Bill Text: NY A05801 | 2019-2020 | General Assembly | Introduced
Bill Title: Prohibits any person, firm, partnership, association or corporation, or agent or employee thereof from offering for sale tangible or intangible goods or services which have not been actually ordered or requested by the recipient; provides that any receipt of unordered goods shall be deemed a gift to the recipient; prohibits the requesting of payment for unordered goods and services; makes related provisions including prohibiting the recipient from waiving any of his or her rights hereunder.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2020-01-08 - referred to consumer affairs and protection [A05801 Detail]
Download: New_York-2019-A05801-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 5801 2019-2020 Regular Sessions IN ASSEMBLY February 19, 2019 ___________ Introduced by M. of A. ORTIZ -- read once and referred to the Committee on Consumer Affairs and Protection AN ACT to amend the general business law, in relation to prohibiting any party from charging consumers for unordered or unrequested goods or services; and to repeal paragraph a of subdivision 2 of section 396 of such law relating thereto The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Paragraph a of subdivision 2 of section 396 of the general 2 business law is REPEALED and a new paragraph a is added to read as 3 follows: 4 a. (1) No person, firm, partnership, association or corporation, or 5 agent or employee thereof, shall, in any manner, or by any means, offer 6 for sale, lease, or charge any fee for any tangible or intangible goods, 7 or services which have not been actually ordered or requested by the 8 recipient, either orally or in writing. The receipt of any such unor- 9 dered goods, or furnishing of such services shall for all purposes be 10 deemed an unconditional gift to the recipient who may use or dispose of 11 the same in any manner he or she sees fit without any obligation on his 12 or her part to the sender. 13 (2) No person, firm, partnership, association or corporation, or agent 14 or employee thereof, shall bill or otherwise request payment for goods 15 or services not actually ordered or requested by the recipient. 16 (3) No person, firm, partnership, association or corporation, or agent 17 or employee thereof, shall propose a contract or contract term which 18 provides for a fee or charge for goods or services not actually ordered 19 or requested by the recipient and which purportedly makes the recipient 20 legally bound to make payment for such goods or services upon the recip- 21 ient's failure to respond within a specified period of time. Any such 22 proposal shall be deemed to be void as against public policy and wholly 23 unenforceable. EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD03067-01-9A. 5801 2 1 (4) Any tangible goods sent which have not been actually ordered or 2 requested by the recipient shall be prominently marked upon the contain- 3 er thereof in bold letters as follows: "THIS IS A GIFT. PAYMENT NOT 4 REQUIRED FOR THIS ITEM." 5 (5) At least thirty days prior to the sending of any intangible goods 6 or furnishing of any services offered for sale or lease which have not 7 been actually ordered or requested by the recipient, the sender shall 8 mail or deliver a written notice separate from any other document mailed 9 or delivered to the recipient, containing a short, clear and coherent 10 statement, in a size equal to at least ten-point bold type, the name and 11 a short description of the good or service to be sent or furnished, the 12 approximate date such good or service is to be sent or furnished, that 13 the good or service is a gift, and that payment is not required for this 14 good or service. 15 (6) This paragraph shall not apply to a membership or club arrangement 16 which is regulated by the federal trade commission pursuant to 16 CFR 17 425 as such section may from time to time be amended, or other contrac- 18 tual plans or arrangements such as continuity plans, subscription 19 arrangements, standing order arrangements, supplements and series 20 arrangements under which the seller periodically ships merchandise to a 21 consumer who has consented in advance to receive such merchandise on a 22 periodic basis. 23 (7) This paragraph shall not apply to offers for sale or lease of 24 unordered or unrequested services in connection with the renewal or 25 extension of an existing contract, provided such offer was otherwise 26 permitted by law or the terms of such contract and further provided that 27 no unordered or unrequested service is offered in connection with the 28 renewal or extension for a fee or charge in addition to any service or 29 services which were the subject of such contract. 30 (8) Any recipient who has been injured by reason of any violation of 31 this paragraph may bring an action in his or her own name to enjoin such 32 unlawful act or practice, an action to recover his or her actual damages 33 or fifty dollars, whichever is greater, or both such actions. In any 34 action under this subparagraph, the court may award reasonable attor- 35 ney's fees to a prevailing plaintiff. Any recipient who has received any 36 bill statement or request for payment with respect to any goods or 37 services deemed to be an unconditional gift under this paragraph shall 38 be deemed to be injured under this subparagraph. 39 (9) Nothing in this paragraph shall in any way limit the rights or 40 remedies which are otherwise available to a recipient under any other 41 provision of law, including, but not limited to, the uniform commercial 42 code and article twenty-two-A of this chapter. 43 (10) Waiver of rights by any recipient under this paragraph shall be 44 deemed contrary to public policy and shall be unenforceable and void. 45 (11) For the purposes of this paragraph: (i) the term "tangible good" 46 shall mean any good sent to the recipient by means of a container; and 47 (ii) the term "intangible good" shall mean any good which is not a 48 tangible good. 49 § 2. This act shall take effect immediately.
