CHAPTER 450

FORMERLY

SENATE BILL NO. 413

AS AMENDED BY SENATE AMENDMENT NO. 1

AN ACT TO AMEND CHAPTER 25, TITLE 6 OF THE DELAWARE CODE RELATING TO PROHIBITED TRADE PRACTICES

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:

Section 1. Amend Chapter 25, Title 6 of the Delaware Code by adding thereto a new subchapter, designated as Subchapter IX, which new subchapter shall read as follows:

"Subchapter IX. Home Food Service Plan Sales

§2590. Short Title,

This subchapter may by cited as the 'Delaware Home Food Service Plan Sales Act.

"§2591. Purpose

The purpose of this Act is to safeguard the public against deceit and misrepresentation and to ensure, foster and encourage truthful practices and disclosure in Home Food Service Plan Sales.

§2592. Definitions

As used in this subchapter, the following definitions shall apply:

(a) 'Home food service plan' means a plan of food items or food items in combination with non-food items and/or service offered by the seller for profit and for sale in the consumer's home, whether or not a membership fee or similar charge is involved. Sales of immediately consumable food items, 'Meals on Wheels' or similar programs, 'fund-raising efforts' and meals prepared in the consumer's home by another are not within the definition of a 'Home food service plan.'

(a) 'Seller' means any person, partnership, corporation or association, however
organized, engaged in the sale of a home food service plan.

(b) 'Buyer' means both the actual and prospective purchaser of a home food service plan, but does not include persons purchasing for resale.

(a) 'Contract' means all of the collective written or oral agreements between a seller and a buyer relating to the purchase of a home food service plan, except promissory notes or other financing agreements.

(c) 'Food Item' means each edible product sold as part of a home food service plan, including, but not limited to, each constituent part or kind of meat cut from a primal source, each kind of whole poultry or poultry part, seafood products, and other like products.

(f) 'non-food item' means each inedible product sold as part of a home food service plan, including, but not limited to, paper products, health and beauty products, detergents, cleaners and disinfectants, rolls of wrapping, and like products. The term does not include food items and durable consumer goods such as appliances.

(g) 'Item Price' means the price of a food or non-food item sold as part of a home food service plan, computed to the nearest tenth of I cent when less than I dollar, and to the nearest cent when I dollar or more The item price, exclusive of any service charge(s), shall be expressed in terms of the price per unit of weight, measure, or count set forth in 'Uniform Unit Pricing Regulation' in the current edition of National Institute of Standards and Technology Handbook 130.

(h) 'Service charge' means the total price for any additional features, services, and processing associated with the purchase of a home food service plan, whether stated in terms of membership fees or otherwise.

(i) 'Primal source' means the following cuts:

(1) for beef, the primal sources are the round, flank, loin, rib, plate, brisket, chuck, and shank;

(2) for veal and lamb or mutton, the primal sources are the leg, flank, loin, rack (rib), and shoulder; and

(3) for pork, the primal sources are the belly, loin, ham, spareribs, shoulder, and jowl.

§2593. Contract and Disclosure Requirements.

(a) At the time of sale, the seller shall provide the buyer with a written document referred to in this section as the 'written agreement,' which shall clearly and conspicuously disclose all of the following:

(1) The name, address, and telephone number of the Seller and the name and address of the Buyer;

(2) The date of the contract;

(3) The price of the food and non-food items included in the home food service plan;

(4) The Service charge or the price of any service charges associated with the home food service plan;

(1) The total price of the home food service plan, including the price of the food and non-food items, and the price of any service charge(s); and

(5) A statement that the Buyer shall have the right to cancel the home food service plan contract until midnight of the third business day after the date on which the Buyer executes the contract or until midnight of the third business day after the day on which the Buyer takes first delivery or until midnight of the third business day after the day on which the Seller provides the Buyer with the fully executed copy of the contract, whichever is later, by giving written notice of cancellation to the Seller. Compliance with requirements of Chapter 44 of Title 6 governing the form of notice of right of cancellation in Home Solicitation Sales shall be deemed satisfactory notice of the requirements of this regulation.

(b) In addition to the above disclosures required in the written agreement, all of the following disclosures are required to be given to the Buyer at the time of sale:

(1) A written list of all food and non-food items to be sold, which shall include:

(i) The identity of each item and, where applicable, the United States Department of Agriculture quality grade of the item, if so graded; the primal source; and the brand or trade name;

(ii) The quantity of each item sold;

(iii) The estimated serving size by net weight of each piece of 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 the time of delivery by more than 5 percent, and that the dollar value of the meat, poultry, and seafood items delivered is equal to or greater than that represented to the Buyer; and

(iv) The net weight, measure, or count of all other food and non-food items offered for sale;

(2) A current item price list stating in dollars and cents the price per kilogram or pound or other appropriate unit of measure, and the total sale price, of each item to be delivered. This price list shall clearly and conspicuously identify whether there are additional costs disclosed in the written agreement relating to any 'service charges' associated with the purchase of the home food service plan; and,

(3) If a membership is sold, a written statement of all terms, conditions, benefits, and privileges applicable to the membership.

(4) If a service charge is included, a written statement specifically identifying the service(s) provided and the price(s) charged for them.

(c) At the time of delivery, the Seller shall provide a receipt, for signature by the Buyer, disclosing all of the following information:

(1) The identity of each food and non-food item, and the net quantity of the contents in terms of either weight, measure, or count, as required by applicable law. The net weight of each food item delivered shall be within the limit specified in §2593(b)(1)(iii); and

(2) The item price and total sales price of each food and non-food item. The item price shall be the same as that specified on the item price list given to the Buyer at the time of sale.

§2594. Advertisement of Home Food Service Plans.

Any advertisement of a home food service plan which discloses item pricing information in accordance with the provisions of this subchapter shall set forth in a clear and conspicuous manner whether there are any service charges or other additional costs associated with the purchase of the home food service plan.

§2595. Enforcement and Remedies.

(a) The Attorney General shall have the same authority to enforce and carry out the provisions of this subchapter as is granted by §2517 of Title 29 and by §§2511-2527 and §§2531-2536 of Title 6.

(b) If a court or tribunal of competent jurisdiction finds that any person has willfully violated this subchapter, the Attorney General, upon petition to the court or tribunal, shall recover from the person, on behalf of the State, in addition to all costs, a civil penalty of not more than ten thousand dollars per violation pursuant to §2513(c) of Title 6. If the violation is against an elderly or disabled person an additional civil penalty of not more than ten thousand dollars per violation shall be recovered pursuant to §2581 of Title 6. Each day that a willful violation continues shall be considered a separate violation.

(c) For the purpose of this subchapter, a willful violation occurs when the party committing the violation knew or should have known that the party's conduct was of the nature prohibited by this subchapter.

(d) The remedies provided for in this subchapter are not exclusive, and shall be in addition to any other procedures, rights or remedies which exist with respect to any other provision of law."

Approved July 5, 1996