13-11a-3 - Deceptive trade practices enumerated -- Records to be kept -- Defenses.
13-11a-3. Deceptive trade practices enumerated -- Records to be kept -- Defenses.
(1) Deceptive trade practices occur when, in the course of a person's business, vocation,or occupation that person:
(a) passes off goods or services as those of another;
(b) causes likelihood of confusion or of misunderstanding as to the source, sponsorship,approval, or certification of goods or services;
(c) causes likelihood of confusion or of misunderstanding as to affiliation, connection,association with, or certification by another;
(d) uses deceptive representations or designations of geographic origin in connectionwith goods or services;
(e) represents that goods or services have sponsorship, approval, characteristics,ingredients, uses, benefits, or qualities that they do not have or that a person has a sponsorship,approval, status, affiliation, or connection that the person does not have;
(f) represents that goods are original or new if they are deteriorated, altered,reconditioned, reclaimed, used, or second-hand;
(g) represents that goods or services are of a particular standard, quality, or grade, or thatgoods are of a particular style or model, if they are of another;
(h) disparages the goods, services, or business of another by false or misleadingrepresentation of fact;
(i) advertises goods or services or the price of goods and services with intent not to sellthem as advertised;
(j) advertises goods or services with intent not to supply a reasonable expectable publicdemand, unless:
(i) the advertisement clearly and conspicuously discloses a limitation of quantity; or
(ii) the person issues rainchecks for the advertised goods or services;
(k) makes false or misleading statements of fact concerning the reasons for, existence of,or amounts of price reductions, including the false use of any of the following expressions 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 (1)(k)(i) through (ix);
(l) makes a comparison between the person's own sale or discount price and acompetitor's nondiscounted price without clearly and conspicuously disclosing that fact;
(m) without clearly and conspicuously disclosing the date of the price assessment makesa price comparison with the goods of another based upon a price assessment performed morethan seven days prior to the date of the advertisement or uses in an advertisement the results of aprice assessment performed more than seven days prior to the date of the advertisement withoutdisclosing, in a print ad, the date of the price assessment, or in a radio or television ad, the time
frame of the price assessment;
(n) advertises or uses in a price assessment or comparison a price that is not that person'sown unless this fact is:
(i) clearly and conspicuously disclosed; and
(ii) the representation of the price is accurate;
(o) represents as independent an audit, accounting, price assessment, or comparison ofprices of goods or services, when the audit, accounting, price assessment, or comparison is notindependent;
(p) represents, in an advertisement of a reduction from the supplier's own prices, that thereduction is from a regular price, when the former price is not a regular price as defined inSubsection 13-11a-2(14);
(q) advertises a price comparison or the result of a price assessment or comparison thatuses, in any way, an identified competitor's price without clearly and conspicuously disclosingthe identity of the price assessor and any relationship between the price assessor and the supplier;
(r) makes a price comparison between a category of the supplier's goods and the samecategory of the goods of another, without randomly selecting the individual goods or servicesupon whose prices the comparison is based;
(s) makes a comparison between similar but nonidentical goods or services unless thenonidentical goods or services are of essentially similar quality to the advertised goods orservices or the dissimilar aspects are clearly and conspicuously disclosed in the advertisements;or
(t) engages in any other conduct which similarly creates a likelihood of confusion or ofmisunderstanding.
(2) (a) For purposes of Subsection (1)(i), if a specific advertised price will be in effect forless than one week from the advertisement date, the advertisement shall clearly andconspicuously disclose the specific time period during which the price will be in effect.
(b) For purposes of Subsection (1)(n), with respect to the price of a competitor, the priceshall be one at which the competitor offered the goods or services for sale in the product area atthe time of the price assessment, and may not be an isolated price.
(c) For purposes of Subsection (1)(o), an audit, accounting, price assessment, orcomparison shall be independent if the price assessor randomly selects the goods to be compared,and the time and place of the comparison, and no agreement or understanding exists between thesupplier and the price assessor that could cause the results of the assessment to be fraudulent ordeceptive. The independence of an audit, accounting, or price comparison is not invalidatedmerely because the advertiser pays a fee for the audit, accounting, or price comparison, but isinvalidated if the audit, accounting, or price comparison is done by a full or part-time employeeof the advertiser.
(d) Examples of a disclosure that complies with Subsection (1)(q) are:
(i) "Price assessment performed by Store Z";
(ii) "Price assessment performed by a certified public accounting firm"; or
(iii) "Price assessment performed by employee of Store Y".
(e) For the purposes of Subsection (1)(r), goods or services are randomly selected whenthe supplier has no advance knowledge of what goods and services will be surveyed by the priceassessor, and when the supplier certifies its lack of advance knowledge by an affidavit to beretained in the supplier's records for one year.
(f) (i) It is prima facie evidence of compliance with Subsection (1)(s) if:
(A) the goods compared are substantially the same size; and
(B) the goods compared are of substantially the same quality, which may include similarmodels of competing brands of goods, or goods made of substantially the same materials andmade with substantially the same workmanship.
(ii) It is prima facie evidence of a deceptive comparison under this section when theprices of brand name goods and generic goods are compared.
(3) Any supplier who makes a comparison with a competitor's price in advertising shallmaintain for a period of one year records that disclose the factual basis for such pricecomparisons and from which the validity of such claim can be established.
(4) It is a defense to any claim of false or deceptive price representations under thischapter that a person:
(a) has no knowledge that the represented price is not genuine; and
(b) has made reasonable efforts to determine whether the represented price is genuine.
(5) Subsections (1)(m) and (q) do not apply to price comparisons made in catalogs inwhich a supplier compares the price of a single item of its goods or services with those ofanother.
(6) To prevail in an action under this chapter, a complainant need not prove competitionbetween the parties or actual confusion or misunderstanding.
(7) This chapter does not affect unfair trade practices otherwise actionable at commonlaw or under other statutes of this state.
Amended by Chapter 54, 2010 General Session
Amended by Chapter 378, 2010 General Session