Sec. 42-116. Prohibited practices.
Sec. 42-116. Prohibited practices. (a) As used in this section, (1) "industry member" means any person, firm, corporation or organization engaged in the business of
taking and selling photographs which are industry products and (2) "industry products"
means photographs of human beings, duplicates, enlargements and reductions of photographs and the frames and accessories which are sold in combination with the sale of such
photographs, but does not include photographs used primarily in theater exhibitions,
television broadcasting, publications, motion pictures or commercial advertising.
(b) In connection with selling, offering for sale, soliciting orders for or distributing
industry products, it shall be an unfair trade practice for an industry member to make
any representation which is reasonably calculated to deceive purchasers or prospective
purchasers (1) concerning the size, quality, kind of finish, workmanship or price of an
industry product, (2) concerning the experience or competency of an industry member
or his employee in the taking or processing of photographs which are industry products,
(3) concerning the equipment and facilities used by an industry member, (4) concerning
the nature, type, extent or volume of an industry member's business, (5) concerning the
inclusion of an industry product in an exhibit, (6) concerning guarantees on industry
products, (7) by not stipulating the conditions and requirements governing the selection
of contest winners and the exact nature and amount of the awards, (8) by using a "free"
offer or coupons which refer to "limited dates" and "one per family" or other similar
limitations which do not exist, and which do not show whether additional purchases
must be made in order to receive the "free" offer or the offer made on the coupon, (9)
by exhibiting to prospective customers as samples of work any photographs or pictures
which are not in fact representative of pictures produced and sold by the exhibitor of
such samples, or by representing, directly or by implication, that a photograph to be
made and delivered will be equal in type, quality and workmanship to the samples
displayed to the customer, unless the picture delivered is, in fact, equal in quality and
workmanship to the sample displayed to the customers, (10) by representing or implying
that an industry product may be purchased for a specified price when such is not the
fact, or by representing or implying that an industry product is being offered for sale at
a reduced price or special price saving when the claimed reduced price or saving is
not based on the bona fide usual and customary selling price of the product in effect
immediately prior in point of time to such representation, or by otherwise representing
the prices or terms of sale of industry products in such manner as to mislead or deceive
purchasers or prospective purchasers, (11) by knowingly selling or offering for sale any
industry product at a price less than the cost thereof to the seller as a "loss leader" used
in inducing, and sold only in combination with, the purchase of other merchandise on
which the seller recoups such loss, when this practice has the tendency or effect of
misleading or deceiving the purchasing public, (12) (A) by imitating or causing to be
imitated, or by directly or indirectly promoting the imitation of, the trademarks, trade
names or other exclusively owned symbols or marks of identification of other industry
members in a manner having the tendency or effect of misleading or deceiving purchasers, prospective purchasers or the buying public, or (B) by using any trade name, corporate name, trademark or other trade designation which has the tendency or effect of
misleading or deceiving purchasers or prospective purchasers as to the character, name,
nature or origin of any product of the industry, or of any material used therein, or which
is false or misleading in any material respect, or (13) by offering or giving of prizes,
premiums or gifts in connection with the sale or offering for sale of industry products,
or as an inducement thereto, by means of a game of chance or lottery scheme. It shall
also be an unfair practice for an industry member to fail to disclose when an industry
product photograph is so shaped and designed that it can be used only in a special
frame not generally available but which is purchasable from the photographing industry
member. Unfair trade practices shall not be utilized in any industry member's sales
promotional presentations as a statement or mark on an industry product or the wrapping
thereof or as an oral representation made by an industry member, his employee or agent.
(c) Any industry member who engages wilfully in or aids, coerces or induces another to engage wilfully in an unfair trade practice, as defined in this section, shall be
fined not less than one hundred dollars nor more than one thousand dollars or imprisoned
not more than one year or be both fined and imprisoned.
(d) If a civil action is brought by any person, firm or corporation which is or is
likely to be damaged by such acts, the court may grant an injunction to prevent further
violations of this section and may assess damages not to exceed five thousand dollars
in lieu of actual damages against such violation, and such award shall not be regarded
as a penalty.
(1957, P.A. 152; 1959, P.A. 486.)
History: 1959 act made the following amendments: Subsec. (a)(1) included "firm, corporation, or organization"; (a)(8)
added "free offer"; (a)(9) through (a)(13) were added; in Subsec. (c) the fine was increased and imprisonment authorized,
and Subsec. (d) was added; (Revisor's note: In 1995 the Revisors editorially changed the alphabetic indicators (a) and (b)
in Subsec. (b)(12) to (A) and (B) respectively for consistency with statutory usage).