Amended in Senate April 21, 2014

Senate Bill No. 1326

Introduced by Senator Roth

February 21, 2014

begin delete An act to add Section 2530.7 to the Business and Professions Code, relating to assistive devices. end delete begin insert An act to amend Sections 1793.02 and 1795.6 of the Civil Code, relating to hearing aids. end insert

LEGISLATIVE COUNSEL’S DIGEST

SB 1326, as amended, Roth. begin delete Assistive devices: warranty: regulations. end delete begin insert Hearing aids: warranty: work order or receipt. end insert

begin insert

Existing law requires all new and used assistive devices sold at retail in this state to be accompanied by the retail seller’s written warranty which is required to contain specified language including, among other things, that the assistive device may be returned to the seller within 30 days of the date of the actual receipt by the buyer or completion of fitting by the seller, whichever occurs later.

end insert begin insert

This bill would, with respect to hearing aids, require all new and used hearing aids sold in this state to be accompanied by the retail seller’s written warranty which is required to contain specified language including, among other things, that if the device is not initially fit for the buyer’s particular needs, it may be returned to the seller within 30 days of the initial date of delivery to the buyer.

end insert begin insert

Existing law requires the warranty period relating to an implied or express warranty accompanying a sale or consignment for sale of consumer goods selling for $50 or more to automatically be tolled from the date upon which the buyer takes certain actions.

end insert begin insert

This bill would, with respect to hearing aids, require the warranty period to resume on the date upon which the repaired or serviced hearing aid is delivered to the buyer or 5 days after the buyer is notified that the hearing aid is repaired or serviced and is available for the buyer’s possession, whichever is earlier.

end insert begin insert

Existing law requires every manufacturer or seller of consumer goods selling for $50 or more to provide a receipt to the buyer showing the date of purchase. Existing law requires every manufacturer or seller performing warranty repairs or service on the goods to provide to the buyer a work order or receipt with the date of return and either the date the buyer was notified that the goods were repaired or serviced, as specified.

end insert begin insert

This bill would, with respect to hearing aids, require the seller, after receiving the hearing aid for warranty repairs or service, to provide at the time of delivery to the buyer a work order or receipt with the date the warranty period resumes and the revised expiration date of the warranty, as adjusted to reflect the suspension of the warranty period provided pursuant to these provisions.

end insert begin delete

Existing law creates the Speech-Language Pathology and Audiology and Hearing Aid Dispensers Board in the Department of Consumer Affairs with various powers and duties. Existing law requires all new and used assistive devices sold at retail, with specified exceptions, to be accompanied by a written warranty.

end delete begin delete

This bill would authorize the board, notwithstanding the existing provisions otherwise applicable to a warranty for new and used assistive devices, to adopt regulations that define the express terms that are required to be provided in a purchase agreement for a hearing aid.

end delete

Vote: majority. Appropriation: no. Fiscal committee:  begin delete yes end delete begin insert no end insert . State-mandated local program: no.

The people of the State of California do enact as follows:

begin insert

begin insert SECTION 1. end insert   

end insert

begin insert Section 1793.02 of the end insert begin insert Civil Code end insert begin insert is amended to
read: end insert

1793.02.  

(a)  begin delete All end delete begin insert (1) end insert begin insert   end insert begin insert Except as provided in paragraph (2), all end insert
new and used assistive devices sold at retail in this state shall be
accompanied by the retail seller’s written warranty which shall
contain the following language: “This assistive device is warranted
to be specifically fit for the particular needs of you, the buyer. If
the device is not specifically fit for your particular needs, it may
be returned to the seller within 30 days of the date of actual receipt
by you or completion of fitting by the seller, whichever occurs
later. If you return the device, the seller will either adjust or replace
the device or promptly refund the total amount paid. This warranty
does not affect the protections and remedies you have under other
laws.” In lieu of the words “30 days” the retail seller may specify
any longer period.

begin insert

(2) (A) All new and used hearing aids sold in this state shall
be accompanied by the retail seller’s written warranty and shall
contain the following language: “This hearing aid is warranted
to be specifically fit for the particular needs of you, the buyer. If
the hearing aid is not initially fit for your particular needs, it may
be returned to the seller within 30 days of the initial date of
delivery to you. If you return the hearing aid, the seller will either
adjust or replace the hearing aid or promptly refund the total
amount paid. This warranty does not affect the protections and
remedies you have under other laws.”

end insert begin insert

(B) In lieu of the words “30 days” the retail seller may specify
any longer period.

end insert begin insert

(C) The retail seller’s written warranty shall include the initial
date of delivery to the buyer of the hearing aid and expiration date
of the warranty.

end insert

(b) The language prescribed in subdivision (a) shall appear on
the first page of the warranty in at least 10-point bold type. The
warranty shall be delivered to the buyer at the time of the sale of
the device.

(c) If the buyer returns the device within the period specified
in the written warranty, the seller shall, without charge and within
a reasonable time, adjust the device or, if appropriate, replace it
with a device that is specifically fit for the particular needs of the
buyer. If the seller does not adjust or replace the device so that it
is specifically fit for the particular needs of the buyer, the seller
shall promptly refund to the buyer the total amount paid, the
transaction shall be deemed rescinded, and the seller shall promptly
return to the buyer all payments and any assistive device or other
consideration exchanged as part of the transaction and shall
promptly cancel or cause to be canceled all contracts, instruments,
and security agreements executed by the buyer in connection with
the sale. When a sale is rescinded under this section, no charge,
penalty, or other fee may be imposed in connection with the
purchase, fitting, financing, or return of the device.

(d) With respect to the retail sale of an assistive device to an
individual, organization, or agency known by the seller to be
purchasing for the ultimate user of the device, this section and
subdivision (b) of Section 1792.2 shall be construed to require that
the device be specifically fit for the particular needs of the ultimate
user.

(e) This section and subdivision (b) of Section 1792.2 shall not
apply to any of the following sales of assistive devices:

(1) A catalog or similar sale, as defined in subdivision (q) of
Section 1791, except a sale of a hearing aid.

(2) A sale which involves a retail sale price of less than fifteen
dollars ($15).

(3) A surgical implant performed by a physician and surgeon,
or a restoration or dental prosthesis provided by a dentist.

(f) The rights and remedies of the buyer under this section and
subdivision (b) of Section 1792.2 are not subject to waiver under
Section 1792.3. The rights and remedies of the buyer under this
section and subdivision (b) of Section 1792.2 are cumulative, and
shall not be construed to affect the obligations of the retail seller
or any other party or to supplant the rights or remedies of the buyer
under any other section of this chapter or under any other law or
instrument.

(g) Section 1795.5 shall not apply to a sale of used assistive
devices, and for the purposes of the Song-Beverly Consumer
Warranty Act the buyer of a used assistive device shall have the
same rights and remedies as the buyer of a new assistive device.

(h) The language in subdivision (a) shall not constitute an
express warranty for purposes of Sections 1793.2 and 1793.3.

begin insert

begin insert SEC. 2. end insert   

end insert

begin insert Section 1795.6 of the end insert begin insert Civil Code end insert begin insert is amended to read: end insert

1795.6.  

(a)  begin delete Every end delete begin insert (1) end insert begin insert   end insert begin insert Except as provided in paragraph (2) end insert
warranty period relating to an implied or express warranty
accompanying a sale or consignment for sale of consumer goods
selling for fifty dollars ($50) or more shall automatically be tolled
for the period from the date upon which the buyer either (1)
delivers nonconforming goods to the manufacturer or seller for
warranty repairs or service or (2), pursuant to subdivision (c) of
Section 1793.2 or Section 1793.22, notifies the manufacturer or
seller of the nonconformity of the goods up to, and including, the
date upon which (1) the repaired or serviced goods are delivered
to the buyer, (2) the buyer is notified the goods are repaired or
serviced and are available for the buyer’s possession or (3) the
buyer is notified that repairs or service is completed, if repairs or
service is made at the buyer’s residence.

begin insert

(2) With respect to hearing aids, the warranty period shall
resume on the date upon which (1) the repaired or serviced hearing
aid is delivered to the buyer or (2) five days after the buyer is
notified the hearing aid is repaired or serviced and is available
for the buyer’s possession, whichever is earlier.

end insert

(b) Notwithstanding the date or conditions set for the expiration
of the warranty period, such warranty period shall not be deemed
expired if either or both of the following situations occur: (1) after
the buyer has satisfied the requirements of subdivision (a), the
warranty repairs or service has not been performed due to delays
caused by circumstances beyond the control of the buyer or (2)
the warranty repairs or service performed upon the nonconforming
goods did not remedy the nonconformity for which such repairs
or service was performed and the buyer notified the manufacturer
or seller of this failure within 60 days after the repairs or service
was completed. When the warranty repairs or service has been
performed so as to remedy the nonconformity, the warranty period
shall expire in accordance with its terms, including any extension
to the warranty period for warranty repairs or service.

(c) For purposes of this section only, “manufacturer” includes
the manufacturer’s service or repair facility.

(d)  begin delete Every end delete begin insert (1) end insert begin insert   end insert begin insert Except as provided in paragraph (2), every end insert
manufacturer or seller of consumer goods selling for fifty dollars
($50) or more shall provide a receipt to the buyer showing the date
of purchase. Every manufacturer or seller performing warranty
repairs or service on the goods shall provide to the buyer a work
order or receipt with the date of return and either the date the buyer
was notified that the goods were repaired or serviced or, where
applicable, the date the goods were shipped or delivered to the
buyer.

begin insert

(2) With respect to hearing aids, the seller, after receiving the
hearing aid for warranty repairs or service, shall also provide at
the time of delivery to the buyer a work order or receipt with the
following: (1) the date the warranty period resumes and (2) the
revised expiration date of the warranty, as adjusted to reflect the
suspension of the warranty period provided under this section.

end insert

begin delete

SECTION 1.  

Section 2530.7 is added to the Business and
Professions Code, to read:

2530.7.  

Notwithstanding Section 1793.02 of the Civil Code,
the board may adopt regulations that define the express terms that
are required to be provided in a purchase agreement for a hearing
aid.

end delete