New Jersey Administrative Code
Title 13 - LAW AND PUBLIC SAFETY
Chapter 45A - ADMINISTRATIVE RULES OF THE DIVISION OF CONSUMER AFFAIRS
Subchapter 9 - GENERAL ADVERTISING
Section 13:45A-9.2 - General advertising practices
Universal Citation: NJ Admin Code 13:45A-9.2
Current through Register Vol. 56, No. 18, September 16, 2024
(a) Without limiting the application of 56:8-1 et seq., the following practices shall be unlawful with respect to all advertisements:
1. The failure of an advertiser to maintain
and offer for immediate purchase advertised merchandise in a quantity
sufficient to meet reasonably anticipated consumer demand therefor. When an
advertisement states a specific period of time during which merchandise will be
available for sale, a sufficient quantity of such merchandise shall be made
available to meet reasonably anticipated consumer demand during the stated
period. When no stated period appears in the advertisement, a sufficient
quantity of merchandise shall be made available to meet reasonably anticipated
consumer demand during three consecutive business days commencing with the
effective date of the advertisement. The requirement of this subsection shall
not be applicable to merchandise which is advertised:
i. On an in-store sign only with no
corresponding out-of-store sign;
ii. As being available in a specific
quantity; or
iii. As being
available in a "limited supply," pursuant to a "closeout sale" or pursuant to a
"clearance sale" if such offering meets the definition of a closeout sale; or
if represented to be permanently reduced.
2. The failure of an advertiser to
specifically designate within an advertisement which merchandise items possess
special or limiting factors relating to price, quality, condition or
availability. By way of illustration, and not by limitation, the following
shall be deemed violative of this subparagraph:
i. The failure to specifically designate
which merchandise items are below cost, if any amount less than all advertised
items are below cost, when a statement of below cost sales is set forth in an
advertisement;
ii. The failure to
specifically designate which merchandise items, if any, are damaged or in any
way less than first quality condition;
iii. The failure to specifically designate
merchandise as floor models, discontinued models or one of a kind, when
applicable;
iv. The failure to
clearly designate or describe the retail outlets at which advertised
merchandise will or will not be available. Such information need not be
disclosed on any in-store advertisement.
3. The failure to conspicuously post notice
of advertised merchandise, on the business premises to which the advertisement
applies, in proximity to the advertised merchandise or at all entrances to the
business premises. Such notice may consist of a copy of the advertisement or
may take the form of a tag attached to the merchandise or any sign with such
terms as "sale," "as advertised," "20% off."
4. In any price advertisement in which a home
appliance is offered for sale, the failure of an advertiser to disclose the
following information relating to the advertised merchandise: the
manufacturer's name or the merchandise trade name, the model or series number
and such other information as may be necessary to clearly delineate the
advertised item from other similar merchandise produced by the same
manufacturer.
5. The use of any
type, size, location, lighting, illustration, graphic depiction, or color
resulting in the obscuring of any material fact. Disclaimers permitted or
required under this section, such as "terms and conditions apply" and
"quantities limited," shall be set forth in a type size and style that is clear
and conspicuous relative to the other type sizes and styles used in the
advertisement.
6. The use of the
terms "Public Notice," "Public Sale" or words or terms of similar meaning in
any advertisement offering merchandise for sale, where such sale is not
required by court order or by operation of law, other than a sale conducted by
an auctioneer on behalf of a non-business entity.
7. Describing the advertiser through the use
of the terms "warehouse," "factory outlet," "discount," "bargain," "clearance,"
"liquidators," "unclaimed freight," or other words or terms of similar meaning,
whether in the advertiser's corporate, partnership or trade name or otherwise,
where such terms do not reflect a bona fide description of the advertiser being
described.
8. Whenever an
advertiser provides a raincheck for an advertised item which is not available
for immediate purchase, the failure to:
i.
Honor or satisfy such raincheck within 60 days of issuance unless an extension
of such time period is agreed to by the holder thereof or, if after a good
faith effort an advertiser cannot procure for the holder of the raincheck the
advertised merchandise within the 60-day period, failure to offer the holder of
the raincheck a different item of merchandise of substantially the same kind,
quality and price as the original advertised merchandise; and
ii. Give written or telephonic notice to the
holder thereof when the merchandise is available and hold such merchandise for
not less than 10 days after giving such notice or to the end of the 60-day
period for which the raincheck is valid, whichever is longer, for all
merchandise with an advertised unit price greater than $ 15.00;
iii. Offer a raincheck to all customers who
are unable, due to the unavailability thereof, to purchase the advertised
merchandise during the period of time during which the merchandise has been
advertised as available for sale; and
iv. Conspicuously post its raincheck policy
on a sign in at least one of the following locations:
(1) Affixed to a cash register or location of
the point of sale;
(2) So situated
as to be clearly visible to the buyer;
(3) Posted at each store entrance used by the
public;
(4) At the location where
the merchandise was offered for sale;
(5) In an advertisement for merchandise;
or
(6) Printed on the receipt of
sale.
9. The
making of false or misleading representations of facts concerning the reasons
for, existence or amounts of price reductions, the nature of an offering or the
quantity of advertised merchandise available for sale.
10. The failure of an advertiser to
substantiate through documents, records or other written proof any claim made
regarding the safety, performance, availability, efficiency, quality or price
of the advertised merchandise, nature of the offering or quantity of advertised
merchandise available for sale. Such records shall be made available upon
request for inspection by the Division or its designee at the advertiser's
regular place of business or central office in New Jersey, or, at the
advertiser's option, the Division's designated offices, for a period of 90 days
following the effective date of the advertisement.
11. The use, directly or indirectly, of a
comparison to a suggested retail price, inventory price, invoice price or
similar terms that directly or indirectly compare or suggest the comparison
between the cost of supply and the price at retail for the advertised
merchandise.
12. Use of the term
"cost," "wholesale" or other similar terms to describe an advertised price
where such price is not equal to or less than the price per unit paid by the
advertiser to the manufacturer or distributor of the merchandise. In the
computation of the price per unit of the advertised merchandise, freight may be
included if the advertiser pays for same and is not reimbursed therefore, but
handling and all overhead or operating expenses shall be excluded.
13. The advertising of a free-to-pay
conversion as a "risk free trial," or a "free trial," or as any other offer
that requires the consumer to do nothing other than accept merchandise or a
service without any obligation, unless the advertisement clearly states the
length of the period the offer is without obligation or that terms and
conditions apply.
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