S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   2402
 
                        2017-2018 Regular Sessions
 
                             I N  S E N A T E
 
                             January 13, 2017
                                ___________
 
 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 the price goug-
   ing of pharmaceuticals
 
   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
 396-rrr to read as follows:
   §  396-RRR.  PRICE  GOUGING; PHARMACEUTICALS.   1. FOR THE PURPOSES OF
 THIS SECTION, "PHARMACEUTICALS" SHALL MEAN ANY COMPOUND MANUFACTURED FOR
 SALE AS A MEDICINAL DRUG.
   2. NO MANUFACTURER OR WHOLESALER  OF  PHARMACEUTICALS  SHALL  SELL  OR
 OFFER  TO  SELL PHARMACEUTICALS FOR AN AMOUNT WHICH REPRESENTS AN UNCON-
 SCIONABLY EXCESSIVE PRICE. WHETHER A PRICE IS  UNCONSCIONABLY  EXCESSIVE
 IS A QUESTION OF LAW FOR THE COURT.
   3.  THE  COURT'S  DETERMINATION  THAT  A VIOLATION OF THIS SECTION HAS
 OCCURRED SHALL BE BASED ON ANY OF THE FOLLOWING FACTORS:
   (A) THAT THE AMOUNT OF THE EXCESS IN PRICE IS UNCONSCIONABLY EXTREME;
   (B) THAT THERE WAS AN EXERCISE OF UNFAIR  LEVERAGE  OR  UNCONSCIONABLE
 MEANS; OR
   (C) A COMBINATION OF BOTH FACTORS.
   4.  IN  ANY COURT PROCEEDING COMMENCED PURSUANT TO THIS SECTION, PROOF
 THAT A VIOLATION OF THIS SECTION HAS  OCCURRED  SHALL  INCLUDE  EVIDENCE
 THAT:
   (A) THE AMOUNT CHARGED REPRESENTS A GROSS DISPARITY BETWEEN THE MARKET
 PRICE  OF  THE  PHARMACEUTICAL THAT LED TO THE ACTION UNDER THIS SECTION
 AND THE PRICE OF THE SAME PHARMACEUTICAL OVER THE SIX  MONTHS  PRIOR  TO
 THE PRICE CHANGE THAT LED TO THE ACTION UNDER THIS SECTION; OR
   (B) THE AMOUNT CHARGED GROSSLY EXCEEDED THE PRICE AT WHICH THE PHARMA-
 CEUTICALS WERE READILY OBTAINABLE BY OTHER PURCHASERS.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD02407-01-7
              

 S. 2402                             2
 
   5.  A  DEFENDANT MAY REBUT A PRIMA FACIE CASE WITH EVIDENCE THAT ADDI-
 TIONAL COSTS NOT WITHIN THE CONTROL OF THE DEFENDANT WERE IMPOSED ON THE
 DEFENDANT.
   6.  WHERE A VIOLATION OF THIS SECTION IS ALLEGED TO HAVE OCCURRED, THE
 ATTORNEY GENERAL MAY APPLY IN THE NAME OF THE PEOPLE OF THE STATE OF NEW
 YORK TO THE SUPREME COURT WITHIN THE JUDICIAL  DISTRICT  IN  WHICH  SUCH
 VIOLATION  IS  ALLEGED  TO HAVE OCCURRED, ON NOTICE OF FIVE DAYS, FOR AN
 ORDER ENJOINING OR RESTRAINING COMMISSION OR CONTINUANCE OF THE  ALLEGED
 UNLAWFUL ACTS. IN ANY SUCH PROCEEDING WHERE A VIOLATION IS FOUND TO HAVE
 OCCURRED,  THE  COURT  SHALL  IMPOSE A CIVIL PENALTY IN AN AMOUNT NOT TO
 EXCEED ONE MILLION DOLLARS AND, WHERE APPROPRIATE, ORDER RESTITUTION  TO
 AGGRIEVED CONSUMERS.
   § 2. This act shall take effect immediately.