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AB-602 False advertising: pregnancy-related services.(2023-2024)

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Date Published: 09/13/2023 09:00 PM
AB602:v97#DOCUMENT

Amended  IN  Senate  September 13, 2023
Amended  IN  Senate  June 19, 2023

CALIFORNIA LEGISLATURE— 2023–2024 REGULAR SESSION

Assembly Bill
No. 602

Introduced by Assembly Members Schiavo and Pellerin

February 09, 2023

An act to add Article 10 (commencing with Section 17620) to Chapter 1 of Part 3 of Division 7 of the Business and Professions Code, relating to false advertising.


LEGISLATIVE COUNSEL'S DIGEST


AB 602, as amended, Schiavo. False advertising: pregnancy-related services.
Existing law makes it unlawful for a person doing business in California and advertising to consumers in California to make any false or misleading advertising claim. Existing law, the Unfair Competition Law, makes various practices unlawful and provides that a person who engages, has engaged, or proposes to engage in unfair competition is liable for a civil penalty, as specified. Existing law prohibits the state from denying or interfering with an individual’s fundamental right to choose or obtain an abortion.
This bill would prohibit a person doing business in California from advertising using a statement that a reasonable person would believe indicates that the person provides a pregnancy-related service if the person does not provide that pregnancy-related service or does not make a timely referral to a provider of that pregnancy-related service. The bill would make a violation of that prohibition an unfair business practice, and would authorize an entity authorized to enforce unfair competition laws, a district attorney, a county counsel, or a city attorney to file for injunctive relief or seek a civil penalty, as specified. The bill would authorize a court to impose statutory penalties of up to $10,000 per violation, order injunctive relief, award restitution, and award reasonable attorney’s fees and costs.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

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


SECTION 1.

 The Legislature finds and declares all of the following:
(a) A person who is pregnant or believes they might be pregnant may seek services from a pregnancy services center. Those services might be pregnancy-related such as pregnancy testing, pregnancy diagnosis, obstetric ultrasounds, obstetric sonograms, or prenatal care. The services might also include options for emergency contraception or termination of a pregnancy, including surgical and nonsurgical abortion and the abortion pill.
(b) When a person considers termination of a pregnancy, time is a critical factor. Delays in deciding to terminate a pregnancy might mean that a less invasive option is no longer available or that the option to terminate a pregnancy is no longer available. Emergency contraception can prevent pregnancy from occurring after unprotected sex or after birth control has failed, but must be taken within a short period of time after sex to be effective, generally within 72 hours. For people who intend to continue their pregnancies, obtaining early prenatal care reduces the risk of complications for both the pregnant person and baby. Pregnant people who do not get prenatal care or delay getting prenatal care are at greater risk for having undetected pregnancy complications that increase the risk of maternal or infant mortality, and their babies are more likely to have low birth weight or other complications. Therefore, it is critical that a pregnant person timely select selects a provider that meets their needs.
(c) Many pregnant people do not come to a pregnancy services center as a result of a referral from a medical professional. Instead, pregnant people often select a pregnancy service center based on advertising procured by the center over the internet, including abortion.ca.gov, on billboards, radio, and television, in digital media, and in printed media, including newspapers and magazines. This is commercial speech that pregnancy service centers rely on to compete with other pregnancy service centers to attract pregnant people seeking assistance, including termination of pregnancy, emergency contraception, and prenatal care.
(d) Some pregnancy service centers use false or misleading advertising to attract pregnant people contemplating terminating a pregnancy into believing that the center offers those services, even though it is not the center’s business practice to provide abortion services or to refer a pregnant person to another provider qualified to provide the services. Many pregnancy service centers that engage in such false or misleading advertising do not provide prenatal care.
(e) Pregnant people seeking information regarding options to terminate a pregnancy may experience emotional and physical stress, and are therefore especially susceptible to a pregnancy service center’s false or misleading advertising.
(f) Many pregnancy service centers offer “nondiagnostic” or “nonmedical” ultrasounds, which may not detect fetal abnormalities, fetal distress, or other complications, or may be performed by persons unqualified to identify medical conditions that could affect a pregnancy. Nondiagnostic or nonmedical ultrasounds may give pregnant people a false sense of security and cause them to delay seeking adequate prenatal care. Both the American College of Obstetricians and Gynecologists and the American Institute of Ultrasound in Medicine discourage the use of nonmedical ultrasounds to view or obtain images of a fetus.
(g) Because of the time-sensitive nature of the decision to terminate a pregnancy or obtain emergency contraception, and the importance of timely access to prenatal care, false and misleading advertising by a pregnancy service center is of concern to the Legislature. When a pregnant person is misled into believing that a pregnancy service center offers services that it does not in fact offer, they lose time crucial to accessing emergency contraception, obtaining an abortion, or beginning prenatal care. Under these circumstances, a pregnant person might also lose the option to choose a particular procedure or to terminate the pregnancy at all.
(h) If a pregnant person is misled and delayed by false or misleading advertising from obtaining an abortion, emergency contraception, or prenatal care, the cost of providing more invasive and expensive options may fall upon the state and local governments.
(i) California’s False Advertising Law and Unfair Competition Law often prove inadequate to protect the interests of potential consumers of pregnancy center services, as those laws require a private party to demonstrate financial harm in order to establish standing and provide private parties with limited remedies.
(j) This act does not limit the right of anyone, including a pregnancy service center, to advocate or counsel against pregnancy termination, or to advertise in a way that is not false and misleading regarding any service actually offered. This act only regulates false or misleading commercial speech, including false or misleading speech in advertisements.

SEC. 2.

 Article 10 (commencing with Section 17620) is added to Chapter 1 of Part 3 of Division 7 of the Business and Professions Code, to read:
Article  10. Pregnancy-Related Services

17620.
 For purposes of this article:
(a) “Abortion” means a medical treatment intended to induce the termination of a pregnancy except for the purpose of producing a live birth.
(b) “Advertise” means to offer or provide goods or services to the public, regardless of whether or not the goods or services are offered for payment or result in a profit.
(c) “Emergency contraception” means one or more prescription drugs that meet all of the following criteria:
(1) Are used separately or in combination to prevent pregnancy, when administered to or self-administered by a patient, within a medically recommended amount of time after sexual intercourse.
(2) Are dispensed for the purpose described in paragraph (1) in accordance with professional standards of practice.
(3) Have been determined by the United States Food and Drug Administration to be safe for the purpose described in paragraph (1).
(d) “Person” has the same meaning as in Section 17021.
(e) “Pregnancy-related service” means a medical or health counseling service related to pregnancy or pregnancy prevention, including contraception and contraceptive counseling, pregnancy testing, pregnancy diagnosis, pregnancy options counseling, obstetric ultrasound, obstetric sonogram, and prenatal care.
(f) “Prenatal care” means services consisting of physical examination, pelvic examination, or clinical laboratory services provided to a pregnant person.

17621.
 A person doing business in California shall not advertise using a statement that a reasonable person would believe indicates that the person provides a pregnancy-related service, including abortion, emergency contraception, and prenatal care, if the person does not provide that pregnancy-related service or does not make a timely referral to a provider of that pregnancy-related service.

17622.
 (a) A violation of this article is an unfair business practice, as specified in Section 17200.
(b) In addition to the entities authorized under Sections 17204 and 17206, a district attorney, a county counsel, or a city attorney may file for injunctive relief under Section 17204 or seek a civil penalty under Section 17206 against a person for a violation of this article, pursuant to Chapter 5 (commencing with Section 17200) of Part 2.
(c) In addition to other available remedies, upon a finding that a person has violated this article, the court may do any or all of the following:
(1) Impose statutory penalties of up to ten thousand dollars ($10,000) per violation.
(2) Order injunctive relief compelling compliance with this article and correcting the effects of false or misleading advertising.
(3) Award restitution.
(4) Award a prevailing plaintiff reasonable attorney’s fees and costs.

17623.
 The provisions of this article are severable. If any provision of this article or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.