(1)
Misleading Representations. It is an unfair or deceptive act for a
seller to make any material representation of fact in an advertisement if the
seller knows or should know that the material representation is false or
misleading or has the tendency or capacity to be misleading, or if the seller
does not have sufficient information upon which a reasonable belief in the
truth of the material representation could be based.
(2)
Disclosure of Material
Representations. It is an unfair or deceptive act for a seller to fail
to clearly and conspicuously disclose in any advertisement any material
representation, the omission of which would have the tendency or capacity to
mislead reasonable buyers or prospective buyers. For purposes of 940 CMR 6.00,
material representations which must be clearly and conspicuously disclosed
shall include but are not limited to the following:
(a) The fact that a mandatory fee in addition
to the advertised price will be charged for any service such as delivery,
handling, installation, or an initiation fee;
(b) The amount of any handling, service or
other additional fee for an admission ticket to an entertainment event charged
to any purchaser who purchases such ticket through a ticket service or similar
entity other than the box office for the facility holding such event when the
advertisement refers to the price of such ticket;
(c) The fact that the product advertised is
available for the advertised price only after the purchaser receives a rebate
from the manufacturer of the product. If the advertised price includes a
rebate, and either the rebate is in a form other than cash or check, then the
seller must disclose the form of the rebate clearly and conspicuously in
immediate proximity to the reference to the rebate and the advertised price;
and if the rebate is available only after certain conditions or limitations are
satisfied, then the seller must disclose all terms, conditions and limitations
of the rebate, either at the point it is promoted, or otherwise by asterisked
disclosure as described in
940 CMR 6.01,
Definitions, "Clear and Conspicuous" (b)(4);
(d) The fact that the product advertised is
used, rebuilt, remanufactured, reconditioned, imperfect, irregular or a second,
unless the context of the advertisement readily so indicates, such as an
advertisement for sales of used or consigned goods;
(e) In the case of hard goods, the fact that
a hard good advertised has been discontinued by the manufacturer, if the seller
knows:
1. that there is a significant risk
that the product will not have replacement parts and supplies essential to the
operation of the product available during its average useful life or for three
years after purchase, whichever is less; or
2. that the product has been discontinued and
either:
a. is the subject of a notice from the
manufacturer that the manufacturer will voluntarily add a safety improvement to
the product; or
b. lacks safety
improvements that the manufacturer either has agreed to make or has been
required to make by a regulatory agency; provided, however, that no product
subject to a recall pursuant to the Consumer Product Safety Improvement Act of
2008 or the Federal Hazardous Substances Act may be sold or distributed within
the Commonwealth after a recall notice has issued and the seller has had a
reasonable opportunity to comply, not to exceed three (3) calendar
days.
(f) In
the case of hard goods individually identified for sale in any advertisement,
the manufacturer's name or trade name, the seller's proprietary trademark, or
if a seller is prohibited by law or by contract from using the manufacturer's
name or trade name in an advertisement, the phrase "famous brand names" or any
similar phrase, and the model number of any hard goods, unless it is the only
model of the hard good currently being sold in the trade area or the item is
not customarily identified and distinguished by its model number, or it is
being offered for sale at a price under $50.
(g) The fact that the product advertised at a
stated price does not include parts, accessories or equipment customarily
included and necessary or usual to the proper functioning, appearance, or use
of such product.
(h) With respect
to tags, labels and in-store signs:
1. a tag
need only contain material representations regarding the price of an
item;
2. a label need only contain
material representations regarding the quality of an item;
3. an in-store sign need only contain
material representations regarding the price or quality of an item.
(3)
Time
Periods. The validity of any material representation covered by 940 CMR
6.00 shall be determined, and all time periods set forth in 940 CMR 6.00 shall
be measured, as of the dissemination date of the advertisement. However, a
seller may base a material representation on the submission date of the
advertisement provided that the seller has a good faith basis, founded on its
own past and present selling practice or that of other sellers in its trade
area, for believing that the material representation made in the advertisement
will be true as of the dissemination date of the advertisement and during the
effective period of the advertisement.
