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This entry was published on 2014-09-22
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SECTION 640
Target marketing; prohibitions
General Business (GBS) CHAPTER 20, ARTICLE 30-A
§ 640. Target marketing; prohibitions. 1. Definitions. For purposes of
this article, the following terms shall have the following meanings:

(a) "Personal identifiable information" shall mean any information
obtained by a manufacturer or distributor of a home-use medical
diagnostic device by means of its warranty registration card, owner's
registration card, or otherwise which information was furnished to it by
or on behalf of a user of such device. Such information shall include
but not be limited to the user's name, address, telephone number or
personal medical information. Such term shall not include data which
does not identify a user.

(b) "Target marketing" shall mean the compilation of a list of users
by a manufacturer or distributor of a home-use medical diagnostic
device, for purposes of direct marketing transactions or solicitation
which is based on users' personal identifiable information.

(c) "User" shall mean any natural person who uses a home-use medical
diagnostic device.

(d) "Home-use medical diagnostic device" shall have such meaning as
prescribed by the Federal Food, Drug and Cosmetic Act and the
regulations thereunder, as such act and regulations may from time to
time be amended.

(e) "Person" shall mean any individual, partnership, association, firm
or corporation.

2. Restrictions on disclosure. (a) A manufacturer or distributor of a
home-use medical diagnostic device shall not disclose to a marketer of
goods or services or to a third party acting on behalf of any such
marketer any personal identifiable information of a user for target
marketing purposes without having first afforded such user the right to
prohibit such disclosure as set forth in paragraph (b) of this
subdivision.

(b) The warranty registration card, owner's registration card or other
similar form shall conspicuously disclose, if applicable, that a user's
personal identifiable information may be used for target marketing
purposes and shall provide such user the opportunity to be excluded from
any such target marketing list by means of a check-off box contained on
the card or other similar form. Such notice shall include a
pre-addressed postage paid form by which a user can exercise the right
to prohibit disclosure.

3. Private remedy. Any person who has been injured by reason of any
violation of this article may bring an action for recovery of actual
damages or two hundred fifty dollars, whichever is greater. The court
may, in its discretion, increase the award of damages to an amount not
to exceed three times the actual damages up to one thousand dollars, if
the court finds that the defendant willfully or knowingly violated the
provision of this section. The court may award reasonable attorney's
fees to a prevailing plaintiff.

4. Additional remedies of users. Nothing in this article shall in any
way contravene or limit the rights, remedies or privileges which are
otherwise available to a user under any other law.

5. Enforcement. In addition to the other remedies provided, whenever
there shall be a violation of this article, 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 by special proceeding 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 has, in fact, violated this article, an injunction may be
issued by such court or justice, enjoining and restraining any further
violation, without requiring proof that any person has, in fact, been
injured or damaged thereby. In any such proceeding, the court may make
allowances to the attorney general as provided in paragraph six of
subdivision (a) of section eighty-three hundred three of the civil
practice law and rules, and direct restitution. Whenever the court shall
determine that a violation of this article has occurred, the court may
impose a civil penalty of not more than five hundred dollars for each
violation. In connection with any such proposed application, the
attorney general is authorized to take proof and make a determination of
the relevant facts and to issue subpoenas in accordance with the civil
practice law and rules.