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                                                      PRINTER'S NO. 2942

THE GENERAL ASSEMBLY OF PENNSYLVANIA


HOUSE BILL

No. 2087 Session of 2007


        INTRODUCED BY DePASQUALE, BOBACK, BELFANTI, CALTAGIRONE,
           CARROLL, CRUZ, DALEY, FABRIZIO, HARKINS, HORNAMAN, JOSEPHS,
           KORTZ, LENTZ, MARSHALL, McCALL, McILVAINE SMITH, R. MILLER,
           MUNDY, PARKER, READSHAW, SABATINA, SAYLOR, SCAVELLO, SHAPIRO,
           SIPTROTH, SURRA, WANSACZ, J. WHITE, YUDICHAK, LEACH, GINGRICH
           AND RUBLEY, DECEMBER 5, 2007

        REFERRED TO COMMITTEE ON CONSUMER AFFAIRS, DECEMBER 5, 2007

                                     AN ACT

     1  Amending the act of December 17, 1968 (P.L.1224, No.387),
     2     entitled "An act prohibiting unfair methods of competition
     3     and unfair or deceptive acts or practices in the conduct of
     4     any trade or commerce, giving the Attorney General and
     5     District Attorneys certain powers and duties and providing
     6     penalties," further providing for definitions; and adding
     7     provisions relating to unsafe children's products.

     8     The General Assembly of the Commonwealth of Pennsylvania
     9  hereby enacts as follows:
    10     Section 1.  The definition of "unfair methods of competition"
    11  and "unfair or deceptive acts or practices" in section 2(4) of
    12  the act of December 17, 1968 (P.L.1224, No.387), known as the
    13  Unfair Trade Practices and Consumer Protection Law, reenacted
    14  and amended November 24, 1976 (P.L.1166, No.260) and amended
    15  December 4, 1996 (P.L.906, No.146), is amended and the section
    16  is amended by adding a definition to read:
    17     Section 2.  Definitions.--As used in this act.
    18     * * *


     1     (4)  "Unfair methods of competition" and "unfair or deceptive
     2  acts or practices" mean any one or more of the following:
     3     (i)  Passing off goods or services as those of another;
     4     (ii)  Causing likelihood of confusion or of misunderstanding
     5  as to the source, sponsorship, approval or certification of
     6  goods or services;
     7     (iii)  Causing likelihood of confusion or of misunderstanding
     8  as to affiliation, connection or association with, or
     9  certification by, another;
    10     (iv)  Using deceptive representations or designations of
    11  geographic origin in connection with goods or services;
    12     (v)  Representing that goods or services have sponsorship,
    13  approval, characteristics, ingredients, uses, benefits or
    14  quantities that they do not have or that a person has a
    15  sponsorship, approval, status, affiliation or connection that he
    16  does not have;
    17     (vi)  Representing that goods are original or new if they are
    18  deteriorated, altered, reconditioned, reclaimed, used or
    19  secondhand;
    20     (vii)  Representing that goods or services are of a
    21  particular standard, quality or grade, or that goods are of a
    22  particular style or model, if they are of another;
    23     (viii)  Disparaging the goods, services or business of
    24  another by false or misleading representation of fact;
    25     (ix)  Advertising goods or services with intent not to sell
    26  them as advertised;
    27     (x)  Advertising goods or services with intent not to supply
    28  reasonably expectable public demand, unless the advertisement
    29  discloses a limitation of quantity;
    30     (xi)  Making false or misleading statements of fact
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     1  concerning the reasons for, existence of, or amounts of price
     2  reductions;
     3     (xii)  Promising or offering prior to time of sale to pay,
     4  credit or allow to any buyer, any compensation or reward for the
     5  procurement of a contract for purchase of goods or services with
     6  another or others, or for the referral of the name or names of
     7  another or others for the purpose of attempting to procure or
     8  procuring such a contract of purchase with such other person or
     9  persons when such payment, credit, compensation or reward is
    10  contingent upon the occurrence of an event subsequent to the
    11  time of the signing of a contract to purchase;
    12     (xiii)  Promoting or engaging in any plan by which goods or
    13  services are sold to a person for a consideration and upon the
    14  further consideration that the purchaser secure or attempt to
    15  secure one or more persons likewise to join the said plan; each
    16  purchaser to be given the right to secure money, goods or
    17  services depending upon the number of persons joining the plan.
    18  In addition, promoting or engaging in any plan, commonly known
    19  as or similar to the so-called "Chain-Letter Plan" or "Pyramid
    20  Club." The terms "Chain-Letter Plan" or "Pyramid Club" mean any
    21  scheme for the disposal or distribution of property, services or
    22  anything of value whereby a participant pays valuable
    23  consideration, in whole or in part, for an opportunity to
    24  receive compensation for introducing or attempting to introduce
    25  one or more additional persons to participate in the scheme or
    26  for the opportunity to receive compensation when a person
    27  introduced by the participant introduces a new participant. As
    28  used in this subclause the term "consideration" means an
    29  investment of cash or the purchase of goods, other property,
    30  training or services, but does not include payments made for
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     1  sales demonstration equipment and materials for use in making
     2  sales and not for resale furnished at no profit to any person in
     3  the program or to the company or corporation, nor does the term
     4  apply to a minimal initial payment of twenty-five dollars ($25)
     5  or less;
     6     (xiv)  Failing to comply with the terms of any written
     7  guarantee or warranty given to the buyer at, prior to or after a
     8  contract for the purchase of goods or services is made;
     9     (xv)  Knowingly misrepresenting that services, replacements
    10  or repairs are needed if they are not needed;
    11     (xvi)  Making repairs, improvements or replacements on
    12  tangible, real or personal property, of a nature or quality
    13  inferior to or below the standard of that agreed to in writing;
    14     (xvii)  Making solicitations for sales of goods or services
    15  over the telephone without first clearly, affirmatively and
    16  expressly stating:
    17     (A)  the identity of the seller;
    18     (B)  that the purpose of the call is to sell goods or
    19  services;
    20     (C)  the nature of the goods or services; and
    21     (D)  that no purchase or payment is necessary to be able to
    22  win a prize or participate in a prize promotion if a prize
    23  promotion is offered. This disclosure must be made before or in
    24  conjunction with the description of the prize to the person
    25  called. If requested by that person, the telemarketer must
    26  disclose the no-purchase/no-payment entry method for the prize
    27  promotion;
    28     (xviii)  Using a contract, form or any other document related
    29  to a consumer transaction which contains a confessed judgment
    30  clause that waives the consumer's right to assert a legal
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     1  defense to an action;
     2     (xix)  Soliciting any order for the sale of goods to be
     3  ordered by the buyer through the mails or by telephone unless,
     4  at the time of the solicitation, the seller has a reasonable
     5  basis to expect that it will be able to ship any ordered
     6  merchandise to the buyer:
     7     (A)  within that time clearly and conspicuously stated in any
     8  such solicitation; or
     9     (B)  if no time is clearly and conspicuously stated, within
    10  thirty days after receipt of a properly completed order from the
    11  buyer, provided, however, where, at the time the merchandise is
    12  ordered, the buyer applies to the seller for credit to pay for
    13  the merchandise in whole or in part, the seller shall have fifty
    14  days, rather than thirty days, to perform the actions required
    15  by this subclause;
    16     (xx)  Failing to inform the purchaser of a new motor vehicle
    17  offered for sale at retail by a motor vehicle dealer of the
    18  following:
    19     (A)  that any rustproofing of the new motor vehicle offered
    20  by the motor vehicle dealer is optional;
    21     (B)  that the new motor vehicle has been rustproofed by the
    22  manufacturer and the nature and extent, if any, of the
    23  manufacturer's warranty which is applicable to that
    24  rustproofing;
    25  The requirements of this subclause shall not be applicable and a
    26  motor vehicle dealer shall have no duty to inform if the motor
    27  vehicle dealer rustproofed a new motor vehicle before offering
    28  it for sale to that purchaser, provided that the dealer shall
    29  inform the purchaser whenever dealer rustproofing has an effect
    30  on any manufacturer's warranty applicable to the vehicle. This
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     1  subclause shall not apply to any new motor vehicle which has
     2  been rustproofed by a motor vehicle dealer prior to the
     3  effective date of this subclause[.];
     4     (xxi)  Knowingly selling or offering for sale a children's
     5  product that has been identified as unsafe and listed in
     6  accordance with section 9.4(b); and
     7     [(xxi)] (xxii)  Engaging in any other fraudulent or deceptive
     8  conduct which creates a likelihood of confusion or of
     9  misunderstanding.
    10     (5)  "Children's product" means a product that is designed or
    11  intended for the care of or use by a child who is under twelve
    12  years of age and the product is designed or intended to come
    13  into contact with the child while the product is being used. For
    14  the purpose of this act, the term does not include a product if
    15  it may be used by or for the care of a child who is under twelve
    16  years of age but was designed or intended for use by the general
    17  population and not solely by a child under twelve years of age.
    18  The term also does not include a medication, drug or food, or a
    19  product designed to be ingested.
    20     Section 2.  The act is amended by adding a section to read:
    21     Section 9.4.  Unsafe Children's Products.--(a)  A children's
    22  product shall be deemed unsafe if it meets any of the following
    23  criteria:
    24     (1)  It does not conform to all Federal laws and regulations
    25  setting forth standards for that children's product, including
    26  standards endorsed or established by the Consumer Product Safety
    27  Commission or the American Society for Testing and Materials.
    28     (2)  It has been recalled by an agency of the Federal
    29  Government or its manufacturer and the recall has not been
    30  rescinded.
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     1     (3)  An agency of the Federal Government or the product's
     2  manufacturer has issued a warning that the product's intended
     3  use constitutes a safety hazard and the warning has not been
     4  rescinded.
     5     (b)  The Attorney General shall create or adopt by reference,
     6  and shall maintain and update, a list of children's products
     7  that have been deemed unsafe under subsection (a). The Attorney
     8  General shall make the list available to the public at no cost
     9  and shall post it conspicuously on the Attorney General's
    10  Internet website. The Attorney General shall also provide links
    11  on the Internet website to government agencies or organizations
    12  that provide information regarding unsafe children's products.
    13     (c)  When the Consumer Product Safety Commission or the
    14  manufacturer of a children's product issues a recall or warning
    15  under subsection (a)(2) or (3), the manufacturer shall within
    16  twenty-four hours:
    17     (1)  Notify each customer to whom the manufacturer sold the
    18  product of the recall or warning and transmit to each customer a
    19  copy of the recall notice or warning.
    20     (2)  Place information conspicuously on its Internet website
    21  regarding the recall or warning. The information shall include
    22  the following:
    23     (i)  a description of the product;
    24     (ii)  a picture of the product;
    25     (iii)  the reason for the recall or warning;
    26     (iv)  instructions regarding how the customer shall return
    27  the recalled product or implement the warning; and
    28     (v)  a link to the recall notice or warning.
    29     (d)  When a retailer receives notice that a children's
    30  product is the subject of a recall or a warning under subsection
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     1  (a)(2) or (3), the retailer shall:
     2     (1)  Within three business days, stop selling the product.
     3     (2)  Within thirty days, attempt to contact each purchaser of
     4  the product for whom the retailer has a shipping address or e-
     5  mail address to inform the purchaser that the product has been
     6  recalled or is subject to a warning.
     7     (3)  Within five business days, place information
     8  conspicuously on its Internet website regarding the recall or
     9  warning. The information shall include the following:
    10     (i)  a description of the product;
    11     (ii)  a picture of the product;
    12     (iii)  the reason for the recall or warning;
    13     (iv)  instructions regarding how the customer shall return
    14  the recalled product or implement the warning; and
    15     (v)  a link to the recall notice or warning.
    16     (e)  A retailer that sells used or donated children's
    17  products shall comply with subsection (d) within five business
    18  days after a children's product is placed on the Attorney
    19  General's Internet website.
    20     (f)  A manufacturer that sells children's products shall
    21  comply with subsection (d)(1) and (2).
    22     (g)  For the purpose of this section, the term "manufacturer"
    23  shall include the manufacturer, the importer, the wholesaler and
    24  the distributor of a children's product.
    25     Section 3.  This act shall take effect in 60 days.




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