As Passed by the House                        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-METTLER-BENDER-O'BRIEN-HARRIS-ROBERTS-                     

                       JERSE-STEVENS-HOOPS                         11           


_________________________________________________________________   12           

                          A   B I L L                                           

             To amend section 4759.10 and to enact sections        14           

                3715.80, 3715.81, 3715.82, 3715.83, 3715.84,       15           

                3715.85, and 3715.86 of the Revised Code           16           

                regarding the regulation of dietary supplements.   17           




BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:        19           

      Section 1.  That section 4759.10 be amended and sections     21           

3715.80, 3715.81, 3715.82, 3715.83, 3715.84, 3715.85, and 3715.86  23           

of the Revised Code be enacted to read as follows:                 24           

      Sec. 3715.80.  AS USED IN SECTIONS 3715.80 TO 3715.86 OF     26           

THE REVISED CODE, "DIETARY SUPPLEMENT" HAS THE MEANING GIVEN IN    28           

THE FEDERAL "FOOD, DRUG, AND COSMETIC ACT," 108 STAT. 4327         30           

(1994), 21 U.S.C.A. 321(ff), AS AMENDED.                           32           

      Sec. 3715.81.  FOR PURPOSES OF THIS CHAPTER, A DIETARY       34           

SUPPLEMENT SHALL BE TREATED AS A FOOD.  THE DIRECTOR OF            35           

AGRICULTURE SHALL ADMINISTER AND ENFORCE SECTIONS 3715.80 TO       37           

3715.86 OF THE REVISED CODE AND ANY RULES ADOPTED UNDER THOSE      39           

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

      Sec. 3715.82.  THE DIRECTOR OF AGRICULTURE MAY ADOPT RULES,  42           

IN ACCORDANCE WITH CHAPTER 119. OF THE REVISED CODE, TO            43           

ADMINISTER AND ENFORCE SECTIONS 3715.80 TO 3715.86 OF THE REVISED  44           

CODE.  IF RULES ARE ADOPTED, THE RULES SHALL BE NO MORE            45           

RESTRICTIVE THAN THE REGULATIONS PROMULGATED UNDER THE FEDERAL     46           

"FOOD, DRUG, AND COSMETIC ACT," 52 STAT. 1040 (1938), 21 U.S.C.A.  48           

                                                          2      


                                                                 
301, ET SEQ., AS AMENDED.                                          49           

      Sec. 3715.83.  IN ADDITION TO THE CONDITIONS SPECIFIED IN    51           

SECTION 3715.59 OF THE REVISED CODE, A DIETARY SUPPLEMENT IS       52           

ADULTERATED IF IT PRESENTS A SIGNIFICANT OR UNREASONABLE RISK OF   53           

ILLNESS OR INJURY UNDER THE CONDITIONS OF USE RECOMMENDED OR       54           

SUGGESTED IN ITS LABELING OR, IF THERE ARE NO RECOMMENDED OR       55           

SUGGESTED CONDITIONS OF USE, UNDER THE ORDINARY CONDITIONS OF      56           

USE.                                                               57           

      IF THE DIRECTOR OF AGRICULTURE FINDS OR HAS CAUSE TO         59           

BELIEVE THAT A DIETARY SUPPLEMENT IS ADULTERATED UNDER THIS        60           

SECTION, THE DIRECTOR SHALL PROCEED UNDER THE PROVISIONS OF THIS   61           

CHAPTER APPLICABLE TO ADULTERATED FOOD.  IN ANY ACTION TAKEN       62           

UNDER THIS SECTION, THE BURDEN OF PROOF SHALL BE ON THE DIRECTOR.  63           

      Sec. 3715.84.  (A)  A DIETARY SUPPLEMENT IS NOT MISBRANDED   66           

UNDER SECTION 3715.60 OF THE REVISED CODE SOLELY BECAUSE THE       67           

LABEL OR LABELING CONTAINS A STATEMENT THAT CHARACTERIZES THE      68           

RELATIONSHIP OF A NUTRIENT OR DIETARY INGREDIENT TO A DISEASE OR   69           

HEALTH-RELATED CONDITION IF ALL OF THE FOLLOWING CONDITIONS ARE    70           

MET:                                                                            

      (1)  THE STATEMENT DOES ONE OF THE FOLLOWING:                72           

      (a)  CLAIMS A BENEFIT RELATED TO A CLASSICAL NUTRIENT        75           

DEFICIENCY DISEASE AND DISCLOSES THE PREVALENCE OF THE DISEASE IN  76           

THE UNITED STATES;                                                              

      (b)  DESCRIBES THE ROLE OF A NUTRIENT OR DIETARY INGREDIENT  79           

INTENDED TO AFFECT THE STRUCTURE OR FUNCTION OF THE HUMAN BODY;    80           

      (c)  CHARACTERIZES A DOCUMENTED MECHANISM BY WHICH A         83           

NUTRIENT OR DIETARY INGREDIENT ACTS TO MAINTAIN THE STRUCTURE OR   84           

FUNCTION OF THE HUMAN BODY;                                                     

      (d)  DESCRIBES GENERAL WELL-BEING FROM CONSUMPTION OF A      87           

NUTRIENT OR DIETARY INGREDIENT.                                                 

      (2)  THE MANUFACTURER OF THE DIETARY SUPPLEMENT HAS          89           

SUBSTANTIATION THAT THE STATEMENT IS NOT FALSE OR MISLEADING.      91           

      (3)  THE LABEL CONTAINS, PROMINENTLY DISPLAYED AND IN        93           

BOLDFACE TYPE, ONE OF THE FOLLOWING STATEMENTS:                    94           

                                                          3      


                                                                 
      (a)  IN THE CASE OF A PRODUCT MANUFACTURED OR SOLD IN OHIO   97           

AND IN OTHER STATES, "THIS STATEMENT HAS NOT BEEN EVALUATED BY     98           

THE UNITED STATES FOOD AND DRUG ADMINISTRATION.  THIS PRODUCT IS   100          

NOT INTENDED TO DIAGNOSE, TREAT, CURE, OR PREVENT ANY DISEASE."    101          

      (b)  IN THE CASE OF A PRODUCT MANUFACTURED AND SOLD ONLY     103          

WITHIN THE STATE OF OHIO, "THIS STATEMENT HAS NOT BEEN EVALUATED   104          

BY THE OHIO DEPARTMENT OF AGRICULTURE.  THIS PRODUCT IS NOT        105          

INTENDED TO DIAGNOSE, TREAT, CURE, OR PREVENT ANY DISEASE."        106          

      (4)  THE MANUFACTURER OF THE DIETARY SUPPLEMENT COMPLIES     108          

WITH THE REQUIREMENTS OF THE FEDERAL "FOOD, DRUG, AND COSMETIC     110          

ACT," 108 STAT. 4327 (1994), 21 U.S.C.A. 343(r)(6), AS AMENDED.    113          

      (B)  THE STATEMENT DESCRIBED IN DIVISION (A)(1) OF THIS      117          

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

DIAGNOSE, MITIGATE, TREAT, CURE, OR PREVENT A SPECIFIC DISEASE OR  119          

CLASS OF DISEASES.                                                              

      (C)  IF THE DIRECTOR OF AGRICULTURE FINDS OR HAS CAUSE TO    122          

BELIEVE THAT A DIETARY SUPPLEMENT IS MISBRANDED UNDER THIS         123          

SECTION, THE DIRECTOR SHALL PROCEED UNDER THE PROVISIONS OF THIS   124          

CHAPTER APPLICABLE TO MISBRANDED FOOD.  IN ANY ACTION TAKEN UNDER  125          

THIS SECTION, THE BURDEN OF PROOF TO ESTABLISH MISBRANDING IS ON   126          

THE DIRECTOR.                                                                   

      (D)  A DIETARY SUPPLEMENT IS NOT A DRUG WITHIN THE MEANING   129          

OF SECTION 3715.01 OR 4729.01 OF THE REVISED CODE SOLELY BECAUSE   130          

THE LABEL OR LABELING CONTAINS A STATEMENT AUTHORIZED BY THIS      131          

SECTION OR BECAUSE A WARNING APPEARS ON THE SUPPLEMENT'S LABEL.    132          

      Sec. 3715.85.  (A)  AS USED IN THIS SECTION, "PUBLICATION"   135          

INCLUDES A BOOK CHAPTER, ARTICLE, OR OFFICIAL ABSTRACT OF A        136          

PEER-REVIEWED SCIENTIFIC ARTICLE PREPARED BY THE ARTICLE'S AUTHOR  137          

OR THE EDITORS OF THE PUBLICATION IN WHICH THE ARTICLE IS          138          

PUBLISHED.                                                                      

      (B)  A PUBLICATION USED IN CONNECTION WITH A SALE TO         141          

CONSUMERS OF A DIETARY SUPPLEMENT IS NOT CONSIDERED PART OF THE    142          

LABEL OF THE DIETARY SUPPLEMENT IF THE PUBLICATION MEETS ALL OF    143          

THE FOLLOWING CRITERIA:                                                         

                                                          4      


                                                                 
      (1)  THE PUBLICATION IS REPRINTED IN ITS ENTIRETY.           145          

      (2)  THE PUBLICATION IS NOT FALSE OR MISLEADING.             147          

      (3)  THE PUBLICATION DOES NOT PROMOTE A PARTICULAR           149          

MANUFACTURER OR BRAND OF DIETARY SUPPLEMENT.                       150          

      (4)  THE PUBLICATION IS DISPLAYED OR PRESENTED, ALONE OR     152          

WITH OTHER PUBLICATIONS ON THE SAME SUBJECT MATTER, SO AS TO       153          

PRESENT A BALANCED VIEW OF THE AVAILABLE SCIENTIFIC INFORMATION    154          

ON A DIETARY SUPPLEMENT.                                           155          

      (5)  IF THE PUBLICATION IS DISPLAYED IN A LOCATION WHERE     157          

DIETARY SUPPLEMENTS ARE OFFERED FOR SALE, THE PUBLICATION IS       158          

PHYSICALLY SEPARATE FROM THE DIETARY SUPPLEMENTS.                  159          

      (6)  THE PUBLICATION DOES NOT HAVE ANY OTHER INFORMATION     161          

AFFIXED TO IT.                                                                  

      (C)  DIVISION (B) OF THIS SECTION DOES NOT APPLY TO OR       165          

RESTRICT THE ACTIONS OF A PERSON WHO OFFERS DIETARY SUPPLEMENTS    166          

FOR SALE AT RETAIL OR WHOLESALE IN THE SALE OF BOOKS OR            167          

PUBLICATIONS AS PART OF THE PERSON'S BUSINESS.                     168          

      (D)  IF THE DIRECTOR OF AGRICULTURE FINDS OR HAS CAUSE TO    171          

BELIEVE THAT A PUBLICATION UNDER DIVISION (B) OF THIS SECTION IS   172          

A LABEL AND THAT LABEL IS FALSE OR MISLEADING UNDER DIVISION (B)   173          

OF THIS SECTION, THE DIRECTOR SHALL PROCEED UNDER THE PROVISIONS   174          

OF THIS CHAPTER APPLICABLE TO MISBRANDED FOOD.  IN ANY ACTION      175          

TAKEN UNDER THIS SECTION, THE BURDEN OF PROOF TO ESTABLISH         176          

MISBRANDING SHALL BE ON THE DIRECTOR.                              177          

      Sec. 3715.86.  A DIETARY SUPPLEMENT IS NOT CONSIDERED A      179          

"FOOD ADDITIVE" WITHIN THE MEANING GIVEN IN THE FEDERAL "FOOD,     181          

DRUG, AND COSMETIC ACT," 21 U.S.C.A. 321(s), AS AMENDED.           183          

      Sec. 4759.10.  Sections 4759.01 to 4759.09 of the Revised    192          

Code do not apply to any of the following:                         193          

      (A)  A person licensed under Chapters 4701. to 4755. of the  195          

Revised Code who is acting within the scope of his THE PERSON'S    196          

profession, provided that he THE PERSON complies with division     197          

(B) of section 4759.02 of the Revised Code;                        198          

      (B)  A person who is a graduate of an associate degree       200          

                                                          5      


                                                                 
program approved by the American dietetic association or the Ohio  201          

board of dietetics who is working as a dietetic technician under   202          

the supervision of a dietitian licensed under section 4759.06 of   203          

the Revised Code or registered by the commission on dietetic       204          

registration, except that the person is subject to division (B)    205          

of section 4759.02 of the Revised Code if he THE PERSON uses a     206          

title other than "dietetic technician";                            207          

      (C)  A person who practices dietetics related to employment  209          

in the armed forces, veteran's administration, or the public       210          

health service of the United States;                               211          

      (D)  Persons employed by a nonprofit agency approved by the  213          

board or by a federal, state, municipal or county government, or   214          

by any other political subdivision, elementary or secondary        215          

school, or an institution of higher education approved by the      216          

board or by a regional agency recognized by the council on         217          

postsecondary accreditation, who performs only nutritional         218          

education activities and such other nutritional activities as the  219          

board of dietetics, by rule, permits, provided the person does     220          

not violate division (B) of section 4759.02 of the Revised Code;   221          

      (E)  A person who has completed a program meeting the        223          

academic standards set by the American dietetic association for    224          

dietitians, received a baccalaureate or higher degree from a       225          

school, college, or university approved by a regional              226          

accreditation agency recognized by the council on postsecondary    227          

accreditation, works under the supervision of a licensed           228          

dietitian or registered dietitian, and does not violate division   229          

(B) of section 4759.02 of the Revised Code;                        230          

      (F)  A person when acting, under the direction and           232          

supervision of a person licensed under Chapters 4701. to 4755. of  233          

the Revised Code, in the execution of a plan of treatment          234          

authorized by the licensed person, provided the person complies    235          

with division (B) of section 4759.02 of the Revised Code;          236          

      (G)  The free dissemination of literature in the state;      238          

      (H)  Provided that the persons involved in the sale,         240          

                                                          6      


                                                                 
promotion, or explanation of the sale of food, food materials, or  241          

dietary supplements do not violate division (B) of section         242          

4759.02 of the Revised Code, the sale of food, food materials, or  243          

dietary supplements and the marketing and distribution of food,    244          

food materials, or dietary supplements and the promotion or        245          

explanation of the use of food, food materials, or dietary         246          

supplements provided that the promotion or explanation does not    247          

violate Chapter 1345. of the Revised Code;                         248          

      (I)  A PERSON WHO OFFERS DIETARY SUPPLEMENTS FOR SALE AND    251          

WHO MAKES THE FOLLOWING STATEMENTS ABOUT THE PRODUCT IF THE        252          

STATEMENTS ARE CONSISTENT WITH THE DIETARY SUPPLEMENT'S LABEL OR   253          

LABELING:                                                                       

      (1)  CLAIM A BENEFIT RELATED TO A CLASSICAL NUTRIENT         255          

DEFICIENCY DISEASE AND DISCLOSE THE PREVALENCE OF THE DISEASE IN   256          

THE UNITED STATES;                                                              

      (2)  DESCRIBE THE ROLE OF A NUTRIENT OR DIETARY INGREDIENT   258          

INTENDED TO AFFECT THE STRUCTURE OR FUNCTION OF THE HUMAN BODY;    260          

      (3)  CHARACTERIZE THE DOCUMENTED MECHANISM BY WHICH A        262          

NUTRIENT OR DIETARY INGREDIENT ACTS TO MAINTAIN THE STRUCTURE OR   263          

FUNCTION OF THE HUMAN BODY;                                        264          

      (4)  DESCRIBE GENERAL WELL-BEING FROM THE CONSUMPTION OF A   266          

NUTRIENT OR DIETARY INGREDIENT.                                    267          

      (J)  Provided that the persons involved in presenting a      269          

general program of instruction for weight control do not violate   270          

division (B) of section 4759.02 of the Revised Code, a general     271          

program of instruction for weight control approved in writing by   272          

a licensed dietitian, a physician licensed under Chapter 4731. of  273          

the Revised Code to practice medicine or surgery or osteopathic    274          

medicine or surgery, a person licensed in another state that the   275          

board considers to have substantially equivalent licensure         276          

requirements as this state, or a registered dietitian;             277          

      (J)(K)  The continued practice of dietetics at a hospital    279          

by a person employed at that same hospital to practice dietetics   280          

for the twenty years immediately prior to July 1, 1987, so long    281          

                                                          7      


                                                                 
as the person works under the supervision of a dietitian licensed  282          

under section 4759.06 of the Revised Code and does not violate     283          

division (B) of section 4759.02 of the Revised Code.  This         284          

division does not apply to any person who has held a license       285          

issued under this chapter to practice dietetics.  As used in this  286          

division, "hospital" has the same meaning as in section 3727.01    287          

of the Revised Code.                                               288          

      Section 2.  That existing section 4759.10 of the Revised     290          

Code is hereby repealed.                                           291          

      Section 3.  Sections 3715.80 to 3715.86 of the Revised       293          

Code, as enacted by this act, are intended to codify in Ohio law   294          

portions of the federal "Dietary Supplement Health and Education   295          

Act of 1994," 108 Stat. 4325 (1994), 21 U.S.C.A. 301, et seq., as  296          

amended.                                                           297