Code of Massachusetts Regulations
940 CMR - OFFICE OF THE ATTORNEY GENERAL
Title 940 CMR 6.00 - Retail Advertising
Section 6.01 - Definitions
Advertisement (including the terms advertise and advertising) means any oral, written, graphic, or pictorial representation made by a seller in the course of the solicitation of retail business or which encourages a person to purchase a retail product. Advertisement includes a: representation made in a newspaper, magazine, on or via the Internet or other publication or on radio or television or contained in any notice, handbill, sign, billboard, banner, poster, display, circular, pamphlet, catalog, or letter, or printed on or contained in any tag or label which is attached to or accompanies any product offered for sale. Advertisement includes any representation disseminated within Massachusetts if the advertisement is directed to consumers in Massachusetts, or accessible to Massachusetts consumers on or via the Internet.
Clear and Conspicuous (including the terms clearly and conspicuously) means that the material representation being disclosed is of such size, color, contrast or audibility and is so presented as to be readily noticed and understood by a reasonable person to whom it is being disclosed. Without limiting the requirements of the preceding sentence:
(a) A material representation in a printed, written, typed or graphic advertisement, except a representation in a catalog or in a finance, lease or rent-to-own advertisement covered by the requirements of 940 CMR 6.01: Clear and Conspicuous (e), is not clear and conspicuous unless such material representation either:
1. appears in type which is a minimum of eight point type; or
2. in the case of a material representation modifying eight point type copy, appears in type which is bold and a minimum of six point type; or
3. in the case of a material representation modifying eight point bold type, appears in type which is contrasting and a minimum of six point type.
(b) In addition to the mandatory minimum type size requirements for clear and conspicuous disclosures in printed advertisements set forth in 940 CMR 6.01: Clear and Conspicuous (a) and (e), the following non-mandatory guidelines will be considered in determining if such disclosures are clear and conspicuous:
1. whether the disclosure is in close proximity to the information which it modifies and is not obscured by any information which it does not modify;
2. whether the leading and spacing of the typeface or font used in the disclosure is of such size and appearance as to be readily noticed and legible;
3. whether the disclosure is printed in letters which noticeably contrast with the background against which it appears;
4. when an asterisk or similar symbol is used to denote that a disclosure appears elsewhere in the advertisement, whether every asterisk in the advertisement appears as prominent as the disclosure it accompanies, whether the asterisk adjacent to the disclosure is of the same size and appearance as the original asterisk;
5. where a disclosure applies to an entire advertisement which consists of more than one page or to a significant number of identified products in the advertisement, that the disclosure appears on each page of the advertisement or in an area, or by reference to another page, in the advertisement, if the disclosure or reference, respectively, is readily noticeable by a reasonable person;
6. where the disclosures are made with respect to a particular product or service in an advertisement on the Internet, that all of the material terms of the disclosures must be prominently referenced by the seller and be accessible by the consumer before a purchase transaction can be completed.
(c) A disclosure is not clear and conspicuous if any material terms of the offer that affect the price of an item, impose conditions on acceptance of the offer, or affect the scope of eligibility for the promotion, prize or program, are not disclosed in the advertisement itself, but require reference to an outside source, including but not limited to those offers that specify: see store for details, see web site for details, call this number for additional details.
(d) A material representation in a radio advertisement, in the audio portion of a television advertisement, or broadcast in any other audio medium is not clear and conspicuous unless:
1. It is at an audible decibel level;
2. It is at a speed equal to or less than any other representation contained in the advertisement; and
3. No other words are used and no sounds are used which have the effect of obscuring or distracting attention from the material representation, or disparaging its meaning or importance.
(e) A material representation, other than a material representation covered by the requirements of 940 CMR 6.09, 6.10 or 6.11, in the video portion of a television advertisement or appearing in any video medium, including videos accessible on or via the Internet, is not clear and conspicuous unless:
1. It contains letters of a color or shade that noticeably contrast with the background, and the background does not consist of colors and/or images which obscure or detract attention from the material representation or are disparaging to its meaning or importance; and
2. It appears on the screen for a time period reasonably sufficient for a viewer to read, given the length of the disclosure, but in any event, for at least three seconds.
(f) An advertisement containing a representation subject to the requirements of 940 CMR 6.09, 6.10 or 6.11 is not clear and conspicuous unless:
1. for a printed, written, typed or graphic advertisement, such material representation appears in type which is at least one-third the size of the largest type of information which it modifies;
2. for the video portion of a television advertisement, such material representation:
a. contains letters of a color or shade that noticeably contrast with the background, and the background does not consist of colors and/or images which obscure or detract attention from the material representation or are disparaging to its meaning or importance; and
b. appears on the screen for a duration equal to at least one second for every three words of the material representation but in any event, not less than a total of five seconds.
3. for a radio advertisement or the audio portion of a television advertisement, such material representation complies with the requirements of 940 CMR 6.01: Clear and Conspicuous (c).
(g) It shall be an unfair or deceptive act or practice for a seller to use a disclosure set apart from the primary claim to which it refers, such as by use of an asterisked footnote, if such disclosure imparts a meaning that contradicts or materially alters the meaning of the term, statement or claim to which it refers.
Comparative Price means the price or value of a product to which a seller is comparing his or her current price in any advertisement.
Disseminate means to publish, broadcast, deliver, circulate, mail, display, post, make available for access on or via the Internet, or otherwise distribute to a consumer.
Dissemination Date means the earlier of:
(a) the first date an advertisement is disseminated; or
(b) the first date an advertisement takes effect.
Hard Goods mean any electrical, mechanical or thermal item produced or distributed for sale to a consumer for use in or around a permanent or temporary household or residence or as a part for or an accessory to a motor vehicle and shall include, but not be limited to, air conditioners, audio-video equipment, computers, dehumidifiers, dishwashers, dryers, electric blankets, electronic or mechanical games or toys, fans, freezers, humidifiers, motorized kitchen aids, ovens, radios, ranges, refrigerators, sports, recreational, hobby and exercise equipment, stereophonic equipment, televisions, and washers.
Material Representation means any oral, written, graphic or pictorial claim or statement, the disclosure of which has the tendency or capacity to influence the decision of reasonable buyers or reasonable prospective buyers whether to purchase the product.
Measurement Date means the Dissemination Date or the Submission Date, as determined by 940 CMR 6.04(3).
Person means an association, a corporation, an individual, an institution, an organization, a partnership, a trust or any other legal entity.
Price Comparison means the comparison in any advertisement (whether or not expressed wholly or in part in dollars, cents, fractions, or percentages) of a seller's current price for a product with any other price or representation of value, whether or not such other price is actually stated in the advertisement. Price comparison includes any price reduction claim or savings claim which a seller makes with respect to the seller's current price for any product.
Product means any and all goods, whether tangible or intangible, real, personal or mixed and any and all services or franchise or distribution systems of any nature which are used for personal, family or household purposes.
Representation means any oral, written, graphic or pictorial claim or statement.
Seller means any person who offers any product for sale, rental or lease. Seller includes any authorized representative of a seller; however seller shall exclude an individual not engaged in trade or commerce under M.G.L. c. 93A, who places a classified advertisement in a newspaper, magazine, on or via the Internet, or other publication.
Submission Date means the most recent of:
(a) the date an advertisement is submitted for publication or dissemination; or
(b) the last date upon which changes can be made to the advertisement prior to publication or dissemination.
Trade Area means the geographic area where the seller's outlets are located and where the seller's advertisements are disseminated. A trade area may include a sales location in a state other than Massachusetts only if it is reasonably foreseeable that Massachusetts buyers would regularly purchase at such out-of-state locations; however, a seller may compare its price for a product or a class of products to the price(s) offered by a competitor outside of Massachusetts for the same or similar products as long as the competitor is identified by location and name or by reputation in the advertisement, and the comparison complies with the provisions of 940 CMR 6.05(8) or (9).
