New York Agriculture & Markets Law
Sec. § 190-A
Home Food Service Plan Sales


1.

Definitions. As used in this section, unless the context otherwise requires, the following words and phrases shall have the following meanings:

a.

"Home food service plan" means any offering for sale to a household consumer of meat or poultry or seafood or the offering of such products in combination with each other or with any other food or non-food product or service sold as a unit for a total price in the aggregate in excess of two hundred dollars.

b.

"Seller" means any person, partnership, corporation or association, however organized, engaged in the sale of food through home food service plans.

c.

"Food spoilage protection" means any agreement, guarantee, warranty or contract offered by the seller whereby the buyer is insured or protected against loss of frozen food due to spoilage.

d.

"Primal source" means the following cuts:
(i)
for beef, the primal sources are the round, flank, loin, rib, plate, brisket, chuck and shank;
(ii)
for veal and lamb or mutton, the primal sources are the leg, flank, loin, rack (rib) and shoulder; and
(iii)
for pork, the primal sources are the belly, loin, ham, spareribs, shoulder and jowl.

e.

"Item" means each constituent part or kind of meat cut from a primal souce, each kind of whole poultry, each kind of poultry part, every package of like seafood, and every package of like grocery and non-food products.

f.

"Service charge" means the total price of the home food service plan (including, without limitation, the price of food and non-food items, membership fees and charges for delivery, cutting, wrapping, and freezing) less the total price of all food and non-food items included in the price of the plan.

2.

Written contract required for home food service plans. All of the terms and conditions of a home food service plan sale shall be contained in a single written contract furnished to the buyer at the time of the execution of the contract.

3.

Right of cancellation. The buyer shall have the right to cancel the home food service plan contract until midnight of the third business day after the day on which the buyer executed the contract or after the day on which the seller provided the buyer with a fully executed copy of the contract, whichever is later.

4.

Disclosures required in a written contract. A seller of a home food service plan must disclose to buyers in a contract in writing, in a form approved by the commissioner of agriculture and markets, the following:

a.

the name and address of the seller;

b.

whether substitutions of food items may be or are made, under which circumstances such substitutions will be made, the substitution values in terms of price, and whether the prospective buyer has the right to refuse such substitutions;

c.

the terms and conditions of food spoilage protection, if any;

d.

that the buyer is not obligated to (1) enter into an additional home food service plan contract; (2) purchase any appliance, including, but not limited to, a freezer, refrigerator-freezer, or microwave oven; (3) purchase food spoilage protection; or (4) purchase any other product from the seller in order to enter into a home food service plan;

e.

the U.S.D.A. quality grade of the meat supplied, if so graded, and the primal source, if applicable;

f.

an itemized list of the components of the home food service plan;

g.

the estimated weight of each meat, poultry and seafood item offered for sale under the home food service plan, provided, however, that such estimates shall not differ from the actual weight at time of delivery by more than five percent;

h.

the price per pound of each meat, poultry and seafood item to be supplied;

i.

the total price of the home food service plan, the service charge and the estimated price of each meat, poultry and seafood item to be supplied;

j.

the weight, measure or count and unit price of all other food and non-food items supplied for sale;

k.

that at the time of delivery the buyer will be furnished with an itemized list stating the identity, primal source, if applicable, weight, measure or count, total number of packages supplied, price per pound, which shall be the price specified in the home food service plan contract, and total price of each food and non-food item included in the sale;

l.

that the buyer may cancel the contract until midnight of the third business day after the day on which the buyer executed the contract or after the day on which the seller provided the buyer with a fully executed copy of the contract, whichever is later, by giving written notice of cancellation to the seller; and that within ten days after cancellation, the seller shall return to the buyer any note or other evidence of indebtedness and shall refund to the buyer all monies received from the buyer minus the price of the actual amount of food and non-food products delivered to and not returned or tendered by the buyer following cancellation. Notice of cancellation if given by mail shall be deemed given when deposited in a mailbox properly addressed and postage prepaid.

5.

Invoice at delivery required. At the time of delivery, the seller shall provide to the buyer a written invoice disclosing the name and address of the seller and the identity, primal source, if applicable, weight, measure or count, total number of packages supplied, price per pound, which shall be the price specified in the home food service plan contract, and total price of each food and non-food item included in the sale.

6.

Restriction on assignment of obligation.

a.

A seller shall not negotiate, transfer, sell or assign any note or other evidence of indebtedness, issued in connection with a home food service plan sale, to a finance company or other third party prior to midnight of the fifth business day after the day on which the buyer executed the contract or after the day on which the seller provided the buyer with a fully executed copy of the contract, whichever is later.

b.

The assignee of any such note or other evidence of indebtedness shall be subject to all claims and defenses of the buyer against the seller arising from the sale notwithstanding any agreement to the contrary. The assignees liability under this subdivision shall not exceed the amount owing to the assignee at the time the claim or defense is asserted against the assignee. Rights of the buyer under this section can be asserted affirmatively against or as a matter of defense to or set-off against a claim by the assignee.

7.

Violations: A violation of this section shall be subject to the applicable penalties of this chapter. A violation of this section shall not constitute a misdemeanor pursuant to the provisions of section forty-one of this chapter unless such violation is committed with intent to defraud. In addition to the foregoing, an application may be made to a court or justice having jurisdiction to issue an injunction, to enjoin and restrain the continuance of such violations; and if it shall appear to the satisfaction of the court or justice, that the defendant has, in fact, violated this section, an injunction may be issued by such court or justice, enjoining and restraining any further violation.
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Last accessed
Dec. 13, 2016