S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   9192
 
                           I N  A S S E M B L Y
 
                             February 12, 2024
                                ___________
 
 Introduced by M. of A. LEE -- read once and referred to the Committee on
   Consumer Affairs and Protection
 
 AN  ACT  to  amend  the  general  business law, in relation to clear and
   conspicuous pricing practices regarding mandatory junk fees
 
   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 "New York junk fee prevention act".
   § 2. The general business law is amended by adding a new section  396-
 yy to read as follows:
   §  396-YY.  JUNK  FEE PREVENTION. 1. FOR THE PURPOSES OF THIS SECTION,
 THE FOLLOWING TERMS SHALL HAVE THE FOLLOWING MEANINGS:
   (A) (I) "MANDATORY FEE" INCLUDES ANY FEE OR SURCHARGE,  ADDITIONAL  TO
 THE PRICE OF A GOOD OR SERVICE, THAT:
   (A)  A  CONSUMER  IS  REQUIRED TO PAY TO PURCHASE OR LEASE ANY GOOD OR
 SERVICE BEING ADVERTISED;
   (B) IS NOT REASONABLY AVOIDABLE TO COMPLETE THE PURCHASE OR  LEASE  OF
 ANY GOOD OR SERVICE BEING ADVERTISED;
   (C)  A  REASONABLE  CONSUMER  WOULD  EXPECT  TO  BE  INCLUDED WITH THE
 PURCHASE OR LEASE OF THE GOOD OR SERVICE BEING ADVERTISED; OR
   (D) IS ADDED BY DEFAULT FOR THE CONSUMER, BY THE  SELLER  OR  AUTOMAT-
 ICALLY, AND REQUIRES ACTION BY THE CONSUMER TO REMOVE IT;
   (II) "MANDATORY FEE" SHALL NOT INCLUDE:
   (A)  ANY TAX, DUTY, FEE OR CUSTOM LEVIED BY ANY LOCAL, STATE, FEDERAL,
 OR OTHER GOVERNMENTAL OR  QUASI-GOVERNMENTAL  ENTITY,  AS  WELL  AS  ANY
 ASSESSMENT FEE OF A GOVERNMENT-CREATED SPECIAL DISTRICT, INCLUDING BUSI-
 NESS IMPROVEMENT DISTRICTS AND TOURISM IMPROVEMENT DISTRICTS;
   (B) ANY FEE COVERING THE COST OF DELIVERING GOODS, THE AMOUNT OF WHICH
 IS  BASED  UPON  THE  DELIVERY METHOD SELECTED BY THE CONSUMER, PROVIDED
 THAT SUCH AMOUNT IS  DISCLOSED  TO  THE  CONSUMER  PRIOR  TO  COLLECTING
 PAYMENT INFORMATION;
   (C)  ANY  NOMINAL FEE FOR THE PURPOSE OF PRE-AUTHORIZING A TRANSACTION
 THAT IS IMMEDIATELY REFUNDED OR REMOVED UPON  THE  CHARGE  OF  THE  FULL
 PURCHASE AMOUNT; OR
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD13717-05-4
 A. 9192                             2
 
   (D) ANY OPTIONAL ADD-ONS OR ADD-ON PRODUCT OR SERVICE AS DEFINED BY 16
 CFR PART 463(A).
   (B)  "TOTAL PRICE" SHALL MEAN THE FULL PRICE OF A GOOD OR SERVICE THAT
 A CONSUMER MUST PAY, INCLUDING ANY AND  ALL  MANDATORY  FEES  ASSOCIATED
 WITH THE TRANSACTION, BUT NOT INCLUDING ANY EXEMPTIONS TO MANDATORY FEES
 PURSUANT  TO  SUBDIVISION  ONE OF THIS SECTION, IN ORDER TO COMPLETE THE
 PURCHASE OR LEASE OF A GOOD OR SERVICE.
   2.  (A) ANY PERSON, FIRM, PARTNERSHIP, ASSOCIATION, CORPORATION OR ANY
 AGENT OR EMPLOYEE WHO SOLICITS OR FACILITATES A PURCHASE DIRECTLY FROM A
 CONSUMER, OR LEASE OF ANY GOOD OR SERVICE DIRECTLY TO A CONSUMER, IN THE
 STATE, SHALL CLEARLY AND CONSPICUOUSLY:
   (I) DISCLOSE TO THE CONSUMER IN EVERY OFFER OR ADVERTISEMENT  FOR  THE
 PURCHASE  OR  LEASE  OF A GOOD OR SERVICE THAT INCLUDES PRICING INFORMA-
 TION, THE TOTAL PRICE OF THE GOOD OR SERVICE  BEING  OFFERED  OR  ADVER-
 TISED,  EXCEPT  WHERE  THE  TOTAL  PRICE OF THE GOOD OR SERVICE IS TO BE
 DERIVED FROM A VARIABLE RATE AND IS INDETERMINABLE AT THE  TIME  OF  THE
 OFFER  OR  ADVERTISEMENT, DISCLOSE SUCH VARIABLE RATE ALONG WITH ANY AND
 ALL MANDATORY FEES ASSOCIATED WITH THE TRANSACTION; AND
   (II) DISCLOSE TO THE CONSUMER ANY TAX, DUTY, CUSTOM,  OR  FEE  AMOUNTS
 UNDER  SUBPARAGRAPH  (II)  OF  PARAGRAPH  (A) OF SUBDIVISION ONE OF THIS
 SECTION, PRIOR TO ACCEPTING PAYMENT.
   (B) DISCLOSURES OF THE TOTAL PRICE, FEES, CHARGES OR ANY COMPONENT  OF
 THE  TOTAL  PRICE  SHALL  NOT  BE FALSE OR MISLEADING, AND MUST BY THEIR
 FONT, SIZE, CONTRAST, LOCATION, THE LENGTH  OF  TIME  THEY  APPEAR,  AND
 OTHER  CHARACTERISTICS,  BE PRESENTED PROMINENTLY AND STAND OUT FROM ANY
 ACCOMPANYING TEXT OR OTHER VISUAL  ELEMENTS  SO  THAT  THEY  ARE  EASILY
 NOTICED, READ, AND UNDERSTOOD.
   3. (A) FOR EVERY VIOLATION OF THIS SECTION, AN APPLICATION MAY BE MADE
 BY THE ATTORNEY GENERAL IN A COURT OF COMPETENT JURISDICTION TO ISSUE AN
 INJUNCTION, AND UPON NOTICE TO THE DEFENDANT OF NOT LESS THAN FIVE DAYS,
 TO  ENJOIN  AND  RESTRAIN THE CONTINUANCE OF SUCH VIOLATION. IF IT SHALL
 APPEAR TO THE SATISFACTION OF THE COURT THAT THE DEFENDANT IS, IN  FACT,
 IN VIOLATION OF THIS SECTION, AN INJUNCTION MAY BE ISSUED BY SUCH COURT,
 ENJOINING  AND  RESTRAINING  SUCH ACTION OR VIOLATION, WITHOUT REQUIRING
 PROOF THAT ANY PERSON HAS, IN FACT, BEEN MISLED OR DECEIVED OR OTHERWISE
 DAMAGED THEREBY.
   (B) THE ATTORNEY GENERAL,  OR  ANY  PERSON  ADVERSELY  AFFECTED  BY  A
 VIOLATION  OF  THIS  SECTION,  MAY BRING AN ACTION AGAINST THE PERSON OR
 ENTITY IN VIOLATION OF THIS SECTION TO RECOVER THE GREATER OF:
   (I) ACTUAL DAMAGES;
   (II) UP TO FIVE HUNDRED DOLLARS FOR EACH  UNINTENTIONAL  VIOLATION  OF
 THIS SECTION; OR
   (III)  UP  TO  ONE  THOUSAND DOLLARS FOR EACH INTENTIONAL, KNOWING, OR
 WILLFUL VIOLATION OF THIS SECTION.
   (C) IN AN ACTION BROUGHT PURSUANT TO PARAGRAPH (B)  OF  THIS  SUBDIVI-
 SION,  THE  COURT MAY AWARD COSTS OF THE ACTION TOGETHER WITH REASONABLE
 ATTORNEYS' FEES TO A PREVAILING PLAINTIFF.
   (D) ANY ACTION TAKEN UNDER THIS SECTION PLEADING A VIOLATION  OF  THIS
 SECTION  SHALL  BE  EXEMPT FROM ANY PRE-DISPUTE ARBITRATION CLAUSES THAT
 MAY BIND A CONSUMER WHO IS ADVERSELY AFFECTED BY  A  VIOLATION  OF  THIS
 SECTION.
   (E)  ANY AGREEMENT RELATING TO THE WAIVER OF ANY PROVISION WITHIN THIS
 SECTION SHALL BE DEEMED VOID.
   (F) NOTHING IN THIS SECTION SHALL IN ANY WAY LIMIT RIGHTS OR  REMEDIES
 WHICH  ARE  OTHERWISE AVAILABLE UNDER LAW TO THE ATTORNEY GENERAL OR ANY
 OTHER PERSON AUTHORIZED TO BRING AN ACTION UNDER THIS SECTION.
 A. 9192                             3
 
   4. (A) COMPLIANCE BY A  PERSON,  FIRM,  PARTNERSHIP,  ASSOCIATION,  OR
 CORPORATION PROVIDING BROADBAND INTERNET ACCESS SERVICE ON ITS OWN OR AS
 PART  OF  A BUNDLE, AS DEFINED IN SECTION 8.1(B) OF TITLE 47 OF THE CODE
 OF FEDERAL REGULATIONS, WITH THE BROADBAND CONSUMER  LABEL  REQUIREMENTS
 ADOPTED  BY THE FEDERAL COMMUNICATIONS COMMISSION IN FCC 22-86 ON NOVEM-
 BER FOURTEENTH, TWO THOUSAND TWENTY-TWO, CODIFIED IN SECTION  8.1(A)  OF
 TITLE  47 OF THE CODE OF FEDERAL REGULATIONS, SHALL BE DEEMED IN COMPLI-
 ANCE WITH THIS SECTION.
   (B) FOR PURPOSES OF THIS PARAGRAPH, "FINANCIAL INSTITUTION" SHALL HAVE
 THE SAME MEANING AS DEFINED IN SECTION EIGHT HUNDRED ONE OF  THE  FINAN-
 CIAL  SERVICES  LAW. A FINANCIAL INSTITUTION THAT IS REQUIRED TO PROVIDE
 DISCLOSURES IN COMPLIANCE WITH ANY OF THE  FOLLOWING  FEDERAL  OR  STATE
 ACTS  OR  REGULATIONS  WITH RESPECT TO A FINANCIAL TRANSACTION IS EXEMPT
 FROM THIS SECTION FOR PURPOSES OF SUCH FINANCIAL TRANSACTION:
   (I) THE FEDERAL TRUTH IN SAVINGS ACT;
   (II) THE FEDERAL ELECTRONIC FUND TRANSFER ACT;
   (III) SECTION 19 OF THE FEDERAL RESERVE ACT;
   (IV) THE FEDERAL TRUTH IN LENDING ACT;
   (V) THE FEDERAL REAL ESTATE SETTLEMENT PROCEDURES ACT;
   (VI) THE FEDERAL HOME OWNERSHIP AND EQUITY PROTECTION ACT; OR
   (VII) ANY REGULATION ADOPTED PURSUANT TO ANY OF THE  FEDERAL  ACTS  IN
 SUBPARAGRAPHS (I) THROUGH (VI) OF THIS PARAGRAPH, INCLUSIVE.
   (C)  COMPLIANCE  WITH  THE NOTICE REQUIREMENTS OF SECTION FIVE HUNDRED
 EIGHTEEN OF THE GENERAL BUSINESS LAW BY  A  PERSON,  FIRM,  PARTNERSHIP,
 ASSOCIATION,  OR  CORPORATION  IMPOSING  A SURCHARGE ON ANY SALES TRANS-
 ACTION WHERE A CONSUMER ELECTS TO USE A CREDIT CARD IN LIEU  OF  PAYMENT
 BY  CASH,  CHECK, OR SIMILAR MEANS, SHALL BE DEEMED COMPLIANCE WITH THIS
 SECTION.
   (D) A FOOD SERVICE ESTABLISHMENT AS DEFINED IN PARAGRAPH (B) OF SUBDI-
 VISION ONE OF SECTION THREE HUNDRED NINETY-ONE-V OF THIS  ARTICLE  SHALL
 BE  DEEMED  COMPLIANT WITH THIS SECTION IF, IN EVERY OFFER OR ADVERTISE-
 MENT FOR THE PURCHASE OR LEASE OF A GOOD OR SERVICE THAT INCLUDES  PRIC-
 ING INFORMATION, THE TOTAL PRICE OF THE GOOD OR SERVICE BEING OFFERED OR
 ADVERTISED INCLUDES A CLEAR AND CONSPICUOUS DISCLOSURE OF THE PERCENTAGE
 OF ANY AUTOMATIC AND MANDATORY GRATUITY TO BE CHARGED.
   5.  (A)  ENTITIES  SUBJECT TO SUBDIVISION FOUR OF SECTION 25.07 OF THE
 ARTS AND CULTURAL AFFAIRS LAW SHALL NOT BE SUBJECT TO THE PROVISIONS  OF
 THIS SECTION.
   (B)  THE PROVISIONS OF THIS SECTION SHALL NOT APPLY TO AIR TRANSPORTA-
 TION PROVIDED BY AIR CARRIERS, AS THOSE TERMS ARE USED IN SECTION  41713
 OF TITLE 49 OF THE UNITED STATES CODE.
   §  3. This act shall take effect on the first of January next succeed-
 ing the date on which it shall have become a law.