N.Y. General Business Law § 396-rr: Price gouging; milk

§ 396-rr. Price gouging; milk. 1. Definitions. For the purposes of

this section, the following terms shall have the following meanings:

(a) "Person" shall mean the owner or owners, including any individual,

partnership, association, firm, or corporation, of an establishment

engaged in the retail sale of milk;

(b) "Commissioner" shall mean the commissioner of agriculture and

markets; and

(c) "Fluid milk" shall mean milk, skim milk or lowfat milk in consumer

sized packages sold or offered for sale for off premise consumption.

2. Whenever the commissioner has established a minimum price for milk

paid to producers pursuant to section two hundred fifty-eight-m of the

agriculture and markets law and such state ordered minimum price is

higher than the price set for milk within the state pursuant to the New

York-New Jersey milk marketing order, or at any time when the retail

price of fluid milk exceeds two hundred percent of the price for class I

fluid milk, it shall be the responsibility of the commissioner in

consultation with state and local agencies as the commissioner deems

appropriate, to examine the price of fluid milk at retail to determine

if the prices of fluid milk sold or offered for sale in the state or in

any area thereof appear to the commissioner unconscionably excessive.

Upon a determination by the commissioner that the price of fluid milk

being sold or offered for sale appears unconscionably excessive in a

particular area of the state, the commissioner shall, by written notice,

provide any person found to be selling or offering for sale fluid milk

at such price, an opportunity to discontinue such price levels or to

demonstrate that it is not unconscionably excessive. Any person, so

notified, who does not submit a written reply within three business days

of the receipt of such notice, and who does not within such time satisfy

the commissioner that the price level which resulted in the issuance of

the notice is justifiable or has been terminated shall be identified in

the commissioner's determination as a person apparently in violation of

subdivision three of this section. Following such notice to and

opportunity for such person to respond, the commissioner shall forward

his or her determination, in writing, together with all supporting

evidence, to the attorney general.

3. No person shall sell or offer for sale fluid milk for an amount

which represents an unconscionably excessive price.

4. Whether a price is unconscionably excessive is a question of law

for the court. Evidence that:

(a) the price charged at retail for fluid milk represents a gross

disparity between the raw milk price paid to producers plus a reasonable

handler's processing and distribution charge and the price at retail; or

(b) the price charged at retail for fluid milk increased a greater

amount than the price increased for an equivalent volume paid to

producers under an order or interim price of the commissioner pursuant

to section two hundred fifty-eight-m of the agriculture and markets law;

and

(c) in addition to paragraphs (a) and (b) of this subdivision, the

increased price charged by the person was not attributable to additional

charges imposed by its suppliers, or other charges beyond the control of

the person, including the cost of labor, shall constitute prima facie

proof of a violation of this section in any proceeding commenced by the

attorney general pursuant to subdivision five of this section.

5. Where a determination and all supporting evidence have been

forwarded from the commissioner, the attorney general may apply in the

name of the people of the state of New York to the supreme court of the

state of New York within the judicial district in which such violations

are alleged to have occurred, on notice of five days, for an order

enjoining or restraining commission or continuance of the alleged

unlawful acts. In any such proceeding, the court shall determine the

total excessive charge for fluid milk sold. In such proceeding, the

court shall assess a civil penalty in the sum of the total excessive

charge for fluid milk sold plus an amount not to exceed:

(a) one thousand dollars, where the aggregate amount of fluid milk

sold is one thousand gallons or less per week; or

(b) five thousand dollars, where the aggregate amount of fluid milk

sold exceeds one thousand gallons per week; and

(c) in addition to paragraphs (a) and (b) of this subdivision where

appropriate, order restitution to aggrieved consumers.

6. The commissioner shall promulgate all rules and regulations to

effectuate the purposes of this section.