Rep. Norm Thurston — Voting Record

Bill

Number

H.B. 435 (2024GS)

Sponsor

Rep. Cobb, J.

Final action

House/ filed 3/1/2024

Outcome

Failed / filed without passage

Summary

What it does

• This bill:
• modifies the definition of "advertisement";
• provides that it is a deceptive trade practice to cause likelihood of confusion or of misunderstanding as to the extent to which goods or services are the product of human authorship;
• increases the minimum damages award in an action alleging a deceptive trade practice;
• requires a potential plaintiff alleging a deceptive trade practice to give the potential defendant an opportunity to remedy the alleged violation before filing an action for damages; and
• makes technical changes.

Every vote on this bill

Bill text

TRUTH IN ADVERTISING AMENDMENTS
GENERAL SESSION
STATE OF UTAH
Chief Sponsor: James Cobb
Senate Sponsor: 
 Heidi Balderree
LONG TITLE
General Description:
This bill modifies provisions related to truth in advertising.
Highlighted Provisions:
This bill:
▸ modifies the definition of "advertisement";
▸ provides that it is a deceptive trade practice to cause likelihood of confusion or of
misunderstanding as to the extent to which goods or services are the product of
human authorship;
▸ increases the minimum damages award in an action alleging a deceptive trade
practice;
▸ requires a potential plaintiff alleging a deceptive trade practice to give the potential
defendant an opportunity to remedy the alleged violation before filing an action for
damages; and
▸ makes technical changes.
Money Appropriated in this Bill:
None
Other Special Clauses:
None
Utah Code Sections Affected:
AMENDS:
13-11a-2
, as last amended by Laws of Utah 2009, Chapter 133
13-11a-3
, as last amended by Laws of Utah 2010, Chapters 54, 378
13-11a-4
, as enacted by Laws of Utah 1989, Chapter 205
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 
13-11a-2
 is amended to read:
13-11a-2.
Definitions.
As used in this chapter:
(1) "Advertisement" means any written, oral, or graphic statement or representation
, or
any series of written, oral, or graphic statements or representations,
 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) "Performing group" means a vocal or instrumental group that performs live music
for a paying audience.
(7) "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.
(8) "Price assessment" means the determination of the prices underlying a price
comparison.
(9) "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.
(10) "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.
(11) "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.
(12) "Recording group" means a vocal or instrumental group at least one of the
members of which has released a commercial sound recording under the group's name, if the
member has a legal right to use of the group's name.
(13) "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.
(14) "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.
(15) "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.
(16) "Sound recording" means a work resulting from the fixation on a material object,
such as a disk, tape, or phono-record, of musical or instrumental sounds.
(17) "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.
Section 2. Section 
13-11a-3
 is amended to read:
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 connection
with 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
that goods are of a particular style or model, if they are of another;
(h) disparages the goods, services, or business of another by false or misleading
representation of fact;
(i) advertises goods or services or the price of goods and services with intent not to sell
them as advertised;
(j) 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) 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 an advertisement:
(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 a
competitor's nondiscounted price without clearly and conspicuously disclosing that fact;
(m) 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) advertises or uses in a price assessment or comparison a price that is not that
person's own 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 of
prices of goods or services, when the audit, accounting, price assessment, or comparison is not
independent;
(p) 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
(14);
(q) 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;
(r) 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;
(s) 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;
[
or
]
(t) engages in any other conduct which similarly creates a likelihood of confusion or of
misunderstanding[
.
]
; or
(u) causes likelihood of confusion or of misunderstanding as to the extent to which
goods or services are the product of human authorship.
(2) (a) For purposes of Subsection (1)(i), if a specific advertised price will be in effect
for less than one week from the advertisement date, the advertisement shall clearly and
conspicuously 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
price shall 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 may not be an isolated price.
(c) For purposes of Subsection (1)(o), an 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 the 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 an audit, accounting, or price comparison is not
invalidated merely because the advertiser pays a fee for the audit, accounting, or price
comparison, but is invalidated if the audit, accounting, or price comparison is done by a full or
part-time employee of 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 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.
(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
similar models of competing brands of goods, or goods made of substantially the same
materials and made with substantially the same workmanship.
(ii) It is prima facie evidence of a deceptive comparison under this section when the
prices of brand name goods and generic goods are compared.
(3) 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.
(4) Engaging in a deceptive trade practice is prohibited.
[
(4)
] 
(5)
 It is 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.
[
(5)
] 
(6)
 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.
[
(6)
] 
(7)
 To prevail in an action under this chapter, a complainant need not prove
competition between the parties or actual confusion or misunderstanding.
[
(7)
] 
(8)
 This chapter does not affect unfair trade practices otherwise actionable at
common law or under other statutes of this state.
Section 3. Section 
13-11a-4
 is amended to read:
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
] 
$4,000
, 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 10 days of receipt of the notice, the complaining
person may file a lawsuit under this chapter.
Section 4. 
Effective date.
This bill takes effect on May 1, 2024.