§ 640 — Target marketing; prohibitions

§ 640. Target marketing; prohibitions. 1. Definitions. For purposes of\nthis article, the following terms shall have the following meanings:\n (a) "Personal identifiable information" shall mean any information\nobtained by a manufacturer or distributor of a home-use medical\ndiagnostic device by means of its warranty registration card, owner's\nregistration card, or otherwise which information was furnished to it by\nor on behalf of a user of such device. Such information shall include\nbut not be limited to the user's name, address, telephone number or\npersonal medical information. Such term shall not include data which\ndoes not identify a user.\n (b) "Target marketing" shall mean the compilation of a list of users\nby a manufacturer or distributor of a home-use medical diagnostic\ndevice, for purposes of direct marketing transactions or solicitation\nwhich is based on users' personal identifiable information.\n (c) "User" shall mean any natural person who uses a home-use medical\ndiagnostic device.\n (d) "Home-use medical diagnostic device" shall have such meaning as\nprescribed by the Federal Food, Drug and Cosmetic Act and the\nregulations thereunder, as such act and regulations may from time to\ntime be amended.\n (e) "Person" shall mean any individual, partnership, association, firm\nor corporation.\n 2. Restrictions on disclosure. (a) A manufacturer or distributor of a\nhome-use medical diagnostic device shall not disclose to a marketer of\ngoods or services or to a third party acting on behalf of any such\nmarketer any personal identifiable information of a user for target\nmarketing purposes without having first afforded such user the right to\nprohibit such disclosure as set forth in paragraph (b) of this\nsubdivision.\n (b) The warranty registration card, owner's registration card or other\nsimilar form shall conspicuously disclose, if applicable, that a user's\npersonal identifiable information may be used for target marketing\npurposes and shall provide such user the opportunity to be excluded from\nany such target marketing list by means of a check-off box contained on\nthe card or other similar form. Such notice shall include a\npre-addressed postage paid form by which a user can exercise the right\nto prohibit disclosure.\n 3. Private remedy. Any person who has been injured by reason of any\nviolation of this article may bring an action for recovery of actual\ndamages or two hundred fifty dollars, whichever is greater. The court\nmay, in its discretion, increase the award of damages to an amount not\nto exceed three times the actual damages up to one thousand dollars, if\nthe court finds that the defendant willfully or knowingly violated the\nprovision of this section. The court may award reasonable attorney's\nfees to a prevailing plaintiff.\n 4. Additional remedies of users. Nothing in this article shall in any\nway contravene or limit the rights, remedies or privileges which are\notherwise available to a user under any other law.\n 5. Enforcement. In addition to the other remedies provided, whenever\nthere shall be a violation of this article, application may be made by\nthe attorney general in the name of the people of the state of New York\nto a court or justice having jurisdiction by special proceeding to issue\nan injunction, and upon notice to the defendant of not less than five\ndays, to enjoin and restrain the continuance of such violation; and if\nit shall appear to the satisfaction of the court or justice that the\ndefendant has, in fact, violated this article, an injunction may be\nissued by such court or justice, enjoining and restraining any further\nviolation, without requiring proof that any person has, in fact, been\ninjured or damaged thereby. In any such proceeding, the court may make\nallowances to the attorney general as provided in paragraph six of\nsubdivision (a) of section eighty-three hundred three of the civil\npractice law and rules, and direct restitution. Whenever the court shall\ndetermine that a violation of this article has occurred, the court may\nimpose a civil penalty of not more than five hundred dollars for each\nviolation. In connection with any such proposed application, the\nattorney general is authorized to take proof and make a determination of\nthe relevant facts and to issue subpoenas in accordance with the civil\npractice law and rules.\n