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The Business Council opposes this legislation that would prohibit different sale prices for “substantially similar” consumer products and services if the pricing differences are: for products, based on the gender of the persons for whom the products are marketed and intended; for services, if such services are priced differently based upon the gender of the individuals for whom the services are performed. The bill gives enforcement power to the state Attorney General, but also creates a private right of actions to enjoin violations and recover the greater of $50 or actual damages, with the option of a treble damage assessments up to $1000.
There are numerous issues with this legislation, but first and foremost the bill is of questionable need or value from a consumer protection perspective. Even if two “substantially similar” products are priced differently based on marketing considerations, consumers are obviously able to select which they purchase, and decide for themselves whether a specific product is worth any price premium. Moreover, the consumer marketplace is literally flooded with competing styles and brands in virtually every category of consumer product, so consumers enjoy a wide selection of quality, features and pricing. Given this expansive marketplace, and ever-expanding options to compare and purchase products, especially on-line, the need for such legislation is unclear at best.
In addition, the proposed standard for assessing “violations” is “substantially similar,” an incredibly imprecise standard that will lead to significant enforcement discretion, and broad opportunities for private legal actions that, regardless of their merit, will impose significant legal costs on business.
The bill recognized that many factors influence the price charged for goods and services, including but not limited to “the amount of time, difficulty or cost incurred in manufacturing such products or offering such services.” This legislation could require manufactures and retailers to repeatedly demonstrate how such factors were considered in setting the price for consumer products or services, and to demonstrate how such factors result in a “legally excusable differences” in the eyes of the Attorney General or the courts.
In summary, we find this legislation to be unnecessary to protect consumers, and likely to produce significant, uncertain enforcement against New York State business. We recommend strongly against its enactment.