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

                                  8379

                       2011-2012 Regular Sessions

                          I N  A S S E M B L Y

                              June 15, 2011
                               ___________

Introduced by M. of A. DINOWITZ -- read once and referred to the Commit-
  tee on Consumer Affairs and Protection

AN  ACT  to amend the general business law, in relation to requiring the
  labeling of retail products or packages containing a  radio  frequency
  identification tag

  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
12-C to read as follows:
                               ARTICLE 12-C
                RADIO FREQUENCY IDENTIFICATION TAG LABELS
SECTION 219. RADIO FREQUENCY IDENTIFICATION TAG LABELS.
  S 219. RADIO FREQUENCY IDENTIFICATION TAG LABELS. 1.  DEFINITIONS.  AS
USED IN THIS ARTICLE, THE FOLLOWING TERMS SHALL HAVE THE FOLLOWING MEAN-
INGS:
  A.  "PACKAGE"  MEANS  ANY  TYPE OF CONTAINER, ARTICLE, OR ITEM THAT IS
USED TO CONTAIN OR HOLD A RETAIL PRODUCT IN THE FORM IN WHICH THE RETAIL
PRODUCT IS SOLD TO CONSUMERS.
  B. "RADIO FREQUENCY IDENTIFICATION" MEANS  ANY  TECHNOLOGY  THAT  USES
RADIO  WAVES OR OTHER WIRELESS MEANS TO TRANSMIT IDENTIFYING INFORMATION
BETWEEN A TAG, BADGE, OR OTHER DEVICE  AND  A  READER  WITHOUT  PHYSICAL
CONTACT.
  C.  "RADIO  FREQUENCY  IDENTIFICATION  TAG"  MEANS  A  DEVICE  THAT IS
ATTACHED TO, EMBEDDED IN, OR MADE PART OF A RETAIL PRODUCT OR ITS  PACK-
AGE  AND THAT USES RADIO FREQUENCY IDENTIFICATION TECHNOLOGY TO TRANSMIT
A UNIQUE NUMBER OR IDENTIFIER TO A READER.
  D. "READER" MEANS A DEVICE THAT IS CAPABLE OF  USING  RADIO  WAVES  OR
OTHER WIRELESS MEANS TO COMMUNICATE WITH, AND READ THE INFORMATION TRAN-
SMITTED BY, A RADIO FREQUENCY IDENTIFICATION TAG.
  2.  ANY  PERSON  OR  ENTITY  THAT  PRODUCES,  MANUFACTURES,  PACKAGES,
DISTRIBUTES, OR SELLS A RETAIL PRODUCT  AND  CAUSES  A  RADIO  FREQUENCY

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD00935-01-1
              

A. 8379                             2

IDENTIFICATION  TAG  TO BE ATTACHED TO, EMBEDDED IN, OR MADE PART OF THE
RETAIL PRODUCT OR ITS PACKAGE SHALL LABEL SUCH PRODUCT OR ITS  PACKAGING
WITH A NOTICE REGARDING THE EXISTENCE OF THE RADIO FREQUENCY IDENTIFICA-
TION TAG.
  A.  IT  SHALL  BE  UNLAWFUL  FOR ANY RETAILER, WHO KNOWS OR REASONABLY
SHOULD KNOW, THAT A RETAIL PRODUCT  OR  ITS  PACKAGE  CONTAINS  A  RADIO
FREQUENCY  IDENTIFICATION  TAG TO SELL SUCH RETAIL PRODUCT TO A CONSUMER
UNLESS THE RETAIL PRODUCT OR ITS PACKAGE BEARS  THE  LABEL  REQUIRED  BY
THIS SECTION.
  B. THE LABEL REQUIRED PURSUANT TO THIS SECTION MUST, AT A MINIMUM:
  (1)  INFORM  THE CONSUMER THAT THE RETAIL PRODUCT OR ITS PACKAGE HAS A
RADIO FREQUENCY IDENTIFICATION TAG WHICH CAN TRANSMIT UNIQUE IDENTIFICA-
TION INFORMATION BEFORE AND AFTER PURCHASE OF THE RETAIL PRODUCT;
  (2) BE IN A CONSPICUOUS LOCATION ON THE RETAIL PRODUCT OR ITS PACKAGE;
AND
  (3) BE PRINTED IN A SIZE OF TYPE AND IN A MANNER THAT  IS  CONSPICUOUS
AND CONTRASTS WITH THE BACKGROUND ON WHICH THE NOTICE APPEARS.
  3.  ANY  PERSON, FIRM, CORPORATION, LIMITED LIABILITY COMPANY, ASSOCI-
ATION, OR OTHER ENTITY WHO VIOLATES THIS SECTION SHALL BE SUBJECT  TO  A
CIVIL  PENALTY  OF  NOT  LESS THAN ONE HUNDRED DOLLARS NOR MORE THAN ONE
THOUSAND DOLLARS FOR EACH SUCH  VIOLATION.  EACH  SALE  OF  AN  ITEM  IN
VIOLATION OF THIS SECTION SHALL CONSTITUTE A SEPARATE VIOLATION.
  4. WHENEVER THERE SHALL BE 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 CONTIN-
UANCE 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.  WHENEVER  THE  COURT  SHALL  DETERMINE  THAT  A VIOLATION OF THIS
SECTION HAS OCCURRED, THE COURT MAY IMPOSE A CIVIL PENALTY  PURSUANT  TO
SUBDIVISION  THREE OF THIS SECTION. 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 2. This act shall  take  effect  on  the  first  of  September  next
succeeding the date on which it shall have become a law.