BILL NO A05710
SAME AS No same as
SPONSOR Galef (MS)
COSPNSR Rosenthal, Englebright, Weprin
Add S397-b, Gen Bus L
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.
TITLE OF BILL: An act to amend the general business law, in relation
to availability for sale of advertised merchandise
PURPOSE OR GENERAL IDEA OF BILL:
This legislation relates to the availability of merchandise at a price
lower than it is normally sold for, and outlines a detailed policy in
relation to rain-checks.
SUMMARY OF SPECIFIC PROVISIONS:
Section 1. The General Business Law is amended by adding a new section
397-b. S 397-b. Availability for sale of advertised merchandise.
1. Retailers who advertises merchandise at a reduced price, and do not
have the item available during the advertised period, must by the
request of a purchaser, offer to issue a rain-check unless: (a) the
advertisement is in relation to mail order merchandise (b) the
advertisement is of an article that is a one of a kind and the ad
clearly states that (c) the advertisement states that a specific
quantity is available (d) the advertisement states a rain-check is not
available (e) the products are defined under subdivision 3 of section
2 of the Agriculture and Markets Law.
2. The rain-check shall entitle the holder to purchase the advertised
article within 60 days from the date of issuance, or for a period of
10 business days, from the first date of availability of the item,
whichever shall be later. Substitute items can be offered should the
purchaser accept the substitution.
3. The rain-check must include: (a) name, address, and telephone
number of issuer, (b) date of issuance, (c) expiration date, (d) name,
description and quantity of article, and (e) the advertised price.
4. The rain-check must contain the following notice: You may redeem
this rain-check 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 this item. You are
under no obligation to buy the item.
5. It shall be an affirmative defense to an alleged violation if the
seller was unable to honor the rain-check because the seller did not
receive a reorder from a supplier through no fault of the seller
provided, however, that the seller maintain records sufficient of the
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 good or
services with the intent not to meet reasonably expected demand.
8. No purchaser shall be required to prepay in order to obtain a
9. Nothing in this section shall be construed to restrict the power of
any county, city, town or village to adopt and enforce additional
laws, which exceed the minimum applicable standards in this section.
Section 2. Establishes the effective date.
The practice of "bait and switch" advertising which is deceptive
within the statutory proscription (as in Section 349 (a) of the
General Business 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 jaundiced 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
compliance with the premise that when supplies of an advertised item
will not meet anticipated demand, the advertisement should disclose
This bill would serve to statutorily recognize these current rules and
regulations and provide for greater enforcement of them. Indeed,
consumers would receive the protection they deserve from deceptive
bait and switch advertising.
PRIOR LEGISLATIVE HISTORY:
A. 1835-A of 2013/2014
A. 443 of 2011/2012
A. 10778 and S. 4445 of 2009/2010
No fiscal implications are related to this legislation.
This act shall take effect on the one hundred eightieth day after it
shall have become a law.
S T A T E O F N E W Y O R K
2015-2016 Regular Sessions
I N A S S E M B L Y
March 3, 2015
Introduced by M. of A. GALEF, ROSENTHAL, ENGLEBRIGHT, WEPRIN -- read
once and referred to the Committee on Consumer Affairs and 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:
1 Section 1. The general business law is amended by adding a new section
2 397-b to read as follows:
3 S 397-B. AVAILABILITY FOR SALE OF ADVERTISED MERCHANDISE. 1. A
4 RETAILER WHO ADVERTISES AN ARTICLE OF MERCHANDISE FOR SALE AT A PRICE
5 WHICH IS REDUCED, IN GOOD FAITH, TO A PRICE BELOW THE PRICE SUCH ARTI-
6 CLES ARE USUALLY SOLD OR OFFERED FOR SALE FOR IN THE STORE, AND DOES NOT
7 HAVE SUCH ARTICLE AVAILABLE THROUGHOUT THE ADVERTISED PERIOD SHALL, ON
8 THE REQUEST OF A PURCHASER OF SUCH ARTICLE, OFFER TO ISSUE A RAINCHECK
9 UNLESS ONE OR MORE OF THE FOLLOWING SITUATIONS EXISTS:
10 (A) THE ADVERTISEMENT IS MADE IN RELATION TO MAIL ORDER MERCHANDISE
11 AS REGULATED BY SECTION THREE HUNDRED NINETY-SIX-M OF THIS ARTICLE.
12 (B) THE ADVERTISEMENT IS OF AN ARTICLE THAT IS ONE OF A KIND AND THE
13 ADVERTISEMENT CLEARLY AND CONSPICUOUSLY STATES SUCH FACT.
14 (C) THE ADVERTISEMENT CLEARLY AND CONSPICUOUSLY STATES THE SPECIFIC
15 QUANTITY OF THE ARTICLE AVAILABLE AT THE OUTSET OF THE SALE.
16 (D) THE ADVERTISEMENT CLEARLY AND CONSPICUOUSLY STATES THAT A RAIN-
17 CHECK IS NOT AVAILABLE. THIS EXCLUSION MAY ONLY BE USED IF THE ARTICLE
18 WILL NOT BE OFFERED FOR SALE FOR AT LEAST ONE HUNDRED TWENTY DAYS FROM
19 THE EXPIRATION DATE OF THE ADVERTISEMENT.
20 (E) PRODUCTS DEFINED IN SUBDIVISION THREE OF SECTION TWO OF THE AGRI-
21 CULTURE AND MARKETS LAW SHALL BE EXCLUDED FROM THE PROVISIONS OF THIS
22 SECTION, PROVIDED, HOWEVER, THAT ANY RETAILER OFFERING FOR SALE OR SELL-
23 ING SUCH PRODUCTS MAY ISSUE RAINCHECKS PURSUANT TO THIS SECTION.
24 2. A RAINCHECK ISSUED PURSUANT TO SUBDIVISION ONE OF THIS SECTION
25 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.
A. 5710 2
1 CHECK, THE ADVERTISED ARTICLE AT THE ADVERTISED PRICE WITHIN SIXTY DAYS
2 FROM THE DATE OF ISSUANCE OR FOR A PERIOD OF TEN BUSINESS DAYS FROM THE
3 FIRST DATE OF AVAILABILITY OF THE ARTICLE, WHICHEVER SHALL BE LATER.
4 THE ISSUANCE OF SUCH RAINCHECK SHALL CONSTITUTE AN AGREEMENT ON THE
5 PART OF THE SELLER TO SUPPLY SUCH ARTICLE AT SUCH PRICE. NOTHING
6 CONTAINED HEREIN SHALL PROHIBIT A SELLER FROM OFFERING A SIMILAR ARTICLE
7 OF EQUAL OR GREATER VALUE EITHER DURING THE PERIOD COVERED BY SUCH
8 ADVERTISEMENT OF THE ARTICLE OR WITHIN SIXTY DAYS FROM THE DATE OF ISSU-
9 ANCE OF THE RAINCHECK, OR THE SELLER AND PURCHASER FROM AGREEING TO
10 LENGTHEN THE REDEMPTION PERIOD OF SUCH RAINCHECK. IF THE PURCHASER
11 ACCEPTS SUBSTITUTION, SUCH SUBSTITUTION SHALL CONSTITUTE COMPLIANCE WITH
12 THE PROVISIONS OF SUBDIVISION ONE OF THIS SECTION.
13 3. THE RAINCHECK SHALL INCLUDE AT LEAST THE FOLLOWING INFORMATION:
14 (A) NAME, ADDRESS AND TELEPHONE NUMBER OF THE ISSUER.
15 (B) DATE OF ISSUANCE.
16 (C) LAST DATE THAT THE RAINCHECK CAN BE REDEEMED.
17 (D) NAME, DESCRIPTION AND QUANTITY DESIRED OF THE ARTICLE.
18 (E) THE ADVERTISED PRICE.
19 4. THE RAINCHECK SHALL CONTAIN THE FOLLOWING NOTICE:
20 YOU MAY REDEEM THIS RAINCHECK FOR THE ADVERTISED ITEM DESCRIBED ON THE
21 OTHER SIDE WITHIN SIXTY DAYS OF ISSUANCE OR FOR A PERIOD OF TEN BUSINESS
22 DAYS FROM THE FIRST DATE OF AVAILABILITY OF THE ITEM, WHICHEVER SHALL BE
24 YOU WILL PAY ONLY THE ADVERTISED PRICE FOR THE ITEM.
25 YOU ARE UNDER NO OBLIGATION TO BUY THE ITEM.
26 5. IT SHALL BE AN AFFIRMATIVE DEFENSE TO AN ALLEGED VIOLATION OF THIS
27 SECTION THAT THE SELLER WAS UNABLE TO HONOR A RAINCHECK WITHIN THE
28 REDEMPTION PERIOD BECAUSE SUCH SELLER DID NOT RECEIVE A REORDER OF THE
29 ADVERTISED ARTICLE FROM A SUPPLIER THROUGH NO FAULT OF THE SELLER
30 PROVIDED, HOWEVER, THAT THE SELLER MUST MAINTAIN RECORDS SUFFICIENT TO
31 SHOW THAT THE ADVERTISED SALE ITEMS WERE REORDERED IN ADEQUATE TIME FOR
32 DELIVERY AND IN SUFFICIENT QUANTITY TO FULFILL RAINCHECK OBLIGATIONS.
33 6. THIS SECTION SHALL NOT APPLY TO A PURCHASE FOR RESALE.
34 7. NOTHING IN THIS SECTION SHALL BE CONSTRUED TO RELIEVE THE SELLER
35 FROM ANY OTHER PROVISION OF LAW PROHIBITING THE ADVERTISING OF GOODS OR
36 SERVICES WITH THE INTENT NOT TO MEET REASONABLY EXPECTED DEMAND.
37 8. NO PURCHASER SHALL BE REQUIRED TO PREPAY THE PURCHASE PRICE OR ANY
38 PART THEREOF IN ORDER TO OBTAIN A RAINCHECK.
39 9. NOTHING IN THIS SECTION SHALL BE CONSTRUED TO RESTRICT THE POWER OF
40 ANY COUNTY, CITY, TOWN OR VILLAGE TO ADOPT AND ENFORCE ADDITIONAL LOCAL
41 LAWS, ORDINANCES, OR REGULATIONS WHICH EXCEED THE MINIMUM APPLICABLE
42 STANDARDS IN THIS SECTION.
43 S 2. This act shall take effect on the one hundred eightieth day after
44 it shall have become a law.