client to

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

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

28  generally accepted examination or treatment of the client.

29  Sexual misconduct in the practice of dietetics and nutrition

30  is prohibited.

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                                         HB 4763, Second Engrossed



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

  2  Statutes, is amended to read:

  3         455.604  Requirement for instruction for certain

  4  licensees on human immunodeficiency virus and acquired immune

  5  deficiency syndrome.--

  6         (1)  The appropriate board shall require each person

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

  8  459; chapter 460; chapter 461; chapter 463; chapter 464;

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

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

11  educational course, approved by the board, on human

12  immunodeficiency virus and acquired immune deficiency syndrome

13  as part of biennial relicensure or recertification. The course

14  shall consist of education on the modes of transmission,

15  infection control procedures, clinical management, and

16  prevention of human immunodeficiency virus and acquired immune

17  deficiency syndrome. Such course shall include information on

18  current Florida law on acquired immune deficiency syndrome and

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

20  treatment of patients.

21         Section 13.  (1)  There is created within the

22  Department of Health a Task Force on Regulation of the

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

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

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

26  entities named in this section and appointed by the Secretary

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

28  compensation, per diem, or reimbursement for travel expenses

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

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

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                                         HB 4763, Second Engrossed



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

  2  task force shall include:

  3         (a)  One representative from each of the following

  4  associations:

  5         1.  The Florida Dietetic Association.

  6         2.  The Florida Medical Association.

  7         3.  The Florida Osteopathic Medical Association.

  8         4.  The Florida Chiropractic Association.

  9         5.  The Florida Podiatric Medical Association.

10         6.  The Florida Pharmacy Association.

11         7.  The Florida Society of Health System Pharmacists.

12         (b)  Three representatives from commercial weight-loss

13  programs.

14         (c)  One representative from each of the following

15  entities:

16         1.  The Department of Health.

17         2.  The Dietetics and Nutrition Practice Council.

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

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

20  Florida Statutes.

21         4.  The Board of Osteopathic Medicine, which

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

23  under chapter 459, Florida Statutes.

24         5.  The Board of Chiropractic Medicine, which

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

26  under chapter 460, Florida Statutes.

27         6.  The Board of Podiatric Medicine, which

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

29  under chapter 461, Florida Statutes.

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                                         HB 4763, Second Engrossed



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

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

  3  Florida Statutes.

  4         8.  The Agency for Health Care Administration.

  5         (d)  Two representatives from the dietary supplement

  6  industry.

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

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

  9  the President of the Senate, the Speaker of the House of

10  Representatives, and the chairs of the applicable legislative

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

12  task force meetings must be held in Tallahassee at the

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

14         (3)  The task force shall study and make

15  recommendations to the Legislature regarding the appropriate

16  level of regulation and placement needed to enforce the

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

18  sections 468.821-468.829, Florida Statutes, and other

19  weight-loss services.

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

21  1999.

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

23  becoming a law.

24         Section 14.  Except as otherwise provided herein, this

25  act shall take effect July 1, 1999.

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