Assembly Bill A10357

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

                                  10357

                          I N  A S S E M B L Y

                              May 24, 2012
                               ___________

Introduced  by M. of A. MILLMAN -- read once and referred to the Commit-
  tee on Aging

AN ACT to amend the general  business  law,  in  relation  to  requiring
  disclosures in advertisements using a senior specific designation

  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
350-b-1 to read as follows:
  S 350-B-1. DISCLOSURES  REQUIRED  IN  ADVERTISEMENTS  USING  A  SENIOR
SPECIFIC  DESIGNATION. 1. FOR PURPOSES OF THIS SECTION, "SENIOR SPECIFIC
DESIGNATION" SHALL MEAN A TITLE, PROFESSIONAL  DESIGNATION,  CREDENTIAL,
CERTIFICATION, OR PROFESSIONAL DESCRIPTION THAT INDICATES THE PERSON HAS
EXPERTISE OR TRAINING IN ISSUES SPECIFICALLY RELATED TO SENIORS IN THEIR
FIELD AND HAS:
  (A) BEEN REGISTERED OR LICENSED BY A MUNICIPALITY; OR
  (B)  RECEIVED  PERMISSION TO USE SUCH TITLE, PROFESSIONAL DESIGNATION,
OR PROFESSIONAL DESCRIPTION FROM AN INDEPENDENT  OR  INDUSTRY  ORGANIZA-
TION.
  2.  (A)  ANY PERSON OR BUSINESS WHO USES A SENIOR SPECIFIC DESIGNATION
IN MAKING REPRESENTATIONS FOR THE PURPOSE  OF  INDUCING,  OR  WHICH  ARE
LIKELY  TO  INDUCE, DIRECTLY OR INDIRECTLY, THE PURCHASE OF THE INDIVID-
UAL'S SERVICES SHALL CLEARLY AND PROMINENTLY DISCLOSE, IN ANY ADVERTISE-
MENT AND IN WRITING TO ANY PROSPECTIVE CLIENT AT THE INITIAL MEETING  OR
CONSULTATION  WITH  SUCH PROSPECTIVE CLIENT, THE BASIS OR SOURCE OF SUCH
SENIOR SPECIFIC  DESIGNATION,  INCLUDING  WHETHER  THE  SENIOR  SPECIFIC
DESIGNATION  WAS  CREATED  BY  THE  PERSON OR BUSINESS USING IT. FOR THE
PURPOSES OF THIS SECTION, "CLEARLY AND PROMINENTLY" MEANS:
  (1) IN WRITTEN COMMUNICATIONS, INCLUDING PRINT AND THOSE MADE  THROUGH
AN ELECTRONIC MEDIUM (SUCH AS VIDEO AND INTERACTIVE MEDIA INCLUDING, BUT
NOT LIMITED TO, THE INTERNET, ONLINE SERVICES, AND ELECTRONIC MAIL), THE
MESSAGE  SHALL BE IN A TYPE SIZE SUFFICIENTLY NOTICEABLE FOR AN ORDINARY
CONSUMER TO READ AND COMPREHEND IT, IN  TYPE  THAT  CONTRASTS  WITH  THE
BACKGROUND AGAINST WHICH IT APPEARS; AND

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD15935-01-2
              

A. 10357                            2

  (2) IN ORAL COMMUNICATIONS, THE MESSAGE SHALL BE DELIVERED IN A VOLUME
SUFFICIENT  FOR AN ORDINARY CONSUMER TO HEAR IT AND COMPREHEND IT.  SUCH
MESSAGE SHALL BE IN UNDERSTANDABLE LANGUAGE AND SYNTAX REGARDLESS OF HOW
THE MESSAGE IS DISSEMINATED.
  (B) IF ANY COMMUNICATION IS PRESENTED SOLELY THROUGH ORAL, WRITTEN, OR
VISUAL MEANS, THE MESSAGE DISSEMINATED PURSUANT TO PARAGRAPH (A) OF THIS
SUBDIVISION SHALL BE MADE THROUGH THE SAME MEANS.
  (C)  NO PERSON OR BUSINESS SHALL MAKE ANY COMMUNICATION THAT MITIGATES
ANY MESSAGE DISSEMINATED PURSUANT TO PARAGRAPH (A) OF  THIS  SUBDIVISION
OR  THAT  IS CONTRARY TO OR INCONSISTENT WITH SUCH MESSAGE. THE REQUIRE-
MENTS OF THIS SUBDIVISION SUPPLEMENT, AND  SHALL  NOT  BE  CONSTRUED  TO
LIMIT, THE OBLIGATIONS OF ANY PROFESSIONAL REGISTERED OR LICENSED PURSU-
ANT  TO  ANY  OTHER SECTION OF LAW AND REGULATIONS THEREUNDER, NOR SHALL
THEY BE CONSTRUED TO AUTHORIZE THE PRACTICE OF ANY  LICENSED  PROFESSION
NOR THE OFFER OF PROFESSIONAL SERVICES BY ANY UNLICENSED PERSON.
  3.  IN  ADDITION  TO  ANY  CIVIL PENALTY AVAILABLE UNDER SECTION THREE
HUNDRED FIFTY-D OF THIS ARTICLE,  WHENEVER  THERE  SHALL  BE  AN  ACTUAL
VIOLATION  OF  THIS  SECTION,  AN  APPLICATION MAY BE MADE TO A COURT OR
JUSTICE HAVING JURISDICTION TO ISSUE AN INJUNCTION, UPON NOTICE  TO  THE
DEFENDANT OF NOT LESS THAN FIVE DAYS, TO ENJOIN AND RESTRAIN SUCH ACTUAL
OR  THREATENED  VIOLATION. IF IT SHALL APPEAR TO THE SATISFACTION OF THE
COURT OR JUSTICE THAT THE DEFENDANT IS IN  FACT  ASSUMING,  ADOPTING  OR
USING  SUCH  SENIOR SPECIFIC DESIGNATION OR IS ABOUT TO ASSUME, ADOPT OR
USE SUCH SENIOR SPECIFIC DESIGNATION AND THAT THE  ASSUMPTION,  ADOPTION
OR  USE  OF  SUCH SENIOR SPECIFIC DESIGNATION MAY DECEIVE OR MISLEAD THE
PUBLIC, AN INJUNCTION MAY BE ISSUED BY SAID COURT OR  JUSTICE  ENJOINING
AND  RESTRAINING  SUCH ACTUAL VIOLATION WITHOUT REQUIRING PROOF THAT ANY
PERSON HAS IN FACT BEEN DECEIVED OR MISLED THEREBY.
  S 2. This act shall take effect immediately.