2023 New York Laws › GBS - General Business › Article 30-A - Home-Use Medical Diagnostic Device Marketing Practices › 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.