Senate Bill S443

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

                                   443

                       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 the honest  use
  of refund and rebate forms act

  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 article
39-DDD to read as follows:
                              ARTICLE 39-DDD
                HONEST USE OF REFUND AND REBATE FORMS ACT
SECTION 898. SHORT TITLE.
        898-A. DEFINITIONS.
        898-B. DISPLAY OF EXPIRED MANUFACTURER'S REFUND AND REBATE FORMS
               PROHIBITED.
        898-C. AVAILABILITY OF MANUFACTURER'S REFUND OR REBATE FORMS.
        898-D. PENALTIES.
        898-E. AFFIRMATIVE DEFENSES.
  S 898. SHORT TITLE. THIS ARTICLE SHALL BE KNOWN AND MAY  BE  CITED  AS
THE "HONEST USE OF REFUND AND REBATE FORMS ACT".
  S 898-A. DEFINITIONS. WHENEVER USED IN THIS ARTICLE:
  (A)  "MANUFACTURER'S REFUND" SHALL MEAN A RETURN OF THE TOTAL PURCHASE
PRICE BY A MANUFACTURER TO A PURCHASER OF AN ITEM.
  (B) "MANUFACTURER'S REBATE" SHALL MEAN A RETURN BY A MANUFACTURER TO A
PURCHASER OF AN ITEM OF ANY PORTION OF THE SALES PRICE OR OF A  SPECIFIC
MONETARY AMOUNT.
  (C)  "FORM" SHALL MEAN THE AUTHORIZED FORM REQUIRED TO BE COMPLETED BY
THE PURCHASER OF AN ITEM AS A PREREQUISITE TO A MANUFACTURER'S REFUND OR
REBATE.
  S 898-B.  DISPLAY OF EXPIRED MANUFACTURER'S REFUND  AND  REBATE  FORMS
PROHIBITED.  (A) IT SHALL BE UNLAWFUL FOR ANY PERSON, FIRM, PARTNERSHIP,

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

                                                           LBD03609-01-9

S. 443                              2

CORPORATION OR ASSOCIATION: (I) TO CAUSE TO BE ADVERTISED  BY MEANS OF A
NEWSPAPER ADVERTISEMENT, CIRCULAR,  TELEVISION  OR  RADIO  ANNOUNCEMENT,
OFF-THE-PREMISES PROMOTION OR OTHERWISE, THE AVAILABILITY OF; OR (II) TO
DISPLAY,  PROMOTE OR DISTRIBUTE WITHIN THE PREMISES OF A RETAIL STORE OR
OTHERWISE MAKE AVAILABLE THEREIN; ANY MANUFACTURER'S  REFUND  OR  REBATE
FORM WHICH HAS EXPIRED AND WHICH WILL NOT BE HONORED BY THE MANUFACTURER
AS A RESULT OF SUCH EXPIRATION.
  (B)  THE PROVISIONS OF SUBDIVISION (A) OF THIS SECTION SHALL NOT APPLY
TO FORMS POSTED ON A BULLETIN BOARD NEAR A STORE ENTRANCE, PROVIDED THAT
SUCH PERSON, FIRM, PARTNERSHIP, CORPORATION OR ASSOCIATION CONSPICUOUSLY
POSTS AND MAINTAINS A PROMINENT SIGN ADJACENT  TO  THE  BULLETIN  BOARD,
CONTAINING  THE FOLLOWING LEGEND IN CAPITAL LETTERS IN BOLD PRINT WITH A
CONTRASTING BACKGROUND OF AT LEAST EIGHT-POINT TYPE: "PLEASE NOTE:  THIS
STORE  IS  NOT  RESPONSIBLE  FOR  EXPIRED REFUND OR REBATE OFFERS POSTED
HERE. PLEASE CHECK THE EXPIRATION DATE ON YOUR FORM."  IN THE ABSENCE OF
THE REQUIRED SIGN, THE PROVISIONS OF SUBDIVISION  (A)  OF  THIS  SECTION
SHALL  APPLY  TO  ALL  REFUND OR REBATE OFFERS POSTED ON SUCH A BULLETIN
BOARD.
  (C) THE PROVISIONS OF SUBDIVISION (A) OF THIS SECTION SHALL NOT  APPLY
TO REFUND OR REBATE FORMS WHICH ARE PRINTED ON OR CONTAINED WHOLLY WITH-
IN  PACKAGES,  OR WHICH ARE CONTAINED ON THE INSIDE OF PRODUCT LABELS OR
OTHERWISE ARE NOT READILY VISIBLE TO THE  CONSUMER,  PROVIDED  THAT  THE
AVAILABILITY  OF  A REFUND OR REBATE FORM IS NOT OTHERWISE ADVERTISED ON
THE PACKAGE. IF THE AVAILABILITY OF A REFUND OR REBATE FORM IS OTHERWISE
ADVERTISED ON THE PACKAGE, THE PROVISIONS OF  SUBDIVISION  (A)  OF  THIS
SECTION  SHALL  APPLY; PROVIDED, HOWEVER, THAT WHEN THE REFUND OR REBATE
FORMS PRINTED ON OR CONTAINED WHOLLY WITHIN  PACKAGES  HAVE  EXPIRED,  A
RETAILER MAY POST A SHELF SIGN OR SIGNS AS CLOSE AS POSSIBLE TO THE ITEM
OR  ITEMS INDICATING THAT SUCH REFUND OR REBATE FORMS HAVE EXPIRED. SUCH
RETAILER SHALL NOT BE  HELD  LIABLE  FOR  THE  PENALTIES  PRESCRIBED  IN
SECTION  EIGHT  HUNDRED  NINETY-EIGHT-D  OF THIS ARTICLE IF SUCH SIGN OR
SIGNS HAVE BEEN POSTED IN CONFORMANCE WITH THIS SECTION.
  S 898-C. AVAILABILITY OF MANUFACTURER'S REFUND OR REBATE FORMS.    (A)
ANY  PERSON,  FIRM,  PARTNERSHIP,  CORPORATION OR ASSOCIATION: (I) WHICH
CAUSES TO BE ADVERTISED BY MEANS OF A NEWSPAPER ADVERTISEMENT, CIRCULAR,
TELEVISION OR RADIO ANNOUNCEMENT OR OFF-THE-PREMISES PROMOTION OR OTHER-
WISE, THE AVAILABILITY OF; OR (II) WHICH DISPLAYS, PROMOTES OR  DISTRIB-
UTES  WITHIN THE PREMISES OF A RETAIL STORE OR OTHERWISE MAKES AVAILABLE
THEREIN; A MANUFACTURER'S REFUND OR REBATE FORM SHALL MAKE AVAILABLE THE
APPROPRIATE MANUFACTURER'S REFUND OR REBATE FORM TO THE PURCHASER AT THE
TIME OF SALE.
  (B) THE SELLER MAY, AT ITS  DISCRETION,  OFFER  A  SUBSTITUTE  TO  THE
PURCHASER EXCEPT THAT THE SUBSTITUTE SHALL NOT BE A SUBSTITUTE REFUND OR
REBATE  FORM  UNLESS THE USE OF SUCH FORMS IS AUTHORIZED BY THE MANUFAC-
TURER. IF THE SUBSTITUTE IS SATISFACTORY TO THE PURCHASER, THE  SELLER'S
OBLIGATIONS  PURSUANT  TO THE PROVISIONS OF THIS ARTICLE SHALL BE DEEMED
TO BE FULFILLED.
  S 898-D. PENALTIES. (A) ANY VIOLATION OF A PROVISION OF SECTION  EIGHT
HUNDRED  NINETY-EIGHT-B  OR EIGHT HUNDRED NINETY-EIGHT-C OF THIS ARTICLE
SHALL BE SUBJECT TO A CIVIL PENALTY OF NOT LESS THAN ONE HUNDRED DOLLARS
AND NOT MORE THAN ONE THOUSAND DOLLARS.
  (B) FOR THE PURPOSES OF THIS SECTION, THE UNLAWFUL DISPLAY OF A  GROUP
OF  IDENTICAL  REFUND  OR  REBATE  FORMS  SHALL  CONSTITUTE BUT A SINGLE
VIOLATION, AND THE UNLAWFUL DISPLAY OF  DIFFERENT  GROUPS  OF  IDENTICAL
REFUND  OR  REBATE  FORMS SHALL CONSTITUTE A SEPARATE VIOLATION FOR EACH
GROUP SO DISPLAYED.

S. 443                              3

  S 898-E. AFFIRMATIVE DEFENSES. IT SHALL BE AN AFFIRMATIVE DEFENSE TO A
VIOLATION OF SECTION EIGHT HUNDRED NINETY-EIGHT-C OF  THIS  ARTICLE  IF:
(A)  THE SELLER CAN DEMONSTRATE THAT HE OR SHE HAD AN ADEQUATE NUMBER OF
REFUND OR REBATE FORMS SUFFICIENT TO MEET REASONABLY  ANTICIPATED  NEEDS
FOR  SUCH FORMS DURING THE PARTICULAR OFFER; OR (B) THE MANUFACTURER CAN
DEMONSTRATE THAT AN ADEQUATE NUMBER OF REFUND OR REBATE FORMS SUFFICIENT
TO MEET REASONABLY ANTICIPATED NEEDS FOR SUCH FORMS DURING  THE  PARTIC-
ULAR OFFER WAS MADE AVAILABLE TO SELLERS PARTICIPATING IN SUCH OFFER.
  S  2.  This  act  shall take effect on the sixtieth day after it shall
have become a law.