S T A T E   O F   N E W   Y O R K
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                                   443

                       2011-2012 Regular Sessions

                          I N  A S S E M B L Y

                               (PREFILED)

                             January 5, 2011
                               ___________

Introduced by M. of A. GALEF, ROSENTHAL -- read once and referred to the
  Committee on Consumer Affairs and Protection

AN  ACT  to  amend the general business law, in relation to availability
  for sale of advertised merchandise

  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
397-b to read as follows:
  S  397-B.  AVAILABILITY  FOR  SALE OF ADVERTISED MERCHANDISE.   1.   A
RETAILER WHO ADVERTISES AN ARTICLE OF MERCHANDISE FOR SALE  AT  A  PRICE
WHICH  IS  REDUCED, IN GOOD FAITH, TO A PRICE BELOW THE PRICE SUCH ARTI-
CLES ARE USUALLY SOLD OR OFFERED FOR SALE FOR IN THE STORE, AND DOES NOT
HAVE SUCH ARTICLE AVAILABLE THROUGHOUT THE ADVERTISED PERIOD  SHALL,  ON
THE  REQUEST  OF A PURCHASER OF SUCH ARTICLE, OFFER TO ISSUE A RAINCHECK
UNLESS ONE OR MORE OF THE FOLLOWING SITUATIONS EXISTS:
  (A)  THE ADVERTISEMENT IS MADE IN RELATION TO MAIL  ORDER  MERCHANDISE
AS REGULATED BY SECTION THREE HUNDRED NINETY-SIX-M OF THIS ARTICLE.
  (B)   THE ADVERTISEMENT IS OF AN ARTICLE THAT IS ONE OF A KIND AND THE
ADVERTISEMENT CLEARLY AND CONSPICUOUSLY STATES SUCH FACT.
  (C)  THE ADVERTISEMENT CLEARLY AND CONSPICUOUSLY STATES  THE  SPECIFIC
QUANTITY OF THE ARTICLE AVAILABLE AT THE OUTSET OF THE SALE.
  (D)    THE ADVERTISEMENT CLEARLY AND CONSPICUOUSLY STATES THAT A RAIN-
CHECK IS NOT AVAILABLE.  THIS EXCLUSION MAY ONLY BE USED IF THE  ARTICLE
WILL  NOT  BE OFFERED FOR SALE FOR AT LEAST ONE HUNDRED TWENTY DAYS FROM
THE EXPIRATION DATE OF THE ADVERTISEMENT.
  2.  A RAINCHECK ISSUED PURSUANT TO SUBDIVISION  ONE  OF  THIS  SECTION
SHALL  ENTITLE  THE  HOLDER TO PURCHASE, AT THE STORE ISSUING SUCH RAIN-
CHECK, THE ADVERTISED ARTICLE AT THE ADVERTISED PRICE WITHIN SIXTY  DAYS
FROM  THE DATE OF ISSUANCE OR FOR A PERIOD OF TEN BUSINESS DAYS FROM THE
FIRST DATE OF AVAILABILITY OF THE ARTICLE, WHICHEVER SHALL BE LATER.

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

                                                           LBD00481-01-1

A. 443                              2

  THE ISSUANCE OF SUCH RAINCHECK SHALL CONSTITUTE AN  AGREEMENT  ON  THE
PART  OF  THE  SELLER  TO  SUPPLY  SUCH ARTICLE AT SUCH PRICE.   NOTHING
CONTAINED HEREIN SHALL PROHIBIT A SELLER FROM OFFERING A SIMILAR ARTICLE
OF EQUAL OR GREATER VALUE EITHER  DURING  THE  PERIOD  COVERED  BY  SUCH
ADVERTISEMENT OF THE ARTICLE OR WITHIN SIXTY DAYS FROM THE DATE OF ISSU-
ANCE  OF  THE  RAINCHECK,  OR  THE SELLER AND PURCHASER FROM AGREEING TO
LENGTHEN THE REDEMPTION PERIOD  OF  SUCH  RAINCHECK.  IF  THE  PURCHASER
ACCEPTS SUBSTITUTION, SUCH SUBSTITUTION SHALL CONSTITUTE COMPLIANCE WITH
THE PROVISIONS OF SUBDIVISION ONE OF THIS SECTION.
  3.  THE RAINCHECK SHALL INCLUDE AT LEAST THE FOLLOWING INFORMATION:
  (A)  NAME, ADDRESS AND TELEPHONE NUMBER OF THE ISSUER.
  (B)  DATE OF ISSUANCE.
  (C)  LAST DATE THAT THE RAINCHECK CAN BE REDEEMED.
  (D)  NAME, DESCRIPTION AND QUANTITY DESIRED OF THE ARTICLE.
  (E)  THE ADVERTISED PRICE.
  4.  THE RAINCHECK SHALL CONTAIN THE FOLLOWING NOTICE:
  YOU MAY REDEEM THIS RAINCHECK FOR THE ADVERTISED ITEM DESCRIBED ON THE
OTHER SIDE WITHIN SIXTY DAYS OF ISSUANCE OR FOR A PERIOD OF TEN BUSINESS
DAYS FROM THE FIRST DATE OF AVAILABILITY OF THE ITEM, WHICHEVER SHALL BE
LATER.
  YOU WILL PAY ONLY THE ADVERTISED PRICE FOR THE ITEM.
  YOU ARE UNDER NO OBLIGATION TO BUY THE ITEM.
  5.  EVERY  RETAILER  WHO ADVERTISES SUCH AN ARTICLE OF MERCHANDISE FOR
SALE, WHICH IS NOT AVAILABLE, SHALL NOTIFY THE PURCHASER NO  LATER  THAN
FIFTEEN  DAYS  AFTER  THE RECEIPT OF SUCH MERCHANDISE BY THE SELLER THAT
THE MERCHANDISE IS NOW AVAILABLE FOR PURCHASE.
  6. THERE SHALL BE, WITHIN EACH RETAIL  ESTABLISHMENT  THAT  ADVERTISES
ITEMS  FOR  SALE  AT  A PRICE BELOW THE USUAL SELLING PRICE, A CLEAR AND
CONSPICUOUSLY POSTED SIGN, POSTER OR PLACARD INDICATING  WHERE  A  RAIN-
CHECK CAN BE OBTAINED.
  7.  IT SHALL BE AN AFFIRMATIVE DEFENSE TO AN ALLEGED VIOLATION OF THIS
SECTION THAT THE SELLER WAS UNABLE  TO  HONOR  A  RAINCHECK  WITHIN  THE
REDEMPTION  PERIOD  BECAUSE SUCH SELLER DID NOT RECEIVE A REORDER OF THE
ADVERTISED ARTICLE FROM A  SUPPLIER  THROUGH  NO  FAULT  OF  THE  SELLER
PROVIDED,  HOWEVER,  THAT THE SELLER MUST MAINTAIN RECORDS SUFFICIENT TO
SHOW THAT THE ADVERTISED SALE ITEMS WERE REORDERED IN ADEQUATE TIME  FOR
DELIVERY AND IN SUFFICIENT QUANTITY TO FULFILL RAINCHECK OBLIGATIONS.
  8. THIS SECTION SHALL NOT APPLY TO A PURCHASE FOR RESALE.
  9.  NOTHING  IN  THIS SECTION SHALL BE CONSTRUED TO RELIEVE THE SELLER
FROM ANY OTHER PROVISION OF LAW PROHIBITING THE ADVERTISING OF GOODS  OR
SERVICES WITH THE INTENT NOT TO MEET REASONABLY EXPECTED DEMAND.
  10. NO PURCHASER SHALL BE REQUIRED TO PREPAY THE PURCHASE PRICE OR ANY
PART THEREOF IN ORDER TO OBTAIN A RAINCHECK.
  11. A PERSON WHO VIOLATES ANY PROVISION OF THIS SECTION IS GUILTY OF A
FALSE  AND MISLEADING ADVERTISING PRACTICE AND SUBJECT TO THE PROVISIONS
OF ARTICLE TWENTY-TWO-A OF THIS CHAPTER.
  12. NOTHING HEREIN SHALL BE CONSTRUED TO RESTRICT  THE  POWER  OF  ANY
COUNTY,  CITY,  TOWN  OR  VILLAGE  TO ADOPT AND ENFORCE ADDITIONAL LOCAL
LAWS, ORDINANCES, OR REGULATIONS WHICH  EXCEED  THE  MINIMUM  APPLICABLE
STANDARDS IN THIS SECTION.
  S  2.  This  act  shall take effect on the sixtieth day after it shall
have become a law.