Senator Todd Weiler proposes the following substitute bill:




Chief Sponsor: Todd Weiler

House Sponsor: Mike Schultz


8     General Description:
9          This bill modifies provisions of the Truth in Advertising act relating to deceptive trade
10     practices.
11     Highlighted Provisions:
12          This bill:
13          ▸     provides that certain advertising practices relating to a cosmetic medical procedure
14     constitute a deceptive trade practice; and
15          ▸     makes technical changes.
16     Money Appropriated in this Bill:
17          None
18     Other Special Clauses:
19          None
20     Utah Code Sections Affected:
21     AMENDS:
22          13-11a-2, as last amended by Laws of Utah 2009, Chapter 133
23          13-11a-3, as last amended by Laws of Utah 2010, Chapters 54 and 378

25     Be it enacted by the Legislature of the state of Utah:

26          Section 1. Section 13-11a-2 is amended to read:
27          13-11a-2. Definitions.
28          As used in this chapter:
29          (1) "Advertisement" means any written, oral, or graphic statement or representation
30     made by a supplier in connection with the solicitation of business. It includes, but is not
31     limited to, communication by noncable television systems, radio, printed brochures,
32     newspapers, leaflets, flyers, circulars, billboards, banners, or signs. It does not include any
33     oral, in person, representation made by a sales representative to a prospective purchaser.
34          (2) To "clearly and conspicuously disclose" means:
35          (a) in the print media:
36          (i) to state in typeface that is sufficiently bold to be obviously seen;
37          (ii) to state in type size of at least 10 point type for a 14" x 23" document, and, in larger
38     documents, of a type size of proportionately the same size; and
39          (iii) to place in the text so as to be obviously seen;
40          (b) in radio advertising, to verbally state in the same volume as that used in the
41     advertisement;
42          (c) in television advertising, the method for print media or radio advertising is
43     acceptable unless contrary to other governing laws.
44          (3) "Cosmetic medical procedure" means the same as that term is defined in Section
45     58-68-102.
46          [(3)] (4) "Generic good" means a product which is offered for sale under its common
47     descriptive name rather than under a trademark, trade name, brand name, house brand, or other
48     distinguishing appellation.
49          [(4)] (5) "Goods and services" means all items which may be the subject of a sales
50     transaction.
51          [(5)] (6) "Nondiscounted price" means a price at which the goods or services are
52     offered at the time of the price assessment without a temporary store reduction in price.
53          [(6)] (7) "Performing group" means a vocal or instrumental group that performs live
54     music for a paying audience.
55          [(7)] (8) "Person" means an individual, including a consumer, corporation,
56     government, or governmental subdivision or agency, business trust, estate, trust, partnership,

57     unincorporated association, two or more of any of the foregoing having a joint or common
58     interest, or any other legal or commercial entity.
59          [(8)] (9) "Price assessment" means the determination of the prices underlying a price
60     comparison.
61          [(9)] (10) "Price assessor" means a firm or individual that determines the prices,
62     including the reference prices, underlying the price comparison, or who makes the price
63     comparison.
64          [(10)] (11) "Price comparison" means any express representation that a specific
65     savings, reduction, or discount exists or will exist between the supplier's advertised price and
66     another specific price. A representation which does not reasonably imply a comparison to
67     identifiable prices or items does not express a price comparison. Language constituting mere
68     sales "puffing" is not prohibited by this chapter.
69          [(11)] (12) "Product area" means the geographical area in which the prospective
70     purchasers to whom the advertisement is aimed could reasonably be expected to seek the goods
71     or services in question.
72          [(12)] (13) "Recording group" means a vocal or instrumental group at least one of the
73     members of which has released a commercial sound recording under the group's name, if the
74     member has a legal right to use of the group's name.
75          [(13)] (14) "Reference price" means a higher price to which a supplier compares a
76     lower price to indicate that a reduction in price exists or will exist.
77          [(14)] (15) "Regular price" means the price at which a supplier has recently offered the
78     goods or services for sale in good faith in the regular course of business. Every price
79     represented in an advertisement is considered a regular price unless it is specifically
80     represented as a price other than a regular price, such as a discount price or a manufacturer's
81     suggested price. It is prima facie evidence that a price is other than a regular price when it was
82     not offered as the nondiscount price of the goods or services for the 15 days immediately
83     preceding an advertisement of the price, and the price change during the 15 day period was not
84     due to price changes inherent in the pricing of seasonal or perishable goods, due to changes in
85     cost of the goods or services to the supplier, or due to pricing changes made to match a
86     competitor's price.
87          [(15)] (16) "Sales transaction" means a sale, lease, assignment, award by chance, or

88     other written or oral transfer or disposition of goods, services, or other property, both tangible
89     and intangible (except securities and insurance), to a person or business, or a solicitation or
90     offer by a supplier with respect to any of these transfers or dispositions. It includes any offer or
91     solicitation, any agreement, and any performance of an agreement with respect to any of these
92     transfers or dispositions.
93          [(16)] (17) "Sound recording" means a work resulting from the fixation on a material
94     object, such as a disk, tape, or phono-record, of musical or instrumental sounds.
95          [(17)] (18) "Supplier" means a seller, lessor, assignor, offeror, broker, or other person
96     who regularly solicits, engages in, or enforces sales transactions, whether or not he deals
97     directly with the purchaser.
98          Section 2. Section 13-11a-3 is amended to read:
99          13-11a-3. Deceptive trade practices enumerated -- Records to be kept -- Defenses.
100          (1) Deceptive trade practices occur when, in the course of a person's business,
101     vocation, or occupation, that person:
102          (a) passes off goods or services as those of another;
103          (b) causes likelihood of confusion or of misunderstanding as to the source,
104     sponsorship, approval, or certification of goods or services;
105          (c) causes likelihood of confusion or of misunderstanding as to affiliation, connection,
106     association with, or certification by another;
107          (d) uses deceptive representations or designations of geographic origin in connection
108     with goods or services;
109          (e) represents that goods or services have sponsorship, approval, characteristics,
110     ingredients, uses, benefits, or qualities that they do not have or that a person has a sponsorship,
111     approval, status, affiliation, or connection that the person does not have;
112          (f) represents that goods are original or new if they are deteriorated, altered,
113     reconditioned, reclaimed, used, or second-hand;
114          (g) represents that goods or services are of a particular standard, quality, or grade, or
115     that goods are of a particular style or model, if they are of another;
116          (h) disparages the goods, services, or business of another by false or misleading
117     representation of fact;
118          (i) advertises goods or services or the price of goods and services with intent not to sell

119     them as advertised;
120          (j) advertises goods or services with intent not to supply a reasonable expectable public
121     demand, unless:
122          (i) the advertisement clearly and conspicuously discloses a limitation of quantity; or
123          (ii) the person issues rainchecks for the advertised goods or services;
124          (k) makes false or misleading statements of fact concerning the reasons for, existence
125     of, or amounts of price reductions, including the false use of any of the following expressions
126     in an advertisement:
127          (i) "going out of business";
128          (ii) "bankruptcy sale";
129          (iii) "lost our lease";
130          (iv) "building coming down";
131          (v) "forced out of business";
132          (vi) "final days";
133          (vii) "liquidation sale";
134          (viii) "fire sale";
135          (ix) "quitting business"; or
136          (x) an expression similar to any of the expressions in Subsections (1)(k)(i) through
137     (ix);
138          (l) makes a comparison between the person's own sale or discount price and a
139     competitor's nondiscounted price without clearly and conspicuously disclosing that fact;
140          (m) without clearly and conspicuously disclosing the date of the price assessment
141     makes a price comparison with the goods of another based upon a price assessment performed
142     more than seven days prior to the date of the advertisement or uses in an advertisement the
143     results of a price assessment performed more than seven days prior to the date of the
144     advertisement without disclosing, in a print ad, the date of the price assessment, or in a radio or
145     television ad, the time frame of the price assessment;
146          (n) advertises or uses in a price assessment or comparison a price that is not that
147     person's own unless this fact is:
148          (i) clearly and conspicuously disclosed; and
149          (ii) the representation of the price is accurate;

150          (o) represents as independent an audit, accounting, price assessment, or comparison of
151     prices of goods or services, when the audit, accounting, price assessment, or comparison is not
152     independent;
153          (p) represents, in an advertisement of a reduction from the supplier's own prices, that
154     the reduction is from a regular price, when the former price is not a regular price [as defined in
155     Subsection 13-11a-2(14)];
156          (q) advertises a price comparison or the result of a price assessment or comparison that
157     uses, in any way, an identified competitor's price without clearly and conspicuously disclosing
158     the identity of the price assessor and any relationship between the price assessor and the
159     supplier;
160          (r) makes a price comparison between a category of the supplier's goods and the same
161     category of the goods of another, without randomly selecting the individual goods or services
162     upon whose prices the comparison is based;
163          (s) makes a comparison between similar but nonidentical goods or services unless the
164     nonidentical goods or services are of essentially similar quality to the advertised goods or
165     services or the dissimilar aspects are clearly and conspicuously disclosed in the advertisements;
166     [or]
167          (t) (i) advertises the results of a cosmetic medical procedure with an image or
168     photograph that is false, misleading, or deceptive, including a before and after image that
169     exaggerates or otherwise fails to accurately depict the expected results of the cosmetic medical
170     procedure; and
171          (ii) does not clearly and conspicuously disclose the aspects of the image or photograph
172     that make it false, misleading, or deceptive; or
173          [(t)] (u) engages in any other conduct which similarly creates a likelihood of confusion
174     or of misunderstanding.
175          (2) (a) For purposes of Subsection (1)(i), if a specific advertised price will be in effect
176     for less than one week from the advertisement date, the advertisement shall clearly and
177     conspicuously disclose the specific time period during which the price will be in effect.
178          (b) For purposes of Subsection (1)(n), with respect to the price of a competitor, the
179     price shall be one at which the competitor offered the goods or services for sale in the product
180     area at the time of the price assessment, and may not be an isolated price.

181          (c) For purposes of Subsection (1)(o), an audit, accounting, price assessment, or
182     comparison shall be independent if the price assessor randomly selects the goods to be
183     compared, and the time and place of the comparison, and no agreement or understanding exists
184     between the supplier and the price assessor that could cause the results of the assessment to be
185     fraudulent or deceptive. The independence of an audit, accounting, or price comparison is not
186     invalidated merely because the advertiser pays a fee for the audit, accounting, or price
187     comparison, but is invalidated if the audit, accounting, or price comparison is done by a full or
188     part-time employee of the advertiser.
189          (d) Examples of a disclosure that complies with Subsection (1)(q) are:
190          (i) "Price assessment performed by Store Z";
191          (ii) "Price assessment performed by a certified public accounting firm"; or
192          (iii) "Price assessment performed by employee of Store Y".
193          (e) For the purposes of Subsection (1)(r), goods or services are randomly selected when
194     the supplier has no advance knowledge of what goods and services will be surveyed by the
195     price assessor, and when the supplier certifies its lack of advance knowledge by an affidavit to
196     be retained in the supplier's records for one year.
197          (f) (i) It is prima facie evidence of compliance with Subsection (1)(s) if:
198          (A) the goods compared are substantially the same size; and
199          (B) the goods compared are of substantially the same quality, which may include
200     similar models of competing brands of goods, or goods made of substantially the same
201     materials and made with substantially the same workmanship.
202          (ii) It is prima facie evidence of a deceptive comparison under this section when the
203     prices of brand name goods and generic goods are compared.
204          (3) Any supplier who makes a comparison with a competitor's price in advertising shall
205     maintain for a period of one year records that disclose the factual basis for such price
206     comparisons and from which the validity of such claim can be established.
207          (4) It is a defense to any claim of false or deceptive price representations under this
208     chapter that a person:
209          (a) has no knowledge that the represented price is not genuine; and
210          (b) has made reasonable efforts to determine whether the represented price is genuine.
211          (5) Subsections (1)(m) and (q) do not apply to price comparisons made in catalogs in

212     which a supplier compares the price of a single item of its goods or services with those of
213     another.
214          (6) To prevail in an action under this chapter, a complainant need not prove
215     competition between the parties or actual confusion or misunderstanding.
216          (7) This chapter does not affect unfair trade practices otherwise actionable at common
217     law or under other statutes of this state.