Chief Sponsor: James Cobb

Senate Sponsor: Heidi Balderree


8     General Description:
9          This bill modifies provisions related to truth in advertising.
10     Highlighted Provisions:
11          This bill:
12          ▸     modifies the definition of "advertisement";
13          ▸     provides that it is a deceptive trade practice to cause likelihood of confusion or of
14     misunderstanding as to the extent to which goods or services are the product of
15     human authorship;
16          ▸     increases the minimum damages award in an action alleging a deceptive trade
17     practice;
18          ▸     requires a potential plaintiff alleging a deceptive trade practice to give the potential
19     defendant an opportunity to remedy the alleged violation before filing an action for
20     damages; and
21          ▸     makes technical changes.
22     Money Appropriated in this Bill:
23          None
24     Other Special Clauses:
25          None
26     Utah Code Sections Affected:
27     AMENDS:

28          13-11a-2, as last amended by Laws of Utah 2009, Chapter 133
29          13-11a-3, as last amended by Laws of Utah 2010, Chapters 54, 378
30          13-11a-4, as enacted by Laws of Utah 1989, Chapter 205

32     Be it enacted by the Legislature of the state of Utah:
33          Section 1. Section 13-11a-2 is amended to read:
34          13-11a-2. Definitions.
35          As used in this chapter:
36          (1) "Advertisement" means any written, oral, or graphic statement or representation, or
37     any series of written, oral, or graphic statements or representations, made by a supplier in
38     connection with the solicitation of business. It includes, but is not limited to, communication
39     by noncable television systems, radio, printed brochures, newspapers, leaflets, flyers, circulars,
40     billboards, banners, or signs. It does not include any oral, in person, representation made by a
41     sales representative to a prospective purchaser.
42          (2) To "clearly and conspicuously disclose" means:
43          (a) in the print media:
44          (i) to state in typeface that is sufficiently bold to be obviously seen;
45          (ii) to state in type size of at least 10 point type for a 14" x 23" document, and, in larger
46     documents, of a type size of proportionately the same size; and
47          (iii) to place in the text so as to be obviously seen;
48          (b) in radio advertising, to verbally state in the same volume as that used in the
49     advertisement;
50          (c) in television advertising, the method for print media or radio advertising is
51     acceptable unless contrary to other governing laws.
52          (3) "Generic good" means a product which is offered for sale under its common
53     descriptive name rather than under a trademark, trade name, brand name, house brand, or other
54     distinguishing appellation.
55          (4) "Goods and services" means all items which may be the subject of a sales
56     transaction.
57          (5) "Nondiscounted price" means a price at which the goods or services are offered at
58     the time of the price assessment without a temporary store reduction in price.

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

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

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

152          (i) clearly and conspicuously disclosed; and
153          (ii) the representation of the price is accurate;
154          (o) represents as independent an audit, accounting, price assessment, or comparison of
155     prices of goods or services, when the audit, accounting, price assessment, or comparison is not
156     independent;
157          (p) represents, in an advertisement of a reduction from the supplier's own prices, that
158     the reduction is from a regular price, when the former price is not a regular price as defined in
159     Subsection 13-11a-2(14);
160          (q) advertises a price comparison or the result of a price assessment or comparison that
161     uses, in any way, an identified competitor's price without clearly and conspicuously disclosing
162     the identity of the price assessor and any relationship between the price assessor and the
163     supplier;
164          (r) makes a price comparison between a category of the supplier's goods and the same
165     category of the goods of another, without randomly selecting the individual goods or services
166     upon whose prices the comparison is based;
167          (s) makes a comparison between similar but nonidentical goods or services unless the
168     nonidentical goods or services are of essentially similar quality to the advertised goods or
169     services or the dissimilar aspects are clearly and conspicuously disclosed in the advertisements;
170     [or]
171          (t) engages in any other conduct which similarly creates a likelihood of confusion or of
172     misunderstanding[.]; or
173          (u) causes likelihood of confusion or of misunderstanding as to the extent to which
174     goods or services are the product of human authorship.
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) Engaging in a deceptive trade practice is prohibited.
208          [(4)] (5) It is a defense to any claim of false or deceptive price representations under
209     this chapter that a person:
210          (a) has no knowledge that the represented price is not genuine; and
211          (b) has made reasonable efforts to determine whether the represented price is genuine.
212          [(5)] (6) Subsections (1)(m) and (q) do not apply to price comparisons made in catalogs
213     in which a supplier compares the price of a single item of its goods or services with those of

214     another.
215          [(6)] (7) To prevail in an action under this chapter, a complainant need not prove
216     competition between the parties or actual confusion or misunderstanding.
217          [(7)] (8) This chapter does not affect unfair trade practices otherwise actionable at
218     common law or under other statutes of this state.
219          Section 3. Section 13-11a-4 is amended to read:
220          13-11a-4. Jurisdiction of district courts -- Injunctive relief -- Damages --
221     Attorneys' fees -- Corrective advertising -- Notification required.
222          (1) The district courts of this state have jurisdiction over any supplier as to any act or
223     practice in this state governed by this chapter or as to any claim arising from a deceptive trade
224     practice as defined in this chapter.
225          (2) (a) Any person or the state may maintain an action to enjoin a continuance of any
226     act in violation of this chapter and, if injured by the act, for the recovery of damages. If, in
227     such action, the court finds that the defendant is violating or has violated any of the provisions
228     of this chapter, it shall enjoin the defendant from continuance of the violation. It is not
229     necessary that actual damages be proven.
230          (b) In addition to injunctive relief, the plaintiff is entitled to recover from the defendant
231     the amount of actual damages sustained or [$2,000] $4,000, whichever is greater.
232          (c) Costs shall be allowed to the prevailing party unless the court otherwise directs.
233     The court shall award attorneys' fees to the prevailing party.
234          (3) The court may order the defendant to promulgate corrective advertising by the same
235     media and with the same distribution and frequency as the advertising found to violate this
236     chapter.
237          (4) The remedies of this section are in addition to remedies otherwise available for the
238     same conduct under state or local law.
239          (5) No action [for injunctive relief] may be brought for a violation of this chapter
240     unless the complaining person first gives notice of the alleged violation to the prospective
241     defendant and provides the prospective defendant an opportunity to promulgate a correction
242     notice by the same media as the allegedly violating advertisement. If the prospective defendant
243     does not promulgate a correction notice within 10 days of receipt of the notice, the complaining
244     person may file a lawsuit under this chapter.

245          Section 4. Effective date.
246          This bill takes effect on May 1, 2024.