NY State Assembly Bill 2009-A10778

Assembly Bill A10778

2009-2010 Legislative Session

Regulates and requires issuance of raincheck by retailer where advertised merchandise is not available for sale

download bill text pdf

Archive: Last Bill Status - In Senate Committee Rules Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

Please enter your contact information

First Name

Last Name

Email Address

A valid email address is required.

Home address is used to determine the senate district in which you reside. Your support or opposition to this bill is then shared immediately with the senator who represents you.

Optional services from the NY State Senate:

Create an account. An account allows you to officially support or oppose key legislation, sign petitions with a single click, and follow issues, committees, and bills that matter to you. When you create an account, you agree to this platform's terms of participation.

Include a custom message for your Senator? (Optional)

Enter a message to your senator. Many New Yorkers use this to share the reasoning behind their support or opposition to the bill. Others might share a personal anecdote about how the bill would affect them or people they care about.

Actions

View Actions

	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jun 24, 2010	referred to rules delivered to senate passed assembly
Jun 23, 2010	ordered to third reading rules cal.303 rules report cal.303 reported
Jun 21, 2010	reported referred to rules
May 25, 2010	reported referred to codes
Apr 21, 2010	referred to consumer affairs and protection

co-Sponsors

2009-A10778 (ACTIVE) - Details

See Senate Version of this Bill:: S4445
Current Committee:: Senate Rules
Law Section:: General Business Law
Laws Affected:: Add §397-b, Gen Bus L
Versions Introduced in Other Legislative Sessions:: 2011-2012: A443, S3049
2013-2014: A1835, S5339
2015-2016: A5710
2017-2018: A7941
2019-2020: A1498
2021-2022: A6458
2023-2024: A4620
2025-2026: A3881

2009-A10778 (ACTIVE) - Summary

Mandates that any article of merchandise advertised, and not available throughout advertised period, must be supplied at advertised price by seller within sixty days from the date the purchaser of such article is notified of its availability; specifies terms of raincheck and limited exceptions.

2009-A10778 (ACTIVE) - Sponsor Memo

                                BILL NUMBER:A10778

TITLE OF BILL:  An act to amend the general business law, in relation to
availability for sale of advertised merchandise

SUMMARY:
This bill adds a new Section 397-b to the General Business Law. This
bill would regulate and require the issuance of rainchecks by retailers
in cases where advertised merchandise is not available for sale. This
bill would require that any retailer who advertises an article of
merchandise for sale at a price such articles are usually sold or
offered for sale in the store, and does not have such article available
throughout the advertised period must, on the request of the article's
purchaser, offer to issue a raincheck in certain circumstances. The bill
further requires that if a retailer advertises an item without indicat-
ing that there are limited quantities of that item available, such
retailer must have in stock and readily available quantities sufficient
to meet reasonably anticipated public demand.

This legislation defines raincheck, details the information which must
be included on the raincheck and prescribes the manner in which affected
retailers must inform consumers of the availability of rainchecks. Each
retailer that advertises sale items would be required to clearly and
conspicuously post a sign indicating where a raincheck can be obtained.
Violation of any provision of the bill would subject a retailer to the
provisions of Article 22-A of the General Business Law for having

committed a false and misleading advertising practice and/or a civil
penalty.

JUSTIFICATION:
The practice of "bait and switch" advertising which is deceptive within
the statutory proscription (as in Section 349(a) of the General Business
Law) involves an advertisement and offer of a product which is not bona
fide because what the merchant actually has on hand and intends to sell
is significantly different from that which drew the potential customer
in, and, hence, is a practice which does not include conduct of a seller
in continually modifying proposed terms of a contract with the buyer as
the negotiations proceed. This judicial decision was set forth in GOLD-
BERG V. MANHATTAN LINCOLN MERCURY (1985), and is taken from McKinney's.
Enactment of this law would enable New York State to enforce long-stand-
ing Federal Trade Commission regulation and policy, court orders, and a
1972 New York City Regulation on bait advertising. Bait advertising is
the practice of making an alluring offer to sell a product which the
advertiser does not intend or want to sell in order to entice a consumer
into an establishment where, it expected, other purchases will be made.
Many retailers currently have policies regarding the issuance of rain-
checks.

Although a great many of these policies were designed and operate with
the interests of the consumer in mind, a number of retailers, albeit a
minority, either do not have policies or employ policies which do not
consider the consumer. It is because of this that many consumers look

upon raincheck policies (even those which are consumer oriented) with
jaundiced eyes. Indeed, the credibility of many retailers' rain- check
policies has eroded, creating an industry-wide crisis of confidence.
This situation serves the best interests of neither the consumer nor the
retailer. Several studies have found that the FTC and New York City
regulation, bait advertising guides and orders have not resulted in
compliance with the generally accepted premise that when supplies of an
advertised item will not meet reasonably anticipated demand, the adver-
tisement should disclose that fact. This bill would serve to statutorily
recognize these current rules and regulations and provide for greater
enforcement of them. Indeed, consumers would receive the protection they
deserve from deceptive bait advertising.

FISCAL IMPLICATIONS:
None.

EFFECTIVE DATE:
This act shall take effect on the sixtieth day after it shall have
become a law.

2009-A10778 (ACTIVE) - Bill Text download pdf

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  10778

                          I N  A S S E M B L Y

                             April 21, 2010
                               ___________

Introduced  by M. of A. GALEF -- read once and referred to the Committee
  on Consumer Affairs and Protection

AN ACT to amend the general business law, in  relation  to  availability
  for sale of advertised merchandise

  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
397-b to read as follows:
  S 397-B. AVAILABILITY FOR SALE OF  ADVERTISED  MERCHANDISE.    1.    A
RETAILER  WHO  ADVERTISES  AN ARTICLE OF MERCHANDISE FOR SALE AT A PRICE
WHICH IS REDUCED, IN GOOD FAITH, TO A PRICE BELOW THE PRICE  SUCH  ARTI-
CLES ARE USUALLY SOLD OR OFFERED FOR SALE FOR IN THE STORE, AND DOES NOT
HAVE  SUCH  ARTICLE AVAILABLE THROUGHOUT THE ADVERTISED PERIOD SHALL, ON
THE REQUEST OF A PURCHASER OF SUCH ARTICLE, OFFER TO ISSUE  A  RAINCHECK
UNLESS ONE OR MORE OF THE FOLLOWING SITUATIONS EXISTS:
  (A)    THE ADVERTISEMENT IS MADE IN RELATION TO MAIL ORDER MERCHANDISE
AS REGULATED BY SECTION THREE HUNDRED NINETY-SIX-M OF THIS ARTICLE.
  (B)  THE ADVERTISEMENT IS OF AN ARTICLE THAT IS ONE OF A KIND AND  THE
ADVERTISEMENT CLEARLY AND CONSPICUOUSLY STATES SUCH FACT.
  (C)    THE ADVERTISEMENT CLEARLY AND CONSPICUOUSLY STATES THE SPECIFIC
QUANTITY OF THE ARTICLE AVAILABLE AT THE OUTSET OF THE SALE.
  (D)  THE ADVERTISEMENT CLEARLY AND CONSPICUOUSLY STATES THAT  A  RAIN-
CHECK  IS NOT AVAILABLE.  THIS EXCLUSION MAY ONLY BE USED IF THE ARTICLE
WILL NOT BE OFFERED FOR SALE FOR AT LEAST ONE HUNDRED TWENTY  DAYS  FROM
THE EXPIRATION DATE OF THE ADVERTISEMENT.
  2.    A  RAINCHECK  ISSUED PURSUANT TO SUBDIVISION ONE OF THIS SECTION
SHALL ENTITLE THE HOLDER TO PURCHASE, AT THE STORE  ISSUING  SUCH  RAIN-
CHECK,  THE ADVERTISED ARTICLE AT THE ADVERTISED PRICE WITHIN SIXTY DAYS
FROM THE DATE OF ISSUANCE OR FOR A PERIOD OF TEN BUSINESS DAYS FROM  THE
FIRST DATE OF AVAILABILITY OF THE ARTICLE, WHICHEVER SHALL BE LATER.
  THE  ISSUANCE  OF  SUCH RAINCHECK SHALL CONSTITUTE AN AGREEMENT ON THE
PART OF THE SELLER TO SUPPLY  SUCH  ARTICLE  AT  SUCH  PRICE.    NOTHING
CONTAINED HEREIN SHALL PROHIBIT A SELLER FROM OFFERING A SIMILAR ARTICLE
OF  EQUAL  OR  GREATER  VALUE  EITHER  DURING THE PERIOD COVERED BY SUCH

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

                                                           LBD11362-01-9

A. 10778                            2

ADVERTISEMENT OF THE ARTICLE OR WITHIN SIXTY DAYS FROM THE DATE OF ISSU-
ANCE OF THE RAINCHECK, OR THE SELLER  AND  PURCHASER  FROM  AGREEING  TO
LENGTHEN  THE  REDEMPTION  PERIOD  OF  SUCH  RAINCHECK. IF THE PURCHASER
ACCEPTS SUBSTITUTION, SUCH SUBSTITUTION SHALL CONSTITUTE COMPLIANCE WITH
THE PROVISIONS OF SUBDIVISION ONE OF THIS SECTION.
  3.  THE RAINCHECK SHALL INCLUDE AT LEAST THE FOLLOWING INFORMATION:
  (A)  NAME, ADDRESS AND TELEPHONE NUMBER OF THE ISSUER.
  (B)  DATE OF ISSUANCE.
  (C)  LAST DATE THAT THE RAINCHECK CAN BE REDEEMED.
  (D)  NAME, DESCRIPTION AND QUANTITY DESIRED OF THE ARTICLE.
  (E)  THE ADVERTISED PRICE.
  4.  THE RAINCHECK SHALL CONTAIN THE FOLLOWING NOTICE:
  YOU MAY REDEEM THIS RAINCHECK FOR THE ADVERTISED ITEM DESCRIBED ON THE
OTHER SIDE WITHIN SIXTY DAYS OF ISSUANCE OR FOR A PERIOD OF TEN BUSINESS
DAYS FROM THE FIRST DATE OF AVAILABILITY OF THE ITEM, WHICHEVER SHALL BE
LATER.
  YOU WILL PAY ONLY THE ADVERTISED PRICE FOR THE ITEM.
  YOU ARE UNDER NO OBLIGATION TO BUY THE ITEM.
  5.  EVERY  RETAILER  WHO ADVERTISES SUCH AN ARTICLE OF MERCHANDISE FOR
SALE, WHICH IS NOT AVAILABLE, SHALL NOTIFY THE PURCHASER NO  LATER  THAN
FIFTEEN  DAYS  AFTER  THE RECEIPT OF SUCH MERCHANDISE BY THE SELLER THAT
THE MERCHANDISE IS NOW AVAILABLE FOR PURCHASE.
  6. THERE SHALL BE, WITHIN EACH RETAIL  ESTABLISHMENT  THAT  ADVERTISES
ITEMS  FOR  SALE  AT  A PRICE BELOW THE USUAL SELLING PRICE, A CLEAR AND
CONSPICUOUSLY POSTED SIGN, POSTER OR PLACARD INDICATING  WHERE  A  RAIN-
CHECK CAN BE OBTAINED.
  7.  IT SHALL BE AN AFFIRMATIVE DEFENSE TO AN ALLEGED VIOLATION OF THIS
SECTION THAT THE SELLER WAS UNABLE  TO  HONOR  A  RAINCHECK  WITHIN  THE
REDEMPTION  PERIOD  BECAUSE SUCH SELLER DID NOT RECEIVE A REORDER OF THE
ADVERTISED ARTICLE FROM A  SUPPLIER  THROUGH  NO  FAULT  OF  THE  SELLER
PROVIDED,  HOWEVER,  THAT THE SELLER MUST MAINTAIN RECORDS SUFFICIENT TO
SHOW THAT THE ADVERTISED SALE ITEMS WERE REORDERED IN ADEQUATE TIME  FOR
DELIVERY AND IN SUFFICIENT QUANTITY TO FULFILL RAINCHECK OBLIGATIONS.
  8. THIS SECTION SHALL NOT APPLY TO A PURCHASE FOR RESALE.
  9.  NOTHING  IN  THIS SECTION SHALL BE CONSTRUED TO RELIEVE THE SELLER
FROM ANY OTHER PROVISION OF LAW PROHIBITING THE ADVERTISING OF GOODS  OR
SERVICES WITH THE INTENT NOT TO MEET REASONABLY EXPECTED DEMAND.
  10. NO PURCHASER SHALL BE REQUIRED TO PREPAY THE PURCHASE PRICE OR ANY
PART THEREOF IN ORDER TO OBTAIN A RAINCHECK.
  11. A PERSON WHO VIOLATES ANY PROVISION OF THIS SECTION IS GUILTY OF A
FALSE  AND MISLEADING ADVERTISING PRACTICE AND SUBJECT TO THE PROVISIONS
OF ARTICLE TWENTY-TWO-A OF THIS CHAPTER.
  12. NOTHING HEREIN SHALL BE CONSTRUED TO RESTRICT  THE  POWER  OF  ANY
COUNTY,  CITY,  TOWN  OR  VILLAGE  TO ADOPT AND ENFORCE ADDITIONAL LOCAL
LAWS, ORDINANCES, OR REGULATIONS WHICH  EXCEED  THE  MINIMUM  APPLICABLE
STANDARDS IN THIS SECTION.
  S  2.  This  act  shall take effect on the sixtieth day after it shall
have become a law.

Comments

Open Legislation is a forum for New York State legislation. All comments are subject to review and community moderation is encouraged.

Comments deemed off-topic, commercial, campaign-related, self-promotional; or that contain profanity, hate or toxic speech; or that link to sites outside of the nysenate.gov domain are not permitted, and will not be published. Attempts to intimidate and silence contributors or deliberately deceive the public, including excessive or extraneous posting/posts, or coordinated activity, are prohibited and may result in the temporary or permanent banning of the user. Comment moderation is generally performed Monday through Friday. By contributing or voting you agree to the Terms of Participation and verify you are over 13.

Create an account. An account allows you to sign petitions with a single click, officially support or oppose key legislation, and follow issues, committees, and bills that matter to you. When you create an account, you agree to this platform's terms of participation.

Assembly Bill A10778

Share this bill

Sponsored By

GALEF