Enacts the "omnibus obesity and respiratory illness reduction act"

atory illnesses caused by obesity conditions is about to overtake those acute and chronic adverse health conditions caused by smoking tobacco. This hill attempts to better integrate current programs and laws that relate to combating childhood obesity.

Further, this bill attempts to integrate activities to be conducted by: A) the Department of Agriculture and Markets to facilitate the increased availability and affordability of locally produced fresh produce to areas of the state that have a high incidence of childhood obesity. Such initiatives to increase the volume, availability and consumption of more fresh produce in at-risk targeted areas that have a high incidence of obese individuals could be supplied by locally producing community gardens and by the shipment of fresh produce by commercial growers into such targeted areas. The rational being that increasing the availability of fresh fruits and vegetables to underserved areas will increase the consumption of such foods because they are tastier and more likely to be consumed by at-risk populations,

B) the Education Department to better educate students and parents on the important economic and health reasons for consuming a balanced and nutritious diet. In addition to teaching such subjects in Health class, the scientific reasons for the importance of having a balanced diet should be presented in science classes such as biology and chemistry. Further, the Department will more actively provide for more opportu- nities for physical recreational activities to foster physical fitness and create an environment so that students are more capable to learn because they have "burned off" energy during recess,

C) the Department of Health will be encouraged to better track areas of the state that have high incidences of childhood obesity and encourage health care facilities and health care providers to identify and treat such conditions at an earlier time of a patient's life,

D) the Insurance Department, will encourage health insurers and their insureds to more actively participate in Wellness Programs that combat the high incidence of adult and childhood obesity. Further, altering the eating and exercise habits of pa.rents can have positive effects on the eating and exercise habits of their children,

E) the Office of Children and Family Services with regard to its regula- tory powers over the provision of child care by child day care centers should become more proactive in encouraging such centers to provide more low calorie foods to children and encourage more physical activity. In addition, help to increase the awareness of the problem of childhood obesity by teenage mothers will go a long way to help reduce the inci- dence of childhood obesity, and

E) better integrate the work of the Departments of Agriculture & Markets, Education, and Health, and the Office of Children & Family Services with activities conducted by local volunteer groups, health care providers, local governments, schools and cooperative Extension Services.

Summary of provisions

This bill is a comprehensive inter-disciplinary approach to address the high incidence of childhood obesity in New York State. Further, this bill amends many sections of law, so it is broken down into Parts A through P, depending on the laws to be amended.

Part a

Section 1: Amends Agriculture & Markets Law (Ag. & Markets Law) Section 3 to expand the Declaration of Policy and purposes of the Department to improve the overall health of New yorkers and to help combat the increasing incidence of adult and childhood obesity. The Department already is charged with the duty to encourage the production of fresh farm products in this State, this provision merely encourages the Department to also encourage the consumption of such products by persons who are obese and in those areas of the State that have a high incidence of childhood obesity.

Section 2: Amends Ag. & Markets Law section 16 (5-b) which outlines the General powers and Duties of the Department to also cooperate with the Health Department in implementing the Childhood Obesity Program pursuant to Article 25 of the public Health Law (PHL) and with the Commissioner of Education to encourage the production and consumption of fresh local- ly produced fruits and vegetables by primary and secondary school students to help combat the increasing incidence of childhood obesity. In addition, the Department is to cooperate with other federal, state and local agencies to encourage the expansion of community gardens so as to increase the availability and affordability of locally grown produce, to help combat adult and childhood obesity, especially in areas of the state that have a high incidence of obesity.

Section 3: Adds a new Ag. & Markets Law section 31-f to establish legis- lative findings that community gardens provide significant health, educational, and social benefits to the general public, especially for those who reside in urban and suburban areas of this State. Community gardens help to provide low cost nutritious and fresh foods to the general public, especially to the disadvantaged and poor; promotes health and healthier lifestyles by encouraging better eating habits and increased physical activity, fosters the retention of open spaces in urban areas of our state's cities and villages, provides inexpensive community building activities, helps to reduce the incidence of crime, and engenders a closer relationship between urban residents and nature and their local environment. This provision is needed so that the Office of Community Gardens has a mission statement so that it can more effec- tively work with other federal, state, and local agencies to help promote the concept of community gardens and do what it can to help combat the high incidence of childhood and adult obesity.

Section 4: Amends Ag. & Markets Law section 31-g to expand the duties of the Office of Community Gardens. In the definitional section, it expands what types of activities are considered to be "garden" activities,

expands the definition of "municipality", and adds a new definition for "state agency" to reduce the verbiage in this Article 2-C.

Section 5: Amend Ag. & Markets Law section 31-h to expand the number of activities that the Office of Community Gardens may engage in if they choose to do so. Among the new types of activities that the Office may participate in, if the Office wishes to do so, are the following:

- To assist groups that wish to establish community gardens, the Office can help to develop a single recommended application form to request a state agency or municipality to use certain vacant lands for community garden purposes.

- assist community garden groups in their activities and encourage the better coordination of activities between such groups and school garden programs and local voluntary food assistance programs, such as food pantry's and soup kitchens that provide food for the poor and disadvan- taged, hospitals, other health care facilities, and educational facili- ties.

- encourage better communication between and sharing of resources between community garden groups and the New York Kids Week Program provided for under the Ag. & Markets Law, and individual farm-to-school and school garden programs. The purpose of this section is to make a better connection between the activities of community gardens and the educational activities of existing school programs, if such schools wish to do so.

- support efforts by the Departments of Health and Education to combat the high incidence of adult and childhood obesity by encouraging the consumption of community garden produced fruits and vegetables.

Section 6: Amend Ag. & Markets Law section 31-i to include municipal vacant land in addition to state agency controlled vacant land to be used for community gardens.

Section 7: Adds Ag. & Markets Law section 31-j to allow the Office of Community Gardens, at their own option, to convene a Community Gardens Task Force if authorized by the commissioner of Ag. & Markets. The membership of the Task Force must be no more than 25 members. Further the Task Force can utilize the opinions of various state agencies such as education, health, environmental conservation, corrections, and the office of state parks. In addition, the various state-wide municipal associations can have input into the activities of the task force. The task force is to look into encouraging the establishment and expansion of community gardens, encourage cooperation between community gardens and voluntary food assistance programs, and increase the benefits provided by community gardens.

Section 8: Amends Ag & Markets Law section 281, the Declaration of Legislative Findings for Article 23, which relates to the Department's powers to encourage the direct marketing of New York agricultural

products. This provision encourages the Department to also help to encourage the consumption of such locally produced products in a manner that helps to combat the high incidence of adult and childhood obesity.

Section 9: Amends Ag. & Markets Law section 283 (5) and creates a new (8-a) which relates to the Department's powers and duties to promote the direct sale of farm and food products produced in New York to increase the supply of fresh wholesome foods that can be obtained more inexpen- sively. Doing so, may help to increase the consumption of foods that can help to combat the high incidence of childhood obesity. Under this provision, the Department is encouraged to develop direct marketing programs for the provision of fresh fruits and vegetables in areas designated by DOH as having a high incidence of childhood obesity.

Section 10: Effective date.

This Part shall take effect immediately.

Part b

Section 1: Amends Education.Law section 901 which relates to school health services to be provided. This section expands the types of services that can be provided by school health services to include exam- ining students for the existence, in addition to diseases or disabili- ties, to include childhood obesity as defined pursuant to existing Education Law standards contained in section 904.

Section 2: Amends Education Law section 903 to add that school health exams may include a diabetes risk analysis if such child has risk factors for type 1 or type 2 diabetes, such as obesity, family history of type 2 diabetes, or other factors that heighten the risk of diabetes.

Section 3: Amends Education Law section 904 which relates to examina- tions by health appraisal to include obesity.

Section 4: Amends Education Law section 912 which relates to health and welfare services to all children, may also include childhood obesity screening.

Section 5: Amends Education Law section 918 (4)and(5)which relates to the formation of school district nutrition advisory committees. Under this provision, such advisory committees can study and make recommenda- tions on current nutritional policies of the school district to reduce the incidence of childhood obesity. Further, such advisory committees can make recommendations on educational information that can be provided to parents and guardians of students regarding healthy nutrition and health risks associated with asthma, chronic bronchitis, and other chronic respiratory diseases. Provided further, make recommendations to teachers and other staff as to the dangers of childhood obesity.

Section 6: This Part B shall take effect 2 years after it shall have become law.

Part c

Section 1: Amends Public Health Law section 206 (1) which relates to the general powers and duties of the Commissioner of Health. This provision adds a new subdivision to authorize that the Department of Health may promulgate rules and regulations to restrict the use of artificial trans fats in the preparation of certain foods served by food service estab- lishments that offer the immediate sale of food to the general public. Foods that DOH could regulate that have trans fat include those prepared foods that contain vegetable shortening, margarine, or partially hydro- genated vegetable oil in quantities above .5 grams per serving. Such regulations cannot apply to foods that are served to the public in pack- ages sealed by the manufacturer. Further such regulations cannot apply to the City of New York or any other municipality that has adopted a local law to regulate such products. This bill provision does not mandate DOH to promulgate such rules, but establishes a framework should the Department deem it appropriate to promulgate such regulations.

This section also authorizes DOH to mandate that food service establish- ments may require that warning signs be placed in such establishments to inform the public about the health risks associated with the over consumption of foods made with artificial trans fats.

This section also authorizes DOH to establish a voluntary artificial trans fat reduction or program. Such a program can include a public information dissemination program to inform the public about the health risks associated with the over consumption of foods that have signif- icant amounts of artificial trans fats.

This section also authorizes DOH to require chain owned food service establishments that have over 25 sites to disclose on their product offerings the total number of calories, grams of carbohydrates, satu- rated fats, and milligrams of sodium contained in each food offered for sale at such establishment. Such information may, in the discretion of the Department, be offered to the public upon request.

Section 2: Amends Public Health Law section 207 which relates to the Health Care and Wellness Education and Outreach Program. This provision expands the ability of DOH to conduct wellness education and outreach programs to elementary and secondary school educators. Further, such education and outreach programs can provide information about the adverse health risks to adults and children who become obese or under- weight.

Section 3: Amends Public Health Law section 207 to provide that the Department's education and outreach programs may also talk about the short term and long term adverse health risks to adults and children who become overweight, obese or underweight.

Section 4: This Part C shall take effect one year after this bill shall have become law.

Part d

Section 1: Amends Education Law section 2556(5) to add a new sentence to encourage certain secondary and primary schools in New York City to provide for other types of recreational play spaces if existing play- grounds are subsequently used for school construction or siting of temporary classroom units. Under current law, Section 2556(5) requires open-air playgrounds be attached to all schoolhouses constructed in the city of New York. The purpose of this provision is to encourage the retention of adequate outdoor playground space for New York City school children. Further, that if existing playgrounds are sold, leased, trans- ferred or used for school building construction in a way that eliminates such playground space, that the school establish a plan to secure suit- able and adequate playground space for the physical recreation needs of such pupils.

Part e

Section 1: Amends Education Law section 803 (1) and (5) which relates to the instruction of physical education in all elementary and secondary schools to foster the increased overall physical fitness and good health of its students and to foster a reduction in the incidence of childhood obesity. Further, it encourages the regents to ensure that all students in elementary and secondary schools have daily physical activity to increase their physical wellbeing and to increase their ability to absorb what is being taught in school.

Section 2: Amends Education Law section 804(1) to alter the material taught in health, physical education, and appropriate science classes to include information on the health risks associated with childhood obesi- ty and ways to combat the incidence of childhood obesity.

Section 3: Amends Education Law section 804-a which relates to the comprehensive School Health Education Demonstration Program. These demonstration programs can be established by individual schools for the development, implementation, evaluation, validation, and replication of exemplary comprehensive health education programs. This bill expands this demonstration program to include conveying knowledge to students on a host of social conditions to include in addition to adolescent preg- nancy, alcohol abuse, truancy, suicide, and substance abuse to also include obesity, asthma., or other chronic respiratory diseases.

Section 4: Amends Education Law section 813 to ensure that during a primary and secondary student's lunch period that ample time is devoted so that such student can consume his lunch and have time to engage in physical exercise or recreation.

Part f

Section 1: Adds a new Article 13-I to the Public Health Law to establish a program to prevent in-utero exposure to tobacco smoke. Under this program, health care providers, health insurers, and pregnancy programs

shall distribute information on the adverse effects of smoking during pregnancy, both first hand and second hand smoke. In-utero exposure to tobacco smoke leads to lower birth rates, higher incidences of asthma and childhood obesity, and can lead to cognitive and developmental damage to the child. Under this article, individualized smoking cessa- tion programs would be established to help increase the success rates for mothers who smoke tobacco or live in households where others smoke tobacco. This program will help to reduce the incidence of asthma.

Section 2: The effective date for this provision is 180 days after it shall have become law.

Part g

Section 1: Amends Public Health Law section 2111 to expand the scope of disease management demonstration programs administered by DOH to enhance the quality and cost-effectiveness of care rendered to Medicaid-eligible persons who do not participate in Medicaid Managed Care who have chronic health problems. Under current law, demonstration programs can include chronic conditions related to congestive heart fail11re, chronic obstructive pulmonary disease, asthma and diabetes. This provision expands the scope of demonstration programs to include obesity, chronic bronchitis, and other chronic respiratory diseases.

Part h

Section 1: Amends Public Health Law section 2599-b to expand the scope of programs administered by DOH to reduce the incidence and prevalence of obesity in children and adolescents, especially among populations with high rates of obesity. Under current law, the program looks to address obesity related health complications such as diabetes, heart disease, cancer, osteoarthritis, and asthma. This bill would expand such programs to include obesity-related health complications such as chronic bronchitis, and other chronic respiratory diseases.

In addition a new paragraph (h)is added to encourage DOH to coordinate with the Education Department, Office of Temporary and Disability Assistance, Office of Children and Family Services, and other federal, state, and local agencies to incorporate strategies to curtail the inci- dence of asthma, and chronic respiratory diseases to enable adults and children to safely increase physical activity to help curb the incidence of obesity.

Section 2: Amends Public Health Law section 2599-c that relates to the Department's role in encouraging more school-based childhood obesity prevention and physical activity programs. This bill adds that the Department in advancing school-based childhood obesity prevention and physical activity programs should cooperate with the Commissioners of Agriculture & Markets and Education, and county boards of cooperative extension.

Part i

Section 1: Amends Public Health Law section 263 that relates to an already authorized obesity study. This provision cross references a new Public Health Law section 2500-k and the information received from the childhood obesity prevention and screening program established pursuant to that section of the law.

Part j

Section 1: Amends Public Health Law section 2411 which relates to the powers and duties of the Commissioner. This provision authorizes the Commissioner to act in an advisory and supervisory capacity with regard to the Health Research Science Board as it relates to childhood obesity, asthma, and chronic bronchitis or other respiratory diseases. Further it expands the jurisdiction of such Board to research issues related to childhood obesity, asthma, and other respiratory diseases in addition to already being authorized to research breast, prostate or testicular cancer.

Section 2: Amends Public Health Law section 2500 (1) which relates to the Commissioner's duties as it relates to maternal and child health to also include childhood obesity.

Section 3: Amends Public Health Law section 2500-k to establish a child- hood obesity prevention and screening program. This provision authorizes the Department to establish a childhood obesity prevention and screening program so that trends may be ascertained with regard to the incidence and location of populations that have childhood obesity conditions. This research information may be shared with hospitals that provide obstetric services and pediatric primary care providers. Ultimately, this information can be used to review and improve quality of care provided by such health care providers.

Part k

Section 1: Amends Public Health Law section 2505-a to add child day care facilities to the list of facilities that must post the "statement of rights of breast feeding mothers". The goal of this provision is to disseminate the statement of rights of breastfeeding mothers to places where such mothers may frequent. Studies have shown that encouraging the breast feeding of children reduces the risk that such infants become obese later on in life.

Section 2: Amends Public Health Law section 2505, which relates to the general powers of the Commissioner to regulate the collection, storage and distribution of human breast milk. This provision authorizes the Commissioner to adopt regulations or guidelines to encourage and facili- tate employers and child day care centers to establish environments that do not discourage the practice of breast feeding.

Section 3: Amends Public Health Law section 2515 (2) that relates to Adolescent Pregnancy Prevention and Services Program to add to "services for eligible adolescents" vocational and education counseling on preg-

nancy and child nutrition counseling for expectant mothers to help curtail the incidence of childhood obesity.

Section 4: Amends Public Health Law section 2515-a(2) that relates to the administration of community service project plans. The purpose of these demonstration plans is to develop new methodologies to advance the provision of health care that reduces adolescent pregnancy and provide services to assist teenage mothers. These demonstration programs tend to be located in geographical areas where there is a high incidence of infant mortality and low income families. This provision expands the demonstration program areas to also include geographical areas that have low birth weight babies or childhood Obesity.

Section 5: Amends Public Health Law section 2522 to empower the Health Department to provide funds, if it deems appropriate, to finance health and nutritional education and services to both parents regarding child- hood and adult obesity and asthma, and the prevention or mitigation thereof.

Part l

Section 1: Amends Education Law section 916 to expand the number of students who can have and use an inhaler at school to maintain appropri- ate airflow to their lungs or suppress an asthmatic attack. The medical community maintains that it is better to monitor and address those who are susceptible to asthma conditions and treat such conditions before an asthmatic attack occurs, This bill increases the number of persons who can have and use an inhaler at school to include not only those who have a "severe asthmatic condition", to also include those who have a "moder- ately severe asthmatic condition" or have other potentially life-threat- ening respiratory illnesses".

Section 2: Adds a new Education Law section 921 to authorize school districts to posses and use nebulizers for those students that need such treatments. As the number and severity asthma attacks increases in the student body, it is important that such students have access not only to their inhalers, but nebulizers as well. The bill provides safeguards to ensure that only students that have a physician's treatment plan can use such nebulizers on school grounds. Further, such nebulizer treatment must be monitored by the school nurse or other person authorized by regulation.

The underlying justification to enact the provisions of Part I is that if students are not able to engage in physical activity because of restricted breathing patterns and asthma, any treatment that encourages such students to maintain physical activity may help to reduce the inci- dence of childhood obesity.

Part m

Section 1: Adds Real Property Law section 235-h to require that every rental agreement for an apartment in a building that has four units or

more must disclose the smoking policy of such building. The landlord is still free to either fully ban, partially ban, or generally permit smok- ing in such building's apartments and common areas. It is the purpose of this section to encourage landlords to think about the building's smok- ing policy and to give tenants notice of such policies. This in turn may encourage non-smoker tenants to seek out apartment buildings that have a no smoking policy and encourage landlords to at least minimize smoke exposure to those tenants who do not smoke to increase the marketability of their apartments. While this bill is a comprehensive bill to address adult and childhood obesity issues, there is a correlation between those who are exposed, either voluntary or otherwise, to first and second hand tobacco smoke, and asthma and the incidence of obesity. It would be difficult to address obesity and asthma issues without looking at the incidence of tobacco smoking and exposing, particularly children, to such conditions that can trigger asthma attacks and increase the inci- dence of obesity conditions generally be cause children are not able to conduct physical activity to maintain a proper weight.

Part n

Section 1: Adds a new State Finance Law section 91-h to establish the Obesity and Respiratory Disease Research Fund. This fund is established to support the financing of projects and research provided for in PHL sections 2411, 2500, and 2500-k.

Part 0

Sections 1 and 2: Amends Insurance Law section 3239 that relates to Wellness Programs that can be sponsored by health insurers or HMOs to help promote the health and wellbeing of their insureds or subscribers. This provision expands the types of wellness programs that can sponsored by such carriers to include coordinated weight management, nutrition, stress management and physical fitness programs to combat the high inci- dence of adult and child obesity, asthma, and other chronic respiratory conditions. This section also, allows for the full or partial reimburse- ment of the cost of participating in stress management programs or activities.

Part p

Section 1: Amends Social Services Law sections 366(4) to encourage both parents to obtain health and nutritional education and services regard- ing childhood and adult obesity, asthma, and the mitigation thereof.

Section 2: Amends Social Services Law section 390(2-a) to authorize the Office of Children and Family Services may promulgate rules and regu- lations on appropriate physical activity, nutritional offerings, and low calorie foods and beverages to lower the incidence of childhood obesity for child day care homes, programs, and facilities.

Section 3: Amends Social Services Law.section 390-a to prohibit any family day care home, group family day care home, or school age child

care program or child day care center to discriminate against any child who is breast fed or who is fed with expressed breast milk.

Section 4: Amends County Law section 224-b to authorize cooperative extension services to provide in a coordinated manner a local or state- wide program specialist that relates to adult and childhood obesity, asthma, or chronic respiratory illness prevention.

Justification

The growing prevalence of overweight and obese children is a crisis that is facing the entire nation. Obesity related health care expenditures in New York are some of the highest in the nation. Further, contrary to the lower prevalence of obesity among adults, children in New York are more likely to be obese or overweight when compared to national trends. Obesity and overweight conditions in individuals are leading to higher incidences of life threatening conditions and substantial economic costs both to the State of New York for health care costs and to employers in lost work time and higher health care costs. Obesity in children tends to manifest itself more widely among poorer children and children whose parents have lower education levels.

The rising incidence of childhood obesity is a serious medical problem that continues to grow, especially among poorer and minority communi- ties. Further, obesity is known to cause or exacerbate a.number of seri- ous chronic medical disorders including hypertension, dyslipidemia, cardiovascular disease, diabetes, and respiratory dysfunction. Nearly 80% of patients with diabetes mellitus are obese, while nearly 70% of diagnosed cases of cardiovascular disease are related to obesity. Obesi- ty ranks only second to smoking as a preventable cause of death. Unfor- tunately, preventable deaths caused by obesity conditions is rapidly approaching and will surpass those deaths caused by smoking tobacco.

While the high prevalence of obesity and overweight conditions is an important public health concern when it affects adults. It should be of heightened concern that this adult affliction is now becoming more common among children. When obesity conditions afflict children this poses, significant quality of life detriments to such persons, reduces the productivity of such individuals over a longer time of their life, and hastens the onset of many chronic conditions that can hurt the qual- ity of life of such persons and their families.

The provisions of this bill are derived from a report by the Independent Democratic Conference entitled "Childhood Obesity: Mitigation and Prevention in the State of New York". This report outlines the trends of the increasing incidence of childhood obesity, some of the causes of this increase, and suggested courses of action that can be taken to help reduce this ever increasing public health problem. It is important for state agencies such as the Departments of Health, Education, Agriculture & Markets, and Insurance, the Office of Children and Family Services coordinate their current activities to curb this problem. Further, once New York's state agencies have a more coordinated approach to curb

childhood obesity, then other public stakeholders such as school educa- tors and BOCES can combine forces with such state agencies and with private stakeholders such as health care providers, health care facili- ties, child day care centers, insurers, and community groups to provide a coordinated way to address this problem.

Prior legislative history

New Bill.

Effective date

See relevant sections at the end of each Part of this bill.