THE GENERAL ASSEMBLY OF PENNSYLVANIA

HOUSE BILL

INTRODUCED BY DePASQUALE, SIPTROTH, WAGNER, McGEEHAN, BRENNAN, SCAVELLO, HORNAMAN, BRIGGS, FABRIZIO, BRADFORD, PALLONE, M. O'BRIEN, SWANGER, SANTARSIERO, CARROLL, FAIRCHILD, KULA, M. SMITH, MOUL, HELM, MURPHY, LENTZ, McCALL, MUNDY, MELIO, CASORIO, VULAKOVICH, YUDICHAK, DONATUCCI, TRUE, JOSEPHS, CALTAGIRONE, GEORGE, GILLESPIE, KOTIK, GOODMAN, YOUNGBLOOD, SHAPIRO, SABATINA, MANN, ADOLPH, MARSHALL, D. COSTA, MURT, GEIST, FREEMAN, EACHUS, MATZIE AND KORTZ, MAY 5, 2009

AS RE-REPORTED FROM COMMITTEE ON APPROPRIATIONS, HOUSE OF REPRESENTATIVES, AS AMENED, JUNE 16, 2009   

AN ACT

Amending the act of December 17, 1968 (P.L.1224, No.387),

entitled "An act prohibiting unfair methods of competition

and unfair or deceptive acts or practices in the conduct of

any trade or commerce, giving the Attorney General and

District Attorneys certain powers and duties and providing

penalties," further providing for definitions and, for

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unlawful acts or practices and exclusions; and providing for 

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and for civil penalties; and adding provisions relating to 

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unsafe children's products.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1.  The definition of "unfair methods of competition"

and "unfair or deceptive acts or practices" in section 2(4) of

the act of December 17, 1968 (P.L.1224, No.387), known as the

Unfair Trade Practices and Consumer Protection Law, reenacted

and amended November 24, 1976 (P.L.1166, No.260) and amended

December 4, 1996 (P.L.906, No.146), is amended and the section

is amended by adding a definition to read:

Section 2.  Definitions.--As used in this act.

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(4)  "Unfair methods of competition" and "unfair or deceptive

acts or practices" mean any one or more of the following:

(i)  Passing off goods or services as those of another;

(ii)  Causing likelihood of confusion or of misunderstanding

as to the source, sponsorship, approval or certification of

goods or services;

(iii)  Causing likelihood of confusion or of misunderstanding

as to affiliation, connection or association with, or

certification by, another;

(iv)  Using deceptive representations or designations of

geographic origin in connection with goods or services;

(v)  Representing that goods or services have sponsorship,

approval, characteristics, ingredients, uses, benefits or

quantities that they do not have or that a person has a

sponsorship, approval, status, affiliation or connection that he

does not have;

(vi)  Representing that goods are original or new if they are

deteriorated, altered, reconditioned, reclaimed, used or

secondhand;

(vii)  Representing that goods or services are of a

particular standard, quality or grade, or that goods are of a

particular style or model, if they are of another;

(viii)  Disparaging the goods, services or business of

another by false or misleading representation of fact;

(ix)  Advertising goods or services with intent not to sell

them as advertised;

(x)  Advertising goods or services with intent not to supply

reasonably expectable public demand, unless the advertisement

discloses a limitation of quantity;

(xi)  Making false or misleading statements of fact

concerning the reasons for, existence of, or amounts of price

reductions;

(xii)  Promising or offering prior to time of sale to pay,

credit or allow to any buyer, any compensation or reward for the

procurement of a contract for purchase of goods or services with

another or others, or for the referral of the name or names of

another or others for the purpose of attempting to procure or

procuring such a contract of purchase with such other person or

persons when such payment, credit, compensation or reward is

contingent upon the occurrence of an event subsequent to the

time of the signing of a contract to purchase;

(xiii)  Promoting or engaging in any plan by which goods or

services are sold to a person for a consideration and upon the

further consideration that the purchaser secure or attempt to

secure one or more persons likewise to join the said plan; each

purchaser to be given the right to secure money, goods or

services depending upon the number of persons joining the plan.

In addition, promoting or engaging in any plan, commonly known

as or similar to the so-called "Chain-Letter Plan" or "Pyramid

Club." The terms "Chain-Letter Plan" or "Pyramid Club" mean any

scheme for the disposal or distribution of property, services or

anything of value whereby a participant pays valuable

consideration, in whole or in part, for an opportunity to

receive compensation for introducing or attempting to introduce

one or more additional persons to participate in the scheme or

for the opportunity to receive compensation when a person

introduced by the participant introduces a new participant. As

used in this subclause the term "consideration" means an

investment of cash or the purchase of goods, other property,

training or services, but does not include payments made for

sales demonstration equipment and materials for use in making

sales and not for resale furnished at no profit to any person in

the program or to the company or corporation, nor does the term

apply to a minimal initial payment of twenty-five dollars ($25)

or less;

(xiv)  Failing to comply with the terms of any written

guarantee or warranty given to the buyer at, prior to or after a

contract for the purchase of goods or services is made;

(xv)  Knowingly misrepresenting that services, replacements

or repairs are needed if they are not needed;

(xvi)  Making repairs, improvements or replacements on

tangible, real or personal property, of a nature or quality

inferior to or below the standard of that agreed to in writing;

(xvii)  Making solicitations for sales of goods or services

over the telephone without first clearly, affirmatively and

expressly stating:

(A)  the identity of the seller;

(B)  that the purpose of the call is to sell goods or

services;

(C)  the nature of the goods or services; and

(D)  that no purchase or payment is necessary to be able to

win a prize or participate in a prize promotion if a prize

promotion is offered. This disclosure must be made before or in

conjunction with the description of the prize to the person

called. If requested by that person, the telemarketer must

disclose the no-purchase/no-payment entry method for the prize

promotion;

(xviii)  Using a contract, form or any other document related

to a consumer transaction which contains a confessed judgment

clause that waives the consumer's right to assert a legal

defense to an action;

(xix)  Soliciting any order for the sale of goods to be

ordered by the buyer through the mails or by telephone unless,

at the time of the solicitation, the seller has a reasonable

basis to expect that it will be able to ship any ordered

merchandise to the buyer:

(A)  within that time clearly and conspicuously stated in any

such solicitation; or

(B)  if no time is clearly and conspicuously stated, within

thirty days after receipt of a properly completed order from the

buyer, provided, however, where, at the time the merchandise is

ordered, the buyer applies to the seller for credit to pay for

the merchandise in whole or in part, the seller shall have fifty

days, rather than thirty days, to perform the actions required

by this subclause;

(xx)  Failing to inform the purchaser of a new motor vehicle

offered for sale at retail by a motor vehicle dealer of the

following:

(A)  that any rustproofing of the new motor vehicle offered

by the motor vehicle dealer is optional;

(B)  that the new motor vehicle has been rustproofed by the

manufacturer and the nature and extent, if any, of the

manufacturer's warranty which is applicable to that

rustproofing;

The requirements of this subclause shall not be applicable and a

motor vehicle dealer shall have no duty to inform if the motor

vehicle dealer rustproofed a new motor vehicle before offering

it for sale to that purchaser, provided that the dealer shall

inform the purchaser whenever dealer rustproofing has an effect

on any manufacturer's warranty applicable to the vehicle. This

subclause shall not apply to any new motor vehicle which has

been rustproofed by a motor vehicle dealer prior to the

effective date of this subclause[.];

(xxi)  Knowingly selling or offering for sale a children's

product that has been identified as unsafe and listed in

accordance with section 9.4(b); and

[(xxi)] (xxii)  Engaging in any other fraudulent or deceptive

conduct which creates a likelihood of confusion or of

misunderstanding.

(5)  "Children's product" means a product that is designed or

intended for the care of or use by a child who is under twelve

years of age and the product is designed or intended to come

into contact with the child while the product is being used. For

the purpose of this act, the term does not include a product if

it may be used by or for the care of a child who is under twelve

years of age but was designed or intended for use by the general

population and not solely by a child under twelve years of age.

The term also does not include a medication, drug or food, or a

product designed to be ingested.

Section 2.  Section 3 of the act, amended November 29, 2006

(P.L.1624, No.185), is amended to read:

Section 3.  Unlawful Acts or Practices; Exclusions.--Unfair

methods of competition and unfair or deceptive acts or practices

in the conduct of any trade or commerce as defined by

[subclauses (i) through (xxi) of] clause (4) of section 2 of

this act and regulations promulgated under section 3.1 of this

act are hereby declared unlawful. The provisions of this act

shall not apply to any owner, agent or employe of any radio or

television station, or to any owner, publisher, printer, agent

or employe of an Internet service provider or a newspaper or

other publication, periodical or circular, who, in good faith

and without knowledge of the falsity or deceptive character

thereof, publishes, causes to be published or takes part in the

publication of such advertisement.

Section 3.  Section 8 of the act is amended by adding a

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subsection to read:

Section 8.  Civil Penalties.--* * *

(c)  (1)  Any person against whom an injunction is obtained

by the Attorney General under section 4 of this act for a

violation of section 1(4)(xxi) of this act shall pay a civil

penalty in the amount of five hundred dollars ($500) for each

violation, which penalty shall be in addition to other relief

which may be granted under sections 2 and 4.1 of this act. Each

unsafe children's product sold or offered for sale in violation

of section 1(4)(xxi) of this act shall constitute a separate

violation.

(2)  All civil penalties collected under this subsection

shall be dedicated to the Attorney General for enforcing the

provisions of this act.

Section  3 4.  The act is amended by adding a section to

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read:

Section 9.4.  Unsafe Children's Products.--(a)  A children's

product shall be deemed unsafe if it meets any of the following

criteria:

(1)  It does not conform to all Federal laws and regulations

setting forth standards for that children's product, including

standards endorsed or established by the Consumer Product Safety

Commission or the American Society for Testing and Materials as

adopted by the Consumer Product Safety Commission and such

nonconformance results in a substantial product hazard as

determined by the Consumer Product Safety Commission.

(2)  It has been recalled by an agency of the Federal

Government or its manufacturer in cooperation with the

government and the recall has not been rescinded.

(3)  An agency of the Federal Government or the product's

manufacturer has issued a warning that the product's intended

use constitutes a safety hazard and the warning has not been

rescinded. Warnings about proper use or handling of a product

shall not constitute a regulated warning under this clause.

(b)  The Attorney General shall create or adopt by reference,

and shall maintain and update, a list of children's products

that have been deemed unsafe under subsection (a). The Attorney

General shall make the list available to the public at no cost

and shall post it conspicuously on the Attorney General's

Internet website. The Attorney General shall also provide links

on the Internet website to government agencies or organizations

that provide information regarding unsafe children's products.

(c)  When the Consumer Product Safety Commission or the

manufacturer of a children's product in cooperation with the

Consumer Product Safety Commission issues a recall or warning

under subsection (a)(2) or (3), the manufacturer shall within

twenty-four hours or pursuant to Consumer Product Safety

Commission direction or corrective action plan undertake the

following actions to the extent required by the Consumer Product

Safety Commission:

(1)  Notify each commercial customer, other than end

customers, to whom the manufacturer sold the product of the

recall or warning and transmit to each commercial customer a

copy of the recall notice or warning.

(2)  Place conspicuously on its Internet website details

regarding the recall or warning to the extent applicable, which

details shall include, if required by the Consumer Product

Safety Commission:

(i)  a link to the list established under subsection (b) on

the Internet website of the Attorney General;

(ii)  a link to the Internet website maintained by the

Federal Government for the purpose of posting recalls of or

warnings about children's products; or

(iii)  the following:

(A)  a description and picture of the product;

(B)  the reason for the recall or warning;

(C)  instructions regarding how the customer may return the

recalled product or implement the warning; and

(D)  a link to the specific recall notice or warning for the

product other than the links identified under subparagraph (i)

or (ii).

(d)  When a retailer receives notice that a children's

product is the subject of a recall or a warning under subsection

(a)(2) or (3), the retailer shall:

(1)  Within three business days, stop selling the product.

(2)  Within thirty days, attempt to contact each purchaser of

the product for whom the retailer has a shipping address or e-

mail address to inform the purchaser that the product has been

recalled or is subject to a warning to the extent required by

the Consumer Product Safety Commission.

(3)  Within five business days, place conspicuously on its

Internet website details regarding the recall or warning to the

extent required by the Consumer Product Safety Commission, which

details shall include, if applicable:

(i)  a link to the list established under subsection (b) on

the Internet website of the Attorney General;

(ii)  a link to the Internet website maintained by the

Federal Government for the purpose of posting recalls of or

warnings about children's products; or

(iii)  the following:

(A)  a description and picture of the product;

(B)  the reason for the recall or warning;

(C)  instructions regarding how the customer may return the

recalled product or implement the warning; and

(D)  a link to the specific recall notice or warning for the

product other than the links identified under subparagraph (i)

or (ii).

(e)  A retailer that sells used or donated children's

products shall stop selling the product within five business

days after a children's product is placed on the Attorney

General's Internet website with a notation that sale of the

product is prohibited by the Consumer Product Safety Commission.

(f)  In addition to the requirements under subsection (c), a 

manufacturer that sells children's products directly to a

noncommercial customer shall comply with subsection (d)(1) and

(2).

(g)  Compliance with a Consumer Product Safety Commission

corrective action plan shall be deemed a complete defense to an

alleged violation under this section.

(h)  The Attorney General shall enforce the provisions of

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subsections (c), (d), (e) and (f) upon a complaint that relates

to a children's product placed on the list maintained under

subsection (b) and that is filed with the Bureau of Consumer

Protection in the Office of Attorney General.

(h) (i)  For the purpose of this section, the term

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"manufacturer" shall include the manufacturer, the importer, the

wholesaler and the distributor of a children's product.

Section  4 5.  This act shall take effect in 60 days.

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