Bill Text: NY A05946 | 2019-2020 | General Assembly | Introduced

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Bill Title: Prohibits selling a drug subject to a shortage for an unconscionably excessive price.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced - Dead) 2020-07-06 - enacting clause stricken [A05946 Detail]

Download: New_York-2019-A05946-Introduced.html

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                STATE OF NEW YORK
        ________________________________________________________________________
                                          5946
                               2019-2020 Regular Sessions
                   IN ASSEMBLY
                                    February 20, 2019
                                       ___________
        Introduced by M. of A. CRESPO -- read once and referred to the Committee
          on Consumer Affairs and Protection
        AN ACT to amend the general business law, in relation to the price goug-
          ing of medicine
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
     1    Section 1. The general business law is amended by adding a new section
     2  396-rrr to read as follows:
     3    § 396-rrr. Price gouging of medicine. 1.  For  the  purposes  of  this
     4  section,  "drug  subject  to  a shortage" shall mean any drug or medical
     5  product intended for human use publicly reported as being subject  to  a
     6  shortage  by  the  U.S.  food  and  drug  administration on its website,
     7  provided, however, that a drug or medical product shall only be  consid-
     8  ered  a "drug subject to a shortage" during the period of time that such
     9  drug or medical product is listed as being subject to a shortage on such
    10  website.
    11    2. No party within the chain of distribution of any drug subject to  a
    12  shortage shall sell or offer to sell any such drug subject to a shortage
    13  for an amount which represents an unconscionably excessive price.
    14    3.  Whether  a  price is unconscionably excessive is a question of law
    15  for the court.
    16    (a) The court's determination that a violation  of  this  section  has
    17  occurred shall be based on any of the following factors:
    18    (i) that the amount of the excess in price is unconscionably extreme;
    19    (ii)  that  there was an exercise of unfair leverage or unconscionable
    20  means; or
    21    (iii) a combination of both factors in subparagraphs (i) and  (ii)  of
    22  this paragraph.
    23    (b)  In  any proceeding commenced pursuant to subdivision four of this
    24  section, prima facie proof that a violation of this section has occurred
    25  shall include evidence that:
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD09882-01-9
        A. 5946                             2
     1    (i) the amount charged represents a gross disparity between the  price
     2  of  the  drug  subject to a shortage which was the subject of the trans-
     3  action and their value measured by the price at which such drug was sold
     4  or offered for sale by the defendant in the  usual  course  of  business
     5  immediately prior to the onset of the shortage; and
     6    (ii)  the  amount charged grossly exceeded the price at which the same
     7  or similar drug subject to a shortage was readily  obtainable  by  other
     8  purchasers  in  the trade area. A defendant may rebut a prima facie case
     9  with evidence that additional  costs  not  within  the  control  of  the
    10  defendant were imposed on the defendant for the drug subject to a short-
    11  age.
    12    4.  (a) Where a violation of this section is alleged to have occurred,
    13  the attorney general may apply in the name of the People of the State of
    14  New York to the supreme court within the judicial district in which such
    15  violation is alleged to have occurred, on notice of five  days,  for  an
    16  order  enjoining or restraining commission or continuance of the alleged
    17  unlawful acts. In any such proceeding, the court shall  impose  a  civil
    18  penalty  in  an  amount  not to exceed one hundred thousand dollars and,
    19  where appropriate, order restitution to aggrieved consumers.
    20    (b) In addition to any action brought by the attorney general pursuant
    21  to paragraph (a) of this subdivision, a person injured by a violation of
    22  this section may bring an action to recover damages. The court may  also
    23  award reasonable attorneys fees to a prevailing plaintiff.
    24    § 2. This act shall take effect immediately.