November 11, 2020
Democratic members of Congress have introduced the Stopping the Fraudulent Sales of Firearms Act (S. 4718/HR __) to make it easier for plaintiffs to plead around the immunity provided by the Protection of Lawful Commerce in Arms Act (“PLCAA”). The Stopping the Fraudulent Sales of Firearms Act is an effort to provide a federal law that would allow plaintiffs throughout the United States to plead around the PLCAA based on the way manufacturers and sellers market firearms. It would do so by adding a new provision to the Gun Control Act (proposed 18 U.S.C. § 922(a)(10)(A)), making it a federal felony for any person to “import, manufacture, or sell a firearm or ammunition by means of false or fraudulent pretenses, representations, or promises . . . .” This proposed law is clearly vague and would infringe constitutionally protected commercial speech regarding the manner in which firearms and ammunition are marketed and advertised. For this reason, the potential for criminal prosecutions for violating this proposed new law appears to be low.
In fact, its provisions appear to have been intentionally made vague so that it would serve its actual and intended purpose of providing plaintiffs with an easy method to plead around the PLCAA. In the Soto v. Bushmaster case (arising from the Sandy Hook shooting), the Connecticut Supreme Court held that the Connecticut Unfair Trade Practices Act (“CUTPA”) was a statute applicable to the marketing of firearms. On that basis, it found that an alleged violation of CUTPA, based on the manner in which Bushmaster had advertised and marketed a rifle, could satisfy the predicate exception to the PLCAA for an action in which a manufacturer or seller knowingly violated a state or federal statute applicable to the sale or marketing of firearms. The Stopping the Fraudulent Sales of Firearms Act would provide a federal law that all plaintiffs could use in a similar attempt to satisfy the predicate exception, simply by alleging that manufacturers and sellers marketed firearms or ammunition in a false or fraudulent manner.
Renzulli Law Firm will continue to monitor the status of the Stopping the Fraudulent Sales of Firearms Act. It is unlikely to be enacted unless the Democrats ultimately take control of the Senate, in addition to the House of Representatives and the White House.
If you have any questions concerning the Stopping the Fraudulent Sales of Firearms Act or the PLCAA, please contact John F. Renzulli or Christopher Renzulli.