N.Y. General Business Law § 527-a: Unlawful practices

§ 527-a. Unlawful practices. 1. It shall be unlawful for any business

making an automatic renewal or continuous service offer to a consumer in

this state to:

a. fail to present to the consumer, in a clear and conspicuous manner,

the material terms of any automatic renewal offer or continuous service

offer, including but not limited to a description of the product or

service subject to renewal, the amount of the costs that will be

charged, the frequency of charges, the deadline by date or frequency by

which the consumer must act to prevent or stop further charges, and

cancellation mechanisms described in paragraphs d and d-1 of this

subdivision, before consent to the offer or billing information has been

requested and in visual proximity, or in the case of an offer conveyed

by voice, in temporal proximity, to the request for consent to the

offer. If the offer also includes a free gift or trial, or the price is

temporary, the offer shall include a clear and conspicuous explanation

of how and when the price will change and the price or prices that will

subsequently be charged to the consumer;

b. charge the consumer or the consumer's account with a third party

for the initial term of an automatic renewal or continuous service

without first obtaining the consumer's affirmative consent to the

agreement containing the the terms of automatic renewal offer or

continuous service offer, including the terms of an automatic renewal

offer or continuous service offer that is made at a promotional or

discounted price for a limited period of time;

b-1. charge the consumer or the consumer's account with a third party

following an increase in price, or a price higher than what was

disclosed pursuant to paragraph a of this subdivision, relating to an

automatic renewal or continuous service offer to which the consumer

previously consented, without either: (i) first obtaining the consumer's

affirmative consent to such increased price; or (ii) allowing the

consumer to cancel such automatic renewal or continuous service anytime

within, at least, fourteen days after such charge and refund the

consumer in the amount equivalent to the price of the remaining term of

the service, at the time of such cancellation, on a pro rata basis. The

provisions of this paragraph shall not be construed to require any

business to obtain affirmative consent from the consumer regarding a

price increase, or a price increase not disclosed pursuant to paragraph

a of this subdivision, more than once prior to charging the consumer

such increased price;

c. fail to provide a notice promptly following affirmative consent, in

a manner that is capable of being retained by the consumer. Such notice

shall include:

(i) the terms of the automatic renewal or continuous service

agreement;

(ii) the amount of costs that will be charged;

(iii) the frequency of charges;

(iv) the deadline by date or frequency by which the consumer must act

to prevent or stop further charges; and

(v) the cancellation mechanisms, as described in paragraphs d and d-1

of this subdivision;

d. fail to provide the consumer with the option to cancel at any time

using a simple cancellation mechanism that is as easy to use as the

mechanism that the consumer used to provide consent and that is through

the same medium that the consumer used to provide consent;

d-1. fail to provide the consumer with the option to cancel, at any

time through all mediums by which the business allows a consumer to

provide affirmative consent to, the automatic renewal, continuous

service offer, or any price increase. Provided further that, where

consent was obtained in person, in addition to offering cancellation,

where practical via an in-person method similar to that the user used to

consent, the business shall at least offer cancellation through an

online mechanism or over a telephone number;

e. impose unreasonable or unlawful conditions upon, refuse to

acknowledge, obstruct or unreasonably delay cancellation requested or

attempts to request cancellation by a consumer. Provided further that:

(i) unreasonable or unlawful conditions include, but without

limitation, hanging up on consumers who call to cancel, providing false

information about how to cancel, misrepresenting the consequences or

costs of cancellation, or misrepresenting the reasons for delays in

processing consumers' cancellation requests; and

(ii) if a consumer conveys a request to cancel, the business may

present the consumer with a discounted offer, retention benefit or

information regarding the effect of cancellation but may not impose

unreasonable or unlawful conditions upon consumer's ability to cancel,

refuse to acknowledge, obstruct or unreasonably delay cancellation

requested;

f. fail to notify a consumer of an automatic renewal or continuous

service charge for an automatic renewal or continuous service offer with

an initial paid term of one year or longer, provided that such automatic

renewal or continuous service renews for a paid term of six months or

longer, at least fifteen days before, but not more than forty-five days

before, the cancellation deadline for such automatic renewal in the

manner selected by the consumer, including text, email, app notification

or any other notification channel offered by the business. Such notice

shall include instructions on how to cancel such renewal charge;

g. fail to provide a consumer who has accepted an automatic renewal or

continuous service offer with a clear and conspicuous notice of any

material change to the terms of the automatic renewal or continuous

service offer, including any price increases, at least five business

days prior, but no more than thirty days prior, to the date of the

change, in the same manner as required by paragraph f of this

subdivision; or

h. fail to notify a consumer of an automatic renewal or continuous

service charge for an automatic renewal or continuous service offer if

the automatic renewal or continuous service offer includes a free gift

or trial for a period of more than a month, followed by an upcoming

automatic renewal or continuous service charge, at least three days

before but not more than twenty-one days before the cancellation

deadline for the first chargeable period in the manner selected by the

consumer, including text, email, app notification or any other

notification channel offered by the business. Such notice shall include

instructions on how to cancel such renewal charge.

2. In any case in which a business sends any goods, wares,

merchandise, or products to a consumer, under a continuous service

agreement or automatic renewal of a purchase, without first obtaining

the consumer's affirmative consent, the goods, wares, merchandise, or

products shall for all purposes be deemed an unconditional gift to the

consumer, who may use or dispose of the same in any manner such consumer

sees fit without any obligation whatsoever on the consumer's part to the

business, including, but not limited to, bearing the cost of, or

responsibility for, shipping any goods, wares, merchandise, or products

to the business.

3. Whenever there shall be a violation of this section, an application

may be made by the attorney general in the name of the people of the

state of New York to a court or justice having jurisdiction to issue an

injunction, and upon notice to the defendant of not less than five days,

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, without requiring proof that any person has, in fact, been

injured or damaged thereby. In any such proceeding the court may make

allowances to the attorney general as provided in section eighty-three

hundred three of the civil practice law and rules, and direct

restitution. In connection with any such proposed application, the

attorney general is authorized to take proof and make a determination of

the relevant facts and to issue subpoenas in accordance with the civil

practice law and rules. Whenever the court shall determine that a

violation of this section has occurred, the court may impose a civil

penalty of not more than one hundred dollars for a single violation and

not more than five hundred dollars for multiple violations resulting

from a single act or incident. A knowing violation of this section shall

be punishable by a civil penalty of not more than five hundred dollars

for a single violation and not more than one thousand dollars for

multiple violations resulting from a single act or incident. No business

shall be deemed to have violated the provisions of this section if such

business shows, by a preponderance of the evidence, that the violation

was not intentional and resulted from a bona fide error made

notwithstanding the maintenance of procedures reasonably adopted to

avoid such error.

4. The following are exempt from the requirements of this article:

a. any service provided by a business or its affiliate where either

the business or its affiliate is doing business pursuant to a franchise

issued by a political subdivision of the state;

b. any entity, or subsidiary or affiliate thereof, regulated by the

department of financial services;

c. security system alarm operators;

d. banks, bank holding companies, or the subsidiary or affiliate of

either, or credit unions or other financial institutions, licensed under

state or federal law; and

e. sellers and administrators of a service contract, as defined

pursuant to section seven thousand nine hundred two of the insurance

law.