NY State Senate Bill 2011-S2219

Archive: Last Bill Status - In Senate Committee Consumer Protection 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

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 18, 2011	referred to consumer protection

2011-S2219 (ACTIVE) - Details

Current Committee:: Senate Consumer Protection
Law Section:: General Business Law
Laws Affected:: Add §394-f, Gen Bus L
Versions Introduced in 2009-2010 Legislative Session:: S205

2011-S2219 (ACTIVE) - Summary

Requires merchants to post notices of recalled products that are offered for sale in their business establishment; provides also for the giving of notice by mail to certain customers; provides for enforcement by the attorney general; authorizes a private right of action.

2011-S2219 (ACTIVE) - Sponsor Memo

                                BILL NUMBER:S2219

TITLE OF BILL:
An act
to amend the general business law, in relation to notification of
recalled products

PURPOSE OR GENERAL IDEA OF BILL:
To increase consumer access to
information about hazardous or defective products requiring recalls.

SUMMARY OF SPECIFIC PROVISIONS:
This bill would add a new section
394-f to the General Business Law to require within thirty days of
notification of a recall or of a defective or hazardous product from
a manufacturer, distributor or by a federal or state agency, the
seller of such product shall post such a notice. The notice must be
prominently displayed for at least 90 days. The notice shall include
information identifying the product including but not limited to any
serial, model, lot or code number of the product, information
describing the nature of the problem and information about redemption
or refund. In addition to the posting of the notice, the notice shall
also be mailed by the manufacturer or distributor to all users of the
product who have either filed a warranty registration card, owner's
registration card or other similar form.

Whenever there shall be a violation of these provisions, the Court may
impose a civil penalty of not more than five hundred dollars for each
violation. The court may impose a civil penalty of not more than one
thousand dollars if the violation was knowing or willful.
Additionally, any person who has been injured may bring an action in
his/her name to recover damages or one hundred dollars, whichever is
greater. The Court may increase the award 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 these
provisions. The court may also award reasonable attorney's fees to
the prevailing plaintiff.

JUSTIFICATION:
This bill incorporates recommendations advocated by
many including the federal Consumer Product Safety Commission, FDA,
Nation Highway Traffic Safety Commission, the Center for Auto Safety,
PIRG and the Institute for Injury Reduction. Products (e.g. toys,
appliances, electronic and medical devices, food, drugs and
cosmetics) can prove very dangerous to consumers especially children.
They may be excessively flammable; they may present a risk of
asphyxiation or electrocution; or, they may be adulterated or
misbranded, Because of health hazard determination, these products
may be recalled through the efforts of many federal and state
authorities. While press releases about the recall of an unsafe
product are often issued by companies who sold and/or manufactured

the product and/or by the appropriate governmental agency, the news
of the recall often does not reach consumers who have
purchased the product. Few media outlets publicize the notice. Thus,
the redemption rate remains low. According to the Consumer Product
Safety Commission, the news of a recall often reaches fewer than 10%
of the purchasers of the recalled item within the first two years
after the recall.

While some merchants and or distributors provide point of sale
notification of recalls and mail information to some users, these
practices are not uniformly followed. These notification practices
should be standard. Point of sale notification of hazards or defects
in a product is one of the most effective ways of alerting consumers
to the dangers of a specific product and of ensuring that such item
does not remain in the hands of users. Because consumers tend to
frequent the same stores, they will be likely to view the posters
informing them of the problem and learn of the redemption procedures.
Additionally, those who purchase appliances and other electronic and
medical devices tend to register their purchase and take advantage of
the warranty or guarantee by filing the appropriate card or papers.
Therefore, this list is a vital source of user information which can
be utilized to inform consumers of any recall and further information
about refunds or replacements.

Increased consumer awareness will reduce the numbers of deaths and
injuries associated with defective or hazardous products and thereby,
reduce product liability.

FISCAL IMPLICATIONS FOR STATE & LOCAL GOVERNMENTS:
None.

EFFECTIVE DATE:
On the ninetieth day.

2011-S2219 (ACTIVE) - Bill Text download pdf

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

                                  2219

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                            January 18, 2011
                               ___________

Introduced  by  Sen.  KRUGER -- read twice and ordered printed, and when
  printed to be committed to the Committee on Consumer Protection

AN ACT to amend the general business law, in relation to notification of
  recalled products

  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
394-f to read as follows:
  S  394-F.  RECALLED  PRODUCTS.  1.  FOR  PURPOSES OF THIS SECTION, THE
FOLLOWING TERMS SHALL HAVE THESE MEANINGS:
  (A) "SELLER" MEANS A PERSON, FIRM, CORPORATION, OR OTHER LEGAL  ENTITY
ENGAGED  IN  THE  SALE,  DISPLAY  OR  OFFERING  FOR SALE, OF PRODUCTS OR
MERCHANDISE AT RETAIL, INCLUDING MAIL ORDER  BUSINESSES  AS  DEFINED  IN
SECTION  THREE  HUNDRED NINETY-SIX-M OF THIS ARTICLE AND TELEPHONE SALES
BUSINESSES, AS DEFINED IN SECTION FOUR HUNDRED FORTY-ONE OF THE PERSONAL
PROPERTY LAW.
  (B) "MANUFACTURER" MEANS A PERSON,  FIRM  OR  CORPORATION  ENGAGED  IN
MANUFACTURING,  CONVERTING,  PROCESSING, ALTERING, REPAIRING, FINISHING,
OR PREPARING FOR SALE, OR IMPORTING FOR DISTRIBUTION ANY PRODUCT IN THIS
STATE.
  (C) "DISTRIBUTOR" MEANS A PERSON, FIRM, CORPORATION,  OR  OTHER  LEGAL
ENTITY THAT SELLS OR DISTRIBUTES ANY PRODUCT IN THIS STATE.
  (D)  "CONSUMER"  MEANS ANY NATURAL PERSON WHO PURCHASES A PRODUCT THAT
HAS BEEN RECALLED.
  (E) "RECALL OR RECALLED" SHALL MEAN A CORRECTIVE  OR  REMEDIAL  ACTION
INVOLVING  THE  REPAIR  OR REPLACEMENT OF A PRODUCT OR THE REFUND OF THE
PURCHASE PRICE OF A PRODUCT SOLD BY A MANUFACTURER.
  2. WITHIN THIRTY DAYS OF A SELLER'S RECEIVING NOTIFICATION OF A RECALL
OR NOTICE OF A DEFECTIVE  OR  HAZARDOUS  PRODUCT  FROM  A  MANUFACTURER,
DISTRIBUTOR,  OR  BY A FEDERAL OR STATE AGENCY, SUCH SELLER SHALL PROMI-
NENTLY AND CONSPICUOUSLY DISPLAY SUCH NOTIFICATION IN  AN  AREA  READILY

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD07397-01-1

S. 2219                             2

ACCESSIBLE TO THE PUBLIC, ADJACENT TO THE MAIN OR MAJOR ENTRANCE OF SUCH
SELLER'S  PREMISES, FOR AT LEAST NINETY DAYS AFTER RECEIPT THEREOF. SUCH
DISPLAY SHALL ALSO BE REQUIRED WITH RESPECT TO  ANY  RECALL  NOTICE,  OR
NOTICE  OF  DEFECTS  OR HAZARDS, VOLUNTARILY INITIATED OR ISSUED BY SUCH
SELLER.
  3. SUCH NOTIFICATION AS REQUIRED BY SUBDIVISION TWO  OF  THIS  SECTION
SHALL  INCLUDE  INFORMATION  IDENTIFYING THE RECALLED PRODUCT INCLUDING,
BUT NOT LIMITED TO, ANY SERIAL, MODEL, LOT OR CODE NUMBER OF  THE  PROD-
UCT,  INFORMATION  DESCRIBING  THE  NATURE OF THE PROBLEM TO WARRANT THE
RECALL AND INFORMATION CONCERNING REDEMPTION.
  4. IN ADDITION TO THE REQUIREMENTS DESCRIBED IN SUBDIVISIONS  TWO  AND
THREE  OF  THIS  SECTION,  WITHIN  THIRTY  DAYS  OF  A MANUFACTURER'S OR
DISTRIBUTOR'S RECEIVING OR DETERMINING THAT NOTIFICATION OF A RECALL  OR
NOTICE  OF  A  DEFECTIVE  OR HAZARDOUS PRODUCT MUST BE MADE, SUCH NOTICE
SHALL BE MAILED BY SUCH MANUFACTURER OR DISTRIBUTOR TO ALL CONSUMERS  OF
SUCH  RECALLED PRODUCT OF WHOM THE MANUFACTURER OR DISTRIBUTOR IS AWARE.
THOSE WHOM THE MANUFACTURER OR DISTRIBUTOR IS  AWARE  OF  SHALL  INCLUDE
THOSE  CONSUMERS  WHO EITHER FILED A WARRANTY REGISTRATION CARD, OWNER'S
REGISTRATION CARD, OR OTHER SIMILAR FORM.  THE NOTICE SHALL BE  SENT  BY
FIRST  CLASS  MAIL AND SHALL HAVE "SAFETY RECALL NOTICE" PRINTED IN BOLD
TYPE ON THE OUTSIDE OF THE ENVELOPE.
  5. AFTER RECEIPT OF A RECALL  NOTICE  OR  NOTICE  OF  A  DEFECTIVE  OR
HAZARDOUS  PRODUCT  FROM A MANUFACTURER OR DISTRIBUTOR OR FROM A FEDERAL
OR STATE AGENCY, A MAIL ORDER  BUSINESS  AS  DEFINED  IN  SECTION  THREE
HUNDRED  NINETY-SIX-M  OF THIS ARTICLE, SHALL, IN BOLD TYPE, PROMINENTLY
DISCLOSE THE SAME TO CONSUMERS IN AT  LEAST  TWO  SUBSEQUENT  ADVERTISE-
MENTS,  CATALOGS,  CIRCULARS OR PROMOTIONAL MATERIALS. A TELEPHONE SALES
BUSINESS AS DEFINED IN SECTION FOUR HUNDRED FORTY-ONE  OF  THE  PERSONAL
PROPERTY  LAW SHALL, WITHIN THIRTY DAYS AFTER RECEIPT OF A RECALL NOTICE
OR NOTICE OF A DEFECTIVE OR HAZARDOUS PRODUCT, NOTIFY  THE  CONSUMER  OF
THE SAME BY FIRST CLASS MAIL. SUCH NOTICE MAY BE COMBINED WITH ANY OTHER
COMMUNICATION  PROVIDED THAT THE NOTICE IS PROMINENT AND CONSPICUOUS AND
IS HEADED WITH "SAFETY RECALL NOTICE" IN BOLD TYPE.
  6. WHENEVER THERE SHALL BE A VIOLATION OF  THIS  SECTION,  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 A 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
VIOLATIONS; AND IF IT SHALL APPEAR TO THE SATISFACTION OF THE  COURT  OR
JUSTICE  THAT  THE  DEFENDANT  HAS,  IN FACT, VIOLATED THIS SECTION, THE
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 RESTITU-
TION. WHENEVER THE COURT  SHALL  DETERMINE  THAT  A  VIOLATION  OF  THIS
SECTION  HAS  OCCURRED, THE COURT MAY IMPOSE A CIVIL PENALTY OF NOT MORE
THAN FIVE HUNDRED DOLLARS FOR EACH VIOLATION. THE  COURT  MAY  IMPOSE  A
CIVIL  PENALTY  OF NOT MORE THAN ONE THOUSAND DOLLARS FOR EACH VIOLATION
IF THE VIOLATION IS KNOWING AND WILLFUL. 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.
  7. ANY PERSON WHO HAS BEEN INJURED BY REASON OF ANY VIOLATION OF  THIS
SECTION MAY BRING AN ACTION IN HIS OR HER OWN NAME TO RECOVER HIS OR HER

S. 2219                             3

ACTUAL  DAMAGES  OR ONE 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 THE DEFENDANT WILLFULLY OR KNOWINGLY VIOLATED THIS
SECTION. THE COURT MAY AWARD REASONABLE ATTORNEYS FEES TO  A  PREVAILING
PLAINTIFF.
  S  2.  This  act shall take effect on the ninetieth day after it shall
have become a law.

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Senate Bill S2219

Sponsored By

Archive: Last Bill Status - In Senate Committee Consumer Protection Committee

2011-S2219 (ACTIVE) - Details

2011-S2219 (ACTIVE) - Summary

2011-S2219 (ACTIVE) - Sponsor Memo

2011-S2219 (ACTIVE) - Bill Text download pdf

Comments

Senate Bill S2219

Share this bill

Sponsored By

Carl Kruger

Archive: Last Bill Status - In Senate Committee Consumer Protection Committee

2011-S2219 (ACTIVE) - Details

2011-S2219 (ACTIVE) - Summary

2011-S2219 (ACTIVE) - Sponsor Memo

2011-S2219 (ACTIVE) - Bill Text download pdf

Comments