SENATE JUDICIARY COMMITTEE SUBSTITUTE FOR

SENATE BILL 428

56th legislature - STATE OF NEW MEXICO - first session, 2023

 

 

 

 

 

 

 

AN ACT

RELATING TO FIREARMS; INCLUDING FIREARMS AND DESTRUCTIVE DEVICES IN THE UNFAIR PRACTICES ACT; EXPANDING PRIVATE REMEDIES FOR UNFAIR, DECEPTIVE AND UNCONSCIONABLE TRADE PRACTICES; MAKING TECHNICAL CHANGES.

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

     SECTION 1. Section 53-17-2 NMSA 1978 (being Laws 1967, Chapter 81, Section 104) is amended to read:

     "53-17-2. POWERS OF FOREIGN CORPORATION.--A foreign corporation [which] that has received a certificate of authority under the Business Corporation Act consents to general personal jurisdiction in this state and shall, until a certificate of revocation or of withdrawal has been issued as provided in the Business Corporation Act, enjoy the same, but no greater, rights and privileges as a domestic corporation organized for the purposes set forth in the application pursuant to which the certificate of authority is issued; and, except as otherwise provided in the Business Corporation Act, is subject to the same duties, restrictions, penalties and liabilities now or hereafter imposed upon a domestic corporation of like character."

     SECTION 2. Section 57-12-2 NMSA 1978 (being Laws 1967, Chapter 268, Section 2, as amended) is amended to read:

     "57-12-2. DEFINITIONS.--As used in the Unfair Practices Act:

          A. "destructive device" means any:

                (1) explosive, incendiary or poison gas:

                     (a) bomb;

                     (b) grenade;

                     (c) rocket having a propellant charge of more than four ounces;

                     (d) missile having an explosive or incendiary charge of more than one-fourth ounce;

                     (e) mine; or

                     (f) similar device;

                (2) type of weapon by whatever name known that will, or that may be readily converted to, expel a projectile by the action of an explosive or other propellant, the barrel or barrels of which have a bore of more than one-half inch in diameter, except a shotgun shell that is generally recognized as particularly suitable for sporting purposes;

                (3) combination of parts either designed or intended for use in converting a device into a destructive device as defined in Paragraphs (1) and (2) of this subsection and from which a destructive device may be readily assembled; and

                (4) device that is designed to convert a semiautomatic firearm to fire more than one round through the single activation of a trigger;

          B. "destructive device" does not include any device that is neither designed nor redesigned for use as a weapon or any device, although originally designed for use as a weapon, that is redesigned for use as a signaling, pyrotechnic, line-throwing, safety or similar device;

          C. "firearm" means any weapon that will or is designed to or may readily be converted to expel a projectile by the action of an explosion; the frame or receiver of any such weapon; or any firearm muffler or firearm silencer. "Firearm" includes any handgun, rifle or shotgun; but does not include an antique firearm as defined in 18 U.S.C. Section 921(16), a powder-actuated tool or other device designed to be used for construction purposes, an emergency flare or a firearm in permanently inoperable condition;

          D. "firearm accessory" means:

                (1) any device specifically adapted to enable:

                     (a) the wearing or carrying about one's person of a firearm; or

                     (b) the storage or mounting in or on any conveyance of a firearm; and

                (2) any attachment or device specifically adapted to be inserted into or affixed onto any firearm to enable, alter or improve the functioning or capabilities of the firearm;

          E. "firearm part" means any component part of a firearm, including ammunition;

          F. "online marketplace" means any person, business or other entity that hosts, publishes or operates an electronically accessed platform that facilitates or enables third-party sellers to transact or engage in the sale, purchase, payment, storage, shipping or delivery of goods or services in New Mexico;

          [A.] G. "person" means, where applicable, natural persons, corporations, trusts, partnerships, associations, cooperative associations, clubs, companies, firms, joint ventures or syndicates;

          H. "seller" means any person, business or other entity that sells or offers to sell any products or services in New Mexico or for delivery to New Mexico;

          [B.] I. "seller-initiated telephone or internet sale" means a sale, lease or rental of goods or services in which the seller or the seller's representative solicits the sale by telephoning, [the] electronic mail, internet marketing, soliciting through a website or computer program or application a prospective purchaser and in which the sale is consummated entirely by telephone, [or] mail, [but does not include a transaction:

                (1) in which a person solicits a sale from a prospective purchaser who has previously made an authorized purchase from the seller's business; or

                (2) in which the purchaser is accorded the right of rescission by the provisions of the federal Consumer Credit Protection Act, 15 U.S.C. 1635, or regulations issued pursuant thereto] electronic mail or other online communication;

          J. "third-party seller" means any seller, independent of an online marketplace, who sells, offers to sell or contracts to sell a consumer product in New Mexico through an online marketplace;

          [C.] K. "trade" or "commerce" includes the manufacturing, advertising, offering for sale or distribution, [of any] distribution or delivery of any goods, products, services [and any], property and any other article, commodity or thing of value, including:

                (1) any trade or commerce [directly or indirectly affecting the people of this state] with a person in New Mexico or to a location within this state; or

                (2) any trade or commerce by a person, business or other entity that systematically serves a market in New Mexico for the same or similar goods or services at issue in any action brought in this state whether or not the specific goods and services were purchased in New Mexico, which shall be deemed, to the maximum extent permitted under the doctrine of interstate federalism, to create specific jurisdiction against a person, business or other entity that has:

                     (a) enjoyed the benefits and protection of the laws of New Mexico;

                     (b) benefited from the ability to enforce contracts, defend property or form effective markets in New Mexico; or

                     (c) sold or otherwise placed a product of goods into the national market or the stream of commerce;

          [D.] L. "unfair or deceptive trade practice" means an act specifically declared unlawful pursuant to the Unfair Practices Act, a false or misleading oral or written statement, visual description or other representation of any kind knowingly made in connection with the sale, lease, rental or loan of goods or services or in the extension of credit or in the collection of debts by a person in the regular course of the person's trade or commerce, that may, tends to or does deceive or mislead any person and includes:

                (1) representing goods or services as those of another when the goods or services are not the goods or services of another;

                (2) representing goods or services as legal to purchase under the laws of New Mexico or the United States when the goods or services are not legal to purchase under the laws of New Mexico or the United States;

                [(2)] (3) causing confusion or misunderstanding as to the source, sponsorship, approval or certification of goods or services;

                [(3)] (4) causing confusion or misunderstanding as to affiliation, connection or association with or certification by another;

                [(4)] (5) using deceptive representations or designations of geographic origin in connection with goods or services;

                [(5)] (6) representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits or quantities that they do not have or that a person has a sponsorship, approval, status, affiliation or connection that the person does not have;

                [(6)] (7) representing that goods are original or new if they are deteriorated, altered, reconditioned, reclaimed, used or secondhand;

                [(7)] (8) representing that goods or services are of a particular standard, quality or grade, [or] that the goods meet the warranty of merchantability or are fit for a particular purpose or are of a particular style or model if they are of another;

                [(8)] (9) disparaging the goods, services or business of another by false or misleading representations;

                [(9)] (10) offering goods or services with intent not to supply them in the quantity requested by the prospective buyer to the extent of the stock available, unless the purchaser is purchasing for resale;

                [(10)] (11) offering goods or services with intent not to supply reasonable expectable public demand;

                [(11)] (12) making false or misleading statements of fact concerning the price of goods or services, the prices of competitors or one's own price at a past or future time or the reasons for, existence of or amounts of price reduction;

                [(12)] (13) making false or misleading statements of fact for the purpose of obtaining appointments for the demonstration, exhibition or other sales presentation of goods or services;

                [(13)] (14) packaging goods for sale in a container that bears a trademark or trade name identified with goods formerly packaged in the container, without authorization, unless the container is labeled or marked to disclaim a connection between the contents and the trademark or trade name;

                [(14)] (15) using exaggeration, innuendo or ambiguity as to a material fact or failing to state a material fact if doing so deceives or tends to deceive;

                [(15)] (16) stating that a transaction involves rights, remedies or obligations that it does not involve;

                [(16)] (17) stating that services, replacements or repairs are needed if they are not needed;

                [(17)] (18) failing to deliver the quality or quantity of goods or services contracted for;

                [(18)] (19) violating the Tobacco Escrow Fund Act; [or]

                [(19)] (20) offering or providing unposted or unadvertised pricing or service based on the buyer's gender or perceived gender identity; provided, however, that this provision does not apply to persons regulated by the office of superintendent of insurance pursuant to the New Mexico Insurance Code; [and] or

                (21) knowingly manufacturing, advertising, distributin