IN THE SENATE OF THE UNITED STATES
December 17, 2015
Mr. Menendez introduced the following bill; which was read twice and referred to the Committee on Commerce, Science, and Transportation
To prohibit unfair or deceptive acts or practices relating to the prices of products and services sold online, and for other purposes.
This Act may be cited as the
Tallying of the Actual Liabilities Act of 2015 or the
TOTAL Act of 2015.
Prohibition on certain unfair or deceptive acts or practices relating to prices of products and services sold online
In this section, the term retailer means a person—
over whom the Federal Trade Commission has jurisdiction under section 5(a) of the Federal Trade Commission Act (15 U.S.C. 45(a)); and
whose business includes selling products or services.
Requirement for price transparency
A retailer may not sell a product or a service to a person through the use of an Internet website without presenting the person with the total amount that the retailer expects to collect from the person as part of the transaction of selling the product or service to the person, including all fees, taxes, and shipping and handling charges, before the person commits to purchasing the product or service.
Enforcement by Federal Trade Commission
Unfair or deceptive act or practice
A violation of subsection (b) shall be treated as a violation of a rule defining an unfair or deceptive act or practice described under section 18(a)(1)(B) of the Federal Trade Commission Act (15 U.S.C. 57a(a)(1)(B)).
Powers of Commission
The Federal Trade Commission shall enforce this section in the same manner, by the same means, and with the same jurisdiction, powers, and duties as though all applicable terms and provisions of the Federal Trade Commission Act (15 U.S.C. 41 et seq.) were incorporated into and made a part of this section.
Privileges and immunities
Any person who violates this section shall be subject to the penalties and entitled to the privileges and immunities provided in the Federal Trade Commission Act (15 U.S.C. 41 et seq.).
The Federal Trade Commission may promulgate standards and rules to carry out this section in accordance with section 553 of title 5, United States Code.
Enforcement by States
In any case in which the attorney general of a State has reason to believe that an interest of the residents of the State has been or is threatened or adversely affected by the engagement of any person subject to subsection (b) or a standard or rule promulgated under this section in a practice that violates such subsection, standard, or rule, the attorney general of the State may, as parens patriae, bring a civil action on behalf of the residents of the State in an appropriate district court of the United States—
to enjoin further violation of such subsection, standard, or rule by such person;
to compel compliance with such subsection, standard, or rule; or
to obtain such other injunctive relief as the court considers appropriate.
Rights of Federal Trade Commission
Notice to Federal Trade Commission
Except as provided in clause (iii), the attorney general of a State shall notify the Federal Trade Commission in writing that the attorney general intends to bring a civil action under paragraph (1) before initiating the civil action.
The notification required by clause (i) with respect to a civil action shall include a copy of the complaint to be filed to initiate the civil action.
If it is not feasible for the attorney general of a State to provide the notification required by clause (i) before initiating a civil action under paragraph (1), the attorney general shall notify the Federal Trade Commission immediately upon instituting the civil action.
Intervention by Federal Trade Commission
The Federal Trade Commission may—
intervene in any civil action brought by the attorney general of a State under paragraph (1); and
be heard on all matters arising in the civil action; and
file petitions for appeal of a decision in the civil action.
Nothing in this subsection may be construed to prevent the attorney general of a State from exercising the powers conferred on the attorney general by the laws of the State to conduct investigations, to administer oaths or affirmations, or to compel the attendance of witnesses or the production of documentary or other evidence.
Preemptive action by Federal Trade Commission
If the Federal Trade Commission institutes a civil action or an administrative action with respect to a violation of subsection (b) or a standard or rule promulgated under this section, the attorney general of a State may not, during the pendency of such action, bring a civil action under paragraph (1) against any defendant named in the complaint of the Commission for the violation with respect to which the Commission instituted such action.
Venue; service of process
Any action brought under paragraph (1) may be brought in—
the district court of the United States that meets applicable requirements relating to venue under section 1391 of title 28, United States Code; or
another court of competent jurisdiction.
Service of process
In an action brought under paragraph (1), process may be served in any district in which the defendant—
is an inhabitant; or
may be found.
Actions by other State officials
In addition to civil actions brought by attorneys general under paragraph (1), any other officer of a State who is authorized by the State to do so may bring a civil action under paragraph (1), subject to the same requirements and limitations that apply under this subsection to civil actions brought by attorneys general.
Nothing in this subsection may be construed to prohibit an authorized official of a State from initiating or continuing any proceeding in a court of the State for a violation of any civil or criminal law of the State.
Rule of construction
Nothing in this section shall be construed to limit the authority of the Federal Trade Commission under any other provision of law.