NY State Senate Bill 2017-S8046

Senate Bill S8046

2017-2018 Legislative Session

Regulates and requires issuance of raincheck by retailer where advertised merchandise is not available for sale

download bill text pdf

Archive: Last Bill Status - In Senate Committee Consumer Protection Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Mar 22, 2018	referred to consumer protection

2017-S8046 (ACTIVE) - Details

See Assembly Version of this Bill:: A7941
Current Committee:: Senate Consumer Protection
Law Section:: General Business Law
Laws Affected:: Add §397-b, Gen Bus L
Versions Introduced in Other Legislative Sessions:: 2009-2010: A10778
2011-2012: A443
2013-2014: A1835
2015-2016: A5710
2019-2020: S1711, A1498
2021-2022: S4813, A6458
2023-2024: S4130, A4620

2017-S8046 (ACTIVE) - Summary

Mandates that any article of merchandise advertised, and not available throughout advertised period, must be supplied at advertised price by seller within sixty days from the date the purchaser of such article is notified of its availability; specifies terms of raincheck and limited exceptions.

2017-S8046 (ACTIVE) - Sponsor Memo

                                
 
BILL NUMBER: S8046

SPONSOR: CARLUCCI
 
TITLE OF BILL:  An act to amend the general business law, in relation
to availability for sale of advertised merchandise

 
PURPOSE OR GENERAL IDEA OF BILL:

This legislation relates to the availability of merchandise at a price
lower than it is normally sold for, and outlines a detailed policy in
relation to rain-checks.

 
SUMMARY OF SPECIFIC PROVISIONS:

Section 1. The General Business Law is amended by adding a new section
397-b.

§ 397-b. Availability for sale of advertised merchandise.

1. Retailers who advertises merchandise at a reduced price, and do not
have the item available during the advertised period, must by the

request of a purchaser, offer to issue a rain-check unless: (a) the
advertisement is in relation to mail order merchandise (b) the adver-
tisement is of an article that is a one of a kind and the ad clearly
states that (c) the advertisement states that a specific quantity is
available (d) the advertisement states a rain-check is not available (e)
the products are defined under subdivision 3 of section 2 of the Agri-
culture and Markets Law.

2. The rain-check shall entitle the holder to purchase the advertised
article within 60 days from the date of issuance, or for a period of 10
business days, from the first date of availability of the item, whichev-
er shall be later. Substitute items can be offered should the purchaser
accept the substitution.

3. The rain-check must include: (a) name, address, and telephone number
of issuer, (b) date of issuance, (c) expiration date, (d) name,
description and quantity of article, and (e) the advertised price.

4. The rain-check must contain the following notice: You may redeem this
rain-check 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 this item. You are under no obli-
gation to buy the item.

5. It shall be an affirmative defense to an alleged violation if the
seller was unable to honor the rain-check because the seller did not
receive a reorder from a supplier through no fault of the seller
provided, however, that the seller maintain records sufficient of the
situation.

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 good or
services with the intent not to meet reasonably expected demand.


8. No purchaser shall be required to prepay in order to obtain a rain-
check.

9. Nothing in this section shall be construed to restrict the power of
any county, city, town or village to adopt and enforce additional laws,
which exceed the minimum applicable standards in this section.

Section 2. Establishes the effective date.

 
JUSTIFICATION:

The practice of "bait and switch" advertising which is deceptive within
the statutory proscription (as in Section 349 (a) of the General Busi-
ness Law) involves an advertisement and offer of a product which is not
bona fide because what the merchant actually has on hand and intends to
sell is significantly different from that which drew the potential
customer in, and, hence, is a practice which does not include conduct of
a seller in continually modifying proposed terms of a contract with the
buyer as the negotiations proceed. This judicial decision was set forth
in GOLDBERG V.  MANBATIAN LINCOLN MERCURY 91985), and is taken from
McKinney's.  Enactment of this law would enable New York State to
enforce long-standing Federal Trade Commission regulation and policy,
court orders, and a 1972 New York City Regulation on bait advertising.

Although many retailers have implemented rain-check policies with the
interests of the consumer in mind, some retailers either do not have
policies or employ policies that do not favor the consumer. The result
is that many consumers view rain-check policies with jaundiced eyes. The
credibility of many retailers' rain-check policies have eroded, creating
an industry-wide crisis of confidence.

Neither the consumer nor the retailer wins. Several studies have found
that the Federal Trade Commission policies, New York City regulations,
bait advertising guides, and general orders have not increased compli-
ance with the premise that when supplies of an advertised item will not
meet anticipated demand, the advertisement should disclose that fact.

This bill would serve to statutorily recognize these current rules and
regulations and provide for greater enforcement of them. Indeed, consum-
ers would receive the protection they deserve from deceptive bait and
switch advertising.

 
PRIOR LEGISLATIVE HISTORY:

A. 5710 of 2015/216
A. 1835-A of 2013/2014
A. 443 of 2011/2012
A. 10778 and S. 4445 of 2009/2010

 
FISCAL IMPLICATIONS:

No fiscal implications are related to this legislation.

 
EFFECTIVE DATE:
This act shall take effect on the one hundred eightieth day after it
shall have become a law.

2017-S8046 (ACTIVE) - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   8046
 
                             I N  S E N A T E
 
                              March 22, 2018
                                ___________
 
 Introduced  by Sen. CARLUCCI -- read twice and ordered printed, and when
   printed to be committed to the Committee on Consumer 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:
   § 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.
   (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.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets

                       [ ] is old law to be omitted.
                                                            LBD02417-01-7

 S. 8046                             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.  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.
   § 2. This act shall take effect on the one hundred eightieth day after
 it shall have become a law.

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