Bill Text: NY S04447 | 2017-2018 | General Assembly | Introduced

---

Bill Title: Prohibits any person, firm, partnership, association or corporation, or agent or employee thereof from offering for sale tangible or intangible goods or services which have not been actually ordered or requested by the recipient; provides that any receipt of unordered goods shall be deemed a gift to the recipient; prohibits the requesting of payment for unordered goods and services; makes related provisions including prohibiting the recipient from waiving any of his or her rights hereunder.

Spectrum: Partisan Bill (Democrat 2-0)

Status: (Introduced - Dead) 2018-01-03 - REFERRED TO CONSUMER PROTECTION [S04447 Detail]

Download: New_York-2017-S04447-Introduced.html

---

                STATE OF NEW YORK
        ________________________________________________________________________
                                          4447
                               2017-2018 Regular Sessions
                    IN SENATE
                                    February 15, 2017
                                       ___________
        Introduced  by Sens. MONTGOMERY, COMRIE -- read twice and ordered print-
          ed, and when printed to be committed  to  the  Committee  on  Consumer
          Protection
        AN ACT to amend the general business law, in relation to prohibiting any
          party  from  charging  consumers for unordered or unrequested goods or
          services and to repeal paragraph a of subdivision 2 of section 396  of
          such law relating thereto
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
     1    Section 1. Paragraph a of subdivision 2 of section 396 of the  general
     2  business  law  is  REPEALED  and  a  new paragraph a is added to read as
     3  follows:
     4    a. (1) No person, firm, partnership, association  or  corporation,  or
     5  agent  or employee thereof, shall, in any manner, or by any means, offer
     6  for sale, lease, or charge any fee for any tangible or intangible goods,
     7  or services which have not been actually ordered  or  requested  by  the
     8  recipient,  either  orally  or in writing. The receipt of any such unor-
     9  dered goods, or furnishing of such services shall for  all  purposes  be
    10  deemed  an unconditional gift to the recipient who may use or dispose of
    11  the same in any manner he or she sees fit without any obligation on  his
    12  or her part to the sender.
    13    (2) No person, firm, partnership, association or corporation, or agent
    14  or  employee  thereof, shall bill or otherwise request payment for goods
    15  or services not actually ordered or requested by the recipient.
    16    (3) No person, firm, partnership, association or corporation, or agent
    17  or employee thereof, shall propose a contract  or  contract  term  which
    18  provides  for a fee or charge for goods or services not actually ordered
    19  or requested by the recipient and which purportedly makes the  recipient
    20  legally bound to make payment for such goods or services upon the recip-
    21  ient's  failure  to respond within a specified period of time.  Any such
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD09660-01-7
        S. 4447                             2
     1  proposal shall be deemed to be void as against public policy and  wholly
     2  unenforceable.
     3    (4)  Any  tangible  goods sent which have not been actually ordered or
     4  requested by the recipient shall be prominently marked upon the contain-
     5  er thereof in bold letters as follows: "THIS IS A  GIFT.    PAYMENT  NOT
     6  REQUIRED FOR THIS ITEM."
     7    (5)  At least thirty days prior to the sending of any intangible goods
     8  or furnishing of any services offered for sale or lease which  have  not
     9  been  actually  ordered  or requested by the recipient, the sender shall
    10  mail or deliver a written notice separate from any other document mailed
    11  or delivered to the recipient, containing a short,  clear  and  coherent
    12  statement, in a size equal to at least ten-point bold type, the name and
    13  a  short description of the good or service to be sent or furnished, the
    14  approximate date such good or service is to be sent or  furnished,  that
    15  the good or service is a gift, and that payment is not required for this
    16  good or service.
    17    (6) This paragraph shall not apply to a membership or club arrangement
    18  which  is  regulated  by the federal trade commission pursuant to 16 CFR
    19  425 as such section may from time to time be amended, or other  contrac-
    20  tual  plans  or  arrangements  such  as  continuity  plans, subscription
    21  arrangements,  standing  order  arrangements,  supplements  and   series
    22  arrangements  under which the seller periodically ships merchandise to a
    23  consumer who has consented in advance to receive such merchandise  on  a
    24  periodic basis.
    25    (7)  This  paragraph  shall  not  apply to offers for sale or lease of
    26  unordered or unrequested services in  connection  with  the  renewal  or
    27  extension  of  an  existing  contract, provided such offer was otherwise
    28  permitted by law or the terms of such contract and further provided that
    29  no unordered or unrequested service is offered in  connection  with  the
    30  renewal  or  extension for a fee or charge in addition to any service or
    31  services which were the subject of such contract.
    32    (8) Any recipient who has been injured by reason of any  violation  of
    33  this paragraph may bring an action in his or her own name to enjoin such
    34  unlawful act or practice, an action to recover his or her actual damages
    35  or  fifty  dollars,  whichever  is greater, or both such actions. In any
    36  action under this subparagraph, the court may  award  reasonable  attor-
    37  ney's fees to a prevailing plaintiff. Any recipient who has received any
    38  bill  statement  or  request  for  payment  with respect to any goods or
    39  services deemed to be an unconditional gift under this  paragraph  shall
    40  be deemed to be injured under this subparagraph.
    41    (9)  Nothing  in  this  paragraph shall in any way limit the rights or
    42  remedies which are otherwise available to a recipient  under  any  other
    43  provision  of law, including, but not limited to, the uniform commercial
    44  code and article twenty-two-A of this chapter.
    45    (10) Waiver of rights by any recipient under this paragraph  shall  be
    46  deemed contrary to public policy and shall be unenforceable and void.
    47    (11)  For the purposes of this paragraph: (i) the term "tangible good"
    48  shall mean any good sent to the recipient by means of a container; and
    49    (ii) the term "intangible good" shall mean any good  which  is  not  a
    50  tangible good.
    51    § 2. This act shall take effect immediately.