[Congressional Record Volume 167, Number 193 (Wednesday, November 3, 2021)]
[Senate]
[Pages S7758-S7760]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

  SA 4275. Mr. DURBIN (for himself and Mr. Cassidy) submitted an 
amendment intended to be proposed to amendment SA 3867 submitted by Mr. 
Reed and intended to be proposed to the bill H.R. 4350, to authorize 
appropriations for fiscal year 2022 for military activities of the 
Department of Defense, for military construction, and for defense 
activities of the Department of Energy, to prescribe military personnel 
strengths for such fiscal year, and for other purposes; which was 
ordered to lie on the table; as follows:

        At the appropriate place, insert the following:

     SEC. __. COLLECTION, VERIFICATION, AND DISCLOSURE OF 
                   INFORMATION BY ONLINE MARKETPLACES TO INFORM 
                   CONSUMERS.

       (a) Collection and Verification of Information.--
       (1) Collection.--
       (A) In general.--An online marketplace shall require any 
     high-volume third party seller on such online marketplace's 
     platform to provide, not later than 10 days after qualifying 
     as a high-volume third party seller on the platform, the 
     following information to the online marketplace:
       (i) Bank account.--

       (I) In general.--A bank account number, or, if such seller 
     does not have a bank account, the name of the payee for 
     payments issued by the online marketplace to such seller.
       (II) Provision of information.--The bank account or payee 
     information required under subclause (I) may be provided by 
     the seller in the following ways:

       (aa) To the online marketplace.
       (bb) To a payment processor or other third party contracted 
     by the online marketplace to maintain such information, 
     provided that the online marketplace ensures that it can 
     obtain such information on demand from such payment processor 
     or other third party.
       (ii) Contact information.--Contact information for such 
     seller as follows:

       (I) With respect to a high-volume third party seller that 
     is an individual, the individual's name.
       (II) With respect to a high-volume third party seller that 
     is not an individual, one of the following forms of contact 
     information:

       (aa) A copy of a valid government-issued identification for 
     an individual acting on behalf of such seller that includes 
     the individual's name.
       (bb) A copy of a valid government-issued record or tax 
     document that includes the business name and physical address 
     of such seller.
       (iii) Tax id.--A business tax identification number, or, if 
     such seller does not have a business tax identification 
     number, a taxpayer identification number.
       (iv) Working email and phone number.--A current working 
     email address and phone number for such seller.
       (B) Notification of change; annual certification.--An 
     online marketplace shall--
       (i) periodically, but not less than annually, notify any 
     high-volume third party seller on such online marketplace's 
     platform of the requirement to keep any information collected 
     under subparagraph (A) current; and
       (ii) require any high-volume third party seller on such 
     online marketplace's platform to, not later than 10 days 
     after receiving the notice under clause (i), electronically 
     certify that--

       (I) the seller has provided any changes to such information 
     to the online marketplace, if any such changes have occurred;
       (II) there have been no changes to such seller's 
     information; or
       (III) such seller has provided any changes to such 
     information to the online marketplace.

       (C) Suspension.--In the event that a high-volume third 
     party seller does not provide the information or 
     certification required under this paragraph, the online 
     marketplace shall, after providing the seller with written or 
     electronic notice and an opportunity to provide such 
     information or certification not later than 10 days after the 
     issuance of such notice, suspend any future sales activity of 
     such seller until such seller provides such information or 
     certification.
       (2) Verification.--
       (A) In general.--An online marketplace shall--
       (i) verify the information collected under paragraph (1)(A) 
     not later than 10 days after such collection; and
       (ii) verify any change to such information not later than 
     10 days after being notified of such change by a high-volume 
     third party seller under paragraph (1)(B).
       (B) Presumption of verification.--In the case of a high-
     volume third party seller that provides a copy of a valid 
     government-issued tax document, any information contained in 
     such document shall be presumed to be verified as of the date 
     of issuance of such document.
       (3) Data use limitation.--Data collected solely to comply 
     with the requirements of this section may not be used for any 
     other purpose unless required by law.
       (4) Data security requirement.--An online marketplace shall 
     implement and maintain reasonable security procedures and 
     practices, including administrative, physical, and technical 
     safeguards, appropriate to the nature of the data and the 
     purposes for which the data will be used, to protect the data 
     collected to comply with the requirements of this section 
     from unauthorized use, disclosure, access, destruction, or 
     modification.
       (b) Disclosure Required.--
       (1) Requirement.--
       (A) In general.--An online marketplace shall--
       (i) require any high-volume third party seller with an 
     aggregate total of $20,000 or more in annual gross revenues 
     on such online marketplace, and that uses such online 
     marketplace's platform, to provide the information described 
     in subparagraph (B) to the online marketplace; and
       (ii) disclose the information described in subparagraph (B) 
     to consumers in a clear and conspicuous manner--

       (I) in the order confirmation message or other document or 
     communication made to a consumer after a purchase is 
     finalized; and
       (II) in the consumer's account transaction history.

       (B) Information described.--The information described in 
     this subparagraph is the following:
       (i) Subject to paragraph (2), the identity of the high-
     volume third party seller, including--

       (I) the full name of the seller, which may include the 
     seller name or seller's company name, or the name by which 
     the seller or company operates on the online marketplace;
       (II) the physical address of the seller; and
       (III) contact information for the seller, to allow for the 
     direct, unhindered communication with high-volume third party 
     sellers by users of the online marketplace, including--

       (aa) a current working phone number;
       (bb) a current working email address; or

[[Page S7759]]

       (cc) other means of direct electronic messaging (which may 
     be provided to such seller by the online marketplace).
       (ii) Whether the high-volume third party seller used a 
     different seller to supply the consumer product to the 
     consumer upon purchase, and, upon the request of an 
     authenticated purchaser, the information described in clause 
     (i) relating to any such seller that supplied the consumer 
     product to the purchaser, if such seller is different than 
     the high-volume third party seller listed on the product 
     listing prior to purchase.
       (2) Exception.--
       (A) In general.--Subject to subparagraph (B), upon the 
     request of a high-volume third party seller, an online 
     marketplace may provide for partial disclosure of the 
     identity information required under paragraph (1)(B)(i) in 
     the following situations:
       (i) If such seller certifies to the online marketplace that 
     the seller does not have a business address and only has a 
     residential street address, or has a combined business and 
     residential address, the online marketplace may--

       (I) disclose only the country and, if applicable, the State 
     in which such seller resides; and
       (II) inform consumers that there is no business address 
     available for the seller and that consumer inquiries should 
     be submitted to the seller by phone, email, or other means of 
     electronic messaging provided to such seller by the online 
     marketplace.

       (ii) If such seller certifies to the online marketplace 
     that the seller is a business that has a physical address for 
     product returns, the online marketplace may disclose the 
     seller's physical address for product returns.
       (iii) If such seller certifies to the online marketplace 
     that the seller does not have a phone number other than a 
     personal phone number, the online marketplace shall inform 
     consumers that there is no phone number available for the 
     seller and that consumer inquiries should be submitted to the 
     seller's email address or other means of electronic messaging 
     provided to such seller by the online marketplace.
       (B) Limitation on exception.--If an online marketplace 
     becomes aware that a high-volume third party seller has made 
     a false representation to the online marketplace in order to 
     justify the provision of a partial disclosure under 
     subparagraph (A) or that a high-volume third party seller who 
     has requested and received a provision for a partial 
     disclosure under subparagraph (A) has not provided responsive 
     answers within a reasonable time frame to consumer inquiries 
     submitted to the seller by phone, email, or other means of 
     electronic messaging provided to such seller by the online 
     marketplace, the online marketplace shall, after providing 
     the seller with written or electronic notice and an 
     opportunity to respond not later than 10 days after the 
     issuance of such notice, suspend any future sales activity of 
     such seller unless such seller consents to the disclosure of 
     the identity information required under paragraph (1)(B)(i).
       (3) Reporting mechanism.--An online marketplace shall 
     disclose to consumers in a clear and conspicuous manner on 
     the product listing of any high-volume third party seller a 
     reporting mechanism that allows for electronic and telephonic 
     reporting of suspicious marketplace activity to the online 
     marketplace.
       (4) Compliance.--If a high-volume third party seller does 
     not comply with the requirements to provide and disclose 
     information under this subsection, the online marketplace 
     shall, after providing the seller with written or electronic 
     notice and an opportunity to provide or disclose such 
     information not later than 10 days after the issuance of such 
     notice, suspend any future sales activity of such seller 
     until the seller complies with such requirements.
       (c) Enforcement by Federal Trade Commission.--
       (1) Unfair and deceptive acts or practices.--A violation of 
     subsection (a) or (b) by an online marketplace shall be 
     treated as a violation of a rule defining an unfair or 
     deceptive act or practice prescribed under section 
     18(a)(1)(B) of the Federal Trade Commission Act (15 U.S.C. 
     57a(a)(1)(B)).
       (2) Powers of the commission.--
       (A) In general.--The Commission shall enforce subsections 
     (a) and (b) in the same manner, by the same means, and with 
     the same jurisdiction, powers, and duties as though all 
     applicable terms and provisions of the Federal Trade 
     Commission Act (15 U.S.C. 41 et seq.) were incorporated into 
     and made a part of this section.
       (B) Privileges and immunities.--Any person that violates 
     subsection (a) or (b) shall be subject to the penalties, and 
     entitled to the privileges and immunities, provided in the 
     Federal Trade Commission Act (15 U.S.C. 41 et seq.).
       (3) Regulations.--The Commission may promulgate regulations 
     under section 553 of title 5, United States Code, with 
     respect to the collection, verification, or disclosure of 
     information under this section, provided that such 
     regulations are limited to what is necessary to collect, 
     verify, and disclose such information.
       (4) Authority preserved.--Nothing in this section shall be 
     construed to limit the authority of the Commission under any 
     other provision of law.
       (d) Enforcement by State Attorneys General.--
       (1) In general.--If the attorney general of a State has 
     reason to believe that any online marketplace has violated or 
     is violating this section or a regulation promulgated under 
     this section that affects one or more residents of that 
     State, the attorney general of the State may bring a civil 
     action in any appropriate district court of the United 
     States, to--
       (A) enjoin further such violation by the defendant;
       (B) enforce compliance with this section or such 
     regulation;
       (C) obtain civil penalties in the amount provided for under 
     subsection (c);
       (D) obtain other remedies permitted under State law; and
       (E) obtain damages, restitution, or other compensation on 
     behalf of residents of the State.
       (2) Notice.--The attorney general of a State shall provide 
     prior written notice of any action under paragraph (1) to the 
     Commission and provide the Commission with a copy of the 
     complaint in the action, except in any case in which such 
     prior notice is not feasible, in which case the attorney 
     general shall serve such notice immediately upon instituting 
     such action.
       (3) Intervention by the ftc.--Upon receiving notice under 
     paragraph (2), the Commission shall have the right--
       (A) to intervene in the action;
       (B) upon so intervening, to be heard on all matters arising 
     therein; and
       (C) to file petitions for appeal.
       (4) Limitation on state action while federal action is 
     pending.--If the Commission has instituted a civil action for 
     violation of this section or a regulation promulgated under 
     this section, no State attorney general, or official or 
     agency of a State, may bring a separate action under 
     paragraph (1) during the pendency of that action against any 
     defendant named in the complaint of the Commission for any 
     violation of this section or a regulation promulgated under 
     this section that is alleged in the complaint. A State 
     attorney general, or official or agency of a State, may join 
     a civil action for a violation of this section or regulation 
     promulgated under this section filed by the Commission.
       (5) Rule of construction.--For purposes of bringing a civil 
     action under paragraph (1), nothing in this section shall be 
     construed to prevent the chief law enforcement officer, or 
     official or agency of a State, from exercising the powers 
     conferred on such chief law enforcement officer, official or 
     agency of a State, by the laws of the State to conduct 
     investigations, administer oaths or affirmations, or compel 
     the attendance of witnesses or the production of documentary 
     and other evidence.
       (6) Actions by other state officials.--
       (A) In general.--In addition to civil actions brought by 
     attorneys general under paragraph (1), any other officer of a 
     State who is authorized by the State to do so, except for any 
     private person on behalf of the State attorney general, may 
     bring a civil action under paragraph (1), subject to the same 
     requirements and limitations that apply under this subsection 
     to civil actions brought by attorneys general.
       (B) Savings provision.--Nothing in this subsection may be 
     construed to prohibit an authorized official of a State from 
     initiating or continuing any proceeding in a court of the 
     State for a violation of any civil or criminal law of the 
     State.
       (e) Severability.--If any provision of this section, or the 
     application thereof to any person or circumstance, is held 
     invalid, the remainder of this section and the application of 
     such provision to other persons not similarly situated or to 
     other circumstances shall not be affected by the 
     invalidation.
       (f) Definitions.--In this section:
       (1) Commission.--The term ``Commission'' means the Federal 
     Trade Commission.
       (2) Consumer product.--The term ``consumer product'' has 
     the meaning given such term in section 101 of the Magnuson-
     Moss Warranty--Federal Trade Commission Improvement Act (15 
     U.S.C. 2301) and section 700.1 of title 16, Code of Federal 
     Regulations.
       (3) High-volume third party seller.--
       (A) In general.--The term ``high-volume third party 
     seller'' means a participant on an online marketplace's 
     platform who is a third party seller and who, in any 
     continuous 12-month period during the previous 24 months, has 
     entered into 200 or more discrete sales or transactions of 
     new or unused consumer products and an aggregate total of 
     $5,000 or more in gross revenues.
       (B) Clarification.--For purposes of calculating the number 
     of discrete sales or transactions or the aggregate gross 
     revenues under subparagraph (A), an online marketplace shall 
     only be required to count sales or transactions made through 
     the online marketplace and for which payment was processed by 
     the online marketplace, either directly or through its 
     payment processor.
       (4) Online marketplace.--The term ``online marketplace'' 
     means any person or entity that operates a consumer-directed 
     electronically based or accessed platform that--
       (A) includes features that allow for, facilitate, or enable 
     third party sellers to engage in the sale, purchase, payment, 
     storage, shipping, or delivery of a consumer product in the 
     United States;
       (B) is used by one or more third party sellers for such 
     purposes; and
       (C) has a contractual or similar relationship with 
     consumers governing their use of the platform to purchase 
     consumer products.
       (5) Seller.--The term ``seller'' means a person who sells, 
     offers to sell, or contracts to sell a consumer product 
     through an online marketplace's platform.

[[Page S7760]]

       (6) Third party seller.--
       (A) In general.--The term ``third party seller'' means any 
     seller, independent of an online marketplace, who sells, 
     offers to sell, or contracts to sell a consumer product in 
     the United States through such online marketplace's platform.
       (B) Exclusions.--The term ``third party seller'' does not 
     include, with respect to an online marketplace--
       (i) a seller who operates the online marketplace's 
     platform; or
       (ii) a business entity that has--

       (I) made available to the general public the entity's name, 
     business address, and working contact information;
       (II) an ongoing contractual relationship with the online 
     marketplace to provide the online marketplace with the 
     manufacture, distribution, wholesaling, or fulfillment of 
     shipments of consumer products; and
       (III) provided to the online marketplace identifying 
     information, as described in subsection (a), that has been 
     verified in accordance with that subsection.

       (7) Verify.--The term ``verify'' means to confirm 
     information provided to an online marketplace pursuant to 
     this section, which may include the use of one or more 
     methods that enable the online marketplace to reliably 
     determine that any information and documents provided are 
     valid, corresponding to the seller or an individual acting on 
     the seller's behalf, not misappropriated, and not falsified.
       (g) Relationship to State Laws.--No State or political 
     subdivision of a State, or territory of the United States, 
     may establish or continue in effect any law, regulation, 
     rule, requirement, or standard that conflicts with the 
     requirements of this section.
       (h) Effective Date.--This section shall take effect 180 
     days after the date of the enactment of this Act.
       (i) Short Title.--this section may be cited as the 
     ``Integrity, Notification, and Fairness in Online Retail 
     Marketplaces for Consumers Act'' or the ``INFORM Consumers 
     Act''.
                                 ______