BILL ANALYSIS �
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2013-2014 Regular Session
SB 1326 (Roth)
As Amended April 21, 2014
Hearing Date: April 29, 2014
Fiscal: No
Urgency: No
TMW
SUBJECT
Hearing Aids: Warranty: Work Order or Receipt
DESCRIPTION
Existing law, the Song-Beverly Consumer Warranty Act, provides
that assistive devices (including hearing aids) have a 30-day
warranty from the time the assistive device is actually received
by the buyer or completion of fitting by the seller for the
particular needs of the buyer. This bill would clarify hearing
aid warranty provisions by requiring a retailer to provide
written warranty beginning and expiration dates from the time
the hearing aids are initially delivered to the buyer. This
bill would also clarify the hearing aid warranty tolling period
after repair or service and require the seller to provide a work
order or receipt with the date the warranty period resumes and
the revised expiration date of the warranty adjusted to reflect
the suspension of the warranty period during repair or service.
BACKGROUND
In 1979, the Song-Beverly Consumer Warranty Act (Song-Beverly)
established warranty provisions for assistive devices, including
hearing aids. At that time, hearing aids were analog and
amplified all sounds equally, and a completed fitting of the
hearing aid primarily involved turning the hearing aid sound up
or down.
Since 1979, analog hearing aids have been slowly phased out in
favor of digital hearing aids, which utilize computer chips to
convert incoming sounds into a digital code. The computer chips
are adjusted based on each individual's hearing loss and
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listening needs. As such, a successful fitting of digital
hearing aids may take a year or more, and each fitting may
require a consumer to return the digital hearing aids to the
provider for additional adjustments.
Under Song-Beverly, hearing aid purchasers have 30 days from
actual receipt by the purchaser or completion of fitting by the
seller, whichever occurs later, to return the hearing aid for a
replacement or for a full refund. (Civ. Code Sec. 1793.02(a).)
With the advent of digital hearing aids and extended time frames
for fittings, and because Song-Beverly provides that the
warranty begins at the time of completion of fitting or actual
possession of the hearing aid by the buyer, whichever is later,
hearing aid consumers and providers have become uncertain as to
when the warranty begins. Further, consumers may or may not
recall or have documentation to support the purchase or return
dates over the course of the fitting process.
This bill is substantially similar to an amended version of SB
1444 (Anderson, 2012), which the author pulled from hearing in
this Committee.
This bill, sponsored by the Hearing Healthcare Providers
California, would revise the warranty and tolling provisions for
hearing aids under Song-Beverly to clarify the warranty period.
This bill was heard by the Senate Business, Professions &
Economic Development Committee on April 7, 2014, and passed out
on a vote of 8-0.
CHANGES TO EXISTING LAW
1. Existing law , the Song-Beverly Consumer Warranty Act
(Song-Beverly) provides implied warranties and remedies
relating to new and used assistive devices. (Civ. Code Secs.
1793, 1793.02.)
Existing law requires all new and used assistive devices sold
in California to contain the retail seller's written warranty,
in at least 10-point bold type, as follows:
the assistive device is warranted to be specifically fit
for the particular needs of the buyer;
the device may be returned to the seller within 30 days,
or a longer period if specified by the seller, of the date
of actual receipt by the buyer or completion of fitting by
the seller, whichever occurs later, if the device is not
specifically fit for the buyer's particular needs; and
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the seller must either adjust or replace the device or
promptly refund the total amount paid by the buyer if the
buyer returns the device to the seller. (Civ. Code Sec.
1793.02(a), (b).)
Existing law provides that if the buyer returns the assistive
device within the written warranty period, the seller shall,
without charge and within a reasonable time, adjust the device
or replace it with a device that is specifically fit for the
particular needs of the buyer. (Civ. Code Sec. 1793.02(c).)
Existing law provides that 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 must promptly refund
to the buyer the total amount paid for the assistive device
and any other consideration exchanged as part of the
transaction, and the sale is rescinded. (Civ. Code Sec.
1793.02(c).)
Existing law provides that if a sale of assistive devices is
rescinded, the seller may not charge, penalize, or impose any
other fee on the buyer in connection with the purchase,
fitting, financing, or return of the device. (Civ. Code Sec.
1793.02(c).)
This bill would revise the above warranty provisions for
hearing aids to require the retail seller to provide to the
buyer with a written warranty that the hearing aid is
specifically fit for the particular needs of the buyer, and if
the hearing aid is not initially fit for the buyer's
particular needs, the hearing aid may be returned to the
seller within 30 days of the initial date of delivery to the
buyer.
This bill would provide that if the buyer returns the hearing
aid to the retail seller, the seller will either adjust or
replace the hearing aid or promptly refund the total amount
paid.
This bill would authorize the retail seller to specify a
warranty period longer than 30 days.
This bill would require the retail seller's written warranty
to specify the initial date of delivery to the buyer of the
hearing aid and the expiration date of the warranty.
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2. Existing law provides that a warranty period is tolled for the
period from the date upon which the buyer either delivers
nonconforming goods to the seller for warranty repairs or
service, or notifies the seller of the nonconformity of the
goods, until the date upon which the repaired or serviced
goods are delivered to the buyer, the buyer is notified the
goods are repaired or serviced and are available, or the buyer
is notified that repairs or service is completed, if repairs
or service is made at the buyer's residence. (Civ. Code Sec.
1795.6(a).)
Existing law provides that the warranty period shall not be
deemed expired if either or both of the following situations
occur:
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 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. (Civ.
Code Sec. 1795.6(b).)
Existing law requires the seller to provide to the buyer a
receipt showing the date of purchase. (Civ. Code Sec.
1795.6(d).)
Existing law provides that, if the seller performed warranty
repairs or service, the seller must 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. Code Sec. 1795.6(d).)
This bill would specify that the warranty period for hearing
aids would resume on the date upon which (1) the repaired or
serviced hearing aids are delivered to the buyer, or (2) five
days after the buyer is notified the hearing aids are repaired
or serviced and are available for the buyer's possession,
whichever is earlier.
This bill would require hearing aid sellers, after receiving
the hearing aids for warranty repairs or service, to provide
to the buyer at the time of delivery to the buyer a work order
or receipt specifying (1) the date the warranty period
resumes, and (2) the revised expiration date of the warranty,
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as adjusted to reflect the suspension of the warranty period.
COMMENT
1. Stated need for the bill
The author writes:
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 interpretations 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.
2. Revising the warranty provisions for hearing aids
Existing law, the Song-Beverly Consumer Warranty Act
(Song-Beverly), provides that assistive devices, including
hearing aids, are warrantied to be specifically fit for the
particular needs of the buyer. (Civ. Code Sec. 1793.02(a).)
Song-Beverly also provides that an assistive device may be
returned to the seller within 30 days, or longer if specified by
the seller, of the date of actual receipt by the buyer or
completion of fitting by the seller, whichever occurs later.
(Civ. Code Sec. 1793.02(b).) This bill would clarify those
provisions for hearing aids by requiring a retailer to provide
the beginning and expiration dates of the warranty at the time
the hearing aids are initially delivered to the buyer. This
bill would also provide that if the hearing aids are not
initially fit for the particular needs of the buyer, the buyer
would have 30 days from the initial date of delivery to return
the hearing aids for adjustment, replacement, or a full refund.
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The author argues that ambiguity exists as to when a hearing aid
has been specifically fitted for the particular needs of the
buyer. Hearing aids that are molded to fit the particular
buyer's ears may take up to a year to completely fit the
particular needs of the buyer. Accordingly, "completion of
fitting," has been interpreted different ways by the hearing aid
seller and buyer. The hearing aid seller has to determine,
based on the unique and circumstantial definition of "completion
of fitting," when the 30-day warranty period starts and stops.
The buyer also has to argue the definition of completion of
fitting, and has to maintain accurate records as to when the
hearing aids were purchased, picked up, and potentially returned
for adjustments over the course of the fitting to validate their
claim in the event the seller refuses to refund the purchase
price and services associated with the hearing aid.
Instead of qualifying the warranty on a "completion of fitting"
standard provided under existing law, and in order to provide
clarity for providers and consumers, this bill would provide
that the warranty period begins to run when the buyer takes
delivery of the hearing aid. Should the buyer be dissatisfied
with the hearing aid performance or fit after taking possession
of the hearing aid, the warranty tolling provision discussed in
Comment 3 would allow the buyer to return the hearing aid for
proper fitting, repair, or remake and allow the hearing aid
seller the ability to fix the hearing aid during the warranty
period. Although, the buyer may choose to return the hearing
aid for a full refund.
It is important to note that removing the "completion of
fitting" condition from the warranty start date does not remove
the implied warranty of fitness for a particular purpose
provided in existing law and continued in this bill. Hearing
aids, by nature of their use to address each individual's
hearing loss, require more than a general warranty of
merchantability or ordinary purpose. Existing case law,
American Suzuki Motor Corp. v. Superior Court (1995) 37
Cal.App.4th 1291, reasoned that the applicability of an implied
warranty of fitness for a particular purpose is appropriate in
certain circumstances. The Court of Appeal held:
[A]n implied warranty of fitness for a particular purpose
exists where the seller at the time of contracting has reason
to know (a) any particular purpose for which goods are
required, and (b) that the buyer is relying on the seller's
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skill or judgment to select or to furnish suitable goods for
such purpose. "A 'particular purpose' differs from the
ordinary purpose for which the goods are used in that it
envisages a specific use by the buyer which is peculiar to the
nature of his business whereas the ordinary purposes for which
goods are used are those envisaged in the concept of
merchantability and go to uses which are customarily made of
the goods in question." . . .
The Song-Beverly Act incorporates the provisions of
[California Uniform Commercial Code] sections 2314 and 2315.
It "supplements, rather than supersedes, the provisions of the
California Uniform Commercial Code" by broadening a consumer's
remedies to include costs, attorney's fees, and civil
penalties. (Id. at 1295; internal citations omitted.)
In most circumstances, the consumer consults an audiologist, who
tests the individual for hearing loss problems. The consumer
then relies on the audiologist's skill or judgment to select the
appropriate hearing aid for the consumer's hearing needs.
Hearing aids are then "fit" for the particular needs of the
individual. Song-Beverly encompasses this transaction by
providing consumer protection with a warranty of fitness for a
particular purpose. Accordingly, this bill would maintain that
a seller is warranting that the hearing aid is specifically fit
for the particular needs of the buyer.
3. Warranty tolling provisions during hearing aid adjustment,
remake, or replacement
Song-Beverly provides that if a hearing aid seller does not
adjust or replace the device so that it is specifically fit for
the particular needs of the buyer, the seller must promptly
refund to the buyer the total amount paid for the assistive
device and any other consideration exchanged as part of the
transaction, and the sale is rescinded. (Civ. Code Sec.
7093.02(c).) Further, existing law provides that a warranty
period is tolled if the buyer has returned the device to the
seller for repair or service, as specified, and the warranty
period resumes when the repair or serviced good is returned to
the buyer or when the buyer is notified that the goods are
repaired or serviced and are available for the buyer to pick up.
(Id.). (Civ. Code Sec. 1795.6.) This bill would clarify the
hearing aid warranty tolling period after repair or service and
require the seller to provide a work order or receipt with the
date the warranty period resumes and the revised expiration date
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of the warranty adjusted to reflect the suspension of the
warranty period during repair or service.
The author argues that Song-Beverly does not adequately address
periods of time during the warranty period when the hearing aid
device may require adjustment or repair and is not in the
possession of the consumer. Unlike other digital consumer
devices, such as cameras and computers, digital hearing aids are
adjusted based on each individual's hearing loss and listening
needs. Further, some hearing aids are modeled to conform to the
buyer's ear shape. As such, the buyer may not be aware of any
particular sound or shape issue with the hearing aid until after
the buyer has picked up the hearing aid and worn it for a few
days.
The author notes that other states, such as Florida (Fla. Stat.
468.1246) and Texas (22 TAC Sec. 141.16), provide that the
hearing aid warranty is tolled when the hearing aid is returned
by the buyer for repair, remake, or adjustment, and the running
of the warranty period is suspended for one day for each 24-hour
period that the hearing aid is not in the buyer's possession.
Texas also provides that the warranty period resumes on the day
the buyer reclaims the repaired, remade, or adjusted hearing aid
or within five working days of notification of availability.
Using this framework, this bill was amended to provide consumers
a clearly defined tolling period that would resume on the day
the buyer reclaims the hearing aid or five days after the buyer
is notified the hearing aid has been repaired or serviced and
are available to be reclaimed, whichever date is earlier. The
author's recent amendments also require the seller to provide
the buyer with a written notice of the tolling period. Such
notice would be required to include the date the warranty period
resumes and the revised expiration date of the warranty,
adjusted to reflect the tolling period.
Support : AA Hearing Aids Center; Advanced Ear Care; American
Hearing Aid Center of the South Bay, Inc.; Bartlett's Hearing
Aids; California Academy of Audiology; California
Speech-Language Pathology and Audiology and Hearing Aid
Dispensers Board; Creekside Hearing Aid Service; Gillett Hearing
Aid Center; Hearing Aid Systems, Inc.; Miracle-Ear Center; Sears
Hearing Aid Centers; Twin Cities Hearing Aid Center
Opposition : None Known
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HISTORY
Source : Hearing Healthcare Providers California
Related Pending Legislation : None Known
Prior Legislation :
SB 1444 (Anderson, 2012) See Background.
SB 648 (Battin, 2003), under the Assistive Devices Warranty Law,
would have allowed a hearing aid seller to charge a nominal
adjustment fee at the discretion of the seller. This bill was
referred to this Committee but returned to the Secretary of the
Senate pursuant to Joint Rule 56.
AB 1889 (Seastrand, Ch. 228, Stats. 1991), among other things,
exempted hearing aids sold by catalog from the list of assistive
devices excluded, as specified, from the Assistive Devices
Warranty Law.
Prior Vote : Senate Committee on Business, Professions &
Economic Development (Ayes 8, Noes 0)
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