NY State Senate Bill 2009-S205

Archive: Last Bill Status - In Senate Committee Consumer Protection Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Date of Action	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 06, 2010	referred to consumer protection
Jan 07, 2009	referred to consumer protection

2009-S205 (ACTIVE) - Details

Current Committee:: Senate Consumer Protection
Law Section:: General Business Law
Laws Affected:: Add §394-f, Gen Bus L
Versions Introduced in 2011-2012 Legislative Session:: S2219

2009-S205 (ACTIVE) - Summary

Requires merchants to post notices of recalled products that are offered for sale in their business establishment; provides also for the giving of notice by mail to certain customers; provides for enforcement by the attorney general; authorizes a private right of action.

2009-S205 (ACTIVE) - Sponsor Memo

                                 BILL NUMBER:  S205

 TITLE OF BILL :
An act to amend the general business law, in relation to notification
of recalled products


 PURPOSE OR GENERAL IDEA OF BILL :
To increase consumer access to information about hazardous or
defective products requiring recalls.

 SUMMARY OF SPECIFIC PROVISIONS :
This bill would add a new section 394-f to the General Business Law to
require within thirty days of notification of a recall or of a
defective or hazardous product from a manufacturer, distributor or by
a federal or state agency, the seller of such product shall post such
a notice. The notice must be prominently displayed for at least 90
days. The notice shall include information identifying the product
including but not limited to any serial, model, lot or code number of
the product, information describing the nature of the problem and
information about redemption or refund. In addition to the posting of
the notice, the notice shall also be mailed by the manufacturer or
distributor to all users of the product who have either filed a
warranty registration card, owner's registration card or other similar
form.

Whenever there shall be a violation of these provisions, the Court may
impose a civil penalty of not more than five hundred dollars for each
violation. The court may impose a civil penalty of not more than one
thousand dollars if the violation was knowing or willful.
Additionally, any person who has been injured may bring an action in
his/her name to recover damages or one hundred dollars, whichever is
greater. The Court may increase the award to an amount not to exceed
three times the actual damages up to one thousand dollars if the court
finds that the defendant willfully or knowingly violated these
provisions. The court may also award reasonable attorney's fees to the
prevailing plaintiff.

 JUSTIFICATION :
This bill incorporates recommendations advocated by many including the
federal Consumer Product Safety Commission, FDA, Nation Highway
Traffic Safety Commission, the Center for Auto Safety, PIRG and the
Institute for Injury Reduction. Products (e.g. toys, appliances,
electronic and medical devices, food, drugs and cosmetics) can prove
very dangerous to consumers especially children.  They may be
excessively flammable; they may present a risk of asphyxiation or
electrocution; or, they may be adulterated or misbranded, Because of
health hazard determination, these products may be recalled through
the efforts of many federal and state authorities. While press
releases about the recall of an unsafe product are often issued by
companies who sold and/or manufactured the product and/or by the
appropriate governmental agency, the news of the recall often does not
reach consumers who have purchased the product. Few media outlets
publicize the notice. Thus, the redemption rate remains low. According
to the Consumer Product Safety Commission, the news of a recall often
reaches fewer than 10% of the purchasers of the recalled item within
the first two years after the recall.

While some merchants and or distributors provide point of sale
notification of recalls and mail information to some users, these
practices are not uniformly followed. These notification practices
should be standard. Point of sale notification of hazards or defects
in a product is one of the most effective ways of alerting consumers
to the dangers of a specific product and of ensuring that such item
does not remain in the hands of users. Because consumers tend to
frequent the same stores, they will be likely to view the posters
informing them of the problem and learn of the redemption procedures.
Additionally, those who purchase appliances and other electronic and
medical devices tend to register their purchase and take advantage of
the warranty or guarantee by filing the appropriate card or papers.
Therefore, this list is a vital source of user information which can
be utilized to inform consumers of any recall and further information
about refunds or replacements.

Increased consumer awareness will reduce the numbers of deaths and
injuries associated with defective or hazardous products and thereby,
reduce product liability.

 FISCAL IMPLICATIONS FOR STATE & LOCAL GOVERNMENTS :
None.

 EFFECTIVE DATE :
On the ninetieth day.

2009-S205 (ACTIVE) - Bill Text download pdf

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                   205

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                               (PREFILED)

                             January 7, 2009
                               ___________

Introduced  by  Sen.  KRUGER -- 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 notification of
  recalled products

  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.  RECALLED  PRODUCTS.  1.  FOR  PURPOSES OF THIS SECTION, THE
FOLLOWING TERMS SHALL HAVE THESE MEANINGS:
  (A) "SELLER" MEANS A PERSON, FIRM, CORPORATION, OR OTHER LEGAL  ENTITY
ENGAGED  IN  THE  SALE,  DISPLAY  OR  OFFERING  FOR SALE, OF PRODUCTS OR
MERCHANDISE AT RETAIL, INCLUDING MAIL ORDER  BUSINESSES  AS  DEFINED  IN
SECTION  THREE  HUNDRED NINETY-SIX-M OF THIS ARTICLE AND TELEPHONE SALES
BUSINESSES, AS DEFINED IN SECTION FOUR HUNDRED FORTY-ONE OF THE PERSONAL
PROPERTY LAW.
  (B) "MANUFACTURER" MEANS A PERSON,  FIRM  OR  CORPORATION  ENGAGED  IN
MANUFACTURING,  CONVERTING,  PROCESSING, ALTERING, REPAIRING, FINISHING,
OR PREPARING FOR SALE, OR IMPORTING FOR DISTRIBUTION ANY PRODUCT IN THIS
STATE.
  (C) "DISTRIBUTOR" MEANS A PERSON, FIRM, CORPORATION,  OR  OTHER  LEGAL
ENTITY THAT SELLS OR DISTRIBUTES ANY PRODUCT IN THIS STATE.
  (D)  "CONSUMER"  MEANS ANY NATURAL PERSON WHO PURCHASES A PRODUCT THAT
HAS BEEN RECALLED.
  (E) "RECALL OR RECALLED" SHALL MEAN A CORRECTIVE  OR  REMEDIAL  ACTION
INVOLVING  THE  REPAIR  OR REPLACEMENT OF A PRODUCT OR THE REFUND OF THE
PURCHASE PRICE OF A PRODUCT SOLD BY A MANUFACTURER.
  2. WITHIN THIRTY DAYS OF A SELLER'S RECEIVING NOTIFICATION OF A RECALL
OR NOTICE OF A DEFECTIVE  OR  HAZARDOUS  PRODUCT  FROM  A  MANUFACTURER,
DISTRIBUTOR,  OR  BY A FEDERAL OR STATE AGENCY, SUCH SELLER SHALL PROMI-

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.

                                                           LBD03092-01-9

S. 205                              2

NENTLY AND CONSPICUOUSLY DISPLAY SUCH NOTIFICATION IN  AN  AREA  READILY
ACCESSIBLE TO THE PUBLIC, ADJACENT TO THE MAIN OR MAJOR ENTRANCE OF SUCH
SELLER'S  PREMISES, FOR AT LEAST NINETY DAYS AFTER RECEIPT THEREOF. SUCH
DISPLAY  SHALL  ALSO  BE  REQUIRED WITH RESPECT TO ANY RECALL NOTICE, OR
NOTICE OF DEFECTS OR HAZARDS, VOLUNTARILY INITIATED OR  ISSUED  BY  SUCH
SELLER.
  3.  SUCH  NOTIFICATION  AS REQUIRED BY SUBDIVISION TWO OF THIS SECTION
SHALL INCLUDE INFORMATION IDENTIFYING THE  RECALLED  PRODUCT  INCLUDING,
BUT  NOT  LIMITED TO, ANY SERIAL, MODEL, LOT OR CODE NUMBER OF THE PROD-
UCT, INFORMATION DESCRIBING THE NATURE OF THE  PROBLEM  TO  WARRANT  THE
RECALL AND INFORMATION CONCERNING REDEMPTION.
  4.  IN  ADDITION TO THE REQUIREMENTS DESCRIBED IN SUBDIVISIONS TWO AND
THREE OF THIS  SECTION,  WITHIN  THIRTY  DAYS  OF  A  MANUFACTURER'S  OR
DISTRIBUTOR'S  RECEIVING OR DETERMINING THAT NOTIFICATION OF A RECALL OR
NOTICE OF A DEFECTIVE OR HAZARDOUS PRODUCT MUST  BE  MADE,  SUCH  NOTICE
SHALL  BE MAILED BY SUCH MANUFACTURER OR DISTRIBUTOR TO ALL CONSUMERS OF
SUCH RECALLED PRODUCT OF WHOM THE MANUFACTURER OR DISTRIBUTOR IS  AWARE.
THOSE  WHOM  THE  MANUFACTURER  OR DISTRIBUTOR IS AWARE OF SHALL INCLUDE
THOSE CONSUMERS WHO EITHER FILED A WARRANTY REGISTRATION  CARD,  OWNER'S
REGISTRATION  CARD,  OR OTHER SIMILAR FORM.  THE NOTICE SHALL BE SENT BY
FIRST CLASS MAIL AND SHALL HAVE "SAFETY RECALL NOTICE" PRINTED  IN  BOLD
TYPE ON THE OUTSIDE OF THE ENVELOPE.
  5.  AFTER  RECEIPT  OF  A  RECALL  NOTICE  OR NOTICE OF A DEFECTIVE OR
HAZARDOUS PRODUCT FROM A MANUFACTURER OR DISTRIBUTOR OR FROM  A  FEDERAL
OR  STATE  AGENCY,  A  MAIL  ORDER  BUSINESS AS DEFINED IN SECTION THREE
HUNDRED NINETY-SIX-M OF THIS ARTICLE, SHALL, IN BOLD  TYPE,  PROMINENTLY
DISCLOSE  THE  SAME  TO  CONSUMERS IN AT LEAST TWO SUBSEQUENT ADVERTISE-
MENTS, CATALOGS, CIRCULARS OR PROMOTIONAL MATERIALS. A  TELEPHONE  SALES
BUSINESS  AS  DEFINED  IN SECTION FOUR HUNDRED FORTY-ONE OF THE PERSONAL
PROPERTY LAW SHALL, WITHIN THIRTY DAYS AFTER RECEIPT OF A RECALL  NOTICE
OR  NOTICE  OF  A DEFECTIVE OR HAZARDOUS PRODUCT, NOTIFY THE CONSUMER OF
THE SAME BY FIRST CLASS MAIL. SUCH NOTICE MAY BE COMBINED WITH ANY OTHER
COMMUNICATION PROVIDED THAT THE NOTICE IS PROMINENT AND CONSPICUOUS  AND
IS HEADED WITH "SAFETY RECALL NOTICE" IN BOLD TYPE.
  6.  WHENEVER  THERE  SHALL BE A VIOLATION OF THIS SECTION, 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
VIOLATIONS;  AND  IF IT SHALL APPEAR TO THE SATISFACTION OF THE COURT OR
JUSTICE THAT THE DEFENDANT HAS, IN  FACT,  VIOLATED  THIS  SECTION,  THE
INJUNCTION  MAY  BE  ISSUED  BY  SUCH  COURT  OR  JUSTICE, ENJOINING AND
RESTRAINING ANY FURTHER VIOLATION,  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.  WHENEVER  THE  COURT  SHALL  DETERMINE  THAT  A VIOLATION OF THIS
SECTION HAS OCCURRED, THE COURT MAY IMPOSE A CIVIL PENALTY OF  NOT  MORE
THAN  FIVE  HUNDRED  DOLLARS  FOR EACH VIOLATION. THE COURT MAY IMPOSE A
CIVIL PENALTY OF NOT MORE THAN ONE THOUSAND DOLLARS FOR  EACH  VIOLATION
IF  THE  VIOLATION  IS  KNOWING AND WILLFUL. 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 PRACTICE LAW AND RULES.

S. 205                              3

  7.  ANY PERSON WHO HAS BEEN INJURED BY REASON OF ANY VIOLATION OF THIS
SECTION MAY BRING AN ACTION IN HIS OR HER OWN NAME TO RECOVER HIS OR HER
ACTUAL DAMAGES OR ONE HUNDRED FIFTY DOLLARS, WHICHEVER IS  GREATER.  THE
COURT MAY, IN ITS DISCRETION, INCREASE THE AWARD OF DAMAGES TO AN AMOUNT
NOT TO EXCEED THREE TIMES THE ACTUAL DAMAGES UP TO ONE THOUSAND DOLLARS,
IF  THE  COURT  FINDS THE DEFENDANT WILLFULLY OR KNOWINGLY VIOLATED THIS
SECTION. THE COURT MAY AWARD REASONABLE ATTORNEYS FEES TO  A  PREVAILING
PLAINTIFF.
  S  2.  This  act shall take effect on the ninetieth day after it shall
have become a law.

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Senate Bill S205

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Archive: Last Bill Status - In Senate Committee Consumer Protection Committee

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2009-S205 (ACTIVE) - Details

2009-S205 (ACTIVE) - Summary

2009-S205 (ACTIVE) - Sponsor Memo

2009-S205 (ACTIVE) - Bill Text download pdf

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Sponsored By

Carl Kruger

Archive: Last Bill Status - In Senate Committee Consumer Protection Committee

Actions

2009-S205 (ACTIVE) - Details

2009-S205 (ACTIVE) - Summary

2009-S205 (ACTIVE) - Sponsor Memo

2009-S205 (ACTIVE) - Bill Text download pdf

Comments