Assembly Bill A9212

                             
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   9212
 
                        2025-2026 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             November 3, 2025
                                ___________
 
 Introduced by M. of A. LASHER -- read once and referred to the Committee
   on Consumer Affairs and Protection
 
 AN  ACT  to  amend the general business law, in relation to enacting the
   "consumer grocery pricing fairness 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 "consumer grocery pricing fairness act".
   § 2. Legislative findings. The legislature finds and declares that:
   1. Small and independent grocers and retailers  are  an  indispensable
 part of the American and the New York state economy.
   2.  Despite  their  essential  economic  role,  small  and independent
 grocers and retailers often struggle to purchase goods on the same terms
 as their larger competitors, even if  purchasing  through  co-operatives
 and distributors that provide comparable scale.
   3.  Buyer  power of large retailers can force suppliers to limit sales
 to or raise prices for small and independent grocers and retailers.
   4. Unfair and abusive pricing practices and terms of sale harm  compe-
 tition and deprive consumers of lower prices and product availability.
   5.  Retailers  and wholesalers that are capable of purchasing at scale
 ought also to benefit from the discounts and benefits given to the larg-
 est retailers, ensuring that all consumers benefit from lower prices.
   6. The harms from abusive buyer power extend beyond  mere  prices  and
 can  affect  other  parts  of  the  retail business such as retail media
 networks.
   § 3. The general business law is amended by adding a new article  22-C
 to read as follows:
                                ARTICLE 22-C
                     CONSUMER GROCERY PRICING FAIRNESS
 SECTION 350-J. DEFINITIONS.
         350-K. ENSURING PRICE FAIRNESS.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD13763-02-5
              

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         350-L. AGENCY LIABILITY.
         350-M. DEFENSES.
         350-N. COVERED SUPPLIER IMMUNITY.
         350-O. ENFORCEMENT.
         350-P. RULES OF CONSTRUCTION.
   §  350-J. DEFINITIONS. FOR THE PURPOSES OF THIS ARTICLE, THE FOLLOWING
 TERMS SHALL HAVE THE FOLLOWING MEANINGS:
   1. "ANTITRUST LAWS" SHALL HAVE THE SAME MEANING AS IN 15 USC 12(A) AND
 SHALL ALSO INCLUDE:
   (A) SECTION FIVE OF THE FEDERAL TRADE COMMISSION  ACT  TO  THE  EXTENT
 SUCH SECTION APPLIES TO UNFAIR METHODS OF COMPETITION; AND
   (B) ANY ANTITRUST LAWS OF THE STATE OF NEW YORK.
   2. "CHANNELS OF TRADE" MEANS THE DISTINCT AND DIVERSE PATHWAYS THROUGH
 WHICH  COVERED GOODS ARE MARKETED, DISTRIBUTED, AND SOLD TO CONSUMERS IN
 THE UNITED STATES,  INCLUDING  TRADITIONAL  SUPERMARKETS,  HYPERMARKETS,
 DISCOUNT  STORES,  CONVENIENCE  STORES,  ONLINE OR E-COMMERCE RETAILERS,
 SPECIALTY FOOD STORES, MASS  MERCHANDISERS,  WHOLESALE  CLUBS,  AND  ANY
 OTHER  RETAIL  ESTABLISHMENTS, PLATFORMS, OR ENTITIES THAT ENGAGE IN THE
 SALE OF COVERED GOODS, EITHER PRIMARILY OR AS A SEGMENT OF THEIR BROADER
 RETAIL OFFERING, AND COMPETE FOR CONSUMER GROCERY DOLLARS.
   3. "COVERED GOOD" MEANS A GROCERY ITEM, INCLUDING AN ITEM DESCRIBED IN
 PARAGRAPH (1) OR (2) OF THE DEFINITION OF ELIGIBLE  FOODS  UNDER  7  CFR
 271,  OR  A  CONSUMER  PACKAGED  GOOD.  THE TERM "COVERED GOOD" DOES NOT
 INCLUDE GASOLINE, PRESCRIPTION DRUGS, TOBACCO, OR ALCOHOLIC BEVERAGES.
   4. "COVERED RETAILER" MEANS A PERSON THAT SELLS COVERED GOODS  TO  END
 PURCHASERS AT ONE OR MORE PHYSICAL LOCATIONS IN THE STATE OF NEW YORK.
   5. "COVERED SUPPLIER" MEANS A PERSON THAT:
   (A) PRODUCES AND SELLS COVERED GOODS IN THE STATE OF NEW YORK; AND
   (B)  SELLS, DIRECTLY OR THROUGH SUCH PERSON'S AGENT OR ANY THIRD PARTY
 WITH WHICH SUCH COVERED SUPPLIER CONTRACTS, COVERED  GOODS  PRODUCED  OR
 MANUFACTURED  BY SUCH PERSON, DIRECTLY OR THROUGH SUCH PERSON'S AGENT OR
 ANY THIRD PARTY WITH WHICH SUCH COVERED SUPPLIER CONTRACTS,  TO  COVERED
 RETAILERS  OR  COVERED  WHOLESALERS IN AN AGGREGATE AMOUNT EXCEEDING SIX
 BILLION DOLLARS PER YEAR, AS ADJUSTED EACH YEAR BY AN  AMOUNT  EQUAL  TO
 THE  PERCENTAGE  INCREASE,  IF  ANY, IN THE CONSUMER PRICE INDEX FOR ALL
 URBAN CONSUMERS PUBLISHED BY THE U.S. DEPARTMENT OF LABOR.
   6. "COVERED WHOLESALER" MEANS A PERSON THAT  PURCHASES  COVERED  GOODS
 FOR  THE  PURPOSE OF RESELLING OR DISTRIBUTING THEM TO COVERED RETAILERS
 IN THE STATE OF NEW YORK.
   7. "DOMINANT COVERED RETAILER" MEANS A COVERED RETAILER WITH:
   (A) ANNUAL RETAIL SALES  OF  COVERED  GOODS  IN  AN  AGGREGATE  AMOUNT
 EXCEEDING  EIGHTEEN  BILLION DOLLARS, AS ADJUSTED EACH YEAR BY AN AMOUNT
 EQUAL TO THE PERCENTAGE INCREASE, IF ANY, IN THE  CONSUMER  PRICE  INDEX
 FOR ALL URBAN CONSUMERS PUBLISHED BY THE U.S. DEPARTMENT OF LABOR; AND
   (B)  NOT  LESS  THAN  ONE STOREFRONT OR DISTRIBUTION CENTER LOCATED IN
 MORE THAN TWENTY STATES INCLUDING THE STATE OF NEW YORK.
   8. "PERSON" SHALL INCLUDE:
   (A) EACH ENTITY THAT A PERSON OWNS OR CONTROLS, IN WHOLE OR  IN  PART;
 AND
   (B) EACH ENTITY THAT CONTROLS SUCH PERSON, IN WHOLE OR IN PART.
   9. "PRICING DIFFERENTIAL" MEANS, WITH RESPECT TO THE VOLUME UNIT BASIS
 OF  A COVERED GOOD PURCHASED BY A COVERED RETAILER OR COVERED WHOLESALER
 COMPARED TO THE VOLUME UNIT BASIS OF A PRODUCT PURCHASED BY  A  DOMINANT
 COVERED RETAILER:
   (A)  THE DIFFERENCE IN PRICE OF THE PRODUCT MULTIPLIED BY THE QUANTITY
 SOLD; OR
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   (B) THE DIFFERENCE IN THE PRICE EQUIVALENT OF THE TERMS OF SALE OF THE
 PRODUCT, ADJUSTED BY THE TIME VALUE OF MONEY TO ACCOUNT FOR ANY  DIFFER-
 ENCE IN PAYMENT TERMS, MULTIPLIED BY THE QUANTITY SOLD.
   10.  "SAME COVERED GOODS" MEANS, WITH RESPECT TO TWO DIFFERENT COVERED
 GOODS, A COVERED GOOD AND ANY OTHER COVERED GOOD  SOLD  UNDER  THE  SAME
 BRAND THAT DIFFERS ONLY IN QUANTITY OR PACKAGING.
   11.  "SAME  TERMS OF SALE" MEANS, WITH RESPECT TO TWO DIFFERENT AGREE-
 MENTS, TERMS OF SALE THAT ARE IDENTICAL ON A PER UNIT  BASIS,  EXCLUDING
 SHIPPING  AND  DELIVERY  COSTS,  WHICH  MAY VARY ON ACCOUNT OF DISTANCE,
 SPEED, OR METHOD OF SHIPPING AND DELIVERY, OR AVAILABILITY OF  SELF-DIS-
 TRIBUTION.
   12. "TERMS OF SALE" MEANS ALL SUBSTANTIVE TERMS AND CONDITIONS OF SALE
 COMMONLY  SUBJECT  TO  NEGOTIATION  AND  COMPETITION,  INCLUDING  PRICE,
 DISCOUNTS, REBATES, DELIVERY TERMS, PAYMENT TERMS, PACKAGE SIZE,  PROMO-
 TIONAL  ALLOWANCES, MARKETING DEVICES, MERCHANDISING ARRANGEMENTS, TERMS
 OF DISTRIBUTION, AND ANY OTHER SIMILAR TERMS, CONSIDERED ON A  PER  UNIT
 BASIS AS APPROPRIATE.
   13.  "VOLUME  UNIT  BASIS"  MEANS  THE  BASE  UNIT OF MEASUREMENT, NOT
 EXCEEDING A TRUCKLOAD, BY WHICH  PURCHASE  QUANTITIES  ARE  MEASURED  IN
 PURCHASE AGREEMENTS BETWEEN A COVERED SUPPLIER AND A COVERED RETAILER OR
 COVERED WHOLESALER.
   14.  "ACTUAL  DAMAGES"  MEANS  THE  PRICING DIFFERENTIAL SUFFERED BY A
 COVERED RETAILER OR COVERED WHOLESALER AS A RESULT  OF  A  VIOLATION  OF
 THIS ARTICLE.
   § 350-K. ENSURING PRICE FAIRNESS. IT SHALL BE UNLAWFUL FOR:
   1.  A  COVERED  SUPPLIER,  DIRECTLY  OR  THROUGH ITS AGENT, TO FAIL TO
 EXTEND THE SAME TERMS OF SALE OF A COVERED GOOD TO ALL COVERED RETAILERS
 AND COVERED WHOLESALERS THAT PURCHASE  THE  COVERED  GOOD  ON  THE  SAME
 VOLUME UNIT BASIS IN REASONABLY CONTEMPORANEOUS SALES;
   2.  A  COVERED  SUPPLIER TO FAIL TO PROVIDE, WITHIN FOURTEEN DAYS OF A
 WRITTEN REQUEST FROM A COVERED RETAILER OR COVERED WHOLESALER  THAT  HAS
 PURCHASED  A  COVERED  GOOD OR RECEIVED AN OFFER INCLUDING TERMS OF SALE
 FOR A COVERED GOOD FROM THE COVERED SUPPLIER, DIRECTLY  OR  THROUGH  ITS
 AGENT,  THE  ANONYMIZED  TERMS  OF SALE FROM ALL CONTRACTS WITH DOMINANT
 COVERED RETAILERS THAT PURCHASED THE  SAME  COVERED  GOOD  ON  THE  SAME
 VOLUME  UNIT  BASIS  DURING  THE  ONE HUNDRED EIGHTY DAY PERIOD PRIOR TO
 WHICH THE PURCHASE OR OFFER INCLUDING TERMS OF SALE WAS MADE;
   3. A COVERED SUPPLIER, DIRECTLY OR THROUGH ITS AGENT,  TO  REFUSE  THE
 SALE  OF  A  COVERED GOOD TO A COVERED RETAILER OR COVERED WHOLESALER ON
 THE BASIS OF A DISTINCTION IN CHANNELS OF TRADE, OR OTHER SIMILAR BASIS,
 IF THE EFFECT IS  TO  FACILITATE  A  DIFFERENCE  IN  TERMS  OF  SALE  IN
 VIOLATION OF SUBDIVISION ONE OF THIS SECTION;
   4.  A  COVERED  SUPPLIER, DIRECTLY OR THROUGH ITS AGENT, TO REFUSE THE
 SALE OF A COVERED GOOD TO A COVERED RETAILER OR A COVERED WHOLESALER IF:
   (A) THE COVERED RETAILER IS NOT A DOMINANT COVERED RETAILER;
   (B) THE COVERED RETAILER  OR  THE  COVERED  WHOLESALER  HAS  MADE  AND
 COMPLETED  PAYMENT  FOR  PURCHASES  FROM THE COVERED SUPPLIER WITHIN THE
 PREVIOUS TWELVE MONTHS;
   (C) THE COVERED RETAILER OR THE COVERED WHOLESALER HAS MADE A  REQUEST
 OF  THE  COVERED  SUPPLIER TO PROVIDE TO SUCH RETAILER OR WHOLESALER THE
 SAME TERMS OF SALE PROVIDED TO OTHER COVERED RETAILERS OR COVERED WHOLE-
 SALERS, CONSISTENT WITH THE TERMS OF THIS SECTION; AND
   (D) A REFUSAL BY THE COVERED SUPPLIER TO SELL A COVERED  GOOD  TO  THE
 COVERED  RETAILER  OR  COVERED WHOLESALER HAS NO COMMERCIALLY REASONABLE
 JUSTIFICATION;
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   5. A DOMINANT COVERED RETAILER, OR ITS PURCHASING AGENT OR  ANY  THIRD
 PARTY  THROUGH  WHICH  A DOMINANT COVERED RETAILER CONTRACTS TO PURCHASE
 COVERED GOODS, TO IMPOSE ON OR REQUIRE OF A COVERED  SUPPLIER  TERMS  OF
 SALE  WITH  RESPECT  TO  A COVERED GOOD IF THE DOMINANT COVERED RETAILER
 KNOWS, OR REASONABLY SHOULD KNOW, THAT:
   (A)  THE  DOMINANT  COVERED RETAILER, OR ITS PURCHASING AGENT, THEREBY
 WILL ACQUIRE MORE OF THE COVERED GOOD THAN THE DOMINANT COVERED RETAILER
 CAN SELL BETWEEN THE REGULAR PURCHASE INTERVALS OF THE DOMINANT  COVERED
 RETAILER; AND
   (B)  PURCHASES  BY  THE  DOMINANT  COVERED RETAILER, OR ITS PURCHASING
 AGENT, UNDER THE TERMS OF SALE ARE  LIKELY  TO  RESULT  IN  UNREASONABLY
 DIMINISHED AVAILABILITY OF THE COVERED GOOD TO ANOTHER COVERED RETAILER;
 OR
   6.  A  DOMINANT COVERED RETAILER, OR ITS PURCHASING AGENT OR ANY THIRD
 PARTY THROUGH WHICH A DOMINANT COVERED RETAILER  CONTRACTS  TO  PURCHASE
 COVERED  GOODS,  DIRECTLY  OR  INDIRECTLY,  TO TAKE ANY ACTION THAT SUCH
 DOMINANT COVERED RETAILER, PURCHASING AGENT,  OR  THIRD  PARTY  INTENDS,
 KNOWS,  OR  SHOULD  KNOW  WILL  COERCE  OR  INDUCE A COVERED SUPPLIER TO
 VIOLATE THIS SECTION.
   § 350-L. AGENCY LIABILITY. A  COVERED  SUPPLIER  OR  DOMINANT  COVERED
 RETAILER,  AS  APPLICABLE,  SHALL BE LIABLE FOR ANY VIOLATION OF SECTION
 THREE HUNDRED FIFTY-K OF THIS ARTICLE BY A CONTRACTED THIRD PARTY.
   § 350-M. DEFENSES. A  PERSON  ALLEGED  TO  HAVE  ENGAGED  IN  UNLAWFUL
 CONDUCT DESCRIBED IN SECTION THREE HUNDRED FIFTY-K OF THIS ARTICLE SHALL
 NOT  BE  LIABLE  FOR  SUCH CONDUCT ON SHOWING, BY A PREPONDERANCE OF THE
 EVIDENCE, THAT:
   1. ANY DIFFERENCE IN THE TERMS OF SALE WAS PREDOMINANTLY  ATTRIBUTABLE
 TO  A COVERED RETAILER ENGAGING IN SELF-DISTRIBUTION OF THE COVERED GOOD
 AT ISSUE OR OTHERWISE LOWERING THE OVERALL COSTS OF THE COVERED SUPPLIER
 THROUGH GENUINE EFFICIENCIES, SUCH AS ECONOMIES IN DISTRIBUTION OR MANU-
 FACTURING;
   2. A COVERED RETAILER VOLUNTARILY ACCEPTED TERMS OF SALE RELATING TO A
 COVERED GOOD THAT WERE NOT THE SAME TERMS OF SALE AS THE TERMS  OF  SALE
 OF  ANOTHER  COVERED  RETAILER  IN  EXCHANGE FOR COMMERCIALLY REASONABLE
 CONSIDERATION, PROVIDED THE ACCEPTANCE OF SUCH TERMS WAS NEITHER PRETEX-
 TUAL, COERCED, NOR MADE UNDER DURESS; OR
   3. THE TERMS OF SALE APPLIED ONLY TO CASES IN WHICH THERE WAS AN ACTU-
 AL OR  IMMINENT  DETERIORATION  OF  PERISHABLE  GOODS,  OBSOLESCENCE  OF
 SEASONAL  GOODS,  DISTRESS  SALES  UNDER COURT PROCESS, OR SALES IN GOOD
 FAITH IN DISCONTINUANCE OF BUSINESS IN THE GOODS CONCERNED.
   § 350-N. COVERED SUPPLIER IMMUNITY. PROVIDED THAT A  COVERED  SUPPLIER
 DID  NOT  COLLUDE  WITH  THE  RELEVANT  DOMINANT COVERED RETAILER IN ANY
 SCHEME VIOLATIVE OF THE ANTITRUST LAWS,  A  COVERED  SUPPLIER  SHALL  BE
 IMMUNE  FROM  LIABILITY FOR A VIOLATION OF SECTION THREE HUNDRED FIFTY-K
 OF THIS ARTICLE WHERE THE DEFENDANT COVERED SUPPLIER SHOWS BY A  PREPON-
 DERANCE OF THE EVIDENCE THAT:
   1.  THE  VIOLATION WAS IMPOSED ON OR REQUIRED OF THE DEFENDANT COVERED
 SUPPLIER BY A DOMINANT COVERED RETAILER;
   2. THE DEFENDANT COVERED SUPPLIER WOULD HAVE SUFFERED SUBSTANTIAL HARM
 TO ITS BUSINESS WERE IT TO REFUSE THE DEMAND  OF  THE  DOMINANT  COVERED
 RETAILER; AND
   3. THE DEFENDANT COVERED SUPPLIER MADE A GOOD FAITH EFFORT TO DISCLOSE
 THE DOMINANT COVERED RETAILER'S CONDUCT TO THE ATTORNEY GENERAL.
   §  350-O.  ENFORCEMENT.  THE ATTORNEY GENERAL OR A PERSON INJURED BY A
 VIOLATION OF THIS ARTICLE MAY FILE SUIT TO:
   1. OBTAIN AN INJUNCTION TO CURE A VIOLATION OF THIS ARTICLE; AND/OR
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   2. OBTAIN A CIVIL PENALTY IN AN AMOUNT NOT GREATER  THAN  THREE  TIMES
 THE ACTUAL DAMAGES.
   §  350-P.  RULES  OF CONSTRUCTION. 1. NOTWITHSTANDING ANY PROVISION OF
 THIS ARTICLE, THIS ARTICLE SHALL NOT BE CONSTRUED TO LIMIT,  IMPAIR,  OR
 SUPERSEDE ANY OF THE ANTITRUST LAWS.
   2. NOTHING IN THIS ARTICLE SHALL BE CONSTRUED TO REQUIRE ANY PERSON TO
 DO  BUSINESS  WITH  ANY  OTHER PERSON, UNLESS THE REFUSAL TO DO SO WOULD
 VIOLATE A PROVISION OF THIS ARTICLE.
   § 4. This act shall take effect immediately.