S T A T E O F N E W Y O R K
________________________________________________________________________
2642--C
Cal. No. 218
2009-2010 Regular Sessions
I N A S S E M B L Y
January 21, 2009
___________
Introduced by M. of A. PHEFFER, CYMBROWITZ, COLTON, GABRYSZAK, SPANO,
FIELDS, BING, GALEF, CASTRO, MARKEY, ROSENTHAL, STIRPE, N. RIVERA,
MAGNARELLI, ZEBROWSKI -- Multi-Sponsored by -- M. of A. DenDEKKER,
GLICK, GOTTFRIED, GUNTHER, HEVESI, KOON, LUPARDO, NOLAN, TITONE,
TOWNS, WEINSTEIN -- read once and referred to the Committee on Consum-
er Affairs and Protection -- committee discharged, bill amended,
ordered reprinted as amended and recommitted to said committee --
again reported from said committee with amendments, ordered reprinted
as amended and recommitted to said committee -- passed by Assembly and
delivered to the Senate, recalled from the Senate, vote reconsidered,
bill amended, ordered reprinted, retaining its place on the order of
third reading
AN ACT to amend the general business law, in relation to magazines sold
by subscription
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
1 Section 1. Section 335-a of the general business law, as added by
2 chapter 533 of the laws of 1977, subdivision 1 as amended by chapter 534
3 of the laws of 1977 and subdivision 2 as amended by chapter 204 of the
4 laws of 2006, is amended to read as follows:
5 S 335-a. Magazines sold by subscription. 1. Every publisher of a maga-
6 zine sold by subscription shall disclose by a notice on the mailing
7 label of each magazine mailed pursuant to subscription, the month and
8 year in which the subscription expires. Such notice shall be printed or
9 written in a clear [and], conspicuous, UNDERSTANDABLE AND READABLE form.
10 2. Every publisher of a magazine sold by subscription shall, in any
11 direct written communication to a subscriber inviting the subscriber to
12 renew a subscription, clearly [and], conspicuously, UNDERSTANDABLY AND
13 READABLY:
14 a. disclose the month and year in which the subscription expires[,
15 which may be included on the order card or on the renewal offer]; or
16 b. include the month and year in which the subscription expires on the
17 mailing label when the invitation to renew is packaged with an issue of
18 the magazine, PROVIDED, HOWEVER, THAT THE LOCATION ON THE MAILING LABEL
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD02633-12-0
A. 2642--C 2
1 OF THE MONTH AND YEAR IN WHICH THE SUBSCRIPTION EXPIRES IS DISCLOSED IN
2 A CLEAR, CONSPICUOUS, UNDERSTANDABLE AND READABLE MANNER ON SUCH INVITA-
3 TION.
4 3. When a subscription is renewed, the renewal period shall not
5 commence before the expiration of any current subscription or renewals.
6 4. ANY PERSON, FIRM, ASSOCIATION OR CORPORATION ENGAGED IN BUSINESS,
7 THE PRINCIPAL PURPOSE OF WHICH IS TO REGULARLY SOLICIT MAGAZINE
8 SUBSCRIPTION ORDERS FOR DELIVERY IN THIS STATE THROUGH THE MAIL FOR
9 PROFIT SHALL, IN ANY DIRECT WRITTEN COMMUNICATION TO A MAGAZINE
10 SUBSCRIBER INVITING THE SUBSCRIBER TO RENEW A SUBSCRIPTION, CLEARLY,
11 CONSPICUOUSLY, UNDERSTANDABLY AND READABLY:
12 A. DISCLOSE THE MONTH AND YEAR IN WHICH THE SUBSCRIPTION EXPIRES; OR
13 B. INCLUDE THE MONTH AND YEAR IN WHICH THE SUBSCRIPTION EXPIRES ON THE
14 MAILING LABEL WHEN THE INVITATION TO RENEW IS PACKAGED WITH AN ISSUE OF
15 THE MAGAZINE, PROVIDED, HOWEVER, THAT THE LOCATION ON THE MAILING LABEL
16 OF THE MONTH AND YEAR IN WHICH THE SUBSCRIPTION EXPIRES IS DISCLOSED IN
17 A CLEAR, CONSPICUOUS, UNDERSTANDABLE AND READABLE MANNER ON SUCH INVITA-
18 TION.
19 NOTHING CONTAINED IN THIS SUBDIVISION SHALL BE CONSTRUED TO APPLY TO
20 ANY DIRECT WRITTEN COMMUNICATION INVITING A CONSUMER TO ORDER OR RENEW
21 ANY SUBSCRIPTION SOLD BY A NOT-FOR-PROFIT ENTITY, OR BY A CHARITABLE
22 ORGANIZATION REGISTERED PURSUANT TO SECTION ONE HUNDRED SEVENTY-TWO OF
23 THE EXECUTIVE LAW, OR AS PART OF A SCHOOL FUNDRAISER OR GIFT
24 SUBSCRIPTION OFFER.
25 5. Whenever there shall be a violation of this section, an application
26 may be made by the attorney general in the name of the people of the
27 state of New York to a court or justice having jurisdiction to issue an
28 injunction, and upon notice to the defendant of not less than five days,
29 to enjoin and restrain the continuance of such violations; and if it
30 shall appear to the satisfaction of the court or justice that the
31 defendant has in fact, violated this section, an injunction may be
32 issued by such court or justice, enjoining and restraining any further
33 violation, without requiring proof that any person has, in fact, been
34 injured or damaged thereby. In any such proceeding the court may make
35 allowances to the attorney general as provided in section eighty-three
36 hundred three of the civil practice law and rules, and direct restitu-
37 tion. In connection with any such proposed application, the attorney
38 general is authorized to take proof and make a determination of the
39 relevant facts and to issue subpoenas in accordance with the civil prac-
40 tice law and rules.
41 WHENEVER THE COURT SHALL DETERMINE THAT A VIOLATION OF THIS SECTION
42 HAS OCCURRED, THE COURT MAY IMPOSE A CIVIL PENALTY OF NOT MORE THAN ONE
43 HUNDRED DOLLARS FOR A SINGLE VIOLATION AND NOT MORE THAN FIVE HUNDRED
44 DOLLARS FOR MULTIPLE VIOLATIONS RESULTING FROM A SINGLE ACT OR INCIDENT.
45 A KNOWING VIOLATION OF THIS SECTION SHALL BE PUNISHABLE BY A CIVIL
46 PENALTY OF NOT MORE THAN FIVE HUNDRED DOLLARS FOR A SINGLE VIOLATION AND
47 NOT MORE THAN ONE THOUSAND DOLLARS FOR MULTIPLE VIOLATIONS RESULTING
48 FROM A SINGLE ACT OR INCIDENT. NO PERSON, FIRM, ASSOCIATION OR CORPO-
49 RATION SHALL BE DEEMED TO HAVE VIOLATED THE PROVISIONS OF THIS SECTION
50 IF SUCH PERSON, FIRM, PARTNERSHIP, ASSOCIATION OR CORPORATION SHOWS, BY
51 A PREPONDERANCE OF THE EVIDENCE, THAT THE VIOLATION WAS NOT INTENTIONAL
52 AND RESULTED FROM A BONA FIDE ERROR MADE NOTWITHSTANDING THE MAINTENANCE
53 OF PROCEDURES REASONABLY ADOPTED TO AVOID SUCH ERROR.
54 S 2. This act shall take effect one year after it shall have become a
55 law.