§ 396-RR — Price gouging; milk

§ 396-rr. Price gouging; milk. 1. Definitions. For the purposes of\nthis section, the following terms shall have the following meanings:\n (a) "Person" shall mean the owner or owners, including any individual,\npartnership, association, firm, or corporation, of an establishment\nengaged in the retail sale of milk;\n (b) "Commissioner" shall mean the commissioner of agriculture and\nmarkets; and\n (c) "Fluid milk" shall mean milk, skim milk or lowfat milk in consumer\nsized packages sold or offered for sale for off premise consumption.\n 2. Whenever the commissioner has established a minimum price for milk\npaid to producers pursuant to section two hundred fifty-eight-m of the\nagriculture and markets law and such state ordered minimum price is\nhigher than the price set for milk within the state pursuant to the New\nYork-New Jersey milk marketing order, or at any time when the retail\nprice of fluid milk exceeds two hundred percent of the price for class I\nfluid milk, it shall be the responsibility of the commissioner in\nconsultation with state and local agencies as the commissioner deems\nappropriate, to examine the price of fluid milk at retail to determine\nif the prices of fluid milk sold or offered for sale in the state or in\nany area thereof appear to the commissioner unconscionably excessive.\nUpon a determination by the commissioner that the price of fluid milk\nbeing sold or offered for sale appears unconscionably excessive in a\nparticular area of the state, the commissioner shall, by written notice,\nprovide any person found to be selling or offering for sale fluid milk\nat such price, an opportunity to discontinue such price levels or to\ndemonstrate that it is not unconscionably excessive. Any person, so\nnotified, who does not submit a written reply within three business days\nof the receipt of such notice, and who does not within such time satisfy\nthe commissioner that the price level which resulted in the issuance of\nthe notice is justifiable or has been terminated shall be identified in\nthe commissioner's determination as a person apparently in violation of\nsubdivision three of this section. Following such notice to and\nopportunity for such person to respond, the commissioner shall forward\nhis or her determination, in writing, together with all supporting\nevidence, to the attorney general.\n 3. No person shall sell or offer for sale fluid milk for an amount\nwhich represents an unconscionably excessive price.\n 4. Whether a price is unconscionably excessive is a question of law\nfor the court. Evidence that:\n (a) the price charged at retail for fluid milk represents a gross\ndisparity between the raw milk price paid to producers plus a reasonable\nhandler's processing and distribution charge and the price at retail; or\n (b) the price charged at retail for fluid milk increased a greater\namount than the price increased for an equivalent volume paid to\nproducers under an order or interim price of the commissioner pursuant\nto section two hundred fifty-eight-m of the agriculture and markets law;\nand\n (c) in addition to paragraphs (a) and (b) of this subdivision, the\nincreased price charged by the person was not attributable to additional\ncharges imposed by its suppliers, or other charges beyond the control of\nthe person, including the cost of labor, shall constitute prima facie\nproof of a violation of this section in any proceeding commenced by the\nattorney general pursuant to subdivision five of this section.\n 5. Where a determination and all supporting evidence have been\nforwarded from the commissioner, the attorney general may apply in the\nname of the people of the state of New York to the supreme court of the\nstate of New York within the judicial district in which such violations\nare alleged to have occurred, on notice of five days, for an order\nenjoining or restraining commission or continuance of the alleged\nunlawful acts. In any such proceeding, the court shall determine the\ntotal excessive charge for fluid milk sold. In such proceeding, the\ncourt shall assess a civil penalty in the sum of the total excessive\ncharge for fluid milk sold plus an amount not to exceed:\n (a) one thousand dollars, where the aggregate amount of fluid milk\nsold is one thousand gallons or less per week; or\n (b) five thousand dollars, where the aggregate amount of fluid milk\nsold exceeds one thousand gallons per week; and\n (c) in addition to paragraphs (a) and (b) of this subdivision where\nappropriate, order restitution to aggrieved consumers.\n 6. The commissioner shall promulgate all rules and regulations to\neffectuate the purposes of this section.\n