S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   10527
 
                           I N  A S S E M B L Y
 
                                May 4, 2018
                                ___________
 
 Introduced by M. of A. CRESPO -- read once and referred to the Committee
   on Consumer Affairs and Protection
 
 AN ACT to amend the general business law, in relation to the price goug-
   ing of pharmaceuticals
 
   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
 396-rrr to read as follows:
   § 396-RRR. PRICE GOUGING; PHARMACEUTICALS.   1. FOR  THE  PURPOSES  OF
 THIS SECTION, "PHARMACEUTICALS" SHALL MEAN ANY COMPOUND MANUFACTURED FOR
 SALE AS A MEDICINAL DRUG.
   2.  NO  MANUFACTURER  OR  WHOLESALER  OF PHARMACEUTICALS SHALL SELL OR
 OFFER TO SELL PHARMACEUTICALS FOR AN AMOUNT WHICH REPRESENTS  AN  UNCON-
 SCIONABLY  EXCESSIVE  PRICE. WHETHER A PRICE IS UNCONSCIONABLY EXCESSIVE
 IS A QUESTION OF LAW FOR THE COURT.
   3. THE COURT'S DETERMINATION THAT A  VIOLATION  OF  THIS  SECTION  HAS
 OCCURRED SHALL BE BASED ON ANY OF THE FOLLOWING FACTORS:
   (A) THAT THE AMOUNT OF THE EXCESS IN PRICE IS UNCONSCIONABLY EXTREME;
   (B)  THAT  THERE  WAS AN EXERCISE OF UNFAIR LEVERAGE OR UNCONSCIONABLE
 MEANS; OR
   (C) A COMBINATION OF BOTH FACTORS.
   4. IN ANY COURT PROCEEDING COMMENCED PURSUANT TO THIS  SECTION,  PROOF
 THAT  A  VIOLATION  OF  THIS SECTION HAS OCCURRED SHALL INCLUDE EVIDENCE
 THAT:
   (A) THE AMOUNT CHARGED REPRESENTS A GROSS DISPARITY BETWEEN THE MARKET
 PRICE OF THE PHARMACEUTICAL THAT LED TO THE ACTION  UNDER  THIS  SECTION
 AND  THE  PRICE  OF THE SAME PHARMACEUTICAL OVER THE SIX MONTHS PRIOR TO
 THE PRICE CHANGE THAT LED TO THE ACTION UNDER THIS SECTION; OR
   (B) THE AMOUNT CHARGED GROSSLY EXCEEDED THE PRICE AT WHICH THE PHARMA-
 CEUTICALS WERE READILY OBTAINABLE BY OTHER PURCHASERS.
   5. A DEFENDANT MAY REBUT A PRIMA FACIE CASE WITH EVIDENCE  THAT  ADDI-
 TIONAL COSTS NOT WITHIN THE CONTROL OF THE DEFENDANT WERE IMPOSED ON THE
 DEFENDANT.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD02407-01-7

 A. 10527                            2
 
   6.  WHERE A VIOLATION OF THIS SECTION IS ALLEGED TO HAVE OCCURRED, THE
 ATTORNEY GENERAL MAY APPLY IN THE NAME OF THE PEOPLE OF THE STATE OF NEW
 YORK TO THE SUPREME COURT WITHIN THE JUDICIAL  DISTRICT  IN  WHICH  SUCH
 VIOLATION  IS  ALLEGED  TO HAVE OCCURRED, ON NOTICE OF FIVE DAYS, FOR AN
 ORDER  ENJOINING OR RESTRAINING COMMISSION OR CONTINUANCE OF THE ALLEGED
 UNLAWFUL ACTS. IN ANY SUCH PROCEEDING WHERE A VIOLATION IS FOUND TO HAVE
 OCCURRED, THE COURT SHALL IMPOSE A CIVIL PENALTY IN  AN  AMOUNT  NOT  TO
 EXCEED  ONE MILLION DOLLARS AND, WHERE APPROPRIATE, ORDER RESTITUTION TO
 AGGRIEVED CONSUMERS.
   § 2. This act shall take effect immediately.