BILL ANALYSIS Ó
SB 1326
Page 1
Date of Hearing: June 24, 2014
ASSEMBLY COMMITTEE ON BUSINESS, PROFESSIONS AND CONSUMER
PROTECTION
Susan A. Bonilla, Chair
SB 1326 (Roth) - As Amended: June 18, 2014
SENATE VOTE : 37-0
SUBJECT : Hearings aids: warranty: work order or receipt.
SUMMARY : Requires the warranty period for hearing aids to
begin on the initial date of delivery to the buyer, instead of
on the date of completion of fitting, with the written warranty,
extends the 30 day warranty period to 45 days, and requires the
written warranty to specify the initial date of delivery and the
expiration date of the warranty. Specifically, this bill :
1)Requires all new and used hearing aids sold in California to
be accompanied by the retail seller's written warranty which
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
45 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."
2)Authorizes the retail seller to specify any longer period for
the return of an unfit hearing aid.
3)On the initial date of delivery, requires the seller to revise
the written warranty to include the initial date of delivery
to the buyer and the expiration date of the warranty.
4)Requires, if the warranty period relating to an implied or
express warranty has tolled for specified reasons, that the
warranty period for hearing aids resumes on the date upon
which the repaired or serviced hearing aid is delivered to the
buyer, or 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.
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5)Requires a hearing aid seller, after receiving the hearing aid
for warranty repairs or service, to provide to the buyer at
the time of delivery a work order or receipt that specifies
the date the warranty period resumes and the revised
expiration date of the warranty, as adjusted to reflect the
suspension of the warranty period under the tolling
provisions.
EXISTING LAW :
1)Establishes the Song-Beverly Consumer Warranty Act
(Song-Beverly) to define the obligations of consumer goods
manufacturers and retailers and to provide remedies for breach
of implied or express warranty. (Civil Code (CIV) Section
1790, et seq.)
2)Defines "consumer goods" to include new and used assistive
devices sold at retail, and defines "assistive device" to
include any instrument, or part or accessory thereof, that is
used to assist an individual with a disability in the
mitigation or treatment of an injury or disease or to assist
or affect or replace the structure or any function of the body
of an individual with a disability, as specified. (CIV 1791)
3)Requires retail sellers, at the time of sale of a new or used
assistive device sold at retail, to include the retail
seller's written warranty which is required to state all of
the following:
a) The assistive device is warranted to be specifically fit
for the particular needs of the buyer, and if the device is
not specifically fit for the buyer's needs, it may be
returned to the seller within 30 days of the date of actual
receipt or completion of fitting by the seller, which comes
later;
b) If the buyer returns the device, the seller will either
adjust or replace the device or promptly refund the total
amount paid; and
c) The warranty does not affect protections or remedies
under other laws; as specified. (CIV 1793.02(a), (b))
4)If the buyer returns the device within the specified period,
requires the seller, without charge and within a reasonable
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time, to adjust the device or, if appropriate, replace it with
a device that is specifically fit for the particular needs of
the buyer. (CIV 1793.02(c))
5)If the seller does not adjust or replace the device, the
seller is required to: promptly refund the total amount paid
and the transaction is deemed rescinded, promptly return all
payments and any assistive device or other consideration
exchanged as part of the transaction, and cancel all
contracts, instruments, and security agreements executed by
the buyer in connection with the sale; and is prohibited from
imposing a charge, penalty, or other fee in connection with
the purchase, fitting, financing, or return of the device.
(CIV 1793.02(c))
6)Automatically tolls every warranty period relating to an
implied or express warranty accompanying a sale or consignment
for sale of consumer goods selling for $50 or more for the
period from the date upon which the buyer either (a) delivers
the nonconforming goods to the manufacturer or seller for
warranty repairs or service or (b) notifies the manufacturer
or seller of the nonconformity of the goods, up to and
including the date upon which either (y) the repaired or
serviced goods are delivered to the buyer or (z) the buyer is
notified the goods are repaired or serviced and are available
for the buyer's possession, as specified. (CIV 1795.6(a))
7)Provides that the warranty period shall not be deemed expired
if the warranty repairs or service has not been performed due
to delays caused by circumstances beyond the control of the
buyer, or the warranty repairs or service performed on the
nonconforming goods did not remedy the nonconformity for which
those 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. (CIV 1795.6(b))
8)Provides that 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. (CIV 1795.6)
9)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, and requires every manufacturer
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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 or, where applicable, the date
the goods were shipped or delivered to the buyer. (CIV
1795.6(d))
FISCAL EFFECT : None. This bill is keyed non-fiscal by the
Legislative Counsel.
COMMENTS :
1)Purpose of this bill . This bill extends the statutory
warranty period for hearing aids and clarifies warranty
tolling provisions. This bill is sponsored by Hearing
Healthcare Providers California.
2)Author's statement . According to the author, "The technology
of hearing aids has advanced significantly since Song-Beverly
was introduced in 1979. At that time, hearing aids were
analog; 'fitting' them meant turning the volume up or down.
Modern digital hearing aids convert sound into a code that can
be adjusted to amplify specific parts of the sound to meet an
individual's needs. Due to this additional complexity, the
fitting of a hearing aid takes longer, with each fitting
requiring the hearing aid be returned to the provider for
adjustment.
"The problem lies with the several interpretation[s] of what
completion of fitting means in Song-Beverly. Currently, the
30 days may toll, only to be restarted with each successive
trip to the provider. The result is a warranty period that
can last upwards of a year or more.
"The purpose of this bill is to provide a defined and reliable
warranty period for new and used hearing aid devices."
3)Hearing aid technology . There are two main types of hearing
aids: analog, which convert sound waves into electrical
signals that are amplified, and digital, which convert sound
waves into numerical codes (similar to the binary code of a
computer) before amplifying them, which provides more
flexibility in adjusting the aid to a user's needs and to
certain listening environments. Technological advances in
digital hearing aids have increased the effectiveness of
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hearing aids dramatically, which have also increased the cost
and complexity of these devices. Hearing aids may range from
a few hundred to a few thousand dollars (and costs may double
if two hearing aids are required), and "fitting" the hearing
aid may require multiple visits and readjustments.
4)The role of audiologists and dispensers . In California, the
SpeechLanguage Pathology and Audiology Board (Board) licenses
and regulates over 700 audiologists, over 900 dispensing
audiologists, and over 1,000 hearing aid dispensers.
Audiologists provide services to individuals with hearing,
balance, and related communic5)ative disorders, and dispensing
audiologists are licensed audiologists who are certified to
fit and sell hearing aids. Hearing aid dispensers fit or sell
hearing aids to individuals with impaired hearing.
These licensees are required to provide to the buyer of a
hearing aid a written receipt signed by, or on behalf of, the
licensee that contains, among other things, the date of the
sale, specifications on the hearing aid sold, the address
where the licensee shall be available to fit, adjust, or
service the hearing aid, and the terms of any guarantee or
written warranty as required by the Song-Beverly Act, which
provides warranty provisions for consumers of assistive
devices.
6)Warranty provisions relating to assistive devices . The
product warranty or "right of return" provisions of
Song-Beverly apply to the sale and refund of hearing aids.
According to the Board's 2012 Sunset Report, the provisions of
Song-Beverly have been difficult to enforce because the
warranty language is vague and is interpreted in several
different ways, with the resulting confusion hurting both the
consumer and the hearing aid dispenser.
Currently, Song-Beverly requires that every sale of an assistive
device at retail be accompanied by the retail seller's implied
warranty that the device is specifically fit for the
particular needs of the buyer. Song-Beverly also requires
that at the time of sale, the assistive device include the
retail seller's written warranty which states that the device
is warranted to be specifically fit for the particular needs
of the buyer and that it may be returned to the seller "within
30 days of the date of receipt or completion of the fitting,
whichever comes later," so that the seller can either adjust
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or replace the device, or refund the amount paid if the device
is not fit for the buyer's needs.
In its Sunset Report, the Board found that the term "completion
of the fitting" does not have a meaning that is universally
understood or agreed upon by either the retailer or the buyer.
As a result, the retailer must ultimately determine when the
device is deemed "fit," and the buyer must also be in
agreement because the term implies some level of satisfaction
with the fit of the hearing aid. Often, an agreement cannot
be reached, and the hearing aid dispenser is faced with
ongoing adjustments and exchanges with no foreseeable end date
to the 30-day warranty period. The Board states that it is
difficult to enforce or even clearly delineate a warranty
period that is interpreted to start on the date the consumer
was satisfied.
Song-Beverly also provides that this warranty period
automatically tolls from the date upon which the buyer either
delivers the nonconforming goods to the seller for warranty
repairs or service, or notifies the seller of the problem
until the date upon which the repaired or serviced goods are
delivered to the buyer or the buyer is notified the goods are
fixed and available. According to the Board, these provisions
are not sufficient to address those instances when the device
may require adjustment or repair and is not in the possession
of the buyer.
As a result, the Board asserts that the lack of clarity and
specificity in Song-Beverly results in disputes between
consumers and hearing aid dispensers, and ultimately some form
of legal recourse or mediation is initiated. However, the
Board finds it difficult to mediate these complaints when the
parties have different interpretations of Song-Beverly.
According to the Board, more than 25% of complaints received
annually are related to refunds on hearing aids. In resolving
these complaints, the Board has interpreted the warranty
period as beginning on the date of the last fitting or
adjustment of the hearing aid.
This bill would modify the warranty provisions for hearing
aids by eliminating the "completion of fitting" standard that
can determine the start of the warranty period, which could
lead to an overall shorter warranty period, but would also
increase that existing 30 day period to 45 days based on date
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of receipt. The purpose is to prevent the warranty clock from
"restarting" at 30 days every time a hearing aid is adjusted,
which in some cases can cause a 30 day warranty to last
multiple months. This bill would start the warranty "clock"
upon initial delivery, only stopping or "tolling" when the
hearing aid is being repaired or refitted, and would require
disclosures of the warranty expiration date and provisions for
tolling. These changes, in addition to changes clarifying when
the tolling provisions resume, would provide clear guidance to
buyers and retailers to help them understand the warranty
period.
7)Hearing aid warranty provisions in other states . Many states
impose warranty periods for hearing aid purchases, including
warranty tolling provisions, and many manufacturers have their
own warranty period. In Florida, hearing aids also have a
statutory 30 day trial period and refund policy, and the
warranty period is tolled for one day for each 24 hours period
when the hearing aid is being repaired, remade, or adjusted
and the hearing aid is not in the buyer's possession. The
warranty period resumes on the date the buyer reclaims the
hearing aid or on the fourth day after notification of its
availability. Texas also has a similar policy, except that
the warranty period resumes on the day the buyer reclaims the
hearing aid or within five days of notification of its
availability.
Other states also have longer warranty periods of 45 days,
including Minnesota, New Mexico, New York, and Vermont.
According to an AARP Consumer Guide for Hearing Aids, most
hearing aid buyers require between three to five adjustments
to complete "fitting" of the hearing aid. According to the
sponsors, the average time to determine whether any additional
adjustment is needed is one week, based on encountering a new
situation that affects the performance or noise level of the
hearing aid, although this adjustment period may take up to
two weeks. The 45 day warranty period provided under this
bill, which would be tolled during repairs, would allow buyers
to obtain the average number of fittings necessary to adjust
to a new hearing, and if the buyer is still not satisfied, he
or she would be able to refund the hearing aid before the end
of that 45 day period.
8)Arguments in support . According to the sponsors, "[This bill]
would provide needed clarification for consumers in defining
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the warranty period for hearing aids. Greater specificity
will further protect the public by providing the [Board] with
consistent enforcement criteria when examining hearing aid
dispensing complaints."
The Board also writes in support, "The vagueness and lack of
specificity in the [Song-Beverly] language makes it difficult
for the Board to mediate consumer complaints when the buyer
and seller have different interpretations of their rights and
responsibilities. [This bill] will provide the Board with
clear enforcement direction to both consumers and sellers of
hearing aids."
9)Previous legislation . SB 1444 (Anderson) of 2012 would have
authorized a buyer to return a hearing aid to the seller
within 30 days from the date the buyer is fitted with the
hearing aid and takes possession of it, tolled that warranty
period for one day for each 24-hour period that the hearing
aid is not in the buyer's possession until the date the buyer
reclaimed the hearing aid or five days after he or she
received notice the hearing aid was available. This bill was
held in the Senate Judiciary Committee.
SB 648 (Battin) of 2003 would have authorized a seller of an
assistive device to charge the buyer a nominal fee for any
readjustment of that device during the warranty period, and
would have required the written warranty that accompanies the
sale of an assistive device to inform the buyer that a nominal
fee may be charged for readjustments during the warranty
period. This bill was held in the Senate Judiciary Committee.
REGISTERED SUPPORT / OPPOSITION :
Support
Hearing Healthcare Providers California (sponsor)
California Speech-Language Pathology & Audiology & Hearing Aid
Dispensers Board
Bartlett's Hearing Aids
Chico Hearing Aid Center
Two individuals
Opposition
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None on file.
Analysis Prepared by : Eunie Linden / B.,P. & C.P. / (916)
319-3301