Bill Text: NY A08801 | 2011-2012 | General Assembly | Amended

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Bill Title: Relates to price gouging of medicine and provides for a private right of action for persons injured by the price gouging of medicine.

Spectrum: Moderate Partisan Bill (Democrat 19-3)

Status: (Engrossed - Dead) 2012-06-21 - REFERRED TO RULES [A08801 Detail]

Download: New_York-2011-A08801-Amended.html

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                           S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________
                                        8801--C
                                 I N  A S S E M B L Y
                                      (PREFILED)
                                    January 4, 2012
                                      ___________
       Introduced by M. of A. N. RIVERA, HOOPER, WEPRIN, CASTRO, ORTIZ, CRESPO,
         BOYLAND,  P. RIVERA,  COOK,  RAMOS  --  Multi-Sponsored by -- M. of A.
         ARROYO, BRENNAN, DUPREY, FINCH, ROBINSON, SCHIMEL  --  read  once  and
         referred  to  the  Committee  on  Consumer  Affairs  and Protection --
         committee discharged, bill amended, ordered reprinted as  amended  and
         recommitted  to  said  committee -- again reported from said committee
         with amendments, ordered reprinted as amended and recommitted to  said
         committee  --  again  reported  from  said  committee with amendments,
         ordered reprinted as amended and recommitted to said committee
       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    S  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
        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD13546-09-2
       A. 8801--C                          2
    1    (III)  A  COMBINATION OF BOTH FACTORS IN SUBPARAGRAPHS (I) AND (II) OF
    2  THIS PARAGRAPH.
    3    (B)  IN  ANY PROCEEDING COMMENCED PURSUANT TO SUBDIVISION FOUR OF THIS
    4  SECTION, PRIMA FACIE PROOF THAT A VIOLATION OF THIS SECTION HAS OCCURRED
    5  SHALL INCLUDE EVIDENCE THAT:
    6    (I) THE AMOUNT CHARGED REPRESENTS A GROSS DISPARITY BETWEEN THE  PRICE
    7  OF  THE  DRUG  SUBJECT TO A SHORTAGE WHICH WAS THE SUBJECT OF THE TRANS-
    8  ACTION AND THEIR VALUE MEASURED BY THE PRICE AT WHICH SUCH DRUG WAS SOLD
    9  OR OFFERED FOR SALE BY THE DEFENDANT IN THE  USUAL  COURSE  OF  BUSINESS
   10  IMMEDIATELY PRIOR TO THE ONSET OF THE SHORTAGE; AND
   11    (II)  THE  AMOUNT CHARGED GROSSLY EXCEEDED THE PRICE AT WHICH THE SAME
   12  OR SIMILAR DRUG SUBJECT TO A SHORTAGE WAS READILY  OBTAINABLE  BY  OTHER
   13  PURCHASERS  IN  THE TRADE AREA. A DEFENDANT MAY REBUT A PRIMA FACIE CASE
   14  WITH EVIDENCE THAT ADDITIONAL  COSTS  NOT  WITHIN  THE  CONTROL  OF  THE
   15  DEFENDANT WERE IMPOSED ON THE DEFENDANT FOR THE DRUG SUBJECT TO A SHORT-
   16  AGE.
   17    4.  (A) WHERE A VIOLATION OF THIS SECTION IS ALLEGED TO HAVE OCCURRED,
   18  THE ATTORNEY GENERAL MAY APPLY IN THE NAME OF THE PEOPLE OF THE STATE OF
   19  NEW YORK TO THE SUPREME COURT OF THE STATE OF NEW YORK WITHIN THE  JUDI-
   20  CIAL  DISTRICT IN WHICH SUCH VIOLATIONS ARE ALLEGED TO HAVE OCCURRED, ON
   21  NOTICE OF FIVE DAYS, FOR AN ORDER ENJOINING OR RESTRAINING COMMISSION OR
   22  CONTINUANCE OF THE ALLEGED UNLAWFUL ACTS. IN ANY  SUCH  PROCEEDING,  THE
   23  COURT  SHALL  IMPOSE  A  CIVIL  PENALTY  IN  AN AMOUNT NOT TO EXCEED ONE
   24  HUNDRED THOUSAND DOLLARS AND, WHERE APPROPRIATE,  ORDER  RESTITUTION  TO
   25  AGGRIEVED CONSUMERS.
   26    (B) IN ADDITION TO ANY ACTION BROUGHT BY THE ATTORNEY GENERAL PURSUANT
   27  TO PARAGRAPH (A) OF THIS SUBDIVISION, A PERSON INJURED BY A VIOLATION OF
   28  THIS  SECTION MAY BRING AN ACTION TO RECOVER DAMAGES. THE COURT MAY ALSO
   29  AWARD REASONABLE ATTORNEYS FEES TO A PREVAILING PLAINTIFF.
   30    S 2. This act shall take effect immediately.