Section 396-RR. Price gouging; milk

1. Definitions. For the purposes of
  this section, the following terms shall have the following meanings:
    (a) "Person" shall mean the owner or owners, including any individual,
  partnership, association, firm,  or  corporation,  of  an  establishment
  engaged in the retail sale of milk;
    (b)  "Commissioner"  shall  mean  the  commissioner of agriculture and
  markets; and
    (c) "Fluid milk" shall mean milk, skim milk or lowfat milk in consumer
  sized packages sold or offered for sale for off premise consumption.
    2. Whenever the commissioner has established a minimum price for  milk
  paid  to  producers pursuant to section two hundred fifty-eight-m of the
  agriculture and markets law and such  state  ordered  minimum  price  is
  higher  than the price set for milk within the state pursuant to the New
  York-New Jersey milk marketing order, or at any  time  when  the  retail
  price of fluid milk exceeds two hundred percent of the price for class I
  fluid  milk,  it  shall  be  the  responsibility  of the commissioner in
  consultation with state and local agencies  as  the  commissioner  deems
  appropriate,  to  examine the price of fluid milk at retail to determine
  if the prices of fluid milk sold or offered for sale in the state or  in
  any  area  thereof  appear to the commissioner unconscionably excessive.
  Upon a determination by the commissioner that the price  of  fluid  milk
  being  sold  or  offered  for sale appears unconscionably excessive in a
  particular area of the state, the commissioner shall, by written notice,
  provide any person found to be selling or offering for sale  fluid  milk
  at  such  price,  an  opportunity to discontinue such price levels or to
  demonstrate that it is not  unconscionably  excessive.  Any  person,  so
  notified, who does not submit a written reply within three business days
  of the receipt of such notice, and who does not within such time satisfy
  the  commissioner that the price level which resulted in the issuance of
  the notice is justifiable or has been terminated shall be identified  in
  the  commissioner's determination as a person apparently in violation of
  subdivision  three  of  this  section.  Following  such  notice  to  and
  opportunity  for  such person to respond, the commissioner shall forward
  his or her determination,  in  writing,  together  with  all  supporting
  evidence, to the attorney general.
    3.  No  person  shall  sell or offer for sale fluid milk for an amount
  which represents an unconscionably excessive price.
    4. Whether a price is unconscionably excessive is a  question  of  law
  for the court. Evidence that:
    (a)  the  price  charged  at  retail for fluid milk represents a gross
  disparity between the raw milk price paid to producers plus a reasonable
  handler's processing and distribution charge and the price at retail; or
    (b) the price charged at retail for fluid  milk  increased  a  greater
  amount  than  the  price  increased  for  an  equivalent  volume paid to
  producers under an order or interim price of the  commissioner  pursuant
  to section two hundred fifty-eight-m of the agriculture and markets law;
  and
    (c)  in  addition  to  paragraphs (a) and (b) of this subdivision, the
  increased price charged by the person was not attributable to additional
  charges imposed by its suppliers, or other charges beyond the control of
  the person, including the cost of labor, shall  constitute  prima  facie
  proof  of a violation of this section in any proceeding commenced by the
  attorney general pursuant to subdivision five of this section.
    5. Where  a  determination  and  all  supporting  evidence  have  been
  forwarded  from  the commissioner, the attorney general may apply in the
  name of the people of the state of New York to the supreme court of  the
  state  of New York within the judicial district in which such violations
  are alleged to have occurred, on notice  of  five  days,  for  an  order

  enjoining  or  restraining  commission  or  continuance  of  the alleged
  unlawful acts. In any such proceeding, the  court  shall  determine  the
  total  excessive  charge  for fluid milk sold.   In such proceeding, the
  court  shall  assess  a  civil penalty in the sum of the total excessive
  charge for fluid milk sold plus an amount not to exceed:
    (a) one thousand dollars, where the aggregate  amount  of  fluid  milk
  sold is one thousand gallons or less per week; or
    (b)  five  thousand  dollars, where the aggregate amount of fluid milk
  sold exceeds one thousand gallons per week; and
    (c) in addition to paragraphs (a) and (b) of  this  subdivision  where
  appropriate, order restitution to aggrieved consumers.
    6.  The  commissioner  shall  promulgate  all rules and regulations to
  effectuate the purposes of this section.