Summary:

 Senate Bill 318 (SB 318) includes firearms and destructive devices in the Unfair Practices Act, and expands private remedies for unfair, deceptive and unconscionable trade practices.  

Legislation Overview:

 Senate Bill 318 (SB 318) allows any person who is aware of an unfair trade practice involving firearms that violates New Mexico or federal law to bring a lawsuit for an injunction and monetary award of $250,000 per violation.  SB 318 provides that an action brought under the Unfair Practices Act (Act) against a manufacturer/seller of a firearm can be maintained only if the acts violate the laws of New Mexico or the United States.  This applies not only to manufacturers and sellers, but also to advertisers, distributors, online marketplace sellers, and third-party sellers of a destructive device, firearm part or firearm accessory.  An action cannot be brought if the act began and occurred wholly outside of New Mexico or if the act did not violate the laws of New Mexico or the United States.  
SB 318 also makes the following changes:
•	Amends Section 53-17-2 by providing that a foreign corporation with a certificate of authority under the Business Corporation Act consents to general personal jurisdiction in New Mexico. 
•	Provides that an online marketplace, seller or third-party seller that does not maintain a place of business in the US or conceals its place of business and offers goods or services for sale in New Mexico is deemed to have minimum contacts in New Mexico, invoked the benefits of the laws of the state, availed itself to the privileges of conducting activities within the state, and anticipated being hauled into court in New Mexico. 
•	Provides that it is an unfair practice under the Act for a person to violate Section 30-7-7 (unlawful sale, possession or transportation of explosives) or the laws of the state or United States controlling the manufacture, advertising, distribution or sale of firearms.
•	Provides that multiple parties acting in concert to manufacture/advertise/distribute/sell a firearm/device are jointly and severally liable under the Unfair Practices Act.  Likewise, an online marketplace that offers for sale such a firearm/device which would violate the laws of New Mexico or the United States, are jointly and severally liable for violations that occurred on the online marketplace. 
•	Amends the definition of “unfair or deceptive trade practice” to include (1) representing goods or services as legal to purchase under the laws of the New Mexico or the United States when they are not legal to purchase, and (2) knowingly manufacturing, advertising, distributing or offering for sale a firearm, destructive device, firearm part or firearm accessory contrary to the laws of New Mexico or the United States.  However, this does not apply to representations authorized under the medical marijuana statute or Cannabis Regulation Act. 
•	Amends what is considered an “unfair or deceptive trade practice” to include representing that goods “meet the warranty of merchantability or are fit for a particular purpose.”
•	An online marketplace must comply with a subpoena that seeks information about a third party seller. Willful failure or refusal to respond to this subpoena is a violation of the Act and the court must award $250,000 in cases involving firearms, and $10,000 in all other cases.  
•	Adds that in an Unfair Practices Act regarding firearms, the attorney general may petition the court for a civil penalty of up to $250,000 per violation.  For cases not involving firearms, the bill increases the civil penalty from $5,000 to $25,000 per violation of the Unfair Practices Act that the attorney general may recover. 
•	Adds or amends definitions for “destructive device”, “firearm”, “online marketplace”, “seller”, “seller-initiated internet sale”, “third-party seller”, “trade.”  
•	Amends the definition of “unconscionable trade practice” to include an act in connection with goods or services offered by sale by an online marketplace whether directly or by a third party seller that to a person’s detriment violates state or federal law.  
•	Amends the exemptions to the Unfair Practices Act by adding that the Act does not apply to actions for which a person or entity is immune from suit under federal or state law or a regulatory body; and it does not apply to actions without including any allegation or proof that is required by law in federal or state court, such as proximate cause resulting in harm, or that the actions occurred in whole or in part inside New Mexico.  
•	Increases the limit for actual damages from $100 to $10,000 for a person who suffers any loss of money or property as a result of any employment of a method declared unlawful by the Unfair Practices Act.
•	Increases the amount from $300 to $3,000 for willful engagement of unconscionable trade practice.  
•	Provides that documentary material produced pursuant to a demand is subject to the Inspection of Public Records Act.  
•	Adds that the Unfair Practices Act does not apply to publishers unless the publication, broadcast or reproduction of the deceptive material violates the laws of New Mexico or the United States.  Currently, the Unfair Practices Act does not apply to publishers if they do not know the material’s deceptive or unconscionable character.  
 

Amendments:

 On March 20, 2025, the House Judiciary Committee amended SB 318/a as follows:
•	Amended the definition of “online marketplace” by providing that it does not include any person, business or other entity that only offers classified advertisements.
•	Reinstates the original language in the statute that no documentary material produced pursuant to a demand shall be produced for inspection by anyone other than an employee of the Attorney General nor can the contest be disclosed to anyone other than an employee of the Attorney General or in court.  It removes the provision in the bill that such material is subject to IPRA and discoverable by any party to an action brought pursuant to the Unfair Practices Act. 
•	Adds a severability clause, such that if a provision of the act or rule is held invalid, it does not affect the other provisions of the act or rule.  
•	Corrected a typographical error


Senate Floor Amendment number 1 to SB 318 makes the following changes:
•	Redefines “firearm accessory” to mean any attachment or device inserted or affixed onto any firearm to alter the functioning capabilities of the firearm. 
•	Removes Section 3, which made stylistic changes to Section 57-12-3.1 of the Unfair Practices Act. 
•	Increased the maximum damages for willfully engaging in an unfair trade practice from $10,000 in the original bill to $30,000.  
•	Decreases the award for a person aware of an unfair or deceptive practice involving the manufacture, marketing, distributing, sale or offering for sale of a firearm from $250,000 to $30,000 per violation. 
•	Changes the mandatory requirement that a court award statutory damages for failure to respond to a subpoena to a permissive requirement.  That is, a court may (not shall) award these damages. 
•	Reduces the statutory damages for willfully failing to respond to a subpoena from $250,000 to $30,000. 
•	Increases the civil penalty in the Unfair Practices Act from $25,000 in the original bill to $30,000 per violation. 
•	Removes the $250,000 civil penalty in the Unfair Practices Act if the violation involved the manufacture, advertising, distribution or sale of a firearm.