S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   3396
 
                        2019-2020 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             January 29, 2019
                                ___________
 
 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".
   §  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.
   §  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.
   §  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.
                                                            LBD08120-01-9

              

 A. 3396                             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.
   §  429-B. CERTIFICATION OF AVAILABILITY OF CONTACT LENSES; EXCEPTIONS.
 1. BEGINNING JULY  FIRST,  TWO  THOUSAND  NINETEEN,  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 NINETEEN, 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.
   § 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.
   § 4. This act shall take effect immediately.