NY State Senate Bill 2023-S4130

Senate Bill S4130

2023-2024 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 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 03, 2024	referred to consumer protection
Feb 03, 2023	referred to consumer protection

2023-S4130 (ACTIVE) - Details

Current Committee:: Senate Consumer Protection
Law Section:: General Business Law
Laws Affected:: Add §397-b, Gen Bus L
Versions Introduced in Other Legislative Sessions:: 2017-2018: S8046
2019-2020: S1711
2021-2022: S4813
2025-2026: S4687

2023-S4130 (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.

2023-S4130 (ACTIVE) - Sponsor Memo

                                 
BILL NUMBER: S4130

SPONSOR: MANNION
 
TITLE OF BILL:

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

 
PURPOSE:

The purpose of this bill is to require retailers to provide a raincheck
to purchasers for the sale of advertised merchandise.

 
SUMMARY OF PROVISIONS:

Section 1 of this bill would amend the General Business Law to require
retailers to provide a raincheck to purchasers for the sale of adver-
tised merchandise under certain conditions. Such rainchecks allow
purchasers to purchase the merchandise at the advertised price for up to
60 days after issuance of the raincheck or for a period of ten business
days from the first date of availability of the artide, whichever shall
be later. Additionally, the section requires certain information to be

included on the raincheck and that such raincheck include a notice.

Section 2 of the bill provides that the effective date shall take effect
on the one hundred eightieth day after it shall have become a law.

 
JUSTIFICATION:

The practice of "bait and switch" advertising which is deceptive within
the statutory proscription (as in Section 349 (a) of the General Busi-
ness 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 GOLDBERG V.  MANHATTAN LINCOLN MERCURY 91985), and is taken from
McKinney's.  Enactment of this law would enable New York State to
enforce long-standing Federal Trade Commission regulation and policy,
court orders, and a 1972 New York City Regulation on bait advertising.

Although many retailers have implemented rain-check policies with the
interests of the consumer in mind, some retailers either do not have
policies or employ policies that do not favor the consumer. The result
is that many consumers view rain-check policies with wary eyes. The
credibility of many retailers' rain-check policies have eroded, creating
an industry-wide crisis of confidence.

Neither the consumer nor the retailer wins. Several studies have found
that the Federal Trade Commission policies, New York City regulations,
bait advertising guides, and general orders have not increased compli-
ance with the premise that when supplies of an advertised item will not
meet anticipated demand, the advertisement should disclose that fact.

This bill would serve to statutorily recognize these current rules and
regulations and provide for greater enforcement of them. Indeed, consum-
ers would receive the protection they deserve from deceptive bait and
switch advertising.
 
LEGISLATIVE HISTORY:

2021-22: S.4813 (Reichlin-Melnick) - Referred to Consumer Protection.

2019-20: S.1711 (Carlucci) - Referred to Consumer Protection

2017-18:  S.8046 (Carlucci) - Referred to Consumer Protection

 
FISCAL IMPLICATIONS:

None.

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

2023-S4130 (ACTIVE) - Bill Text download pdf

                             
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   4130
 
                        2023-2024 Regular Sessions
 
                             I N  S E N A T E
 
                             February 3, 2023
                                ___________
 
 Introduced  by  Sen. MANNION -- 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  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:
   § 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.
   (E)  PRODUCTS DEFINED IN SUBDIVISION THREE OF SECTION TWO OF THE AGRI-
 CULTURE AND MARKETS LAW SHALL BE EXCLUDED FROM THE  PROVISIONS  OF  THIS
 SECTION, PROVIDED, HOWEVER, THAT ANY RETAILER OFFERING FOR SALE OR SELL-
 ING SUCH PRODUCTS MAY ISSUE RAINCHECKS PURSUANT TO THIS SECTION.
   2.    A  RAINCHECK  ISSUED PURSUANT TO SUBDIVISION ONE OF THIS SECTION
 SHALL ENTITLE THE HOLDER TO PURCHASE, AT THE STORE  ISSUING  SUCH  RAIN-
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD07805-01-3

 S. 4130                             2
 
 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
 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. 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.
   6. THIS SECTION SHALL NOT APPLY TO A PURCHASE FOR RESALE.
   7. 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.
   8. NO PURCHASER SHALL BE REQUIRED TO PREPAY THE PURCHASE PRICE OR  ANY
 PART THEREOF IN ORDER TO OBTAIN A RAINCHECK.
   9. NOTHING IN THIS SECTION 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.
   § 2. This act shall take effect on the one hundred eightieth day after
 it shall have become a law.

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