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[Utah Code Table of Contents]
[TITLE 13. Table of Contents]
13-11a-1 Purpose.
The purpose of this chapter is to prevent deceptive, misleading,
and false advertising practices and forms in Utah. This chapter
is to be construed to accomplish that purpose and not to
prohibit any particular form of advertising so long as it
is truthful and not otherwise misleading or deceptive.
1989
13-11a-2 Definitions.
As used in this chapter:
(1) "Advertisement" means any written, oral, or graphic statement or representation made by a supplier in connection with the solicitation of business. It includes, but is not limited to, communication by noncable television systems, radio, printed brochures, newspapers, leaflets, flyers, circulars, billboards, banners, or signs. It does not include any oral, in person, representation made by a sales representative to a prospective purchaser.
(2) To "clearly and conspicuously disclose" means:
(a) in the print media:
(i) to state in typeface that is sufficiently bold to be obviously seen;
(ii) to state in type size of at least 10 point type for a 14" x 23" document, and, in larger documents, of a type size of proportionately the same size; and
(iii) to place in the text so as to be obviously seen;
(b) in radio advertising, to verbally state in the same volume as that used in the advertisement;
(c) in television advertising, the method for print media or radio advertising is acceptable unless contrary to other governing laws.
(3) "Generic good" means a product which is offered for sale under its common descriptive name rather than under a trademark, trade name, brand name, house brand, or other distinguishing appellation.
(4) "Goods and services" means all items which may be the subject of a sales transaction.
(5) "Nondiscounted price" means a price at which the goods or services are offered at the time of the price assessment without a temporary store reduction in price.
(6) "Person" means an individual, including a consumer, corporation, government, or governmental subdivision or agency, business trust, estate, trust, partnership, unincorporated association, two or more of any of the foregoing having a joint or common interest, or any other legal or commercial entity.
(7) "Price assessment" means the determination of the prices underlying a price comparison.
(8) "Price assessor" means a firm or individual that determines the prices, including the reference prices, underlying the price comparison, or who makes the price comparison.
(9) "Price comparison" means any express representation that a specific savings, reduction, or discount exists or will exist between the supplier's advertised price and another specific price. A representation which does not reasonably imply a comparison to identifiable prices or items does not express a price comparison. Language constituting mere sales "puffing" is not prohibited by this chapter.
(10) "Product area" means the geographical area in which the prospective purchasers to whom the advertisement is aimed could reasonably be expected to seek the goods or services in question.
(11) "Reference price" means a higher price to which a supplier compares a lower price to indicate that a reduction in price exists or will exist.
(12) "Regular price" means the price at which a supplier has recently offered the goods or services for sale in good faith in the regular course of business. Every price represented in an advertisement is considered a regular price unless it is specifically represented as a price other than a regular price, such as a discount price or a manufacturer's suggested price. It is prima facie evidence that a price is other than a regular price when it was not offered as the nondiscount price of the goods or services for the 15 days immediately preceding an advertisement of the price, and the price change during the 15 day period was not due to price changes inherent in the pricing of seasonal or perishable goods, due to changes in cost of the goods or services to the supplier, or due to pricing changes made to match a competitor's price.
(13) "Sales transaction" means a sale, lease, assignment, award by chance, or other written or oral transfer or disposition of goods, services, or other property, both tangible and intangible (except securities and insurance), to a person or business, or a solicitation or offer by a supplier with respect to any of these transfers or dispositions. It includes any offer or solicitation, any agreement, and any performance of an agreement with respect to any of these transfers or dispositions.
(14) "Supplier" means a seller, lessor, assignor, offeror,
broker, or other person who regularly solicits, engages in,
or enforces sales transactions, whether or not he deals directly
with the purchaser.
1989
13-11a-3 Deceptive trade practices enumerated - Records to be kept - Defenses.
(1) Deceptive trade practices occur when, in the course of his business, vocation, or occupation:
(a) A person passes off goods or services as those of another.
(b) A person causes likelihood of confusion or of misunderstanding as to the source, sponsorship, approval, or certification of goods or services.
(c) A person causes likelihood of confusion or of misunderstanding as to affiliation, connection, association with, or certification by another.
(d) A person uses deceptive representations or designations of geographic origin in connection with goods or services.
(e) A person 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 he does not have.
(f) A person represents that goods are original or new if they are deteriorated, altered, reconditioned, reclaimed, used, or second-hand.
(g) A person represents that goods or services are of a particular standard, quality, or grade, or that goods are of a particular style or model, if they are of another.
(h) A person disparages the goods, services, or business of another by false or misleading representation of fact.
(i) A person advertises goods or services or the price of goods and services with intent not to sell them as advertised. If specific advertised prices will be in effect for less than one week from the advertisement date, the advertisement must clearly and conspicuously disclose the specific time period during which the prices will be in effect.
(j) A person advertises goods or services with intent not to supply a reasonable expectable public demand, 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) A person makes false or misleading statements of fact concerning the reasons for, existence of, or amounts of price reductions.
(l) A person makes a comparison between his own sale or discount price and a competitor's nondiscounted price without clearly and conspicuously disclosing that fact.
(m) A person, without clearly and conspicuously disclosing the date of the price assessment makes a price comparison with the goods of another based upon a price assessment performed more than seven days prior to the date of the advertisement or uses in an advertisement the results of a price assessment performed more than seven days prior to the date of the advertisement without disclosing, 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) A person advertises or uses in a price assessment or comparison a price that is not his own unless this fact is:
(i) clearly and conspicuously disclosed; and
(ii) the representation of the price is accurate. With respect to the price of a competitor, the price must be one at which the competitor offered the goods or services for sale in the product area at the time of the price assessment, and must not be an isolated price.
(o) A person represents as independent an audit, accounting, price assessment, or comparison of prices of goods or services, when such audit, accounting, price assessment, or comparison is not independent. Such audit, accounting, price assessment, or comparison shall be independent if the price assessor randomly selects the goods to be compared, and the time and place of such comparison, and no agreement or understanding exists between the supplier and the price assessor that could cause the results of the assessment to be fraudulent or deceptive. The independence of such audit, accounting, or price comparison is not invalidated merely because the advertiser pays a fee therefor, but is invalidated if the audit, accounting, or price comparison is done by a full or part time employee of the advertiser.
(p) A person represents, in an advertisement of a reduction from the supplier's own prices, that the reduction is from a regular price, when the former price is not a regular price as defined in Subsection 13-11a-2 (12).
(q) A person advertises a price comparison or the result of a price assessment or comparison that uses, in any way, an identified competitor's price without clearly and conspicuously disclosing the identity of the price assessor and any relationship between the price assessor and the supplier. Examples of disclosure complying with this section are: "Price assessment performed by Store Z"; "Price assessment performed by a certified public accounting firm"; "Price assessment performed by employee of Store Y."
(r) A person makes a price comparison between a category of the supplier's goods and the same category of the goods of another, without randomly selecting the individual goods or services upon whose prices the comparison is based. For the purposes of this subsection, goods or services are randomly selected when the supplier has no advance knowledge of what goods and services will be surveyed by the price assessor, and when the supplier certifies its lack of advance knowledge by an affidavit to be retained in the supplier's records for one year.
(s) A person makes a comparison between similar but nonidentical goods or services unless the nonidentical goods or services are of essentially similar quality to the advertised goods or services or the dissimilar aspects are clearly and conspicuously disclosed in the advertisements. It is prima facie evidence of compliance with this subsection if:
(i) the goods compared are substantially the same size; and
(ii) the goods compared are of substantially the same quality, which may include similar models of competing brands of goods, or goods made of substantially the same materials and made with substantially the same workmanship.
It is prima facie evidence of a deceptive comparison under this section when the prices of brand name goods and generic goods are compared.
(t) A person engages in any other conduct which similarly creates a likelihood of confusion or of misunderstanding.
(2) Any supplier who makes a comparison with a competitor's price in advertising shall maintain for a period of one year records that disclose the factual basis for such price comparisons and from which the validity of such claim can be established.
(3) It shall be a defense to any claim of false or deceptive price representations under this chapter 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.
(4) Subsections (1) (m) and (q) do not apply to price comparisons made in catalogs in which a supplier compares the price of a single item of its goods or services with those of another.
(5) In order to prevail in an action under this chapter, a complainant need not prove competition between the parties or actual confusion or misunderstanding.
(6) This chapter does not affect unfair trade practices
otherwise actionable at common law or under other statutes
of this state.
1989
13-11a-4 Jurisdiction of district courts - Injunctive relief - Damages - Attorneys' fees - Corrective advertising - Notification required.
(1) The district courts of this state have jurisdiction over any supplier as to any act or practice in this state governed by this chapter or as to any claim arising from a deceptive trade practice as defined in this chapter.
(2) (a) Any person or the state may maintain an action to enjoin a continuance of any act in violation of this chapter and, if injured by the act, for the recovery of damages. If, in such action, the court finds that the defendant is violating or has violated any of the provisions of this chapter, it shall enjoin the defendant from continuance of the violation. It is not necessary that actual damages be proven.
(b) In addition to injunctive relief, the plaintiff is entitled to recover from the defendant the amount of actual damages sustained or $2,000, whichever is greater.
(c) Costs shall be allowed to the prevailing party unless the court otherwise directs. The court shall award attorneys' fees to the prevailing party.
(3) The court may order the defendant to promulgate corrective advertising by the same media and with the same distribution and frequency as the advertising found to violate this chapter.
(4) The remedies of this section are in addition to remedies otherwise available for the same conduct under state or local law.
(5) No action for injunctive relief may be brought for
a violation of this chapter unless the complaining person
first gives notice of the alleged violation to the prospective
defendant and provides the prospective defendant an opportunity
to promulgate a correction notice by the same media as the
allegedly violating advertisement. If the prospective defendant
does not promulgate a correction notice within ten days of
receipt of the notice, the complaining person may file a
lawsuit under this chapter.
1989
13-11a-5 Exemptions.
This chapter does not apply to:
(1) conduct in compliance with the orders or rules of, or a statute administered by, a federal, state, or local governmental agency;
(2) publishers, broadcasters, printers, or other persons engaged in the dissemination of information or reproduction of printed or pictorial matters who publish, broadcast, or reproduce material without knowledge of its deceptive character; or
(3) actions or appeals pending on the effective date of
this chapter.
1989
