Bill Text: NY S04508 | 2015-2016 | General Assembly | Introduced

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Bill Title: Relates to price gouging of medicine.

Spectrum: Partisan Bill (Republican 1-0)

Status: (Introduced - Dead) 2016-01-06 - REFERRED TO CONSUMER PROTECTION [S04508 Detail]

Download: New_York-2015-S04508-Introduced.html

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                           S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________
                                         4508
                              2015-2016 Regular Sessions
                                   I N  S E N A T E
                                    March 25, 2015
                                      ___________
       Introduced  by  Sen.  LANZA  -- read twice and ordered printed, and when
         printed to be committed to the Committee on Consumer 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    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
   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.
                                                                  LBD00753-01-5
       S. 4508                             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.  WHERE A VIOLATION OF THIS SECTION IS ALLEGED TO HAVE OCCURRED, THE
   13  ATTORNEY GENERAL MAY APPLY IN THE NAME OF THE PEOPLE OF THE STATE OF NEW
   14  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    5.  PRIOR  TO APPLYING FOR AN ORDER FROM THE SUPREME COURT PURSUANT TO
   21  SUBDIVISION FOUR OF THIS SECTION, THE ATTORNEY GENERAL, IN  CONSULTATION
   22  WITH  THE  DEPARTMENT  OF  HEALTH,  SHALL  CONSIDER THE PRICING DYNAMICS
   23  UNIQUE TO THE SMALL AND INDEPENDENT DISTRIBUTORS WITHIN THE SUPPLY CHAIN
   24  INCLUDING, BUT NOT LIMITED TO, THE PRICE CHARGED BY THE END USE  DISPEN-
   25  SER RELATIVE TO ITS ACQUISITION COST.
   26    S 2. This act shall take effect immediately.