N.Y. General Business Law § 640: Target marketing; prohibitions

§ 640. Target marketing; prohibitions. 1. Definitions. For purposes of

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

(a) "Personal identifiable information" shall mean any information

obtained by a manufacturer or distributor of a home-use medical

diagnostic device by means of its warranty registration card, owner's

registration card, or otherwise which information was furnished to it by

or on behalf of a user of such device. Such information shall include

but not be limited to the user's name, address, telephone number or

personal medical information. Such term shall not include data which

does not identify a user.

(b) "Target marketing" shall mean the compilation of a list of users

by a manufacturer or distributor of a home-use medical diagnostic

device, for purposes of direct marketing transactions or solicitation

which is based on users' personal identifiable information.

(c) "User" shall mean any natural person who uses a home-use medical

diagnostic device.

(d) "Home-use medical diagnostic device" shall have such meaning as

prescribed by the Federal Food, Drug and Cosmetic Act and the

regulations thereunder, as such act and regulations may from time to

time be amended.

(e) "Person" shall mean any individual, partnership, association, firm

or corporation.

2. Restrictions on disclosure. (a) A manufacturer or distributor of a

home-use medical diagnostic device shall not disclose to a marketer of

goods or services or to a third party acting on behalf of any such

marketer any personal identifiable information of a user for target

marketing purposes without having first afforded such user the right to

prohibit such disclosure as set forth in paragraph (b) of this

subdivision.

(b) The warranty registration card, owner's registration card or other

similar form shall conspicuously disclose, if applicable, that a user's

personal identifiable information may be used for target marketing

purposes and shall provide such user the opportunity to be excluded from

any such target marketing list by means of a check-off box contained on

the card or other similar form. Such notice shall include a

pre-addressed postage paid form by which a user can exercise the right

to prohibit disclosure.

3. Private remedy. Any person who has been injured by reason of any

violation of this article may bring an action for recovery of actual

damages or two hundred fifty dollars, whichever is greater. The court

may, in its discretion, increase the award of damages to an amount not

to exceed three times the actual damages up to one thousand dollars, if

the court finds that the defendant willfully or knowingly violated the

provision of this section. The court may award reasonable attorney's

fees to a prevailing plaintiff.

4. Additional remedies of users. Nothing in this article shall in any

way contravene or limit the rights, remedies or privileges which are

otherwise available to a user under any other law.

5. Enforcement. In addition to the other remedies provided, whenever

there shall be a violation of this article, 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 by special proceeding to issue

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

days, to enjoin and restrain the continuance of such violation; and if

it shall appear to the satisfaction of the court or justice that the

defendant has, in fact, violated this article, 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 paragraph six of

subdivision (a) of section eighty-three hundred three of the civil

practice law and rules, and direct restitution. Whenever the court shall

determine that a violation of this article has occurred, the court may

impose a civil penalty of not more than five hundred dollars for each

violation. 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.