As Reported by House Commerce and Labor Committee          1            

123rd General Assembly                                             4            

   Regular Session                             Sub. H. B. No. 381  5            

      1999-2000                                                    6            


    REPRESENTATIVES PERZ-GARDNER-FORD-OLMAN-BATEMAN-BRITTON-       8            

     CORBIN-FLANNERY-HOLLISTER-OPFER-PADGETT-TAYLOR-WINKLER-       10           

                         YOUNG-D. MILLER                                        


_________________________________________________________________   11           

                          A   B I L L                                           

             To amend section 4759.10 and to enact sections        13           

                3715.80, 3715.81, 3715.82, 3715.83, 3715.84,       14           

                3715.85, and 3715.86 of the Revised Code           15           

                regarding the regulation of dietary supplements.   16           




BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:        18           

      Section 1.  That section 4759.10 be amended and sections     20           

3715.80, 3715.81, 3715.82, 3715.83, 3715.84, 3715.85, and 3715.86  22           

of the Revised Code be enacted to read as follows:                 23           

      Sec. 3715.80.  AS USED IN SECTIONS 3715.80 TO 3715.86 OF     25           

THE REVISED CODE, "DIETARY SUPPLEMENT" HAS THE MEANING GIVEN IN    27           

THE FEDERAL "FOOD, DRUG, AND COSMETIC ACT," 108 STAT. 4327         29           

(1994), 21 U.S.C.A. 321(ff), AS AMENDED.                           31           

      Sec. 3715.81.  FOR PURPOSES OF THIS CHAPTER, A DIETARY       33           

SUPPLEMENT SHALL BE TREATED AS A FOOD.  THE DIRECTOR OF            34           

AGRICULTURE SHALL ADMINISTER AND ENFORCE SECTIONS 3715.80 TO       36           

3715.86 OF THE REVISED CODE AND ANY RULES ADOPTED UNDER THOSE      38           

SECTIONS IN ACCORDANCE WITH CHAPTER 3717. OF THE REVISED CODE.                  

      Sec. 3715.82.  THE DIRECTOR OF AGRICULTURE MAY ADOPT RULES,  41           

IN ACCORDANCE WITH CHAPTER 119. OF THE REVISED CODE, TO            42           

ADMINISTER AND ENFORCE SECTIONS 3715.80 TO 3715.86 OF THE REVISED  43           

CODE.  IF RULES ARE ADOPTED, THE RULES SHALL BE NO MORE            44           

RESTRICTIVE THAN THE REGULATIONS PROMULGATED UNDER THE FEDERAL     45           

"FOOD, DRUG, AND COSMETIC ACT," 52 STAT. 1040 (1938), 21 U.S.C.A.  47           

301, ET SEQ., AS AMENDED.                                          48           

                                                          2      


                                                                 
      Sec. 3715.83.  IN ADDITION TO THE CONDITIONS SPECIFIED IN    50           

SECTION 3715.59 OF THE REVISED CODE, A DIETARY SUPPLEMENT IS       51           

ADULTERATED IF IT PRESENTS A SIGNIFICANT OR UNREASONABLE RISK OF   52           

ILLNESS OR INJURY UNDER THE CONDITIONS OF USE RECOMMENDED OR       53           

SUGGESTED IN ITS LABELING OR, IF THERE ARE NO RECOMMENDED OR       54           

SUGGESTED CONDITIONS OF USE, UNDER THE ORDINARY CONDITIONS OF      55           

USE.                                                               56           

      IF THE DIRECTOR OF AGRICULTURE FINDS OR HAS CAUSE TO         58           

BELIEVE THAT A DIETARY SUPPLEMENT IS ADULTERATED UNDER THIS        59           

SECTION, THE DIRECTOR SHALL PROCEED UNDER THE PROVISIONS OF THIS   60           

CHAPTER APPLICABLE TO ADULTERATED FOOD.  IN ANY ACTION TAKEN       61           

UNDER THIS SECTION, THE BURDEN OF PROOF SHALL BE ON THE DIRECTOR.  62           

      Sec. 3715.84.  (A)  A DIETARY SUPPLEMENT IS NOT MISBRANDED   65           

UNDER SECTION 3715.60 OF THE REVISED CODE SOLELY BECAUSE THE       66           

LABEL OR LABELING CONTAINS A STATEMENT THAT CHARACTERIZES THE      67           

RELATIONSHIP OF A NUTRIENT OR DIETARY INGREDIENT TO A DISEASE OR   68           

HEALTH-RELATED CONDITION IF ALL OF THE FOLLOWING CONDITIONS ARE    69           

MET:                                                                            

      (1)  THE STATEMENT DOES ONE OF THE FOLLOWING:                71           

      (a)  CLAIMS A BENEFIT RELATED TO A CLASSICAL NUTRIENT        74           

DEFICIENCY DISEASE AND DISCLOSES THE PREVALENCE OF THE DISEASE IN  75           

THE UNITED STATES;                                                              

      (b)  DESCRIBES THE ROLE OF A NUTRIENT OR DIETARY INGREDIENT  78           

INTENDED TO AFFECT THE STRUCTURE OR FUNCTION OF THE HUMAN BODY;    79           

      (c)  CHARACTERIZES A DOCUMENTED MECHANISM BY WHICH A         82           

NUTRIENT OR DIETARY INGREDIENT ACTS TO MAINTAIN THE STRUCTURE OR   83           

FUNCTION OF THE HUMAN BODY;                                                     

      (d)  DESCRIBES GENERAL WELL-BEING FROM CONSUMPTION OF A      86           

NUTRIENT OR DIETARY INGREDIENT.                                                 

      (2)  THE MANUFACTURER OF THE DIETARY SUPPLEMENT HAS          88           

SUBSTANTIATION THAT THE STATEMENT IS NOT FALSE OR MISLEADING.      90           

      (3)  THE LABEL CONTAINS, PROMINENTLY DISPLAYED AND IN        92           

BOLDFACE TYPE, ONE OF THE FOLLOWING STATEMENTS:                    93           

      (a)  IN THE CASE OF A PRODUCT MANUFACTURED OR SOLD IN OHIO   96           

                                                          3      


                                                                 
AND IN OTHER STATES, "THIS STATEMENT HAS NOT BEEN EVALUATED BY     97           

THE UNITED STATES FOOD AND DRUG ADMINISTRATION.  THIS PRODUCT IS   99           

NOT INTENDED TO DIAGNOSE, TREAT, CURE, OR PREVENT ANY DISEASE."    100          

      (b)  IN THE CASE OF A PRODUCT MANUFACTURED AND SOLD ONLY     102          

WITHIN THE STATE OF OHIO, "THIS STATEMENT HAS NOT BEEN EVALUATED   103          

BY THE OHIO DEPARTMENT OF AGRICULTURE.  THIS PRODUCT IS NOT        104          

INTENDED TO DIAGNOSE, TREAT, CURE, OR PREVENT ANY DISEASE."        105          

      (4)  THE MANUFACTURER OF THE DIETARY SUPPLEMENT COMPLIES     107          

WITH THE REQUIREMENTS OF THE FEDERAL "FOOD, DRUG, AND COSMETIC     109          

ACT," 108 STAT. 4327 (1994), 21 U.S.C.A. 343(r)(6), AS AMENDED.    112          

      (B)  THE STATEMENT DESCRIBED IN DIVISION (A)(1) OF THIS      116          

SECTION SHALL NOT CLAIM THAT THE SUPPLEMENT IS TO BE USED TO                    

DIAGNOSE, MITIGATE, TREAT, CURE, OR PREVENT A SPECIFIC DISEASE OR  118          

CLASS OF DISEASES.                                                              

      (C)  IF THE DIRECTOR OF AGRICULTURE FINDS OR HAS CAUSE TO    121          

BELIEVE THAT A DIETARY SUPPLEMENT IS MISBRANDED UNDER THIS         122          

SECTION, THE DIRECTOR SHALL PROCEED UNDER THE PROVISIONS OF THIS   123          

CHAPTER APPLICABLE TO MISBRANDED FOOD.  IN ANY ACTION TAKEN UNDER  124          

THIS SECTION, THE BURDEN OF PROOF TO ESTABLISH MISBRANDING IS ON   125          

THE DIRECTOR.                                                                   

      (D)  A DIETARY SUPPLEMENT IS NOT A DRUG WITHIN THE MEANING   128          

OF SECTION 3715.01 OR 4729.01 OF THE REVISED CODE SOLELY BECAUSE   129          

THE LABEL OR LABELING CONTAINS A STATEMENT AUTHORIZED BY THIS      130          

SECTION OR BECAUSE A WARNING APPEARS ON THE SUPPLEMENT'S LABEL.    131          

      Sec. 3715.85.  (A)  AS USED IN THIS SECTION, "PUBLICATION"   134          

INCLUDES A BOOK CHAPTER, ARTICLE, OR OFFICIAL ABSTRACT OF A        135          

PEER-REVIEWED SCIENTIFIC ARTICLE PREPARED BY THE ARTICLE'S AUTHOR  136          

OR THE EDITORS OF THE PUBLICATION IN WHICH THE ARTICLE IS          137          

PUBLISHED.                                                                      

      (B)  A PUBLICATION USED IN CONNECTION WITH A SALE TO         140          

CONSUMERS OF A DIETARY SUPPLEMENT IS NOT CONSIDERED PART OF THE    141          

LABEL OF THE DIETARY SUPPLEMENT IF THE PUBLICATION MEETS ALL OF    142          

THE FOLLOWING CRITERIA:                                                         

      (1)  THE PUBLICATION IS REPRINTED IN ITS ENTIRETY.           144          

                                                          4      


                                                                 
      (2)  THE PUBLICATION IS NOT FALSE OR MISLEADING.             146          

      (3)  THE PUBLICATION DOES NOT PROMOTE A PARTICULAR           148          

MANUFACTURER OR BRAND OF DIETARY SUPPLEMENT.                       149          

      (4)  THE PUBLICATION IS DISPLAYED OR PRESENTED, ALONE OR     151          

WITH OTHER PUBLICATIONS ON THE SAME SUBJECT MATTER, SO AS TO       152          

PRESENT A BALANCED VIEW OF THE AVAILABLE SCIENTIFIC INFORMATION    153          

ON A DIETARY SUPPLEMENT.                                           154          

      (5)  IF THE PUBLICATION IS DISPLAYED IN A LOCATION WHERE     156          

DIETARY SUPPLEMENTS ARE OFFERED FOR SALE, THE PUBLICATION IS       157          

PHYSICALLY SEPARATE FROM THE DIETARY SUPPLEMENTS.                  158          

      (6)  THE PUBLICATION DOES NOT HAVE ANY OTHER INFORMATION     160          

AFFIXED TO IT.                                                                  

      (C)  DIVISION (B) OF THIS SECTION DOES NOT APPLY TO OR       164          

RESTRICT THE ACTIONS OF A PERSON WHO OFFERS DIETARY SUPPLEMENTS    165          

FOR SALE AT RETAIL OR WHOLESALE IN THE SALE OF BOOKS OR            166          

PUBLICATIONS AS PART OF THE PERSON'S BUSINESS.                     167          

      (D)  IF THE DIRECTOR OF AGRICULTURE FINDS OR HAS CAUSE TO    170          

BELIEVE THAT A PUBLICATION UNDER DIVISION (B) OF THIS SECTION IS   171          

A LABEL AND THAT LABEL IS FALSE OR MISLEADING UNDER DIVISION (B)   172          

OF THIS SECTION, THE DIRECTOR SHALL PROCEED UNDER THE PROVISIONS   173          

OF THIS CHAPTER APPLICABLE TO MISBRANDED FOOD.  IN ANY ACTION      174          

TAKEN UNDER THIS SECTION, THE BURDEN OF PROOF TO ESTABLISH         175          

MISBRANDING SHALL BE ON THE DIRECTOR.                              176          

      Sec. 3715.86.  A DIETARY SUPPLEMENT IS NOT CONSIDERED A      178          

"FOOD ADDITIVE" WITHIN THE MEANING GIVEN IN THE FEDERAL "FOOD,     180          

DRUG, AND COSMETIC ACT," 21 U.S.C.A. 321(s), AS AMENDED.           182          

      Sec. 4759.10.  Sections 4759.01 to 4759.09 of the Revised    191          

Code do not apply to any of the following:                         192          

      (A)  A person licensed under Chapters 4701. to 4755. of the  194          

Revised Code who is acting within the scope of his THE PERSON'S    195          

profession, provided that he THE PERSON complies with division     196          

(B) of section 4759.02 of the Revised Code;                        197          

      (B)  A person who is a graduate of an associate degree       199          

program approved by the American dietetic association or the Ohio  200          

                                                          5      


                                                                 
board of dietetics who is working as a dietetic technician under   201          

the supervision of a dietitian licensed under section 4759.06 of   202          

the Revised Code or registered by the commission on dietetic       203          

registration, except that the person is subject to division (B)    204          

of section 4759.02 of the Revised Code if he THE PERSON uses a     205          

title other than "dietetic technician";                            206          

      (C)  A person who practices dietetics related to employment  208          

in the armed forces, veteran's administration, or the public       209          

health service of the United States;                               210          

      (D)  Persons employed by a nonprofit agency approved by the  212          

board or by a federal, state, municipal or county government, or   213          

by any other political subdivision, elementary or secondary        214          

school, or an institution of higher education approved by the      215          

board or by a regional agency recognized by the council on         216          

postsecondary accreditation, who performs only nutritional         217          

education activities and such other nutritional activities as the  218          

board of dietetics, by rule, permits, provided the person does     219          

not violate division (B) of section 4759.02 of the Revised Code;   220          

      (E)  A person who has completed a program meeting the        222          

academic standards set by the American dietetic association for    223          

dietitians, received a baccalaureate or higher degree from a       224          

school, college, or university approved by a regional              225          

accreditation agency recognized by the council on postsecondary    226          

accreditation, works under the supervision of a licensed           227          

dietitian or registered dietitian, and does not violate division   228          

(B) of section 4759.02 of the Revised Code;                        229          

      (F)  A person when acting, under the direction and           231          

supervision of a person licensed under Chapters 4701. to 4755. of  232          

the Revised Code, in the execution of a plan of treatment          233          

authorized by the licensed person, provided the person complies    234          

with division (B) of section 4759.02 of the Revised Code;          235          

      (G)  The free dissemination of literature in the state;      237          

      (H)  Provided that the persons involved in the sale,         239          

promotion, or explanation of the sale of food, food materials, or  240          

                                                          6      


                                                                 
dietary supplements do not violate division (B) of section         241          

4759.02 of the Revised Code, the sale of food, food materials, or  242          

dietary supplements and the marketing and distribution of food,    243          

food materials, or dietary supplements and the promotion or        244          

explanation of the use of food, food materials, or dietary         245          

supplements provided that the promotion or explanation does not    246          

violate Chapter 1345. of the Revised Code;                         247          

      (I)  A PERSON WHO OFFERS DIETARY SUPPLEMENTS FOR SALE AND    250          

WHO MAKES THE FOLLOWING STATEMENTS ABOUT THE PRODUCT IF THE        251          

STATEMENTS ARE CONSISTENT WITH THE DIETARY SUPPLEMENT'S LABEL OR   252          

LABELING:                                                                       

      (1)  CLAIM A BENEFIT RELATED TO A CLASSICAL NUTRIENT         254          

DEFICIENCY DISEASE AND DISCLOSE THE PREVALENCE OF THE DISEASE IN   255          

THE UNITED STATES;                                                              

      (2)  DESCRIBE THE ROLE OF A NUTRIENT OR DIETARY INGREDIENT   257          

INTENDED TO AFFECT THE STRUCTURE OR FUNCTION OF THE HUMAN BODY;    259          

      (3)  CHARACTERIZE THE DOCUMENTED MECHANISM BY WHICH A        261          

NUTRIENT OR DIETARY INGREDIENT ACTS TO MAINTAIN THE STRUCTURE OR   262          

FUNCTION OF THE HUMAN BODY;                                        263          

      (4)  DESCRIBE GENERAL WELL-BEING FROM THE CONSUMPTION OF A   265          

NUTRIENT OR DIETARY INGREDIENT.                                    266          

      (J)  Provided that the persons involved in presenting a      268          

general program of instruction for weight control do not violate   269          

division (B) of section 4759.02 of the Revised Code, a general     270          

program of instruction for weight control approved in writing by   271          

a licensed dietitian, a physician licensed under Chapter 4731. of  272          

the Revised Code to practice medicine or surgery or osteopathic    273          

medicine or surgery, a person licensed in another state that the   274          

board considers to have substantially equivalent licensure         275          

requirements as this state, or a registered dietitian;             276          

      (J)(K)  The continued practice of dietetics at a hospital    278          

by a person employed at that same hospital to practice dietetics   279          

for the twenty years immediately prior to July 1, 1987, so long    280          

as the person works under the supervision of a dietitian licensed  281          

                                                          7      


                                                                 
under section 4759.06 of the Revised Code and does not violate     282          

division (B) of section 4759.02 of the Revised Code.  This         283          

division does not apply to any person who has held a license       284          

issued under this chapter to practice dietetics.  As used in this  285          

division, "hospital" has the same meaning as in section 3727.01    286          

of the Revised Code.                                               287          

      Section 2.  That existing section 4759.10 of the Revised     289          

Code is hereby repealed.                                           290          

      Section 3.  Sections 3715.80 to 3715.86 of the Revised       292          

Code, as enacted by this act, are intended to codify in Ohio law   293          

portions of the federal "Dietary Supplement Health and Education   294          

Act of 1994," 108 Stat. 4325 (1994), 21 U.S.C.A. 301, et seq., as  295          

amended.                                                           296