S T A T E O F N E W Y O R K
________________________________________________________________________
3191
2009-2010 Regular Sessions
I N A S S E M B L Y
January 23, 2009
___________
Introduced by M. of A. PHEFFER, DINOWITZ, GIANARIS, GREENE, CARROZZA,
ORTIZ, SWEENEY -- Multi-Sponsored by -- M. of A. BOYLAND, CLARK,
CYMBROWITZ, DESTITO, ENGLEBRIGHT, GALEF, GLICK, HOOPER, HOYT, JOHN,
MAGEE, MARKEY, MAYERSOHN, McENENY, MILLMAN, PERRY, TOWNS -- read once
and referred to the Committee on Consumer Affairs and Protection
AN ACT to amend the general business law, in relation to the regulation
of unsolicited advertisements
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. The general business law is amended by adding a new
section 394-f to read as follows:
S 394-F. UNSOLICITED ADVERTISEMENTS. 1. FOR PURPOSES OF THIS SECTION
THE TERMS:
(A) "UNSOLICITED ADVERTISEMENT" MEANS ANY WRITTEN MATERIAL ADVERTISING
THE COMMERCIAL AVAILABILITY OR QUALITY OF ANY PROPERTY, GOODS, OR
SERVICES WHICH IS MAILED OR DELIVERED TO A CONSUMER WHO IS SPECIFICALLY
IDENTIFIED BY BIOGRAPHICAL INFORMATION WITHOUT THAT CONSUMER'S EXPRESS
INVITATION OR PERMISSION. SUCH TERM SHALL NOT INCLUDE MATERIAL TRANSMIT-
TED TO A CONSUMER OVER THE INTERNET AND COMMUNITY PUBLICATIONS WHICH ARE
DISTRIBUTED TO THE PUBLIC, WITHOUT CONSIDERATION, FOR PURPOSES OF COMMU-
NITY INFORMATION AND COMMUNITY ADVERTISING WHICH ARE EXEMPT FROM SALES
AND USE TAX PURSUANT TO SUBDIVISION (I) OF SECTION ELEVEN HUNDRED
FIFTEEN OF THE TAX LAW;
(B) "CONSUMER" MEANS A NATURAL PERSON WHO IS THE RECIPIENT OF AN UNSO-
LICITED ADVERTISEMENT;
(C) "SENDER" MEANS A PERSON, FIRM, PARTNERSHIP, LIMITED LIABILITY
COMPANY, CORPORATION, ASSOCIATION, OR OTHER ENTITY ESTABLISHED OR FORMED
FOR PROFIT.
2. EVERY SENDER OF AN UNSOLICITED ADVERTISEMENT TO A CONSUMER SHALL
PROVIDE SUCH CONSUMER, ON AN ANNUAL BASIS, WITH A WRITTEN NOTICE OF THE
CONSUMER'S RIGHT, GRANTED BY THIS SECTION, TO ELECT NOT TO RECEIVE ANY
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD06905-01-9
A. 3191 2
FURTHER UNSOLICITED ADVERTISEMENTS FROM SUCH SENDER. SUCH WRITTEN
DISCLOSURE SHALL BE MADE IN A CLEAR AND CONSPICUOUS MANNER AND SHALL SET
FORTH A REASONABLE METHOD BY WHICH THE CONSUMER CAN EXERCISE SUCH RIGHT.
SUCH WRITTEN DISCLOSURE MAY INDICATE THAT SUCH CONSUMER MAY AT ANY TIME
ELECT NOT TO RECEIVE ANY FURTHER UNSOLICITED ADVERTISEMENTS FROM SUCH
SENDER.
3. SUCH SENDER SHALL MAINTAIN AN EXCLUSION LIST AND SHALL NOT SEND ANY
UNSOLICITED ADVERTISEMENT TO ANY CONSUMER ON SUCH LIST. SUCH SENDER IS
PROHIBITED FROM USING SUCH LIST FOR ANY PURPOSE OTHER THAN COMPLIANCE
WITH THE REQUIREMENTS OF THIS SECTION.
4. NO SENDER SHALL BE DEEMED TO HAVE VIOLATED THE PROVISIONS OF THIS
SECTION IF SUCH SENDER SHOWS, BY A PREPONDERANCE OF THE EVIDENCE, THAT
THE VIOLATION WAS NOT INTENTIONAL AND RESULTED FROM A BONA FIDE ERROR
MADE NOTWITHSTANDING THE MAINTENANCE OF PROCEDURES REASONABLY ADOPTED TO
AVOID ANY SUCH ERROR.
5. NO PENALTY SHALL BE IMPOSED UNDER THIS SECTION FOR ANY MAILING SENT
TO A CONSUMER IF SUCH MAILING WAS SENT WITHIN A REASONABLE PERIOD OF
TIME AFTER RECEIVING THE CONSUMER'S PRIMARY NOTIFICATION TO BE PLACED ON
SUCH LIST.
6. WHENEVER A COURT DETERMINES THAT A VIOLATION OF THIS SECTION HAS
OCCURRED, THE COURT SHALL IMPOSE A CIVIL PENALTY NOT TO EXCEED ONE
HUNDRED DOLLARS. A SECOND OFFENSE AND ANY OFFENSE COMMITTED THEREAFTER
ARE PUNISHABLE BY A CIVIL PENALTY NOT TO EXCEED FIVE HUNDRED DOLLARS.
7. WHENEVER THERE IS A VIOLATION OF THIS SECTION, AN APPLICATION MAY
BE MADE BY THE ATTORNEY GENERAL, IN THE NAME OF THE PEOPLE OF THE STATE
OF NEW YORK, TO A COURT OR JUSTICE HAVING JURISDICTION, BY A SPECIAL
PROCEEDING, TO ISSUE AN INJUNCTION AND, UPON NOTICE TO THE DEFENDANT OF
NOT LESS THAN FIVE DAYS, TO ENJOIN AND RESTRAIN THE CONTINUANCE OF SUCH
VIOLATION; AND IF IT SHALL APPEAR TO THE SATISFACTION OF THE COURT OR
JUSTICE THAT THE DEFENDANT HAS, IN FACT, VIOLATED THIS SECTION, AN
INJUNCTION MAY BE ISSUED BY THE COURT OR JUSTICE, ENJOINING AND
RESTRAINING ANY FURTHER VIOLATIONS, WITHOUT REQUIRING PROOF THAT ANY
PERSON HAS, IN FACT, BEEN INJURED OR DAMAGED THEREBY. IN ANY SUCH
PROCEEDING, THE COURT MAY MAKE ALLOWANCES TO THE ATTORNEY GENERAL AS
PROVIDED IN PARAGRAPH SIX OF SUBDIVISION (A) OF SECTION EIGHTY-THREE
HUNDRED THREE OF THE CIVIL PRACTICE LAW AND RULES AND DIRECT RESTITU-
TION. IN CONNECTION WITH ANY SUCH PROPOSED APPLICATION, THE ATTORNEY
GENERAL IS AUTHORIZED TO TAKE PROOF AND MAKE A DETERMINATION OF THE
RELEVANT FACTS AND TO ISSUE SUBPOENAS IN ACCORDANCE WITH THE CIVIL PRAC-
TICE LAW AND RULES.
S 2. If any provision of this act or the application of such provision
in certain circumstances shall be held invalid, the validity of the
remainder of this act and its applicability to other circumstances shall
not be affected.
S 3. This act shall take effect on the one hundred eightieth day after
it shall have become a law.