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This entry was published on 2014-09-22
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SECTION 396
Unlawful selling practices
General Business (GBS) CHAPTER 20, ARTICLE 26
§ 396. Unlawful selling practices. 1. No person, firm, partnership,
association or corporation, or agent or employee thereof, shall, in any
manner, or by any means of advertisement, or other means of
communication, offer for sale any merchandise, commodity, or service, as
part of a plan or scheme with the intent, design, or purpose not to sell
the merchandise, commodity, or service so advertised at the price stated
therein, or with the intent, design or purpose not to sell the
merchandise, commodity, or service so advertised. Nothing in this
section shall apply to any television or sound radio broadcasting
station or to any publisher or printer of a newspaper, magazine, or
other form of printed advertising, who broadcasts, publishes, or prints
such advertisement.

2. a. No person, firm, partnership, association or corporation, or
agent or employee thereof, shall, in any manner, or by any means, offer
for sale goods, wares or merchandise, where the offer includes the
voluntary and unsolicited sending of goods, wares or merchandise not
actually ordered or requested by the recipient, either orally or in
writing; any such goods, wares or merchandise so sent shall be
prominently marked upon the container thereof in bold letters as
follows: "THIS IS A GIFT. PAYMENT NOT REQUIRED FOR THIS ITEM". The
receipt of any goods, wares or merchandise pursuant to an existing
membership or club arrangement in which the recipient receives such
goods, wares or merchandise at specified intervals or a plan where the
recipient agrees to receive such goods, wares or merchandise without
further obligation shall not be construed as the receipt of unsolicited
goods, wares or merchandise for the purposes of this section. The
receipt of any such unsolicited goods, wares or merchandise shall for
all purposes be deemed an unconditional gift to the recipient who may
use or dispose of the same in any manner he sees fit without any
obligation on his part to the sender.

If after any such receipt deemed to be an unconditional gift under
this paragraph a, the sender continues to send bill statements or
requests for payment with respect thereto, an action may be brought by
the recipient to enjoin such conduct, in which action there may also be
awarded reasonable attorneys' fees and costs to the prevailing party.

b. If a person is a member of an organization which makes retail sales
of any goods, wares, or merchandise to its members, and the person
notifies the organization of his termination of membership by certified
mail, return receipt requested, any unordered goods, wares, or
merchandise which are sent to the person after thirty days following
execution of the return receipt for the certified letter by the
organization, shall for all purposes be deemed unconditional gifts to
the person, who may use or dispose of the goods, wares, or merchandise
in any manner he sees fit without any obligation on his part to the
organization.

If the termination of a person's membership in such organization
breaches any agreement with the organization, nothing in this
subdivision shall relieve the person from liability for damages to which
he might be otherwise subjected to pursuant to law.

The provisions of this paragraph shall not apply to a member of an
organization the sole purpose of which is the sale of a specific type of
goods, wares or merchandise to its members until the member has
fulfilled his initial purchase obligation.

3. Whenever there shall be a violation of this section, an application
may be made by the attorney general in the name of the people of the
state of New York to a court or justice having 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; and if it
shall appear to the satisfaction of the court or justice that the
defendant is, in fact, violating this section, an injunction may be
issued by such court or justice, enjoining and restraining such action
or violation, without requiring proof that any person has, in fact, been
misled or deceived or otherwise damaged thereby.