Assembly Bill A1835A

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

                                 1835--A
                                                        Cal. No. 482

                       2013-2014 Regular Sessions

                          I N  A S S E M B L Y

                               (PREFILED)

                             January 9, 2013
                               ___________

Introduced  by  M.  of  A. GALEF, ROSENTHAL, ENGLEBRIGHT, WEPRIN -- read
  once and referred to the Committee on Consumer Affairs and  Protection
  --  recommitted to the Committee on Consumer Affairs and Protection in
  accordance with Assembly Rule 3, sec. 2 -- reported  and  referred  to
  the Committee on Codes -- reported from committee, advanced to a third
  reading,  amended  and  ordered  reprinted, retaining its place on the
  order of third reading

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.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
              

                      [ ] is old law to be omitted.
                                                           LBD04747-04-4

A. 1835--A                          2

  (E)  PRODUCTS DEFINED IN SUBDIVISION THREE OF SECTION TWO OF THE AGRI-
CULTURE AND MARKETS LAW SHALL BE EXCLUDED FROM THE  PROVISIONS  OF  THIS
SECTION, PROVIDED, HOWEVER, THAT ANY RETAILER OFFERING FOR SALE OR SELL-
ING SUCH PRODUCTS MAY ISSUE RAINCHECKS PURSUANT TO THIS SECTION.
  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.
  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. 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.
  6. THIS SECTION SHALL NOT APPLY TO A PURCHASE FOR RESALE.
  7. 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.
  8. NO PURCHASER SHALL BE REQUIRED TO PREPAY THE PURCHASE PRICE OR  ANY
PART THEREOF IN ORDER TO OBTAIN A RAINCHECK.
  9. NOTHING IN THIS SECTION 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 one hundred eightieth day after
it shall have become a law.