HOUSE BILL 114
56th legislature - STATE OF NEW MEXICO - second session, 2024
INTRODUCED BY
Christine Chandler and Reena Szczepanski
AN ACT
RELATING TO TRADE PRACTICES; ENACTING THE FIREARM INDUSTRY ACCOUNTABILITY ACT; PROHIBITING FALSE ADVERTISING, UNCONSCIONABLE, DECEPTIVE OR UNFAIR TRADE PRACTICES AND ACTIONS THAT IMPACT PUBLIC HEALTH, SAFETY OR WELFARE; REQUIRING REASONABLE CONTROLS AND PROCEDURES; PRESCRIBING CIVIL PENALTIES; PROVIDING PRIVATE REMEDIES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. [NEW MATERIAL] SHORT TITLE.--This act may be cited as the "Firearm Industry Accountability Act".
SECTION 2. [NEW MATERIAL] DEFINITIONS.--As used in the Firearm Industry Accountability Act:
A. "false advertising" means advertising and labeling that is misleading in any material respect, including:
(1) a misrepresentation made by statement, word, design, device, sound or any combination thereof; or
(2) a failure to reveal relevant facts or the material condition of the firearm product being advertised;
B. "firearm" means a weapon that is designed to or may readily be converted to expel a projectile by the action of an explosion or the frame or receiver of any such weapon, including a handgun, rifle or shotgun;
C. "firearm industry member" means a person engaged in the sale, manufacturing, making, importing, distribution, advertising or marketing of a firearm product;
D. "firearm product" means a firearm, firearm component, firearm accessory, ammunition or any other product sold for use as part of a firearm that is:
(1) sold, made, manufactured, distributed, advertised or marketed in this state;
(2) intended to be sold, made, manufactured, distributed, advertised or marketed in this state; or
(3) possessed or used in this state or that is likely to be possessed or used in this state;
E. "unconscionable trade practice" means an act or practice in connection with the sale, manufacturing, making, importing, distribution, advertising or marketing of a firearm product by a firearm industry member that takes advantage of the lack of knowledge, ability, experience or capacity of a person to a grossly unfair degree or that results in a gross disparity between the value received and the price paid; and
F. "unfair or deceptive trade practice" means a false or misleading oral or written statement, visual description or other representation of any kind that is knowingly made in connection with the sale, manufacturing, making, importing, distribution, advertising or marketing of a firearm product by a firearm industry member in the regular course of trade or commerce that may deceive or mislead or has deceived or misled any person.
SECTION 3. [NEW MATERIAL] FALSE ADVERTISING.--It is unlawful for a firearm industry member to falsely advertise a firearm product.
SECTION 4. [NEW MATERIAL] UNCONSCIONABLE TRADE PRACTICES OR UNFAIR OR DECEPTIVE TRADE PRACTICES.--It is unlawful for a firearm industry member to use unconscionable trade practices or unfair or deceptive trade practices.
SECTION 5. [NEW MATERIAL] HARMING THE PUBLIC.--A firearm industry member may not knowingly or recklessly create, maintain or contribute to anything affecting any number of citizens that could negatively impact public health, safety or welfare through the sale, manufacturing, making, importing, advertising or marketing of a firearm product.
SECTION 6. [NEW MATERIAL] REASONABLE CONTROLS AND PROCEDURES REQUIRED.--A firearm industry member shall establish and implement reasonable controls and procedures regarding the sale, manufacturing, making, importing, distribution, use, advertising and marketing of a firearm product to:
A. prevent the loss or theft of a firearm product from a firearm industry member;
B. ensure that a firearm industry member complies with the provisions of federal and state laws and does not promote the unlawful sale, manufacturing, making, importing, distribution, use, advertising or marketing of a firearm product;
C. ensure that a firearm industry member does not engage in any act or practice in violation of federal or state law that is applicable to the sale, manufacturing, making, importing, distribution, use, advertising or marketing of a firearm product; and
D. prevent the unlawful or fraudulent sale or distribution of a firearm product to a person who:
(1) conceals or intends to conceal that the purchase of a firearm product is being made on behalf of a third party, including a firearm product purchase made in exchange for services or something of value, and not including a bona fide gift to a person who is not prohibited by law from possessing or receiving a firearm product;
(2) acquires or transfers or who attempts to acquire or transfer a firearm product for purposes of unlawful commerce;
(3) is prohibited from possessing a firearm under federal or state law; or
(4) a firearm industry member has reasonable cause to believe is at risk of using a firearm product to harm the person's self or to unlawfully harm another person.
SECTION 7. [NEW MATERIAL] RESTRAINT OF PROHIBITED ACTS-- REMEDIES FOR VIOLATIONS--CIVIL PENALTIES.--
A. Whenever the attorney general has reasonable belief that a firearm industry member has violated the provisions of the Firearm Industry Accountability Act or is using, has used or is about to use any method, act or practice that is declared to be unlawful by the Firearm Industry Accountability Act, the attorney general may bring an action for civil penalties in the name of the state alleging violations of the provisions of the Firearm Industry Accountability Act. The action may be brought in the district court of the county in which the firearm industry member resides or has its principal place of business or in the district court in any county in which the firearm industry member violated the provisions of the Firearm Industry Accountability Act or is using, has used or is about to use the practice that has been alleged to be unlawful under the Firearm Industry Accountability Act. The attorney general acting on behalf of the state of New Mexico shall not be required to post bond when seeking a temporary or permanent injunction.
B. Whenever a district attorney has reasonable belief that a firearm industry member has violated the provisions of the Firearm Industry Accountability Act or is using, has used or is about to use any method, act or practice that is declared to be unlawful by the Firearm Industry Accountability Act in or affecting the district of the district attorney, the district attorney may bring an action for civil penalties in the name of the state alleging violations of the provisions of the Firearm Industry Accountability Act. The action may be brought in the district court of the county in which the firearm industry member resides or has its principal place of business or in the district court in any county in which the firearm industry member violated the provisions of the Firearm Industry Accountability Act or is using, has used or is about to use the practice that has been alleged to be unlawful under the Firearm Industry Accountability Act. A district attorney acting on behalf of the state of New Mexico shall not be required to post bond when seeking a temporary or permanent injunction.
C. In an action filed pursuant to this section, the attorney general or district attorney may petition the district court for temporary or permanent injunctive relief or restitution.
D. A firearm industry member who engages in false advertising in violation of Section 3 of the Firearm Industry Accountability Act shall be liable for a civil penalty of not more than one thousand dollars ($1,000) for each violation, which shall inure to the state and may be recovered in a civil action brought by the attorney general or the district attorney of the district where the violation occurred.
E. In an action brought under this section, if the court finds that the firearm industry member is willfully using or has willfully used a method, act or practice declared unlawful by the Firearm Industry Accountability Act, the attorney general or district attorney, upon petition to the court, may recover on behalf of the state a civil penalty of not more than five thousand dollars ($5,000) for each violation.
SECTION 8. [NEW MATERIAL] PRIVATE REMEDIES.--
A. A person likely to be harmed or damaged by a violation of the Firearm Industry Accountability Act may request equitable relief from a court of competent jurisdiction. Proof of monetary damage, loss of profits or intent to damage, deceive or take unfair advantage of a person is not required.
B. A person who is actually harmed as a result of a violation of the Firearm Industry Accountability Act may bring an action to recover damages. The court may award punitive, equitable or compensatory damages, including damages for pain and suffering.
C. A court shall award attorney fees and costs to the party complaining of a violation of the Firearm Industry Accountability Act if the party prevails.
D. The relief provided in this section is in addition to remedies otherwise available against the same conduct under federal and state law.
E. In a class action filed under this section, the court may award damages to the named plaintiffs and members of the class as provided in Subsection B of this section.
F. To prevail in an action under this section, the party complaining of a violation is not required to demonstrate the intent to cause any harm or damage, unless otherwise required by the Firearm Industry Accountability Act.
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