As Reported by the Senate Agriculture 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-METTLER-BENDER-O'BRIEN-HARRIS-ROBERTS-                     

               JERSE-STEVENS-HOOPS-SENATOR MUMPER                  11           


_________________________________________________________________   13           

                          A   B I L L                                           

             To amend section 4759.10 and to enact sections        15           

                3715.80, 3715.81, 3715.82, 3715.83, 3715.84,       16           

                3715.85, and 3715.86 of the Revised Code           17           

                regarding the regulation of dietary supplements.   18           




BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:        20           

      Section 1.  That section 4759.10 be amended and sections     22           

3715.80, 3715.81, 3715.82, 3715.83, 3715.84, 3715.85, and 3715.86  24           

of the Revised Code be enacted to read as follows:                 25           

      Sec. 3715.80.  AS USED IN SECTIONS 3715.80 TO 3715.86 OF     27           

THE REVISED CODE, "DIETARY SUPPLEMENT" HAS THE MEANING GIVEN IN    29           

THE FEDERAL "FOOD, DRUG, AND COSMETIC ACT," 108 STAT. 4327         31           

(1994), 21 U.S.C.A. 321(ff), AS AMENDED.                           33           

      Sec. 3715.81.  FOR PURPOSES OF THIS CHAPTER, A DIETARY       35           

SUPPLEMENT SHALL BE TREATED AS A FOOD.  THE DIRECTOR OF            36           

AGRICULTURE SHALL ADMINISTER AND ENFORCE SECTIONS 3715.80 TO       38           

3715.86 OF THE REVISED CODE AND ANY RULES ADOPTED UNDER THOSE      40           

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

      Sec. 3715.82.  THE DIRECTOR OF AGRICULTURE MAY ADOPT RULES,  43           

IN ACCORDANCE WITH CHAPTER 119. OF THE REVISED CODE, TO            44           

ADMINISTER AND ENFORCE SECTIONS 3715.80 TO 3715.86 OF THE REVISED  45           

CODE.  IF RULES ARE ADOPTED, THE RULES SHALL BE NO MORE            46           

RESTRICTIVE THAN THE REGULATIONS PROMULGATED UNDER THE FEDERAL     47           

"FOOD, DRUG, AND COSMETIC ACT," 52 STAT. 1040 (1938), 21 U.S.C.A.  49           

                                                          2      


                                                                 
301, ET SEQ., AS AMENDED.                                          50           

      Sec. 3715.83.  IN ADDITION TO THE CONDITIONS SPECIFIED IN    52           

SECTION 3715.59 OF THE REVISED CODE, A DIETARY SUPPLEMENT IS       53           

ADULTERATED IF IT PRESENTS A SIGNIFICANT OR UNREASONABLE RISK OF   54           

ILLNESS OR INJURY UNDER THE CONDITIONS OF USE RECOMMENDED OR       55           

SUGGESTED IN ITS LABELING OR, IF THERE ARE NO RECOMMENDED OR       56           

SUGGESTED CONDITIONS OF USE, UNDER THE ORDINARY CONDITIONS OF      57           

USE.                                                               58           

      IF THE DIRECTOR OF AGRICULTURE FINDS OR HAS CAUSE TO         60           

BELIEVE THAT A DIETARY SUPPLEMENT IS ADULTERATED UNDER THIS        61           

SECTION, THE DIRECTOR SHALL PROCEED UNDER THE PROVISIONS OF THIS   62           

CHAPTER APPLICABLE TO ADULTERATED FOOD.  IN ANY ACTION TAKEN       63           

UNDER THIS SECTION, THE BURDEN OF PROOF SHALL BE ON THE DIRECTOR.  64           

      Sec. 3715.84.  (A)  A DIETARY SUPPLEMENT IS NOT MISBRANDED   67           

UNDER SECTION 3715.60 OF THE REVISED CODE SOLELY BECAUSE THE       68           

LABEL OR LABELING CONTAINS A STATEMENT THAT CHARACTERIZES THE      69           

RELATIONSHIP OF A NUTRIENT OR DIETARY INGREDIENT TO A DISEASE OR   70           

HEALTH-RELATED CONDITION IF ALL OF THE FOLLOWING CONDITIONS ARE    71           

MET:                                                                            

      (1)  THE STATEMENT DOES ONE OF THE FOLLOWING:                73           

      (a)  CLAIMS A BENEFIT RELATED TO A CLASSICAL NUTRIENT        76           

DEFICIENCY DISEASE AND DISCLOSES THE PREVALENCE OF THE DISEASE IN  77           

THE UNITED STATES;                                                              

      (b)  DESCRIBES THE ROLE OF A NUTRIENT OR DIETARY INGREDIENT  80           

INTENDED TO AFFECT THE STRUCTURE OR FUNCTION OF THE HUMAN BODY;    81           

      (c)  CHARACTERIZES A DOCUMENTED MECHANISM BY WHICH A         84           

NUTRIENT OR DIETARY INGREDIENT ACTS TO MAINTAIN THE STRUCTURE OR   85           

FUNCTION OF THE HUMAN BODY;                                                     

      (d)  DESCRIBES GENERAL WELL-BEING FROM CONSUMPTION OF A      88           

NUTRIENT OR DIETARY INGREDIENT.                                                 

      (2)  THE MANUFACTURER OF THE DIETARY SUPPLEMENT HAS          90           

SUBSTANTIATION THAT THE STATEMENT IS NOT FALSE OR MISLEADING.      92           

      (3)  THE LABEL CONTAINS, PROMINENTLY DISPLAYED AND IN        94           

BOLDFACE TYPE, ONE OF THE FOLLOWING STATEMENTS:                    95           

                                                          3      


                                                                 
      (a)  IN THE CASE OF A PRODUCT MANUFACTURED OR SOLD IN OHIO   98           

AND IN OTHER STATES, "THIS STATEMENT HAS NOT BEEN EVALUATED BY     99           

THE UNITED STATES FOOD AND DRUG ADMINISTRATION.  THIS PRODUCT IS   101          

NOT INTENDED TO DIAGNOSE, TREAT, CURE, OR PREVENT ANY DISEASE."    102          

      (b)  IN THE CASE OF A PRODUCT MANUFACTURED AND SOLD ONLY     104          

WITHIN THE STATE OF OHIO, "THIS STATEMENT HAS NOT BEEN EVALUATED   105          

BY THE OHIO DEPARTMENT OF AGRICULTURE.  THIS PRODUCT IS NOT        106          

INTENDED TO DIAGNOSE, TREAT, CURE, OR PREVENT ANY DISEASE."        107          

      (4)  THE MANUFACTURER OF THE DIETARY SUPPLEMENT COMPLIES     109          

WITH THE REQUIREMENTS OF THE FEDERAL "FOOD, DRUG, AND COSMETIC     111          

ACT," 108 STAT. 4327 (1994), 21 U.S.C.A. 343(r)(6), AS AMENDED.    114          

      (B)  THE STATEMENT DESCRIBED IN DIVISION (A)(1) OF THIS      118          

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

DIAGNOSE, MITIGATE, TREAT, CURE, OR PREVENT A SPECIFIC DISEASE OR  120          

CLASS OF DISEASES.                                                              

      (C)  IF THE DIRECTOR OF AGRICULTURE FINDS OR HAS CAUSE TO    123          

BELIEVE THAT A DIETARY SUPPLEMENT IS MISBRANDED UNDER THIS         124          

SECTION, THE DIRECTOR SHALL PROCEED UNDER THE PROVISIONS OF THIS   125          

CHAPTER APPLICABLE TO MISBRANDED FOOD.  IN ANY ACTION TAKEN UNDER  126          

THIS SECTION, THE BURDEN OF PROOF TO ESTABLISH MISBRANDING IS ON   127          

THE DIRECTOR.                                                                   

      (D)  A DIETARY SUPPLEMENT IS NOT A DRUG WITHIN THE MEANING   130          

OF SECTION 3715.01 OR 4729.01 OF THE REVISED CODE SOLELY BECAUSE   131          

THE LABEL OR LABELING CONTAINS A STATEMENT AUTHORIZED BY THIS      132          

SECTION OR BECAUSE A WARNING APPEARS ON THE SUPPLEMENT'S LABEL.    133          

      Sec. 3715.85.  (A)  AS USED IN THIS SECTION, "PUBLICATION"   136          

INCLUDES A BOOK CHAPTER, ARTICLE, OR OFFICIAL ABSTRACT OF A        137          

PEER-REVIEWED SCIENTIFIC ARTICLE PREPARED BY THE ARTICLE'S AUTHOR  138          

OR THE EDITORS OF THE PUBLICATION IN WHICH THE ARTICLE IS          139          

PUBLISHED.                                                                      

      (B)  A PUBLICATION USED IN CONNECTION WITH A SALE TO         142          

CONSUMERS OF A DIETARY SUPPLEMENT IS NOT CONSIDERED PART OF THE    143          

LABEL OF THE DIETARY SUPPLEMENT IF THE PUBLICATION MEETS ALL OF    144          

THE FOLLOWING CRITERIA:                                                         

                                                          4      


                                                                 
      (1)  THE PUBLICATION IS REPRINTED IN ITS ENTIRETY.           146          

      (2)  THE PUBLICATION IS NOT FALSE OR MISLEADING.             148          

      (3)  THE PUBLICATION DOES NOT PROMOTE A PARTICULAR           150          

MANUFACTURER OR BRAND OF DIETARY SUPPLEMENT.                       151          

      (4)  THE PUBLICATION IS DISPLAYED OR PRESENTED, ALONE OR     153          

WITH OTHER PUBLICATIONS ON THE SAME SUBJECT MATTER, SO AS TO       154          

PRESENT A BALANCED VIEW OF THE AVAILABLE SCIENTIFIC INFORMATION    155          

ON A DIETARY SUPPLEMENT.                                           156          

      (5)  IF THE PUBLICATION IS DISPLAYED IN A LOCATION WHERE     158          

DIETARY SUPPLEMENTS ARE OFFERED FOR SALE, THE PUBLICATION IS       159          

PHYSICALLY SEPARATE FROM THE DIETARY SUPPLEMENTS.                  160          

      (6)  THE PUBLICATION DOES NOT HAVE ANY OTHER INFORMATION     162          

AFFIXED TO IT.                                                                  

      (C)  DIVISION (B) OF THIS SECTION DOES NOT APPLY TO OR       166          

RESTRICT THE ACTIONS OF A PERSON WHO OFFERS DIETARY SUPPLEMENTS    167          

FOR SALE AT RETAIL OR WHOLESALE IN THE SALE OF BOOKS OR            168          

PUBLICATIONS AS PART OF THE PERSON'S BUSINESS.                     169          

      (D)  IF THE DIRECTOR OF AGRICULTURE FINDS OR HAS CAUSE TO    172          

BELIEVE THAT A PUBLICATION UNDER DIVISION (B) OF THIS SECTION IS   173          

A LABEL AND THAT LABEL IS FALSE OR MISLEADING UNDER DIVISION (B)   174          

OF THIS SECTION, THE DIRECTOR SHALL PROCEED UNDER THE PROVISIONS   175          

OF THIS CHAPTER APPLICABLE TO MISBRANDED FOOD.  IN ANY ACTION      176          

TAKEN UNDER THIS SECTION, THE BURDEN OF PROOF TO ESTABLISH         177          

MISBRANDING SHALL BE ON THE DIRECTOR.                              178          

      Sec. 3715.86.  A DIETARY SUPPLEMENT IS NOT CONSIDERED A      180          

"FOOD ADDITIVE" WITHIN THE MEANING GIVEN IN THE FEDERAL "FOOD,     182          

DRUG, AND COSMETIC ACT," 21 U.S.C.A. 321(s), AS AMENDED.           184          

      Sec. 4759.10.  Sections 4759.01 to 4759.09 of the Revised    193          

Code do not apply to any of the following:                         194          

      (A)  A person licensed under Chapters 4701. to 4755. of the  196          

Revised Code who is acting within the scope of his THE PERSON'S    197          

profession, provided that he THE PERSON complies with division     198          

(B) of section 4759.02 of the Revised Code;                        199          

      (B)  A person who is a graduate of an associate degree       201          

                                                          5      


                                                                 
program approved by the American dietetic association or the Ohio  202          

board of dietetics who is working as a dietetic technician under   203          

the supervision of a dietitian licensed under section 4759.06 of   204          

the Revised Code or registered by the commission on dietetic       205          

registration, except that the person is subject to division (B)    206          

of section 4759.02 of the Revised Code if he THE PERSON uses a     207          

title other than "dietetic technician";                            208          

      (C)  A person who practices dietetics related to employment  210          

in the armed forces, veteran's administration, or the public       211          

health service of the United States;                               212          

      (D)  Persons employed by a nonprofit agency approved by the  214          

board or by a federal, state, municipal or county government, or   215          

by any other political subdivision, elementary or secondary        216          

school, or an institution of higher education approved by the      217          

board or by a regional agency recognized by the council on         218          

postsecondary accreditation, who performs only nutritional         219          

education activities and such other nutritional activities as the  220          

board of dietetics, by rule, permits, provided the person does     221          

not violate division (B) of section 4759.02 of the Revised Code;   222          

      (E)  A person who has completed a program meeting the        224          

academic standards set by the American dietetic association for    225          

dietitians, received a baccalaureate or higher degree from a       226          

school, college, or university approved by a regional              227          

accreditation agency recognized by the council on postsecondary    228          

accreditation, works under the supervision of a licensed           229          

dietitian or registered dietitian, and does not violate division   230          

(B) of section 4759.02 of the Revised Code;                        231          

      (F)  A person when acting, under the direction and           233          

supervision of a person licensed under Chapters 4701. to 4755. of  234          

the Revised Code, in the execution of a plan of treatment          235          

authorized by the licensed person, provided the person complies    236          

with division (B) of section 4759.02 of the Revised Code;          237          

      (G)  The free dissemination of literature in the state;      239          

      (H)  Provided that the persons involved in the sale,         241          

                                                          6      


                                                                 
promotion, or explanation of the sale of food, food materials, or  242          

dietary supplements do not violate division (B) of section         243          

4759.02 of the Revised Code, the sale of food, food materials, or  244          

dietary supplements and the marketing and distribution of food,    245          

food materials, or dietary supplements and the promotion or        246          

explanation of the use of food, food materials, or dietary         247          

supplements provided that the promotion or explanation does not    248          

violate Chapter 1345. of the Revised Code;                         249          

      (I)  A PERSON WHO OFFERS DIETARY SUPPLEMENTS FOR SALE AND    252          

WHO MAKES THE FOLLOWING STATEMENTS ABOUT THE PRODUCT IF THE        253          

STATEMENTS ARE CONSISTENT WITH THE DIETARY SUPPLEMENT'S LABEL OR   254          

LABELING:                                                                       

      (1)  CLAIM A BENEFIT RELATED TO A CLASSICAL NUTRIENT         256          

DEFICIENCY DISEASE AND DISCLOSE THE PREVALENCE OF THE DISEASE IN   257          

THE UNITED STATES;                                                              

      (2)  DESCRIBE THE ROLE OF A NUTRIENT OR DIETARY INGREDIENT   259          

INTENDED TO AFFECT THE STRUCTURE OR FUNCTION OF THE HUMAN BODY;    261          

      (3)  CHARACTERIZE THE DOCUMENTED MECHANISM BY WHICH A        263          

NUTRIENT OR DIETARY INGREDIENT ACTS TO MAINTAIN THE STRUCTURE OR   264          

FUNCTION OF THE HUMAN BODY;                                        265          

      (4)  DESCRIBE GENERAL WELL-BEING FROM THE CONSUMPTION OF A   267          

NUTRIENT OR DIETARY INGREDIENT.                                    268          

      (J)  Provided that the persons involved in presenting a      270          

general program of instruction for weight control do not violate   271          

division (B) of section 4759.02 of the Revised Code, a general     272          

program of instruction for weight control approved in writing by   273          

a licensed dietitian, a physician licensed under Chapter 4731. of  274          

the Revised Code to practice medicine or surgery or osteopathic    275          

medicine or surgery, a person licensed in another state that the   276          

board considers to have substantially equivalent licensure         277          

requirements as this state, or a registered dietitian;             278          

      (J)(K)  The continued practice of dietetics at a hospital    280          

by a person employed at that same hospital to practice dietetics   281          

for the twenty years immediately prior to July 1, 1987, so long    282          

                                                          7      


                                                                 
as the person works under the supervision of a dietitian licensed  283          

under section 4759.06 of the Revised Code and does not violate     284          

division (B) of section 4759.02 of the Revised Code.  This         285          

division does not apply to any person who has held a license       286          

issued under this chapter to practice dietetics.  As used in this  287          

division, "hospital" has the same meaning as in section 3727.01    288          

of the Revised Code.                                               289          

      Section 2.  That existing section 4759.10 of the Revised     291          

Code is hereby repealed.                                           292          

      Section 3.  Sections 3715.80 to 3715.86 of the Revised       294          

Code, as enacted by this act, are intended to codify in Ohio law   295          

portions of the federal "Dietary Supplement Health and Education   296          

Act of 1994," 108 Stat. 4325 (1994), 21 U.S.C.A. 301, et seq., as  297          

amended.                                                           298