13-11-4 - Deceptive act or practice by supplier.
13-11-4. Deceptive act or practice by supplier.
(1) A deceptive act or practice by a supplier in connection with a consumer transactionviolates this chapter whether it occurs before, during, or after the transaction.
(2) Without limiting the scope of Subsection (1), a supplier commits a deceptive act orpractice if the supplier knowingly or intentionally:
(a) indicates that the subject of a consumer transaction has sponsorship, approval,performance characteristics, accessories, uses, or benefits, if it has not;
(b) indicates that the subject of a consumer transaction is of a particular standard, quality,grade, style, or model, if it is not;
(c) indicates that the subject of a consumer transaction is new, or unused, if it is not, orhas been used to an extent that is materially different from the fact;
(d) indicates that the subject of a consumer transaction is available to the consumer for areason that does not exist, including any of the following reasons falsely used in anadvertisement:
(i) "going out of business";
(ii) "bankruptcy sale";
(iii) "lost our lease";
(iv) "building coming down";
(v) "forced out of business";
(vi) "final days";
(vii) "liquidation sale";
(viii) "fire sale";
(ix) "quitting business"; or
(x) an expression similar to any of the expressions in Subsections (2)(d)(i) through (ix);
(e) indicates that the subject of a consumer transaction has been supplied in accordancewith a previous representation, if it has not;
(f) indicates that the subject of a consumer transaction will be supplied in greaterquantity than the supplier intends;
(g) indicates that replacement or repair is needed, if it is not;
(h) indicates that a specific price advantage exists, if it does not;
(i) indicates that the supplier has a sponsorship, approval, or affiliation the supplier doesnot have;
(j) (i) indicates that a consumer transaction involves or does not involve a warranty, adisclaimer of warranties, particular warranty terms, or other rights, remedies, or obligations, ifthe representation is false; or
(ii) fails to honor a warranty or a particular warranty term;
(k) indicates that the consumer will receive a rebate, discount, or other benefit as aninducement for entering into a consumer transaction in return for giving the supplier the names ofprospective consumers or otherwise helping the supplier to enter into other consumertransactions, if receipt of the benefit is contingent on an event occurring after the consumer entersinto the transaction;
(l) after receipt of payment for goods or services, fails to ship the goods or furnish theservices within the time advertised or otherwise represented or, if no specific time is advertisedor represented, fails to ship the goods or furnish the services within 30 days, unless within theapplicable time period the supplier provides the buyer with the option to:
(i) cancel the sales agreement and receive a refund of all previous payments to thesupplier if the refund is mailed or delivered to the buyer within 10 business days after the day onwhich the seller receives written notification from the buyer of the buyer's intent to cancel thesales agreement and receive the refund; or
(ii) extend the shipping date to a specific date proposed by the supplier;
(m) except as provided in Subsection (3)(b), fails to furnish a notice meeting therequirements of Subsection (3)(a) of the purchaser's right to cancel a direct solicitation salewithin three business days of the time of purchase if:
(i) the sale is made other than at the supplier's established place of business pursuant tothe supplier's personal contact, whether through mail, electronic mail, facsimile transmission,telephone, or any other form of direct solicitation; and
(ii) the sale price exceeds $25;
(n) promotes, offers, or grants participation in a pyramid scheme as defined under Title76, Chapter 6a, Pyramid Scheme Act;
(o) represents that the funds or property conveyed in response to a charitable solicitationwill be donated or used for a particular purpose or will be donated to or used by a particularorganization, if the representation is false;
(p) if a consumer indicates the consumer's intention of making a claim for a motorvehicle repair against the consumer's motor vehicle insurance policy:
(i) commences the repair without first giving the consumer oral and written notice of:
(A) the total estimated cost of the repair; and
(B) the total dollar amount the consumer is responsible to pay for the repair, which dollaramount may not exceed the applicable deductible or other copay arrangement in the consumer'sinsurance policy; or
(ii) requests or collects from a consumer an amount that exceeds the dollar amount aconsumer was initially told the consumer was responsible to pay as an insurance deductible orother copay arrangement for a motor vehicle repair under Subsection (2)(p)(i), even if thatamount is less than the full amount the motor vehicle insurance policy requires the insured to payas a deductible or other copay arrangement, unless:
(A) the consumer's insurance company denies that coverage exists for the repair, inwhich case, the full amount of the repair may be charged and collected from the consumer; or
(B) the consumer misstates, before the repair is commenced, the amount of money theinsurance policy requires the consumer to pay as a deductible or other copay arrangement, inwhich case, the supplier may charge and collect from the consumer an amount that does notexceed the amount the insurance policy requires the consumer to pay as a deductible or othercopay arrangement;
(q) includes in any contract, receipt, or other written documentation of a consumertransaction, or any addendum to any contract, receipt, or other written documentation of aconsumer transaction, any confession of judgment or any waiver of any of the rights to which aconsumer is entitled under this chapter;
(r) charges a consumer for a consumer transaction that has not previously been agreed toby the consumer;
(s) solicits or enters into a consumer transaction with a person who lacks the mentalability to comprehend the nature and consequences of:
(i) the consumer transaction; or
(ii) the person's ability to benefit from the consumer transaction;
(t) solicits for the sale of a product or service by providing a consumer with anunsolicited check or negotiable instrument the presentment or negotiation of which obligates theconsumer to purchase a product or service, unless the supplier is:
(i) a depository institution under Section 7-1-103;
(ii) an affiliate of a depository institution; or
(iii) an entity regulated under Title 7, Financial Institutions Act;
(u) sends an unsolicited mailing to a person that appears to be a billing, statement, orrequest for payment for a product or service the person has not ordered or used, or that impliesthat the mailing requests payment for an ongoing product or service the person has not receivedor requested;
(v) issues a gift certificate, instrument, or other record in exchange for payment toprovide the bearer, upon presentation, goods or services in a specified amount without printing ina readable manner on the gift certificate, instrument, packaging, or record any expiration date orinformation concerning a fee to be charged and deducted from the balance of the gift certificate,instrument, or other record; or
(w) misrepresents the geographical origin or location of the supplier's business inconnection with the sale of cut flowers, flower arrangements, or floral products.
(3) (a) The notice required by Subsection (2)(m) shall:
(i) be a conspicuous statement written in dark bold with at least 12 point type on the firstpage of the purchase documentation; and
(ii) read as follows: "YOU, THE BUYER, MAY CANCEL THIS CONTRACT ATANY TIME PRIOR TO MIDNIGHT OF THE THIRD BUSINESS DAY (or time periodreflecting the supplier's cancellation policy but not less than three business days) AFTER THEDATE OF THE TRANSACTION OR RECEIPT OF THE PRODUCT, WHICHEVER ISLATER".
(b) A supplier is exempt from the requirements of Subsection (2)(m) if the supplier'scancellation policy:
(i) is communicated to the buyer; and
(ii) offers greater rights to the buyer than Subsection (2)(m).
(4) (a) A gift certificate, instrument, or other record that does not print an expiration datein accordance with Subsection (2)(v) does not expire.
(b) A gift certificate, instrument, or other record that does not include printedinformation concerning a fee to be charged and deducted from the balance of the gift certificate,instrument, or other record is not subject to the charging and deduction of the fee.
(c) Subsections (2)(v) and (4)(b) do not apply to a gift certificate, instrument, or otherrecord useable at multiple, unaffiliated sellers of goods or services if an expiration date is printedon the gift certificate, instrument, or other record.
Amended by Chapter 54, 2010 General Session