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S. 936: INFORM Consumers Act


The text of the bill below is as of Mar 23, 2021 (Introduced).


II

117th CONGRESS

1st Session

S. 936

IN THE SENATE OF THE UNITED STATES

March 23, 2021

(for himself, Mr. Cassidy, Mr. Grassley, Ms. Hirono, Mr. Coons, and Mr. Tillis) introduced the following bill; which was read twice and referred to the Committee on Commerce, Science, and Transportation

A BILL

To require online marketplaces to collect, verify, and disclose certain information regarding high-volume third party sellers of consumer products to inform consumers.

1.

Short title

This Act may be cited as the Integrity, Notification, and Fairness in Online Retail Marketplaces for Consumers Act or the INFORM Consumers Act.

2.

Collection, verification, and disclosure of information by online marketplaces to inform consumers

(a)

Collection and verification of information

(1)

Collection

(A)

In general

An online marketplace shall require any high-volume third party seller on such online marketplace's platform to provide, not later than 2 business days after qualifying as a high-volume third party seller on the platform, the following information to the online marketplace:

(i)

Bank account

(I)

In general

A bank account number, or, if such seller does not have a bank account, the name of the payee for payments issued by the online marketplace to such seller.

(II)

Provision of information

The bank account or payee information required under subclause (I) may be provided by the seller in the following ways:

(aa)

To the online marketplace.

(bb)

To a payment processor or other third party contracted by the online marketplace to maintain such information, provided that the online marketplace ensures that it can obtain such information on demand from such payment processor or other third party.

(ii)

Contact information

Contact information for such seller as follows:

(I)

With respect to a high-volume third party seller that is an individual, a copy of a valid government-issued identification for the individual that includes the individual's name and physical address.

(II)

With respect to a high-volume third party seller that is not an individual, one of the following forms of contact information:

(aa)

A copy of a valid government-issued identification for an individual acting on behalf of such seller that includes the individual's name and physical address.

(bb)

A copy of a valid government-issued record or tax document that includes the business name and physical address of such seller.

(iii)

Tax ID

A business tax identification number, or, if such seller does not have a business tax identification number, a taxpayer identification number.

(iv)

Working email and phone number

A current working email address and phone number for such seller.

(B)

Notification of change; annual certification

(i)

In general

An online marketplace shall require any high-volume third party seller on such online marketplace's platform to promptly notify the online marketplace of any change to the information collected under subparagraph (A).

(ii)

Annual certification

Not later than 1 year after the date of enactment of this Act and annually thereafter, an online marketplace shall—

(I)

inform any high-volume third party seller on such online marketplace's platform of the notification requirement described in clause (i); and

(II)

instruct any such seller to electronically certify, not later than 3 business days after receiving such instruction, that—

(aa)

there have been no changes to such seller's information; or

(bb)

such seller has provided any changes to such information to the online marketplace.

(iii)

Suspension

In the event that an online marketplace does not receive the annual certification from a high-volume third party seller required under clause (ii), the online marketplace shall suspend any future sales activity of such seller or any payments to such seller for prior sales activity until such seller provides such certification.

(2)

Verification

(A)

In general

An online marketplace shall—

(i)

verify the information collected under paragraph (1)(A) not later than 3 business days after such collection; and

(ii)

verify any change to such information not later than 3 business days after being notified of such change by a high-volume third party seller under paragraph (1)(B).

(B)

Presumption of verification

In the case of a high-volume third party seller that provides a copy of a valid government-issued tax document, any information contained in such document shall be presumed to be verified as of the date of issuance of such document.

(b)

Disclosure required

(1)

Requirement

(A)

In general

An online marketplace shall—

(i)

require any high-volume third party seller on such online marketplace's platform to provide the information described in subparagraph (B) to the online marketplace; and

(ii)

disclose the information described in subparagraph (B) to consumers in a clear and conspicuous manner on the product listing or (for information other than such seller's identification) through a clear and conspicuously placed link on the product listing or in close proximity to the physical product.

(B)

Information described

The information described in this subparagraph is the following:

(i)

Subject to paragraph (2), the identity of the high-volume third party seller, including—

(I)

the full name of the seller;

(II)

the physical address of the seller;

(III)

whether the seller also engages in the manufacturing, importing, or reselling of consumer products; and

(IV)

contact information for the seller, including—

(aa)

a current working phone number; and

(bb)

a current working email address or other means of electronic messaging (which may be provided to such seller by the online marketplace).

(ii)

The identification of any seller that supplies the consumer product to the consumer upon purchase, if such seller is different than the high-volume third party seller listed on the product listing prior to purchase.

(2)

Exception

(A)

In general

Subject to subparagraph (B), upon the request of a high-volume third party seller, an online marketplace may provide for partial disclosure of the identity information required under paragraph (1)(B)(i) in the following situations:

(i)

If such seller certifies to the online marketplace that the seller does not have a business address and only has a residential street address, the online marketplace may—

(I)

disclose only the country and, if applicable, the State in which such seller resides; and

(II)

inform consumers that there is no business address available for the seller and that consumer inquiries should be submitted to the seller by phone, email, or other means of electronic messaging provided to such seller by the online marketplace.

(ii)

If such seller certifies to the online marketplace that the seller is a business that has a physical address for product returns, the online marketplace may disclose the seller’s physical address for product returns.

(iii)

If such seller certifies to the online marketplace that the seller does not have a phone number other than a personal phone number, the online marketplace shall inform consumers that there is no phone number available for the seller and that consumer inquiries should be submitted to the seller’s email address or other means of electronic messaging provided to such seller by the online marketplace.

(B)

Limitation on exception

If an online marketplace becomes aware that a high-volume third party seller has made a false representation to the online marketplace in order to justify the provision of a partial disclosure under subparagraph (A) or that a high-volume third party seller who has requested and received a provision for a partial disclosure under subparagraph (A) has not provided responsive answers within a reasonable time frame to consumer inquiries submitted to the seller by phone, email, or other means of electronic messaging provided to such seller by the online marketplace, the online marketplace shall suspend the selling privileges of such seller unless such seller consents to the disclosure of the identity information required under paragraph (1)(B)(i).

(3)

Reporting mechanism

An online marketplace shall disclose to consumers in a clear and conspicuous manner on the product listing of any high-volume third party seller—

(A)

a reporting mechanism that allows for electronic and telephonic reporting of suspicious marketplace activity to the online marketplace; and

(B)

a message encouraging consumers seeking goods for purchase to report suspicious marketplace activity to the online marketplace.

(4)

Compliance

If a high-volume third party seller does not comply with the requirements to provide and disclose information under this subsection, the online marketplace shall suspend any future sales activity of such seller or any payments to such seller for prior sales activity until such seller complies with such requirements.

(c)

Enforcement

(1)

Unfair and deceptive acts or practices

A violation of subsection (a) or (b) by an online marketplace shall be treated as a violation of a rule defining an unfair or deceptive act or practice prescribed under section 18(a)(1)(B) of the Federal Trade Commission Act (15 U.S.C. 57a(a)(1)(B)).

(2)

Powers of the Commission

(A)

In general

The Commission shall enforce this Act 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 Act.

(B)

Privileges and immunities

Any person that violates subsection (a) or (b) 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.).

(3)

Regulations

The Commission may promulgate regulations under section 553 of title 5, United States Code, with respect to the collection, verification, or disclosure of information under this section, provided that such regulations are limited to what is necessary to collect, verify, and disclose such information.

(4)

Authority preserved

Nothing in this Act shall be construed to limit the authority of the Commission under any other provision of law.

(d)

Severability

If any provision of this section, or the application thereof to any person or circumstance, is held invalid, the remainder of this section and the application of such provision to other persons not similarly situated or to other circumstances shall not be affected by the invalidation.

(e)

Definitions

In this Act:

(1)

Commission

The term Commission means the Federal Trade Commission.

(2)

Consumer product

The term consumer product has the meaning given such term in section 101 of the Magnuson-Moss Warranty—Federal Trade Commission Improvement Act (15 U.S.C. 2301 note) and section 700.1 of title 16, Code of Federal Regulations.

(3)

High-volume third party seller

The term high-volume third party seller means a participant on an online marketplace's platform who is a third party seller and who, in any continuous 12-month period during the previous 24 months, has entered into 200 or more discrete sales or transactions of new or unused consumer products resulting in the accumulation of an aggregate total of $5,000 or more in gross revenues.

(4)

Online marketplace

The term online marketplace means any person or entity that operates an electronically based or accessed platform that—

(A)

includes features that allow for, facilitate, or enable third party sellers to engage in the sale, purchase, payment, storage, shipping, or delivery of a consumer product in the United States; and

(B)

is used by one or more third party sellers for such purposes.

(5)

Seller

The term seller means a person who sells, offers to sell, or contracts to sell a consumer product through an online marketplace's platform.

(6)

Third party seller

(A)

In general

The term third party seller means any seller, independent of an online marketplace, who sells, offers to sell, or contracts to sell a consumer product in the United States through such online marketplace's platform.

(B)

Exclusions

The term third party seller does not include, with respect to an online marketplace, a seller—

(i)

who operates the online marketplace's platform; or

(ii)

who—

(I)

is a business entity that has made available to the general public the entity’s name, business address, and working contact information;

(II)

has an ongoing contractual relationship with the online marketplace to provide for the manufacture, distribution, wholesaling, or fulfillment of shipments of consumer products; and

(III)

has provided to the online marketplace identifying information, as described in subsection (a), that has been verified in accordance with that subsection.

(7)

Verify

The term verify means to confirm information provided to an online marketplace pursuant to this section by the use of one or more methods that enable the online marketplace to reliably determine that any information and documents provided are valid, corresponding to the seller or an individual acting on the seller’s behalf, not misappropriated, and not falsified.

3.

Effective date

This Act shall take effect 180 days after the date of the enactment of this Act.