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, beeninjured 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.