(1)
Basic
Principle. In accordance with
940 CMR
6.03(1), the purpose of 940
CMR 6.14 is to require that a seller be able to substantiate the material
representations it makes in an advertisement. Subject to the requirements in
940 CMR 6.14(2), the burden is on the seller to decide which records to
maintain to adequately support its claims; however, 940 CMR 6.14 describes the
documents which a seller could provide to substantiate its advertised
claims.
(2)
General
Requirements. It is an unfair or deceptive act for a seller to fail to
maintain records for a period of six months after the last dissemination of the
advertisement and to provide those records to the Attorney General, upon
request, to substantiate the propriety of such advertisement under the
provisions of 940 CMR 6.00.
(3)
Guidelines for Maintaining Records Necessary to Substantiate
Advertisements.
(a)
Comparison to
a Seller's Own Former Price. A seller may substantiate a price
comparison between the seller's current price and former price, subject to
regulation by
940 CMR
6.05(3),
6.05(5),
6.05(9)(a)1,
6.05(11),
6.05(13)
or
6.05(14)(a)(1)
and (2), by maintaining records of all sales
and all offers to sell the advertised product which occurred during the period
commencing twelve months immediately preceding the submission date of the
advertisement and ending on the termination date of the advertised
sale.
(b)
Comparison to Other
Seller's Price for an Identical Product. When a price comparison is made
between the seller's current price and the price of any other seller in the
trade area, pursuant to
940 CMR
6.05(7),
6.05(8)
or
6.05(14)(a)1,
the seller may substantiate such comparison by maintaining records which
identify the specific seller(s) in the trade area who are offering the product
at the comparative price as of the Measurement Date of the
advertisement.
(c)
Comparison
to Other Seller's Price for a Comparable Product. When a price
comparison is made between the seller's current price and the price(s) of any
other seller(s) for a comparable product, pursuant to
940 CMR
6.05(9), the seller may
substantiate such comparison by maintaining records which identify the specific
seller(s) offering the advertised product at the comparative price as of the
Measurement Date of the advertisement and a complete description of the
comparable product including the brand, make, model, and model year.
(d)
Comparison to a Seller's Future
Price. When a price comparison is made between the seller's current and
future price, pursuant to
940 CMR
6.05(4), the seller may
substantiate such comparison by maintaining records of all sales or offers to
sell the advertised product which occurred during the period beginning twelve
months before the Measurement Date of the advertisement and ending after a
period which is twice the duration of the introductory price offer period. In
addition, records documenting introductory offers made to first-time purchasers
pursuant to
940 CMR
6.05(5)(c) should be
maintained for the 12-month period immediately following the dissemination date
of the introductory offer.
(e)
"Two for the Price of One". When a price comparison regulated by
940 CMR
6.05(13) is made, the
seller should maintain records which substantiate the material representations
made in the advertisement.
(f)
Availability. In order for
940 CMR
6.06(1)(a), (b) or (c) to
apply to the seller, the seller should maintain sufficient records to show that
each condition in
940 CMR
6.06 has been met.
(g)
Prizes or Gifts. Any seller
who disseminates an advertisement that offers a gift or prize and is regulated
by
940 CMR
6.05(16) or
6.08, should maintain
records which substantiate the seller's material representations, including
documentation of:
1. compliance with the
requirements for price comparisons contained in 940 CMR 6.14(2) and 6.14(3)(a),
(b), (c); and
2. compliance with
the requirements of
940 CMR
6.05(16)(a), (d), (e), and
6.08(1), (3), (4), and
(5).
