N.Y. Agriculture & Markets Law § 190-a: Home food service plan sales

§ 190-a. Home food service plan sales. 1. Definitions. As used in this

section, unless the context otherwise requires, the following words and

phrases shall have the following meanings:

a. "Home food service plan" means any offering for sale to a household

consumer of meat or poultry or seafood or the offering of such products

in combination with each other or with any other food or non-food

product or service sold as a unit for a total price in the aggregate in

excess of two hundred dollars.

b. "Seller" means any person, partnership, corporation or association,

however organized, engaged in the sale of food through home food service

plans.

c. "Food spoilage protection" means any agreement, guarantee, warranty

or contract offered by the seller whereby the buyer is insured or

protected against loss of frozen food due to spoilage.

d. "Primal source" means the following cuts: (i) for beef, the primal

sources are the round, flank, loin, rib, plate, brisket, chuck and

shank; (ii) for veal and lamb or mutton, the primal sources are the leg,

flank, loin, rack (rib) and shoulder; and (iii) for pork, the primal

sources are the belly, loin, ham, spareribs, shoulder and jowl.

e. "Item" means each constituent part or kind of meat cut from a

primal souce, each kind of whole poultry, each kind of poultry part,

every package of like seafood, and every package of like grocery and

non-food products.

f. "Service charge" means the total price of the home food service

plan (including, without limitation, the price of food and non-food

items, membership fees and charges for delivery, cutting, wrapping, and

freezing) less the total price of all food and non-food items included

in the price of the plan.

2. Written contract required for home food service plans. All of the

terms and conditions of a home food service plan sale shall be contained

in a single written contract furnished to the buyer at the time of the

execution of the contract.

3. Right of cancellation. The buyer shall have the right to cancel the

home food service plan contract until midnight of the third business day

after the day on which the buyer executed the contract or after the day

on which the seller provided the buyer with a fully executed copy of the

contract, whichever is later.

4. Disclosures required in a written contract. A seller of a home food

service plan must disclose to buyers in a contract in writing, in a form

approved by the commissioner of agriculture and markets, the following:

a. the name and address of the seller;

b. whether substitutions of food items may be or are made, under which

circumstances such substitutions will be made, the substitution values

in terms of price, and whether the prospective buyer has the right to

refuse such substitutions;

c. the terms and conditions of food spoilage protection, if any;

d. that the buyer is not obligated to (1) enter into an additional

home food service plan contract; (2) purchase any appliance, including,

but not limited to, a freezer, refrigerator-freezer, or microwave oven;

(3) purchase food spoilage protection; or (4) purchase any other product

from the seller in order to enter into a home food service plan;

e. the U.S.D.A. quality grade of the meat supplied, if so graded, and

the primal source, if applicable;

f. an itemized list of the components of the home food service plan;

g. the estimated weight of each meat, poultry and seafood item offered

for sale under the home food service plan, provided, however, that such

estimates shall not differ from the actual weight at time of delivery by

more than five percent;

h. the price per pound of each meat, poultry and seafood item to be

supplied;

i. the total price of the home food service plan, the service charge

and the estimated price of each meat, poultry and seafood item to be

supplied;

j. the weight, measure or count and unit price of all other food and

non-food items supplied for sale;

k. that at the time of delivery the buyer will be furnished with an

itemized list stating the identity, primal source, if applicable,

weight, measure or count, total number of packages supplied, price per

pound, which shall be the price specified in the home food service plan

contract, and total price of each food and non-food item included in the

sale;

l. that the buyer may cancel the contract until midnight of the third

business day after the day on which the buyer executed the contract or

after the day on which the seller provided the buyer with a fully

executed copy of the contract, whichever is later, by giving written

notice of cancellation to the seller; and that within ten days after

cancellation, the seller shall return to the buyer any note or other

evidence of indebtedness and shall refund to the buyer all monies

received from the buyer minus the price of the actual amount of food and

non-food products delivered to and not returned or tendered by the buyer

following cancellation. Notice of cancellation if given by mail shall be

deemed given when deposited in a mailbox properly addressed and postage

prepaid.

5. Invoice at delivery required. At the time of delivery, the seller

shall provide to the buyer a written invoice disclosing the name and

address of the seller and the identity, primal source, if applicable,

weight, measure or count, total number of packages supplied, price per

pound, which shall be the price specified in the home food service plan

contract, and total price of each food and non-food item included in the

sale.

6. Restriction on assignment of obligation. a. A seller shall not

negotiate, transfer, sell or assign any note or other evidence of

indebtedness, issued in connection with a home food service plan sale,

to a finance company or other third party prior to midnight of the fifth

business day after the day on which the buyer executed the contract or

after the day on which the seller provided the buyer with a fully

executed copy of the contract, whichever is later.

b. The assignee of any such note or other evidence of indebtedness

shall be subject to all claims and defenses of the buyer against the

seller arising from the sale notwithstanding any agreement to the

contrary. The assignee's liability under this subdivision shall not

exceed the amount owing to the assignee at the time the claim or defense

is asserted against the assignee. Rights of the buyer under this section

can be asserted affirmatively against or as a matter of defense to or

set-off against a claim by the assignee.

7. Violations:

A violation of this section shall be subject to the applicable

penalties of this chapter. A violation of this section shall not

constitute a misdemeanor pursuant to the provisions of section forty-one

of this chapter unless such violation is committed with intent to

defraud.

In addition to the foregoing, an application may be made to a court or

justice having jurisdiction to issue an injunction, to enjoin and

restrain the continuance of such violations; and if it shall appear to

the satisfaction of the court or justice, that the defendant has, in

fact, violated this section, an injunction may be issued by such court

or justice, enjoining and restraining any further violation.