In Episode 6 of Season 5 Chris Allen and Emily Yu examine New York’s proposed FAIR Business Practices Act legislation and what it tells us about how AGs’ consumer protection authority is evolving to address the challenges on the horizon.

(00:00) Host Chris Allen introduces himself and State AG Group colleague Emily Yu, and presents the topic for discussion this week, the Fostering Affordability and Integrity through Reasonable Business Practices Act or FAIR Business Practices Act, which has been proposed and sponsored by NY AG, Tish James, and represents a significant amendment to New York’s existing consumer protection law.

(02:31) Emily explains that the proposed new legislation will make unfair and abusive acts and practices unlawful in New York, in line with existing prohibitions in 42 other states and in federal statute, and provide protections for businesses that may be alleged victims of unlawful business practices. Although there is nothing groundbreaking in the legislation itself, the announcement from James’ office contemplates novel applications of the law, such as using this law to regulate junk fees, AI-based schemes, phishing, or subscriptions that have tricky cancellation policies. Furthermore, she explains, the legislation mirrors language in Dodd-Frank allowing the CFPB to regulate deceptive, unfair or abusive practices.

(06:10) Emily points out that what New York has done here with the FAIR Business Practices Act picks up on a lot of the recommendations from the CFPB report titled “Strengthening State Level Consumer Protections” issued under Biden.

(07:10) Chris postulates that the intent of General James’s office is to both expand the law to cover the CFPB regulatory gap and to address more cutting-edge forms of alleged consumer protection violations.

(8:20) Emily points out that AGs serve not just as enforcers of consumer protection law, but are also active in the legislative arena, as AG James is here.

(9:33) Chris agrees and compares what is happening in New York to California’s AG instituting a comprehensive privacy regime and Colorado’s AG updating UDAP statutes. Republican states like Texas are also taking similar actions, with AGs acting as policymakers and legislators.

(11:03) Emily outlines some additional aspects of the FAIR Business Practices Ac, including the establishment of loss of privacy as an actionable injury, additional penalties related to actions that impact vulnerable persons, and an amendment to the UDAP law incorporating an explicit right to file class actions.

(12:27) Chris confirms that those clauses align with Supreme Court precedent and demonstrates creativity by New York in the ways it is exercising and expanding its consumer authority. He adds that out-of-state conduct would be covered explicitly under the New York Consumer Protection Act now to include actions against anybody doing business with New York or New York consumers or businesses, regardless of the actor’s physical location.

(17:23) Emily comments that timing of when these amendments – shortly after the CFPB’s report and with the Trump administration in office – and suggests that Democratic AGs may be looking back to see what more can they do with their existing consumer protection authority to fill perceived gaps or perceived future rollbacks of enforcement.

(19:02) Chris adds that at a recent DAGA meeting he attended one of the panels discussed the need for a stable regulatory environment in order for businesses to serve their customers. It is important, and helpful to businesses, for AGs and legislatures to set clear guardrails.

(21:52) Chris sums up the takeaways: that AGs are paying attention to what is happening in the regulatory environment and stepping up to fill gaps where needed by going to either the courts or the legislature. Companies that think their business practices might come to the attention of an AG should take the initiative and reach out to their AG to explain their company and their motivations.

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