[Adopted 5-19-1983 by L.L. No. 11-1983]
A.
Unfair trade practices prohibited. No person shall
engage in any deceptive or unconscionable trade practice in the sale,
lease, rental or loan of any consumer goods or services, in the extension
of consumer credit or in the collection of consumer debts.
B.
CONSUMER
CONSUMER CREDIT AND DEBTS
DECEPTIVE TRADE PRACTICE
(1)
(a)
(b)
(c)
(d)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(10)
(11)
DIRECTOR
HOME APPLIANCE
MERCHANDISE
MERCHANT
PERSON
PRICE ADVERTISEMENT
PRICE-REDUCTION ADVERTISEMENT
REFERENCE PRICE
UNCONSCIONABLE TRADE PRACTICE
WEIGHT LOSS PROVIDER
Definitions. As used in this article, the following
terms shall have the meanings indicated:
A purchaser, lessee or recipient or prospective purchaser,
lessee or recipient of consumer goods or services or consumer credit,
including a co-obligor or surety.
Credit and debts which are primarily for personal, household
or family purposes.
Any false, falsely disparaging or misleading oral or written
statement, visual description or other representation of any kind,
which has the capacity, tendency or effect of deceiving or misleading
consumers and is made in connection with the sale, lease, rental or
loan of consumer goods or services; the offering for sale, lease,
rental or loan of consumer goods or services; the extension of consumer
credit; or the collection of consumer debts. "Deceptive trade practices"
include but are not limited to:
Representations that:
Goods or services have sponsorship, approval,
accessories, characteristics, ingredients, uses, benefits or quantities
that they do not have.
The merchant has a sponsorship, approval, status,
affiliation or connection that he does not have.
Goods are original or new if they are deteriorated,
altered, reconditioned, reclaimed or secondhand.
Goods or services are of particular standard,
quality, grade, style or model if they are of another.
The use, in any oral or written representation,
of exaggeration, innuendo or ambiguity as to a material fact.
Failure to state a material fact if such use
or failure deceives or tends to deceive.
Disparaging the goods, services or business
of another by false or misleading representations of material facts.
Offering goods or services without intent to
sell them.
Offering goods or services without intent to
supply reasonably expectable public demand, unless the offer discloses
the limitation.
Making false or misleading representations of
fact concerning the reason for, existence of or amounts of price reductions
or the price in comparison to prices of competitors or one's own price
at a past or future time.
Falsely stating that a consumer transaction
involves consumer rights, remedies or obligations.
Falsely stating that services, replacements
or repairs are needed.
Falsely stating the reasons for offering or
supplying goods or services at sale or discount prices.
Causing, permitting, allowing or approving the
blockage, obstruction or concealment from the view of a purchaser
or purchasers the indicators of any machine, device or register used
to itemize and/or total sales to such purchaser or purchasers by any
person engaged in any commercial business activity in which consumer
goods and/or services are sold to the public. It shall not be deemed
a violation in those instances where the vendor gives to the purchaser
or purchasers, at time of the transaction utilizing such machine,
device or register, an itemized sales slip designating in words each
item purchased and the cost thereof, plus taxes, and the total cost
for all items purchased.
The Director of Weights and Measures, Director of Consumer
Protection and Public Advocate.
[Amended 8-5-2020 by L.L. No. 4-2020]
Any electrical, mechanical or thermal article produced or
distributed for sale to a consumer for use in or around a permanent
or temporary household or residence, including but not limited to
air conditioners, dehumidifiers, dishwashers, dryers, electric blankets,
electronic games, fans, freezers, motorized kitchen aids, ovens, radios,
ranges, refrigerators, stereophonic equipment, televisions, washers,
typewriters, calculators and computers.
Any objects, wares, goods, commodities, services or anything
offered, directly or indirectly, to the public for sale or rental
at retail.
A manufacturer, supplier, seller, lessor, creditor or other
person, firm or corporation who makes available to consumers, either
directly or indirectly, goods, services or credit.
An individual, merchant, partnership, firm or corporation.
Any advertisement in which a specific dollar price is stated
with regard to specific advertised merchandise.
An advertisement which in any way states or suggests, directly
or indirectly, that merchandise is being offered or made available
for sale at a price less than that at which it has been routinely
sold or offered for sale in the past or at which it will be sold or
offered for sale in the future. The following words and terms or their
substantial equivalent shall be deemed to indicate a "price-reduction
advertisement": sale, discount, special savings, price cut, bargain,
reduced, prices slashed, clearance, regularly, usually, cut-rate,
originally, formerly, warehouse or factory clearance, buy-one-get-one-free,
at cost, below cost, wholesale.
A price or price range set forth in a price-reduction advertisement
for the purpose of establishing an advertised selling price as a reduction
from a usual selling price of the advertised merchandise.
Any act or practice which takes unfair advantage of the lack
of knowledge, ability, experience or capacity of a consumer which
results in a gross disparity in the rights of a consumer as against
the merchant or results in a gross disparity between the value received
by a consumer and the price paid by the consumer.
A person who is primarily engaged in the business of offering
services to consumers to assist them in losing weight.
[Added 8-4-1992 by L.L. No. 1992]
C.
Enforcement.
(1)
The violation of any provision of this section or
of any rule or regulation promulgated hereunder shall render the violator
liable for the payment to the County of a civil penalty, recoverable
in a civil action, in the sum of not more than $500 for each such
violation.
(2)
Whenever any person has engaged in any acts or practices
which constitute repeated, persistent or multiple violations of any
provision of this section or of any rule or regulation promulgated
hereunder, the County Attorney, upon the request of the Director of
Consumer Protection, may make application to the Supreme Court for
a temporary or permanent injunction, restraining order or other equitable
relief.
D.
Settlements.
(1)
In lieu of instituting or continuing an action or
proceeding, the Director may accept written assurance of discontinuance
of any act or practice in violation of this section. Such assurance
may include a stipulation for the payment by the violator of the costs
of investigation and may also include a stipulation for the restitution
by the violator to consumers of money, property or other things received
from such consumers in connection with a violation of this section.
(2)
An assurance entered into pursuant to this subsection
shall not be deemed to admit the violation unless it does so by its
terms. A violation of an assurance entered into pursuant to this subsection
shall be treated as a violation of this section and shall be subject
to all the penalties provided therefor.
E.
Exclusions. Nothing in this section shall apply to
any television or radio broadcasting station or to any publisher or
printer of a newspaper, magazine or other form of printed advertising
who broadcasts, publishes or prints an advertisement which violates
this section except insofar as such station or publisher or printer
engages in a deceptive or unconscionable practice in the sale or offering
for sale of its own goods or services.
A.
It shall be deemed a deceptive trade practice if any
facts required by the Federal Consumer Protection Act or the Personal
Property Law of the State of New York to be disclosed in the extension
of consumer credit are not so disclosed.
B.
It shall be deemed an unconscionable trade practice
in the collection of a debt concerned with the sale or rental of a
consumer good or service if:
(1)
An alleged creditor, his assignee, agent or employee
contacts the alleged debtor's employer prior to obtaining final judgment.
(2)
Said alleged creditor, his assignee, agent or employee
creates the impression of legal service or sanction of a governmental
agency when contacting the alleged debtor.
(3)
Contact with the alleged debtor by an alleged creditor,
his assignee, agent or employee is attempted at hours of the day or
night considered not to be reasonable. For purposes of this regulation,
attempted contact of an alleged debtor shall not be made after 10:00
p.m. nor before 7:00 a.m.
(4)
When any default judgment has been entered against
an alleged judgment debtor by an alleged judgment creditor, such alleged
judgment creditor, his assignee, agent or employee contacts or communicates
with the alleged judgment debtor's employer except through such supplementary
proceedings as are provided by New York State law.
It shall be deemed an unconscionable and deceptive
trade practice for any person, firm, partnership or corporation to
violate any provisions of the rules and regulations of the Agriculture
and Markets Law of the State of New York as set forth in 1 NYCRR Part
260 or Part 262.
It shall be deemed a deceptive trade practice
to use the word "free" except as herein provided:
A.
When making free or similar offers, all substantial
terms, conditions and obligations upon which the right to take advantage
of such offer is directly dependent shall appear in close conjunction
with offer of free merchandise or service. For the purposes of this
regulation, placement of the terms of an offer set forth in a footnote
of an advertisement to which reference is made by an asterisk or other
symbol placed next to the offer is not in close conjunction.
B.
If a consumer good or service is to be given free
upon the purchase of some additional merchandise or service, said
additional service or merchandise must not be sold at above the regular
price, nor may the quantity or quality of the product be diminished.
C.
A free offer of a single size of a product or a single
kind of a service shall not be advertised by the same person in a
trade area for more than six months in any twelve-month period. At
least 30 days shall elapse before another such offer is promoted in
the same trade area. No more than three such offers should be made
in the same area in any twelve-month period.
D.
No free offer shall be made in connection with the
introduction of a new product or service offered for sale at a specified
price unless the offerer expects, in good faith, to discontinue the
offer after a limited time and to commence selling the product or
service promoted, separately, at the same price at which it was promoted
with a free offer.
E.
Where the common business practice is to negotiate
an individual sale, said regulations do not apply.
F.
FREE
REGULAR PRICE
The use of any term in any advertisement which imparts
or tends to impart the interpretation of free shall fall within the
purview of these regulations. For the purpose of this regulation,
the following definitions shall apply:
That a consumer shall pay nothing for an article so offered
and no more than the regular price for any other article which must
be purchased by the consumer in order to avail himself of said "free"
offer.
The price in the same quantity, quality and with the same
service at which the seller or advertiser of said product or service
has openly and actively sold the product or service in the trade area
in which he is making a free or similar offer for a prior period of
30 days. For consumer products or services which fluctuate in price,
the "regular price" shall be the lowest price at which any substantial
sales were made during the aforesaid thirty-day period.
It shall be deemed a deceptive trade practice
to advertise price or price-reduction sales, except as follows:
A.
When a price is advertised in dollar amounts and fractions
thereof, said numbers indicating the fractional amounts must be clear
and conspicuous in the body of such advertisement.
B.
The price advertised must be clearly and conspicuously
related to a specific consumer good or service.
C.
If at any time there are substantial conditions or
obligations upon which the right to take advantage of a sale item
is dependent, such conditions or obligations must be made known in
the body of the advertisement of such sale. As used in this section,
the phrase "conditions or obligations" shall mean such conditions
and obligations upon which receipt and retention of an item are directly
dependent. For purposes of this section, conditions such as length
of sale, locations of sale, limitation of supply, credit restrictions
and shipping and handling charges shall be deemed to be conditions
which must be made known. Such terms as "Sorry, no mail or phone,"
"No COD's" and the like are not to be considered substantial conditions
or obligations.
D.
To fail to conspicuously post notice of advertised merchandise on the business premises to which advertisement applies in proximity to the advertised merchandise or at all entrances to the business premises. Such notice may consist of a copy of the advertisement or may take the form of a tag attached to the merchandise or any sign using a term as defined in § 331-14B, definition of "price-reduction advertisement."
E.
To fail to disclose, in any advertisement in which
a home appliance is offered for sate, the manufacturer's name or the
merchandise trade name, the model or series number and such other
information as may be necessary to clearly delineate the advertised
item from other similar merchandise produced by the same manufacturer.
F.
To fail to substantiate through documents, records
or other written proof any claim made regarding the safety, performance,
availability, efficiency, quality or price of the advertised merchandise,
nature of the offering or quantity of merchandise available for sale.
Such records shall be made available upon request for inspection by
the Director or his designee at the advertiser's place of business
for a period of 90 days following the effective date of the advertisement.
G.
To fail to state with specificity the period of time
during which the price reduction shall be applicable and to set forth
the retail selling price or price range for all specifically advertised
merchandise.
It shall be a violation of this article for
any merchant engaged in the sale or lease of consumer goods which
are not to be delivered to the consumer at the time of the transaction
for sale or lease to fail to disclose an estimated delivery date conspicuously,
in writing, on the contract, bill of sale or receipt for the sale
of the goods at the time the order is taken or to fail to deliver
the goods by the latest date promised as stated for delivery, except
as provided herein.
A.
The merchant must deliver the goods no later than
the last date for delivery disclosed on the contract, unless the consumer
is notified in writing, or by oral communication confirmed in writing
within one day, of the delay and the anticipated delivery date or
range of delivery dates.
B.
If the goods have not been delivered within 30 days
of the estimated delivery date or if the merchant shall fail to comply
with the requirement to disclose estimated delivery dates as provided
in this section, the consumer, at his option, may:
C.
The merchant shall notify the consumer, in writing,
of these options within 30 days of the estimated delivery date.
D.
When a consumer requests a refund pursuant to the
provisions of this section, the refund must be made within two weeks
of the request.
E.
When a partial delivery has been made, the foregoing
provisions shall apply only to the undelivered portion of a consumer
goods order, unless the consumer goods are expressly sold as a set.
F.
When a delay in delivery beyond the originally promised date is caused by a strike or by an act of God, the amount of time of the delay equal to the duration of the strike or act of God shall not be counted in computing the 30 days referred to in Subsection B of this section.
G.
There is no violation of this section when the failure
to deliver is caused by the consumer.
A.
It shall be a violation for any merchant or other
person engaged in the sale of consumer services to be performed in
the future to fail to:
(1)
Conspicuously set forth in any contract, order form,
receipt or other written memorandum a date to commence and a date
to complete the performance of that service.
(2)
Commence and complete the performance of that service
on the date or dates agreed upon with the consumer, unless the consumer
is notified in writing, or by oral communication confirmed in writing
within one day, of the delay and the revised date of commencement
and/or completion, and the consumer agrees to the revised dates.
B.
If the merchant or other person providing the service shall fail to comply with the requirement to disclose a commencement and/or completion date as provided in Subsection A of this section, or if the service has not been performed within the period of time disclosed, the consumer, at his option, may:
C.
A "contract for future consumer services" is any
contract which includes a provision for consumer services to be rendered
in the future on a continuing basis, including but not limited to
computer schools, health spas or gyms, weight loss providers, home-study
school and courses or dance studios, except that future services shall
not mean nor include:
[Amended 8-4-1992 by L.L. No. 6-1992]
(1)
Boarding accommodations.
(2)
Travel arrangements contracted for less than a year
in advance.
(3)
Contracts which incorporate warranties of service
or repair given in conjunction with appliances or other goods, where
the sale of goods is the primary object of the contract.
(4)
Services by a public or private nonprofit education
institution, i.e., a college or university chartered by the University
of the State of New York or the Board of Regents of New York State,
secondary school and elementary school, a nursery school or a kindergarten.
D.
It shall be a violation for any merchant to communicate orally or in writing to the consumer that any contract for future consumer services sold by him is noncancelable or not subject to cancellation or to use words of similar meaning or import. Nothing in this section or in the following Subsection E shall preclude any person from communicating to a consumer that the consumer may be liable to the merchant for damages if he breaches or cancels a contract.
E.
It shall be a violation for any merchant who sells
future consumer services or collects consumer debts to contract for,
receive or demand, in the event of cancellation by the consumer of
such a contract for future service, more than a total of:
(1)
Ten percent of the cash price, but not to exceed $100;
(2)
A pro rata portion of the total price, representing
the proportion of services used or completed up to 25% of the time
or lessons contracted for. The proportion of services used or completed
shall include the time or lessons missed prior to cancellation; and
(3)
The cost to the merchant of any ancillary goods which
the consumer has used or has retained after cancellation of the contract.
Cancellation shall occur when the consumer mails to the merchant notice
of his intention to cancel or where the consumer fails to attend consecutive
scheduled classes or lessons constituting at least 25% of the total
lessons or time contracted for, without informing the merchant, in
writing, that he intends to remain enrolled. The contract forms used
by the merchant shall conspicuously disclose the merchant's cancellation
provisions in compliance herewith.
It shall be deemed an unconscionable and deceptive
trade practice for any person, firm, partnership or corporation to
violate the following provisions of the General Business Law:
It is a deceptive and unconscionable trade practice
for any person, firm, partnership or corporation engaged in the delivery,
pickup, inspection or repair of consumer goods in the home to fail
to keep an appointment to perform such services on the day agreed
upon with the consumer unless the consumer received written or verbal
notice of delay or cancellation before the end of the preceding business
day. Where unexpected circumstances, such as mechanical breakdown,
preclude notification by the end of the preceding business day, no
violation shall occur if actual notice is given as soon as practically
possible.
A.
It is an unconscionable and deceptive trade practice for any person, firm, partnership or corporation offering or providing consumer services and/or repairs to fail to post conspicuously on a sign in its place of business a schedule of rates charged for said services. Consumer services shall include, but shall not be limited to, services provided by barbers, beauticians, tailors, cleaners, laundries, laundromats or shoe repair or appliance repair, as defined in § 331-14B, definition of "home appliance."
B.
Where a charge is made for an estimate, a sign shall
be conspicuously posted stating the amount, if it is a flat charge,
or the method of determining a variable charge. Any other charges
shall be posted on the sign.
[Added 8-4-1992 by L.L. No. 6-1992]
A.
It is a deceptive trade practice for a weight loss
provider to quote to a consumer a fixed or estimated cost for a weight
loss program that is being recommended for the particular consumer
without separately stating any additional charges the consumer may
have to pay to purchase products, services, supplements or laboratory
tests which are part of such program.
B.
It is a deceptive trade practice for a weight loss
provider to recommend a weight loss program to a particular consumer
without also disclosing the actual or estimated duration of the program.
C.
It is a deceptive trade practice for a weight loss
provider to make any oral or written statement, visual description
or other representation of any kind, including in any advertisement,
which statement, description or representation has the capacity, tendency
or effect of leading consumers to believe that the use of a product
or treatment or participation in a program will result in weight loss
unless the weight loss provider conspicuously posts the following
statement in each of its weight loss establishments:
|
"1.
|
WARNING: Rapid weight loss may cause serious
health problems. (Rapid weight loss is weight loss of more than 1 1/2
pounds to 2 pounds per week or weight loss of more than 1% of body
weight per week after the second week of participation in a weight
loss program.)
| |
|
"2.
|
Only permanent lifestyle changes, such as making
healthful food choices and increasing physical activity, promote long-term
weight loss.
| |
|
"3.
|
Consult your personal physician before starting
any weight loss program.
| |
|
"4.
|
Qualifications of this provider's staff are
available on request.
| |
|
"5.
|
You have a right to:
| |
|
i.
|
Ask questions about the potential health risks
of this program, its nutritional content and its psychological-support
and educational components;
| |
|
ii.
|
Know the price of treatment, including the price
of any extra products, services, supplements and laboratory tests;
and
| |
|
iii.
|
Know the program duration that is being recommended
for you."
| |
D.
The above statement must be posted in a notice to
the public at every temporary or permanent location of the weight
loss provider. The notice must be conspicuously posted in every room
in which a presentation is made or in which a product or treatment
is offered for sale by the weight loss provider. The notice must be
printed in letters at least in 36-point boldface type on a sign at
least 22 inches by 34 inches in size. The sign shall be entitled "Weight
Loss Consumer Bill of Rights" which shall be printed in letters of
60-point boldfaced type.
E.
All the educational and professional experience of
the weight loss provider's staff must be made available upon the request
of any person.
F.
Every weight loss provider shall produce and distribute to all consumers who inquire about its weight loss program a palmsized card entitled "Weight Consumer Bill of Rights," which shall contain the same information contained in the poster described in Subsection C above.
G.
Every weight loss provider shall post the sign described in Subsection C and shall reproduce and distribute the palmsized card described in Subsection F in every location in which its program or product is promoted, presented or sold, and the weight loss provider must cause the posting of such sign and the distribution of such card by every agent, representative, franchisee and independent contractor at every location in which such agent, representative, franchisee or independent contractor promotes, presents or sells the weight loss provider's program or product.
