Assembly Bill A2973

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

                                  2973

                       2013-2014 Regular Sessions

                          I N  A S S E M B L Y

                            January 22, 2013
                               ___________

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

AN ACT to amend the general business law, in  relation  to  establishing
  the contact lens consumer protection act

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Short title. This act shall be known and may  be  cited  as
the "contact lens consumer protection act".
  S  2. Legislative intent. The legislature hereby finds and declares it
necessary and in good policy of the state  to  protect  the  health  and
safety of consumers while allowing consumers the opportunity and freedom
to  choose the retailer of his or her choice. This act ensures consumers
are not unreasonably denied the opportunity to  choose  a  retailer  and
consumers remain protected.
  S  3. The general business law is amended by adding a new article 27-B
to read as follows:
                               ARTICLE 27-B
                    CONSUMER CONTACT LENS PROTECTION
SECTION 429-A. DEFINITIONS.
        429-B. CERTIFICATION  OF   AVAILABILITY   OF   CONTACT   LENSES;
                 EXCEPTIONS.
        429-C. VIOLATIONS; PENALTIES.
  S  429-A.  DEFINITIONS.  THE  FOLLOWING TERMS SHALL HAVE THE FOLLOWING
MEANINGS WHEN USED IN THIS ARTICLE:
  1. THE TERM "ALTERNATIVE CHANNELS OF DISTRIBUTION" SHALL MEAN ANY MAIL
ORDER COMPANY, INTERNET  RETAILER,  PHARMACY,  BUYING  CLUB,  DEPARTMENT
STORE  OR MASS MERCHANDISE OUTLET, WITHOUT REGARD TO WHETHER IT IS ASSO-
CIATED WITH A PRESCRIBER, UNLESS THE ACCOUNT MEETS THE DEFINITION  OF  A
COMPETITOR AS PROVIDED FOR IN THIS SECTION.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD06862-01-3

A. 2973                             2
              

  2.  THE  TERM  "COMPETITOR"  SHALL  MEAN  AN  ENTITY THAT MANUFACTURES
CONTACT LENSES AND SELLS THOSE LENSES WITHIN THE STATE IN DIRECT  COMPE-
TITION WITH ANY OTHER MANUFACTURER.
  3.  THE  TERM  "MANUFACTURER" SHALL MEAN A MANUFACTURER AND ITS PARENT
COMPANIES, SUBSIDIARIES, AFFILIATES, SUCCESSORS AND ASSIGNS.
  4. THE TERM "PRESCRIBER" SHALL MEAN AN INDIVIDUAL LICENSED OR  AUTHOR-
IZED TO PRESCRIBE CONTACT LENSES UNDER THIS ARTICLE.
  S  429-B. CERTIFICATION OF AVAILABILITY OF CONTACT LENSES; EXCEPTIONS.
1. BEGINNING JULY  FIRST,  TWO  THOUSAND  THIRTEEN,  A  MANUFACTURER  OF
CONTACT LENSES DOING BUSINESS IN THE STATE SHALL CERTIFY BY AFFIDAVIT TO
THE  ATTORNEY GENERAL THOSE BRANDS OF CONTACT LENSES PRODUCED, MARKETED,
DISTRIBUTED OR SOLD BY THE MANUFACTURER  IN  THE  STATE  THAT  ARE  MADE
AVAILABLE  IN  A COMMERCIALLY REASONABLE AND NONDISCRIMINATORY MANNER TO
(A) PRESCRIBERS, (B) ENTITIES ASSOCIATED WITH PRESCRIBERS AND (C) ALTER-
NATIVE CHANNELS OF DISTRIBUTION. NOTWITHSTANDING ANY OTHER PROVISION  OF
LAW,  A MANUFACTURER SHALL ONLY SELL, MARKET OR DISTRIBUTE LENSES IN THE
STATE THAT HAVE BEEN CERTIFIED UNDER THIS SECTION.
  2. THIS SECTION SHALL NOT APPLY TO:
  (A) RIGID GAS PERMEABLE LENSES;
  (B) BITORIC GAS PERMEABLE LENSES;
  (C) BIFOCAL GAS PERMEABLE LENSES;
  (D) KERATOCONUS LENSES;
  (E) CUSTOM SOFT TORIC LENSES THAT ARE MANUFACTURED FOR  AN  INDIVIDUAL
PATIENT AND ARE NOT MASS MARKETED OR MASS PRODUCED; AND
  (F)  CUSTOM  DESIGNED  LENSES  THAT ARE MANUFACTURED FOR AN INDIVIDUAL
PATIENT AND ARE NOT MASS MARKETED OR MASS PRODUCED.
  3. ANY TIME A CONTACT LENS BRAND CEASES TO  BE  MADE  AVAILABLE  AFTER
JULY  FIRST,  TWO  THOUSAND THIRTEEN, THE MANUFACTURER SHALL IMMEDIATELY
CERTIFY THAT FACT BY AFFIDAVIT TO THE ATTORNEY GENERAL.
  4. NOTHING IN THIS SECTION SHALL BE INTENDED OR CONSTRUED TO REQUIRE A
MANUFACTURER TO:
  (A) SELL TO A COMPETITOR;
  (B) SELL CONTACT LENSES TO  DIFFERENT  CONTACT  LENS  DISTRIBUTORS  OR
CUSTOMERS AT THE SAME PRICE;
  (C)  OPEN OR MAINTAIN ANY ACCOUNT FOR A CONTACT LENS SELLER WHO IS NOT
IN SUBSTANTIAL COMPLIANCE WITH APPLICABLE STATE AND FEDERAL LAWS REGARD-
ING THE SALE OF CONTACT LENSES;
  (D) DECIDE WHETHER A LOW-VOLUME ACCOUNT WITH A CONTACT LENS SELLER  IS
A DIRECT ACCOUNT OR HANDLED THROUGH A DISTRIBUTOR; OR
  (E)  SELL  TO CUSTOMERS IN ALL GEOGRAPHIC AREAS, LENSES THAT ARE BEING
TEST MARKETED ON A LIMITED BASIS IN RESTRICTED GEOGRAPHIC AREAS.
  S 429-C. VIOLATIONS; PENALTIES.   1.  ANY  PERSON  WHO  KNOWINGLY  AND
INTENTIONALLY VIOLATES THIS SECTION IS GUILTY OF A MISDEMEANOR.
  2. THE ATTORNEY GENERAL MAY BRING A CIVIL ACTION OR SEEK AN INJUNCTION
AND  A  CIVIL  PENALTY  AGAINST  A  PERSON,  ENTITY  OR MANUFACTURER WHO
VIOLATES THIS SECTION.
  S 4. This act shall take effect immediately.