S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   8780
 
                             I N  S E N A T E
 
                               July 15, 2020
                                ___________
 
 Introduced  by  Sen.  MAYER  -- read twice and ordered printed, and when
   printed to be committed to the Committee on Rules
 
 AN ACT to amend the general business law, in relation to fees  for  gift
   cards
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Subdivisions 1, 3, 5, and  5-a  of  section  396-i  of  the
 general  business  law,  subdivision  1 as amended by chapter 170 of the
 laws of 2004 and subdivisions 3 and 5 as amended and subdivision 5-a  as
 added by chapter 329 of the laws of 2016, are amended and a new subdivi-
 sion 5-b is added to read as follows:
   1.  (A)  For  the  purposes of this section, THE FOLLOWING TERMS SHALL
 HAVE THE FOLLOWING MEANINGS:
   (1) "gift certificate" shall mean a  [written  promise  or  electronic
 payment device] CERTIFICATE, ELECTRONIC CARD, OR OTHER PRE-FUNDED RECORD
 that:  (i)  is  usable  at  a  single merchant or an affiliated group of
 merchants that share the same name, mark,  or  logo,  or  is  usable  at
 multiple,  unaffiliated  merchants  or  service  providers;  and (ii) is
 issued in a specified amount; and (iii) may or may not be  increased  in
 value  or  reloaded;  and  (iv)  is purchased and/or loaded on a prepaid
 basis for the future purchase or delivery of any goods or services;  and
 (v) is honored upon presentation[.];
   (2) "OPEN LOOP GIFT CERTIFICATE" SHALL MEAN A GIFT CERTIFICATE REDEEM-
 ABLE AT MULTIPLE, UNAFFILIATED MERCHANTS OR SERVICE PROVIDERS; AND
   (3)  "PROMOTIONAL  GIFT  CERTIFICATE"  SHALL  MEAN  A GIFT CERTIFICATE
 ISSUED FOR NO CONSIDERATION WHICH INCLUDES ON  THE  FRONT  OF  THE  GIFT
 CERTIFICATE  (I)  A  STATEMENT  INDICATING  THAT  THE CARD IS ISSUED FOR
 PROMOTIONAL PURPOSES AND (II) THE EXPIRATION  DATE  FOR  THE  UNDERLYING
 FUNDS.
   (B)  Gift  certificate  shall not include an electronic payment device
 linked to a deposit account, or prepaid telephone  calling  cards  regu-
 lated under section ninety-two-f of the public service law. Gift certif-
 icate  also  shall not include flexible spending arrangements as defined
 in  Section  106(c)(2)  of  the  Internal  Revenue  Code,  26  U.S.C.  §
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
              

                       [ ] is old law to be omitted.
                                                            LBD16939-02-0

 S. 8780                             2
 
 106(c)(2);  flexible  spending  accounts  subject  to Section 125 of the
 Internal Revenue Code, 26 U.S.C.  §  125;  Archer  MSAs  as  defined  in
 Section 220(d) of the Internal Revenue Code, 26 U.S.C. § 220(d); depend-
 ent  care  reimbursement accounts subject to Section 129 of the Internal
 Revenue Code, 26 U.S.C.  §  129;  health  savings  accounts  subject  to
 Section  223(d)  of  the  Internal  Revenue Code, 26 U.S.C. § 223(d), as
 amended by Section 1201 of the Medicare Prescription Drug,  Improvement,
 and Modernization Act of 2003, Pub. L.  No. 108-173; or similar accounts
 from  which,  under the Internal Revenue Code and its implementing regu-
 lations, individuals may pay medical  expenses,  health  care  expenses,
 dependent  care  expenses,  or  similar expenses on a pretax basis. Gift
 certificate also shall not include a prepaid discount  card  or  program
 used  to  purchase identified goods or services at a price or percentage
 below the normal and customary price; provided that [the] ANY expiration
 date of the prepaid discount card or program is clearly and conspicuous-
 ly disclosed. Gift certificate also shall not include payroll  cards  or
 other  electronic  payment devices which are linked to a deposit account
 and which are given in exchange for goods or services rendered.
   3. The terms and conditions of a gift certificate store  credit  shall
 be clearly and conspicuously stated thereon. Terms [and conditions shall
 include  the  expiration date, whether any fees are assessed against the
 balance of the gift certificate, and whether a fee will be  charged  for
 the  replacement  of  a  gift  certificate  that  is  lost,  stolen,  or
 destroyed, if any. Additional terms] and conditions including,  but  not
 limited  to,  policies  related to refunds, warranties, changes in terms
 and conditions, the procedure for the replacement of a gift certificate,
 if any, assignment and waiver shall be conspicuously printed: (a) on the
 gift certificate; or (b) on an envelope or packaging containing the gift
 certificate, provided that a toll free telephone number  to  access  the
 additional  terms  and conditions is printed on the gift certificate; or
 (c) on an accompanying document, provided that  a  toll  free  telephone
 number  to  access the additional terms and conditions is printed on the
 gift certificate.
   5. (a) No PERSON, FIRM, PARTNERSHIP, ASSOCIATION OR CORPORATION  SHALL
 CHARGE  OR ASSESS, OR SELL OR ISSUE ANY GIFT CERTIFICATE SUBJECT TO, ANY
 ACTIVATION FEE, retroactive [fees  shall  be  assessed  against  a  gift
 certificate.
   (b)  No  monthly]  FEE,  REDEMPTION FEE, service [fees may be assessed
 against the balance of a gift  certificate  prior  to  the  twenty-fifth
 month  of  dormancy] FEE, DORMANCY FEE, LATENCY FEE, ADMINISTRATIVE FEE,
 HANDLING FEE, ACCESS FEE, PERIODIC FEE, RENEWAL FEE, RE-LOADING FEE,  OR
 ANY  OTHER  FEE  OF  ANY  KIND, OTHER THAN AN OPEN LOOP GIFT CERTIFICATE
 SUBJECT TO AN INITIAL ONE-TIME ACTIVATION OR ISSUANCE FEE NOT IN  EXCESS
 OF  THE LESSER OF FOUR DOLLARS OR FIVE PERCENT OF THE FACE VALUE OF SUCH
 OPEN LOOP GIFT CERTIFICATE.
   [(c) A service fee may be assessed after the  twenty-fourth  month  of
 dormancy provided that any such fee shall be waived and the gift certif-
 icate  replenished  to its value prior to such fees being assessed where
 the holder of such gift  certificate  presents  the  certificate  within
 three  years  of issue] (B) NO PERSON, FIRM, PARTNERSHIP, ASSOCIATION OR
 CORPORATION SHALL SELL A GIFT CERTIFICATE  THAT  HAS  A  FACE  VALUE  OR
 BALANCE THAT DECLINES AS A RESULT OF THE PASSAGE OF TIME OR THE DORMANCY
 OF THE GIFT CERTIFICATE.
   [(d)]  (C) For the purposes of this subdivision, "dormancy" shall mean
 non-use of a gift certificate. Use of a gift certificate shall  include,
 but not be limited to, adding value, or purchases.

 S. 8780                             3
 
   5-a.  It  shall  be  unlawful  for  any person to sell or issue a gift
 certificate OTHER THAN A PROMOTIONAL GIFT  CERTIFICATE  where  THE  GIFT
 CERTIFICATE  OR  the  underlying funds are subject to an expiration date
 [which is earlier than five years after  the  date  on  which  the  gift
 certificate was issued, or the date on which funds were last loaded to a
 store  gift card. The terms of expiration shall be clearly and conspicu-
 ously stated on the gift certificate].   THE TERMS OF  EXPIRATION  OF  A
 PROMOTIONAL GIFT CERTIFICATE, IF ANY, SHALL BE CLEARLY AND CONSPICUOUSLY
 STATED ON SUCH PROMOTIONAL GIFT CERTIFICATE.
   5-B.  A  GIFT  CERTIFICATE,  OTHER THAN AN OPEN LOOP GIFT CERTIFICATE,
 WITH A REMAINING VALUE OF LESS THAN FIVE DOLLARS MAY  BE  REDEEMED  UPON
 REQUEST FOR ITS CASH VALUE.
   §  2. This act shall take effect one year after it shall have become a
 law.