S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                    608
 
                        2023-2024 Regular Sessions
 
                             I N  S E N A T E
 
                              January 5, 2023
                                ___________
 
 Introduced  by  Sens.  SALAZAR,  BRISPORT,  GIANARIS,  HELMING, JACKSON,
   KRUEGER, LANZA, SANDERS, SERRANO -- 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 medicine

   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  OF  MEDICINE. 1. FOR THE PURPOSES OF THIS
 SECTION, "DRUG SUBJECT TO A SHORTAGE" SHALL MEAN  ANY  DRUG  OR  MEDICAL
 PRODUCT  INTENDED  FOR HUMAN USE PUBLICLY REPORTED AS BEING SUBJECT TO A
 SHORTAGE BY THE U.S.  FOOD  AND  DRUG  ADMINISTRATION  ON  ITS  WEBSITE,
 PROVIDED,  HOWEVER, THAT A DRUG OR MEDICAL PRODUCT SHALL ONLY BE CONSID-
 ERED A "DRUG SUBJECT TO A SHORTAGE" DURING THE PERIOD OF TIME THAT  SUCH
 DRUG OR MEDICAL PRODUCT IS LISTED AS BEING SUBJECT TO A SHORTAGE ON SUCH
 WEBSITE.
   2. NO MANUFACTURER, SUPPLIER, WHOLESALER, DISTRIBUTOR OR RETAIL SELLER
 OF  ANY  DRUG SUBJECT TO A SHORTAGE SHALL SELL OR OFFER TO SELL ANY SUCH
 DRUG SUBJECT TO A SHORTAGE FOR AN AMOUNT WHICH REPRESENTS AN UNCONSCION-
 ABLY EXCESSIVE PRICE.
   3. WHETHER A PRICE IS UNCONSCIONABLY EXCESSIVE IS A  QUESTION  OF  LAW
 FOR THE COURT.
   (A)  THE  COURT'S  DETERMINATION  THAT A VIOLATION OF THIS SECTION HAS
 OCCURRED SHALL BE BASED ON ANY OF THE FOLLOWING FACTORS:
   (I) THAT THE AMOUNT OF THE EXCESS IN PRICE IS UNCONSCIONABLY EXTREME;
   (II) THAT THERE WAS AN EXERCISE OF UNFAIR LEVERAGE  OR  UNCONSCIONABLE
 MEANS; OR
   (III)  A  COMBINATION OF BOTH FACTORS IN SUBPARAGRAPHS (I) AND (II) OF
 THIS PARAGRAPH.

  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD03763-01-3
              

 S. 608                              2
 
   (B) IN ANY PROCEEDING COMMENCED PURSUANT TO SUBDIVISION FOUR  OF  THIS
 SECTION, PRIMA FACIE PROOF THAT A VIOLATION OF THIS SECTION HAS OCCURRED
 SHALL INCLUDE EVIDENCE THAT:
   (I)  THE AMOUNT CHARGED REPRESENTS A GROSS DISPARITY BETWEEN THE PRICE
 OF THE DRUG SUBJECT TO A SHORTAGE WHICH WAS THE SUBJECT  OF  THE  TRANS-
 ACTION AND THEIR VALUE MEASURED BY THE PRICE AT WHICH SUCH DRUG WAS SOLD
 OR  OFFERED  FOR  SALE  BY THE DEFENDANT IN THE USUAL COURSE OF BUSINESS
 IMMEDIATELY PRIOR TO THE ONSET OF THE SHORTAGE; OR
   (II) THE AMOUNT CHARGED GROSSLY EXCEEDED THE PRICE AT WHICH  THE  SAME
 OR  SIMILAR  DRUG  SUBJECT TO A SHORTAGE WAS READILY OBTAINABLE BY OTHER
 PURCHASERS IN THE TRADE AREA.
   (C) A DEFENDANT MAY REBUT A PRIMA FACIE CASE WITH EVIDENCE THAT:
   (I) THE INCREASE IN THE AMOUNT CHARGED PRESERVES THE MARGIN OF  PROFIT
 THAT  THE  DEFENDANT  RECEIVED  FOR  THE SAME DRUG SUBJECT TO A SHORTAGE
 PRIOR TO THE ONSET OF THE SHORTAGE; OR
   (II) ADDITIONAL COSTS NOT WITHIN THE CONTROL  OF  THE  DEFENDANT  WERE
 IMPOSED ON THE DEFENDANT FOR THE DRUG SUBJECT TO A SHORTAGE.
   4.  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, THE COURT SHALL IMPOSE A CIVIL
 PENALTY IN AN AMOUNT NOT TO  EXCEED  TWENTY-FIVE  THOUSAND  DOLLARS  PER
 VIOLATION  OR  THREE  TIMES  THE  GROSS  RECEIPTS  FOR THE RELEVANT DRUG
 SUBJECT TO THE SHORTAGE, WHICHEVER IS GREATER,  AND  WHERE  APPROPRIATE,
 ORDER RESTITUTION TO AGGRIEVED PARTIES.
   § 2. This act shall take effect immediately.

                             
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  608--A
 
                        2023-2024 Regular Sessions
 
                             I N  S E N A T E
 
                              January 5, 2023
                                ___________
 
 Introduced  by  Sens.  SALAZAR,  BRISPORT,  GIANARIS,  HELMING, JACKSON,
   KRUEGER, LANZA, SANDERS, SERRANO -- read twice  and  ordered  printed,
   and  when  printed  to  be  committed  to  the  Committee  on Consumer
   Protection -- committee discharged, bill amended, ordered reprinted as
   amended and recommitted to said committee

 AN ACT to amend the general business law, in relation to the price goug-
   ing of medicine
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1.    Subdivision  2 of section 396-r of the general business
 law, as amended by chapter 90 of the laws of 2020, is amended to read as
 follows:
   2. (A) During any abnormal disruption of  the  market  for  goods  and
 services  vital  and  necessary  for  the  health, safety and welfare of
 consumers or the general public, no party within the chain  of  distrib-
 ution  of such goods or services or both shall sell or offer to sell any
 such goods or services or both for an amount which represents an  uncon-
 scionably excessive price.
   (B)  For  purposes of this section, the phrase "abnormal disruption of
 the market" shall mean any change in the market, whether actual or immi-
 nently threatened, resulting  from  stress  of  weather,  convulsion  of
 nature, failure or shortage of electric power or other source of energy,
 strike, civil disorder, war, military action, national or local emergen-
 cy,  DRUG  SHORTAGE,  or  other  cause  of an abnormal disruption of the
 market which results in the declaration of a state of emergency  by  the
 governor.  FOR  PURPOSES  OF  THIS SECTION, THE TERM DRUG SHORTAGE SHALL
 MEAN THE ISSUANCE OF A NOTICE BY THE U.S. FOOD AND  DRUG  ADMINISTRATION
 PURSUANT  TO  SECTION 506C-1 OF THE FEDERAL FOOD DRUGS AND COSMETICS ACT
 OR ANY SUCCESSOR PROVISION THEREOF.
   (C) For the purposes of this section,  the  term  goods  and  services
 shall  include  [(a)]  (I)  consumer  goods and services used, bought or
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD03763-03-3
              

 S. 608--A                           2
 
 rendered primarily for personal, family  or  household  purposes,  [(b)]
 (II)  essential  medical  supplies and services used for the care, cure,
 mitigation, treatment or prevention of any illness or disease, and [(c)]
 (III)  any other essential goods and services used to promote the health
 or welfare of the public. This prohibition shall apply  to  all  parties
 within  the chain of distribution, including any manufacturer, supplier,
 wholesaler, distributor or retail seller of goods or  services  or  both
 sold  by  one  party to another when the product sold was located in the
 state prior to the sale. Goods  and  services  shall  also  include  any
 repairs  made  by any party within the chain of distribution of goods on
 an emergency basis as a  result  of  such  abnormal  disruption  of  the
 market.
   § 2. This act shall take effect immediately.

                             
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  608--B
     Cal. No. 77
 
                        2023-2024 Regular Sessions
 
                             I N  S E N A T E
 
                              January 5, 2023
                                ___________
 
 Introduced  by  Sens.  SALAZAR,  BRISPORT,  GIANARIS,  HELMING, JACKSON,
   KRUEGER, LANZA, LIU, SANDERS, SERRANO -- read twice and ordered print-
   ed, and when printed to be committed  to  the  Committee  on  Consumer
   Protection -- committee discharged, bill amended, ordered reprinted as
   amended  and  recommitted to said committee -- reported favorably from
   said committee and committed to the Committee  on  Rules  --  reported
   favorably  from  said committee, ordered to a third reading, passed by
   Senate and delivered to the  Assembly,  recalled,  vote  reconsidered,
   restored  to  third  reading, amended and ordered reprinted, retaining
   its place in the order of third reading
 
 AN ACT to amend the general business law, in relation to the price goug-
   ing of medicine
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1.    Subdivision  2 of section 396-r of the general business
 law, as amended by chapter 90 of the laws of 2020, is amended to read as
 follows:
   2. (A) During any abnormal disruption of  the  market  for  goods  and
 services  vital  and  necessary  for  the  health, safety and welfare of
 consumers or the general public, no party within the chain  of  distrib-
 ution  of such goods or services or both shall sell or offer to sell any
 such goods or services or both for an amount which represents an  uncon-
 scionably excessive price.
   (B)  For  purposes of this section, the phrase "abnormal disruption of
 the market" shall mean any change in the market, whether actual or immi-
 nently threatened, resulting  from  stress  of  weather,  convulsion  of
 nature, failure or shortage of electric power or other source of energy,
 strike, civil disorder, war, military action, national or local emergen-
 cy,  DRUG  SHORTAGE,  or  other  cause  of an abnormal disruption of the
 market which results in the declaration of a state of emergency  by  the
 governor.

  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD03763-07-3
 S. 608--B                           2
 
   (C) FOR PURPOSES OF THIS SECTION, THE TERM "DRUG SHORTAGE" SHALL MEAN,
 WITH RESPECT TO ANY DRUG OR MEDICAL PRODUCT INTENDED FOR HUMAN USE, THAT
 SUCH  DRUG OR MEDICAL PRODUCT IS PUBLICLY REPORTED AS BEING SUBJECT TO A
 SHORTAGE THE U.S. FOOD AND DRUG ADMINISTRATION.
   (D)  For  the  purposes of this section, the term "goods and services"
 shall include [(a)] (I) consumer goods  and  services  used,  bought  or
 rendered  primarily  for  personal,  family or household purposes, [(b)]
 (II) essential medical supplies and services used for  the  care,  cure,
 mitigation, treatment or prevention of any illness or disease, and [(c)]
 (III)  any other essential goods and services used to promote the health
 or welfare of the public.
   (E) This prohibition shall apply to all parties within  the  chain  of
 distribution, including any manufacturer, supplier, wholesaler, distrib-
 utor  or retail seller of goods or services or both sold by one party to
 another when the product sold was located in  the  state  prior  to  the
 sale.  [Goods] FOR THE PURPOSES OF THIS SUBDIVISION, THE TERM "GOODS and
 services" shall also include any repairs made by any  party  within  the
 chain of distribution of goods on an emergency basis as a result of such
 abnormal disruption of the market.
   § 2. This act shall take effect immediately.