1. (1) New essential product means an essential product that was neither sold by the seller nor readily obtainable in the trade area prior to the abnormal disruption of the market;

2. (2) Comparable essential product means any essential product that is either:

   1. (i) a good or service that the seller used as a point of comparison when determining or justifying the price the seller charged for the new essential product (whether internally or in public-facing communications); or
   2. (ii) a good or service whose design or technology the seller adapted to create the new essential product; or
   3. (iii) a good or service that, if it possessed the same price as the new essential product, would be treated by a reasonable person in the position of the buyer as an acceptable substitute for the essential product.
3. (3) Trade area price means the price at which a comparable essential product was readily obtainable in the trade area between 30 days prior to the commencement of the abnormal disruption and the date of the scrutinized sale; and

4. (4) A product is readily obtainable in the trade area if the average reasonable person in the position of the buyer in the scrutinized sale could obtain possession or use of that product.

   (b) Application of statute to all essential products irrespective of novelty.

   General Business Law § 396-r applies to all essential products, including new essential products.

   (c) Unconscionably excessive price of new essential products.

5. (1) Presumption of gross excess in price for new essential product sales in trade area. During any abnormal disruption of the market for a new essential product, the amount charged for a new essential product (“the scrutinized price”) is presumptively unconscionably excessive pursuant to General Business Law § 396-r(3)(b)(ii), if the scrutinized price is more than 10% greater than the trade area price.

6. (2) Rebuttal of presumption. The presumption established in subdivision (c)(1) of this rule may be rebutted with evidence, as provided in 13 NYCRR § 600.9:

   1. (i) at the scrutinized price, the new essential product would be sold at the same margin of profit as the essential product in the sale used to determine the trade area price; or,

   2. (ii) the scrutinized price was necessary to recover additional costs not within the control of the seller imposed on the seller for the new essential product that were not imposed on the seller of the comparable essential product in the sale used to determine the trade area price.

      (d) New essential products without comparable essential products.

      If a new essential product has no comparable essential product, a new essential product may have an unconscionably excessive price if the price of the new essential product is unconscionably extreme, or there was an exercise of unfair leverage or unconscionable means, or a combination of both.

      (e) No effect on other grounds for unconscionably excessive prices.

      Nothing in this rule shall be so construed as to foreclose the court’s determination that an unconscionably excessive price has been charged based on the amount of the excess in price being unconscionably extreme, or by reason of an exercise of unfair leverage or unconscionable means, or a combination of both factors, or to affect a prima facie case made under General Business Law § 396-r(3)(b)(ii) for any essential products other than new essential products.

(a) Definitions.

In addition to the definitions set forth in 13 NYCRR § 600.1, in this rule: