H.B. 353 Enrolled

1

TRUTH IN ADVERTISING ACT AMENDMENTS
2 2009 GENERAL SESSION
3 STATE OF UTAH
4 Chief Sponsor: Michael T. Morley
5 Senate Sponsor: Margaret Dayton
6
7 LONG TITLE
8 General Description:
9 This bill amends the Truth in Advertising Act.
10 Highlighted Provisions:
11 This bill:
12 . prohibits a person from advertising that a good or service will not be sold to a
13 certain age group and then selling the good or service to that age group; and
14 . makes technical corrections.
15 Monies Appropriated in this Bill:
16 None
17 Other Special Clauses:
18 This bill takes effect January 1, 2010.
19 Utah Code Sections Affected:
20 AMENDS:
21 13-11a-3, as last amended by Laws of Utah 2007, Chapters 138 and 306
22
23 Be it enacted by the Legislature of the state of Utah:
24 Section 1. Section 13-11a-3 is amended to read:
25 13-11a-3. Deceptive trade practices enumerated -- Records to be kept --
26 Defenses.
27 (1) Deceptive trade practices occur when, in the course of a person's business,
28 vocation, or occupation that person:
29 (a) passes off goods or services as those of another;

30 (b) causes likelihood of confusion or of misunderstanding as to the source,
31 sponsorship, approval, or certification of goods or services;
32 (c) causes likelihood of confusion or of misunderstanding as to affiliation, connection,
33 association with, or certification by another;
34 (d) uses deceptive representations or designations of geographic origin in connection
35 with goods or services;
36 (e) represents that goods or services have sponsorship, approval, characteristics,
37 ingredients, uses, benefits, or qualities that they do not have or that a person has a
38 sponsorship, approval, status, affiliation, or connection that the person does not have;
39 (f) represents that goods are original or new if they are deteriorated, altered,
40 reconditioned, reclaimed, used, or second-hand;
41 (g) represents that goods or services are of a particular standard, quality, or grade, or
42 that goods are of a particular style or model, if they are of another;
43 (h) disparages the goods, services, or business of another by false or misleading
44 representation of fact;
45 (i) advertises goods or services or the price of goods and services with intent not to sell
46 them as advertised;
47 (j) advertises goods or services with intent not to supply a reasonable expectable
48 public demand, unless:
49 (i) the advertisement clearly and conspicuously discloses a limitation of quantity; or
50 (ii) the person issues rainchecks for the advertised goods or services;
51 (k) makes false or misleading statements of fact concerning the reasons for, existence
52 of, or amounts of price reductions;
53 (l) makes a comparison between the person's own sale or discount price and a
54 competitor's nondiscounted price without clearly and conspicuously disclosing that fact;
55 (m) without clearly and conspicuously disclosing the date of the price assessment
56 makes a price comparison with the goods of another based upon a price assessment performed
57 more than seven days prior to the date of the advertisement or uses in an advertisement the

58 results of a price assessment performed more than seven days prior to the date of the
59 advertisement without disclosing, in a print ad, the date of the price assessment, or in a radio
60 or television ad, the time frame of the price assessment;
61 (n) advertises or uses in a price assessment or comparison a price that is not that
62 person's own unless this fact is:
63 (i) clearly and conspicuously disclosed; and
64 (ii) the representation of the price is accurate;
65 (o) represents as independent an audit, accounting, price assessment, or comparison of
66 prices of goods or services, when the audit, accounting, price assessment, or comparison is not
67 independent;
68 (p) represents, in an advertisement of a reduction from the supplier's own prices, that
69 the reduction is from a regular price, when the former price is not a regular price as defined in
70 Subsection 13-11a-2 (12);
71 (q) advertises a price comparison or the result of a price assessment or comparison that
72 uses, in any way, an identified competitor's price without clearly and conspicuously disclosing
73 the identity of the price assessor and any relationship between the price assessor and the
74 supplier;
75 (r) makes a price comparison between a category of the supplier's goods and the same
76 category of the goods of another, without randomly selecting the individual goods or services
77 upon whose prices the comparison is based;
78 (s) makes a comparison between similar but nonidentical goods or services unless the
79 nonidentical goods or services are of essentially similar quality to the advertised goods or
80 services or the dissimilar aspects are clearly and conspicuously disclosed in the
81 advertisements; [or]
82 (t) engages in any other conduct which similarly creates a likelihood of confusion or of
83 misunderstanding[.]; or
84 (u) (i) advertises that the person will not provide a good or service labeled with an age
85 restriction or recommendation to a buyer subject to the age restriction or recommendation; and

86 (ii) except as provided under Subsection (2)(g), provides that good or service to a
87 buyer subject to the age restriction or recommendation.
88 (2) (a) For purposes of Subsection (1)(i), if a specific advertised price will be in effect
89 for less than one week from the advertisement date, the advertisement must clearly and
90 conspicuously disclose the specific time period during which the price will be in effect.
91 (b) For purposes of Subsection (1)(n), with respect to the price of a competitor, the
92 price must be one at which the competitor offered the goods or services for sale in the product
93 area at the time of the price assessment, and must not be an isolated price.
94 (c) For purposes of Subsection (1)(o), an audit, accounting, price assessment, or
95 comparison shall be independent if the price assessor randomly selects the goods to be
96 compared, and the time and place of the comparison, and no agreement or understanding
97 exists between the supplier and the price assessor that could cause the results of the assessment
98 to be fraudulent or deceptive. The independence of an audit, accounting, or price comparison
99 is not invalidated merely because the advertiser pays a fee for the audit, accounting, or price
100 comparison, but is invalidated if the audit, accounting, or price comparison is done by a full or
101 part-time employee of the advertiser.
102 (d) Examples of a disclosure that complies with Subsection (1)(q) are:
103 (i) "Price assessment performed by Store Z";
104 (ii) "Price assessment performed by a certified public accounting firm"; or
105 (iii) "Price assessment performed by employee of Store Y".
106 (e) For the purposes of Subsection (1)(r), goods or services are randomly selected
107 when the supplier has no advance knowledge of what goods and services will be surveyed by
108 the price assessor, and when the supplier certifies its lack of advance knowledge by an
109 affidavit to be retained in the supplier's records for one year.
110 (f) (i) It is prima facie evidence of compliance with Subsection (1)(s) if:
111 (A) the goods compared are substantially the same size; and
112 (B) the goods compared are of substantially the same quality, which may include
113 similar models of competing brands of goods, or goods made of substantially the same

114 materials and made with substantially the same workmanship.
115 (ii) It is prima facie evidence of a deceptive comparison under this section when the
116 prices of brand name goods and generic goods are compared.
117 (g) (i) A person does not commit deceptive trade practices under Subsection (1)(u) if:
118 (A) at the time a good or service labeled with an age restriction or recommendation
119 was provided to a buyer subject to the age restriction or recommendation:
120 (I) the person has a documented program to train an employee on the person's policies
121 against providing the good or service labeled with an age restriction or recommendation to a
122 buyer subject to the age restriction or recommendation;
123 (II) the employee who provided the good or service attended the training program
124 described in Subsection (2)(g)(i)(A)(I) within 30 days of commencing duties of selling the
125 good or service; and
126 (III) the person took appropriate remedial action, including retraining the employee; or
127 (B) the buyer intentionally misrepresented the buyer's age to the person by presenting
128 false age identification at the time good or service was provided.
129 (ii) Notwithstanding Subsection (2)(g)(i)(A), a person shall commit deceptive trade
130 practices under Subsection (1)(u) if the employee described in Subsection (2)(g)(i)(A)
131 provides a good or service a third or subsequent time to a buyer subject to an age restriction or
132 recommendation.
133 (3) Any supplier who makes a comparison with a competitor's price in advertising
134 shall maintain for a period of one year records that disclose the factual basis for such price
135 comparisons and from which the validity of such claim can be established.
136 (4) It is a defense to any claim of false or deceptive price representations under this
137 chapter that a person:
138 (a) has no knowledge that the represented price is not genuine; and
139 (b) has made reasonable efforts to determine whether the represented price is genuine.
140 (5) Subsections (1)(m) and (q) do not apply to price comparisons made in catalogs in
141 which a supplier compares the price of a single item of its goods or services with those of

142 another.
143 (6) To prevail in an action under this chapter, a complainant need not prove
144 competition between the parties or actual confusion or misunderstanding.
145 (7) This chapter does not affect unfair trade practices otherwise actionable at common
146 law or under other statutes of this state.
147 Section 2. Effective date.
148 This bill takes effect on January 1, 2010.