Section 103.01 Offers Which ARe Not Bona Fide
The solicitation of consumers to purchase goods or services
when the solicitation is not a bona fide effort to sell the advertised goods or
services constitutes an unfair and deceptive trade act and practice in commerce
under
9 V.S.A.
Section 2453(a).
(a) A solicitation is not bona fide when the
seller or solicitor uses a statement or illustration in any advertisement which
would create in the mind of a reasonable consumer a false impression of the
grade, quality, quantity, make, value, model year, size, color, usability, or
origin of the goods or services offered or which otherwise misrepresents the
goods or services in such a manner that, on subsequent disclosure or discovery
of the true facts, the consumer may be switched from the advertised goods or
services to other goods or services.
(b) A solicitation is not bona fide if a
seller or solicitor discourages the purchase of the advertised goods or
services in order to sell other goods or services. Examples of acts or
practices which usually tend to discourage the purchase of the advertised goods
are:
(1) The failure to reasonably display
the advertised goods at the advertised prices, if the goods are advertised for
sale in a retail store;
(2) The
refusal to show, demonstrate, or sell the goods or services advertised in
accordance with the terms of the advertisement;
(3) Disparagement by the seller or solicitor
either by acts or words of:
(A) The
advertised goods or services; or
(B) The guarantee, warranty, credit terms,
availability of service, repairs, or parts or any other aspect of the goods or
services;
(4) The
showing or demonstrating of goods or services which are defective, unusable, or
impractical for the purposes represented in the advertisement;
(5) The use of a sales plan or method of
compensation for salesmen (or penalizing salesmen) designed to prevent or
discourage them from selling the advertised goods or services;
(c) A solicitation is not bona
fide if a seller or solicitor fails to have available at all outlets listed in
the advertisement a sufficient quantity of the advertised goods or services at
the advertised price to meet reasonably anticipated demands, unless the
advertisement clearly and adequately discloses the approximate quantity of
advertised goods or services available and/or that the goods or services are
available only at the designated outlets;
(d) Notwithstanding the fact that a seller or
solicitor does have "sufficient quantities" as described in CF 103.01(c), a
solicitation is still not bona fide if the seller or solicitor refuses, after
the original quantity of goods is exhausted, to take orders for the advertised
goods at the advertised price during the period of the sale or, if no period is
stated, for a reasonable period of time after the solicitation appears, to be
delivered within a reasonable period of time; provided, however, that a
solicitation would be bona fide if the seller or solicitor has clearly and
adequately disclosed the approximate quantity of advertised goods available or
if he cannot obtain the advertised goods within a reasonable period of time at
or below the former price to him.
Section 103.02 "Unselling" Advertised Goods"
In the event of sale to the consumer of the advertised goods or
services, to "unsell" the consumer in conjunction with the sale or attempt to
sell other higher priced goods or services in their stead constitutes an unfair
and deceptive trade act and practice in commerce under
9 V.S.A.
Section 2453(a). Examples of
acts or practices which violate CF 103.02 are:
(a) Acceptance of a deposit for the
advertised goods or services, then switching of the consumer to higher priced
goods or services;
(b) Failure to
make delivery of the advertised goods or services, or substituted goods or
services of equal or greater value, within a reasonable time, or to make a
refund;
(c) Disparagement by the
seller or solicitor either by acts or words of:
(1) The advertised goods or
services;
(2) The guarantee,
warranty, credit terms, availability of service, repairs, or parts, or any
other aspects of the goods or services;
(d) The delivery of advertised goods or
services which are defective, unusable, or impractical for the purposes
represented in the advertisement in conjunction with the sale or attempt to
sell other higher priced goods or services in their stead.
Section 103.03 Limitations of Advertised
Offers
The solicitation of consumers through written or printed
advertising, promotional literature, or through radio or television advertising
to purchase goods or services when the solicitation does not fully disclose any
material exclusions, reservations, limitations, modifications, or conditions
constitutes an unfair and deceptive trade act and practice in commerce under
9 V.S.A.
Section 2453(a).
(a) Examples of material exclusions,
reservations, limitations, modifications, or conditions include the following:
(1) That in order to purchase the advertised
goods at the advertised price, other goods must also be purchased;
(2) That the advertised goods, except in
unusual circumstances, would not be capable of being picked up by the purchaser
at the store, or at a storage area in reasonably close proximity to the store,
on the same day that the solicitation is effective;
(b) Such material exclusions, reservations,
limitations, modifications or conditions of written or printed solicitations
shall be stated clearly and conspicuously in close proximity to the words
stating the offer.
(b) Such
material exclusions, reservations, limitations, modifications or conditions of
radio or television solicitations shall be disclosed clearly in conjunction
with the solicitation.Statutory Authority:
9 V.S.A.
ยง
2453.
