2003 Legislative Update from the
NYS Assembly
Consumer Affairs
and Protection

Sheldon Silver, Speaker • Audrey I. Pheffer, Chair • December 2003

Message from the Chair
As Chair of the Assembly Consumer Affairs and Protection Committee, I am pleased to report the results of a very successful legislative session. Protecting consumer privacy and banning dietary supplements containing ephedra were among the Committee’s top priorities.

This year the Committee again acted to protect individual privacy. It advanced legislation designed to limit the dissemination of consumer information and legislation that eliminates credit card account numbers from store receipts. Additionally, the legislature took affirmative steps towards banning dietary supplements containing ephedra.

I am very proud of these and many other accomplishments. The Committee on Consumer Affairs and Protection will continue its goal of protecting consumers throughout all of New York State.

Audrey I. Pheffer
Chair, Assembly Committee on
Consumer Affairs and Protection

National Do-Not-Call Registry

In 2000, New York State established the Do-Not-Call Registry. It has been an extraordinarily successful program. The registry, at its peak, contained approximately 2.4 million telephone numbers. To strengthen the effectiveness of the registry, the legislature passed bill A.8986 (Rules-Klein)/S.5484 (Fuschillo), which merges the New York Do-Not-Call Telemarketing Registry with the National Do-Not-Call Registry. On July 7, 2003, the governor signed this bill into law as Chapter 124.

New Yorkers who were already registered with the New York State Do-Not-Call Telemarketing Registry were automatically included on the National Do-Not-Call Registry. Consumers should be aware that telemarketers covered by the National Do-Not-Call Registry will have up to three months from the date your number appears on the registry to stop calling you. You may still receive calls from political organizations, charities, telephone surveyors or companies with which you have an existing business relationship.

The new federal registry has been the subject of several lawsuits. One federal district court has ruled that the federal registry violates the First Amendment of the United States Constitution. This case is on appeal. During the appeal, the federal registry will be enforced. We will continue to follow the case closely, so that we can evaluate whether changes are needed to the state law.

If your number has been on the National Do-Not-Call Registry for at least three months and you receive a call from a telemarketer that you believe is covered by the National Do-Not-Call Registry, you can file a complaint on the website or by telephone. When filing a complaint, you must provide either the name or the phone number of the company that called you, as well as the date of the call and your phone number. You also may choose to provide your name and address, to help law enforcement officers who may investigate your complaint.

Because the Consumer Protection Board (CPB) will continue enforcing the New York State Do-Not-Call law and regulations, you can contact them at www.consumer.state.ny.us or at 1-800-697-1220 to file a complaint. You may also contact the National Do-Not-Call Registry to file a complaint, at www.donotcall.gov or 1-888-382-1222; for TTY, call 1-866-290-4236. A telemarketer who disregards the National Do-Not-Call Registry could be fined up to $11,000 for each call.

Dietary Supplements Containing Ephedra

In May 2003 the Committee on Consumer Affairs and Protection, the Committee on Tourism, Arts and Sports Development, the Committee on Health and the Task Force on Food, Farm and Nutrition Policy held a roundtable to address health concerns associated with using dietary supplements containing ephedera.

The death of Baltimore Orioles pitcher Steve Bechler, age 23, on February 17, 2003, was partially attributed to ephedra, according to medical examiners. This tragic event reignited interest in adverse reactions allegedly associated with dietary supplements containing ephedra.

In 1997, the Food and Drug Administration (FDA) proposed to reduce risks associated with dietary supplement products containing ephedrine alkaloids by limiting the amount allowed in products and requiring labeling and marketing measures that give adequate warning and information to consumers. The proposal did not become law, and adverse reactions continued to occur.

From January 1993 through October 2000, the FDA received 1,398 reports of adverse events linked to herbal supplements containing ephedra, including 81 deaths, 32 heart attacks, 62 reports of cardiac arrhythmia, 91 reports of hypertension, 69 strokes and 70 seizures. Complaints about herbal supplements containing ephedra constituted 42% of all dietary supplements complaints and were involved in 59% of all reported deaths.

Assemblywoman Pheffer is joined by Assemblymembers Aurelia Green, Joseph Morelle and Felix Ortiz at a roundtable addressing New York State’s role in banning the sale of dietary supplements containing ephedra.
In response to this continuing health threat, on August 19, 2003, the Governor signed into law chapter 385. This measure will ban the sale of dietary supplements containing ephedra. However, this ban does not apply to any supplement containing ephedra sold or dispensed by a practitioner of acupuncture or oriental medicine whose qualifications are evidenced by an active certification from an entity accredited by the National Commission of Certifying Agencies (NCCA). It also does not apply to a physician or practitioner of acupuncture licensed by the State of New York, or to any drug that contains ephedra that is lawfully sold, transferred, or furnished over the counter without a prescription pursuant to the federal Food, Drug and Cosmetic Act or regulations adopted thereunder.

Consumer Privacy

In addition to preserving privacy in the home by merging the New York Do-Not-Call Telemarketing Registry with the National Do-Not-Call Registry, the Committee pursued other ways to increase privacy protection by introducing a six-bill consumer privacy package, which the Assembly passed.

  • A.5153 (Pheffer) would prohibit the sale, lease or exchange of a consumer’s electronic mail address and other personal identifying information obtained on-line without consent;
  • A.532 (Greene) would restrict the dissemination and collection of social security numbers;
  • A.2266 (Magee) would prohibit the sending of unsolicited advertising through fax machines;
  • A.2837 (Kaufman) would grant consumers the option to prohibit the sale or exchange of personal information possessed by the issuer of a credit, charge or debit card; and
  • A.5148 (Pheffer) would require credit card protection service offers to explain that purchase of service is not necessary to retain credit card.

Privacy On Retail Receipts

Each year an estimated 2 billion dollars nationwide is lost due to credit card and debit card fraud. As people increase the use of credit and debit cards, the possibilities for fraud increase. Information found on receipts can be used to make fraudulent purchases. A receipt may contain the credit or debit card account number and expiration date; that is enough information to make fraudulent purchases.

In response to this growing problem, the legislature passed bill A.5150-A (Pheffer). This legislation will prohibit businesses from printing the expiration date and more than the last five numbers of a credit or debit card on any receipt given to the cardholder. This prohibition will increase a consumer’s privacy and increase security by reducing fraud via credit and debit card numbers acquired from receipts. This bill was signed as Chapter 499 on September 9, 2003.

Prize Boxes Are Often No Prize

Consumers can be duped into switching their service from their current gas or electric company. This occurs when they enter a drawing by putting personal information on a card and placing it into a prize box. The practice of using prize boxes to collect information authorizing gas and electric companies to switch a consumer’s energy service has been banned. On August 5, 2003, Governor Pataki signed such legislation into law as Chapter 318.

The legislature, in 1998, passed similar legislation banning the use of prize boxes to switch a consumer’s telecommunication company. That came on the heels of a deregulated tele-communication industry and an environment of increased competition. Because similar competition now exists among energy companies, a law banning the use of prize boxes to switch energy companies was needed. This law will protect consumers and their families from the hassles associated with unwittingly and unwillingly having their energy service switched.

Combating Unsolicited Commercial Electronic Mail

Unsolicited commercial electronic mail, commonly known as spam, is a burgeoning problem for consumers and internet service providers. Victims of spam find their electronic mail box packed with advertisements for services and products, insurance, mortgage offers, pornography and a host of other unsolicited items. Many of these advertisements are fraudulent, and occasionally contain viruses. This is not only an annoyance, but can cause people to delete legitimate e-mail during a binge of erasing spam.

Assemblywoman Pheffer, joined by Assemblywoman Markey, leads a roundtable discussion on combating bulk unsolicited commercial e-mail, commonly known as spam.
In order to effectively deal with the fine line between freedom of speech, eradicating unwanted electronic mail and keeping the internet accessible for legitimate business purposes, the Assembly Committee on Consumer Affairs and Protection hosted a roundtable on October 21, 2003. The roundtable was comprised of government officials, consumer groups, corporations and internet providers. The purpose was to understand current approaches for stopping spam without affecting legitimate commercial endeavors, and to explore possible anti-spam legislation that could be implemented in New York State.

New York Lemon Law Extends to Motorcycles

Travel no longer consists of just driving in a car or recreational vehicle, riding on a railroad train, or flying in an airplane. The motorcycle has become a widespread form of transportation. According to the New York State Department of Motor Vehicles, there are over 200,000 registered motorcycles in New York State.

Because of the increased popularity of the motorcycle — as well its increased cost — the legislature has passed a bill, A.5218 (Lentol), which would extend the current motor vehicle lemon law to include motorcycles. This legislation aims to protect New York consumers by providing purchasers of motorcycles the same level of protection currently afforded to purchasers of motor vehicles.

Currently, the Lemon Law protects purchasers of new and used cars. If the manufacturer or its authorized dealer is unable to repair the car after a reasonable number of attempts during the first 18,000 miles or two years, whichever comes first, the consumer can choose a full refund or a comparable replacement car. With regard to used cars, the law requires dealers to give consumers a written warranty. Under this warranty, dealers must repair, free of charge, any defects in covered parts. If the dealer is unable to repair the car after a reasonable number of attempts, the consumer is entitled to a full refund. Used cars covered by this law cannot be sold by a dealer “as is.”

This bill was signed as Chapter 485 of the Laws of 2003 on September 9.

Strengthening Protections for Funeral Goods and Services

On July 1, 2003, the governor signed Chapter 105, which makes permanent the requirement that all money used to purchase funeral merchandise is to be held in trust in an interest-bearing account. It also extends, until June 1, 2007, the provisions prohibiting funeral directors from accepting any consideration from an insurance company for the promotion of an insurance policy that is payable at the death of the insured for burial or funeral expenses. The law prohibits any company from giving compensation to a funeral firm for inducing the sale of any contract or policy.

New York is a leader in consumer protection concerning funeral goods and services. This legislation ensures that consumers can continue to rely on the rights and protections afforded by New York State.

Assemblywoman Pheffer is on hand as the governor signs the ephedra bill into law.

Assemblywoman Audrey I. Pheffer
Chair, Assembly Consumer Affairs and Protection Committee
Room 941 LOB • Albany, New York 12248 • 518-455-4292

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