NY State Senate Bill 2021-S6731A

Senate Bill S6731A

2021-2022 Legislative Session

Relates to false representation of affiliation or approval of state or local agencies as false advertising

download bill text pdf

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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Actions

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 05, 2022	referred to consumer protection
Jun 02, 2021	print number 6731a
Jun 02, 2021	amend and recommit to consumer protection
May 13, 2021	referred to consumer protection

Bill Amendments

Original

A (Active)

2021-S6731 - Details

See Assembly Version of this Bill:: A9203
Current Committee:: Senate Consumer Protection
Law Section:: General Business Law
Laws Affected:: Amd §350-a, Gen Bus L
Versions Introduced in 2023-2024 Legislative Session:: S276, A3568

2021-S6731 - Summary

Provides that a false representation of affiliation or approval, or false implication of such affiliation or approval, of any official, state or local agencies or other official source, shall be false advertising.

2021-S6731 - Sponsor Memo

                                
 
BILL NUMBER: S6731

SPONSOR: GOUNARDES
 
TITLE OF BILL:

An act to amend the general business law, in relation to false represen-
tation of affiliation or approval of state or local agencies

 
PURPOSE OR GENERAL IDEA OF BILL:

To clarify that the prohibition on false or misleading advertising in
New York State's General Business Law includes a false impression of
government correspondence

 
SUMMARY OF PROVISIONS:

Section one of this bill amends Section 350-a of the General Business
Law to provide that false impressions of official government correspond-
ence shall be considered false advertising and prohibited under Article
22-a of GBL, which declares deceptive acts and practices unlawful.

Section two of this bill sets the effective date.

 
JUSTIFICATION:

New York's landmark consumer protection law, Article 22-A of the General
Business Law, renders deceptive "acts or practices in the conduct of any
business, trade or commerce or in the furnishing of any service" unlaw-
ful. Any person or firm in violation of this statute is subject to a
state right of action from the Attorney General, a private right of
action from injured parties, and civil penalties. The law makes specific
mention of certain nefarious practices and tactics such as pension
poaching for Veterans Affairs benefits and deceitful marketing by energy
service companies (ESCOs).  It also provides an additional civil penalty
of up to $10,000 for persons or firms who willfully target seniors, in
recognition of the vulnerable nature of this particular subset of
consumers.

Missing from this statute, however, is an express prohibition on commer-
cial correspondence which purports to be affiliated with a government
entity. Examples of for-profit companies disguising sales pitches as
official and urgent government correspondence, from notices that a prop-
erty tax bill may be about to increase to declarations that a consumer
has been found eligible for Medicaid, abound. These predatory mailers
will frequently target senior citizens, who may have trouble reading the
fine print on the back of the envelope which clarifies that the mail is
not affiliated with a government agency at all. While federal rules
issued by the Federal Trade Commission ban false or misleading represen-
tations of governmental authority for debt collectors, there is no such
blanket prohibition for other industries.

This bill would amend New York's General Business Law to clarify that
mail which willfully creates a false impression of official correspond-
ence is considered false advertising and subject to all penalties there-
in described. It is the sponsor's hope that this change if enacted would
better protect seniors from predatory advertising while encouraging
companies to be more clearer and more forthright about the products or
services they are selling.

 
PRIOR LEGISLATIVE HISTORY:

None

 
FISCAL IMPLICATIONS:

None

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

2021-S6731 - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   6731
 
                        2021-2022 Regular Sessions
 
                             I N  S E N A T E
 
                               May 13, 2021
                                ___________
 
 Introduced by Sen. GOUNARDES -- 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 false represen-
   tation of affiliation or approval of state or local agencies
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Section 350-a of the general business law,  as  amended  by
 chapter  615  of the laws of 1988, subdivision 3 as added by chapter 107
 of the laws of 1994, is amended to read as follows:
   § 350-a. False advertising. 1.  The  term  "false  advertising"  means
 advertising, including labeling, of a commodity, or of the kind, charac-
 ter, terms or conditions of any employment opportunity if such advertis-
 ing  is  misleading  in  a  material respect. In determining whether any
 advertising is misleading, there shall  be  taken  into  account  (among
 other  things) not only representations made by statement, word, design,
 device, sound or any combination thereof, but also the extent  to  which
 the  advertising  fails  to  reveal  facts material in the light of such
 representations with respect to the commodity or employment to which the
 advertising relates under the conditions prescribed in  said  advertise-
 ment,  or  under such conditions as are customary or usual. For purposes
 of this article, with respect to the advertising of an employment oppor-
 tunity, it shall be deemed "misleading in a material respect" to  either
 fail  to  reveal  whether  the  employment  available  or  being offered
 requires or is conditioned upon the purchasing or leasing  of  supplies,
 material, equipment or other property or whether such employment is on a
 commission  rather  than  a  fixed  salary basis and, if so, whether the
 salaries advertised are only obtainable if  sufficient  commissions  are
 earned.
   2.  ANY WRITTEN OR ELECTRONIC COMMUNICATION WHICH SIMULATES A DOCUMENT
 AUTHORIZED, ISSUED OR APPROVED BY ANY COURT, OFFICIAL,  AGENCY  OF  THIS
 STATE  OR  A POLITICAL SUBDIVISION THEREOF, OR OF ANOTHER STATE OR OFFI-
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.

                                                            LBD11071-01-1

 S. 6731                             2
 
 CIAL GOVERNMENTAL ENTITY, FOREIGN OR DOMESTIC, OR WHICH CREATES A  FALSE
 IMPRESSION  AS  TO  SUCH  DOCUMENT'S  SOURCE, AUTHORIZATION OR APPROVAL,
 SHALL  BE  CONSIDERED  FALSE  ADVERTISING.  THIS  SUBDIVISION  SHALL  BE
 CONSTRUED  TO  PROHIBIT  ANY  FALSE REPRESENTATION OR IMPLICATION THAT A
 PERSON, FIRM, CORPORATION OR ASSOCIATION, OR AGENT OR EMPLOYEE  THEREOF,
 SELLING  A  COMMODITY OR SERVICE IS VOUCHED FOR, APPROVED OF, BONDED BY,
 OR OTHERWISE AFFILIATED WITH THIS STATE OR A POLITICAL SUBDIVISION THER-
 EOF, OR OF ANOTHER STATE OR OFFICIAL  GOVERNMENTAL  ENTITY,  FOREIGN  OR
 DOMESTIC.
   3. An employer shall not be liable under this section as a result of a
 failure  to disclose all material facts relating to terms and conditions
 of employment if the aggrieved person has not suffered actual  pecuniary
 damage as a result of the misleading advertising of an employment oppor-
 tunity  or  if the employer has, prior to the aggrieved person suffering
 any pecuniary damage, disclosed in writing to that  person  a  full  and
 accurate description of the kind, character, terms and conditions of the
 employment opportunity.
   [3.]  4. It shall constitute false advertising to display or announce,
 in print or broadcast advertising, the price of an item after  deduction
 of  a  rebate unless the actual selling price is displayed or announced,
 and clear and conspicuous notice is given in the  advertisement  that  a
 mail-in rebate is required to achieve the lower net price.
   §  2.  This  act  shall take effect on the sixtieth day after it shall
 have become a law. Effective immediately, the addition, amendment and/or
 repeal of any rule or regulation necessary  for  the  implementation  of
 this  act  on its effective date are authorized to be made and completed
 on or before such effective date.

2021-S6731A (ACTIVE) - Details

See Assembly Version of this Bill:: A9203
Current Committee:: Senate Consumer Protection
Law Section:: General Business Law
Laws Affected:: Amd §350-a, Gen Bus L
Versions Introduced in 2023-2024 Legislative Session:: S276, A3568

2021-S6731A (ACTIVE) - Summary

2021-S6731A (ACTIVE) - Sponsor Memo

                                
 
BILL NUMBER: S6731A

SPONSOR: GOUNARDES
 
TITLE OF BILL:

An act to amend the general business law, in relation to false represen-
tation of affiliation or approval of state or local agencies

 
PURPOSE OR GENERAL IDEA OF BILL:

To clarify that the prohibition on false or misleading advertising in
New York State's General Business Law includes a false impression of
government correspondence

 
SUMMARY OF PROVISIONS:

Section one of this bill amends Section 350-a of the General Business
Law to provide that false impressions of official government correspond-
ence shall be considered false advertising and prohibited under Article
22-a of GBL, which declares deceptive acts and practices unlawful.

Section two of this bill sets the effective date.

 
JUSTIFICATION:

New York's landmark consumer protection law, Article 22-A of the General
Business Law, renders deceptive "acts or practices in the conduct of any
business, trade or commerce or in the furnishing of any service" unlaw-
ful. Any person or firm in violation of this statute is subject to a
state right of action from the Attorney General, a private right of
action from injured parties, and civil penalties. The law makes specific
mention of certain nefarious practices and tactics such as pension
poaching for Veterans Affairs benefits and deceitful marketing by energy
service companies (ESCOs).  It also provides an additional civil penalty
of up to $10,000 for persons or firms who willfully target seniors, in
recognition of the vulnerable nature of this particular subset of
consumers.

Missing from this statute, however, is an express prohibition on commer-
cial correspondence which purports to be affiliated with a government
entity. Examples of for-profit companies disguising sales pitches as
official and urgent government correspondence, from notices that a prop-
erty tax bill may be about to increase to declarations that a consumer
has been found eligible for Medicaid, abound. These predatory mailers
will frequently target senior citizens, who may have trouble reading the
fine print on the back of the envelope which clarifies that the mail is
not affiliated with a government agency at all. While federal rules
issued by the Federal Trade Commission ban false or misleading represen-
tations of governmental authority for debt collectors, there is no such
blanket prohibition for other industries.

This bill would amend New York's General Business Law to clarify that
mail which willfully creates a false impression of official correspond-
ence is considered false advertising and subject to all penalties there-
in described. It is the sponsor's hope that this change if enacted would
better protect seniors from predatory advertising while encouraging
companies to be clearer and more forthright about the products or
services they are selling.

 
PRIOR LEGISLATIVE HISTORY:

None

 
FISCAL IMPLICATIONS:

None

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

2021-S6731A (ACTIVE) - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  6731--A
 
                        2021-2022 Regular Sessions
 
                             I N  S E N A T E
 
                               May 13, 2021
                                ___________
 
 Introduced by Sen. GOUNARDES -- read twice and ordered printed, and when
   printed  to  be  committed  to the Committee on Consumer Protection --
   committee discharged, bill amended, ordered reprinted as  amended  and
   recommitted to said committee
 
 AN ACT to amend the general business law, in relation to false represen-
   tation of affiliation or approval of state or local agencies
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Section 350-a of the general business law,  as  amended  by
 chapter  615  of the laws of 1988, subdivision 3 as added by chapter 107
 of the laws of 1994, is amended to read as follows:
   § 350-a. False advertising. 1.  The  term  "false  advertising"  means
 advertising, including labeling, of a commodity, or of the kind, charac-
 ter, terms or conditions of any employment opportunity if such advertis-
 ing  is  misleading  in  a  material respect. In determining whether any
 advertising is misleading, there shall  be  taken  into  account  (among
 other  things) not only representations made by statement, word, design,
 device, sound or any combination thereof, but also the extent  to  which
 the  advertising  fails  to  reveal  facts material in the light of such
 representations with respect to the commodity or employment to which the
 advertising relates under the conditions prescribed in  said  advertise-
 ment,  or  under such conditions as are customary or usual. For purposes
 of this article, with respect to the advertising of an employment oppor-
 tunity, it shall be deemed "misleading in a material respect" to  either
 fail  to  reveal  whether  the  employment  available  or  being offered
 requires or is conditioned upon the purchasing or leasing  of  supplies,
 material, equipment or other property or whether such employment is on a
 commission  rather  than  a  fixed  salary basis and, if so, whether the
 salaries advertised are only obtainable if  sufficient  commissions  are
 earned.

  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD11071-02-1

 S. 6731--A                          2
 
   2.  ANY WRITTEN OR ELECTRONIC COMMUNICATION WHICH SIMULATES A DOCUMENT
 AUTHORIZED, ISSUED OR APPROVED BY ANY COURT, OFFICIAL,  AGENCY  OF  THIS
 STATE  OR  A POLITICAL SUBDIVISION THEREOF, OR OF ANOTHER STATE OR OFFI-
 CIAL GOVERNMENTAL ENTITY, FOREIGN OR DOMESTIC, OR WHICH CREATES A  FALSE
 IMPRESSION  AS  TO  SUCH  DOCUMENT'S  SOURCE, AUTHORIZATION OR APPROVAL,
 SHALL BE CONSIDERED FALSE ADVERTISING UNLESS THE  PERSON,  FIRM,  CORPO-
 RATION  OR  ASSOCIATION,  OR  AGENT  OR  EMPLOYEE  THEREOF, HAS RECEIVED
 EXPRESS PERMISSION FROM SUCH COURT, OFFICIAL, OR AGENCY FOR THE  USE  OF
 SUCH DOCUMENT. THIS SUBDIVISION SHALL BE CONSTRUED TO PROHIBIT ANY FALSE
 REPRESENTATION  OR  IMPLICATION, WRITTEN OR VERBAL, THAT A PERSON, FIRM,
 CORPORATION OR ASSOCIATION, OR AGENT  OR  EMPLOYEE  THEREOF,  SELLING  A
 COMMODITY  OR  SERVICE IS VOUCHED FOR, APPROVED OF, BONDED BY, OPERATING
 WITH OR ON BEHALF OF, OR OTHERWISE AFFILIATED WITH THIS STATE OR A POLI-
 TICAL SUBDIVISION THEREOF, OR OF ANOTHER STATE OR OFFICIAL  GOVERNMENTAL
 ENTITY,  FOREIGN  OR  DOMESTIC, UNLESS SUCH PERSON, FIRM, CORPORATION OR
 ASSOCIATION, OR AGENT OR EMPLOYEE THEREOF, HAS RECEIVED EXPRESS  PERMIS-
 SION FROM SUCH STATE OR POLITICAL SUBDIVISION FOR SUCH AFFILIATION.
   3. An employer shall not be liable under this section as a result of a
 failure  to disclose all material facts relating to terms and conditions
 of employment if the aggrieved person has not suffered actual  pecuniary
 damage as a result of the misleading advertising of an employment oppor-
 tunity  or  if the employer has, prior to the aggrieved person suffering
 any pecuniary damage, disclosed in writing to that  person  a  full  and
 accurate description of the kind, character, terms and conditions of the
 employment opportunity.
   [3.]  4. It shall constitute false advertising to display or announce,
 in print or broadcast advertising, the price of an item after  deduction
 of  a  rebate unless the actual selling price is displayed or announced,
 and clear and conspicuous notice is given in the  advertisement  that  a
 mail-in rebate is required to achieve the lower net price.
   §  2.  This  act  shall take effect on the sixtieth day after it shall
 have become a law. Effective immediately, the addition, amendment and/or
 repeal of any rule or regulation necessary  for  the  implementation  of
 this  act  on its effective date are authorized to be made and completed
 on or before such effective date.

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