New Mexico Administrative Code
Title 12 - TRADE, COMMERCE AND BANKING
Chapter 2 - CONSUMER PROTECTION
Part 3 - REQUIREMENTS FOR THE PROMOTION AND ADVERTISING OF SUBDIVIDED LAND, TIME SHARE INTERESTS, CONDOMINIUMS AND MEMBERSHIP CAMPGROUNDS ISSUED PURSUANT TO NEW MEXICO'S UNFAIR PRACTICES ACT AND FALSE ADVERTISING ACT
Section 12.2.3.9 - REGULATIONS
Universal Citation: 12 NM Admin Code 12.2.3.9
Current through Register Vol. 35, No. 18, September 24, 2024
It is an unfair or deceptive trade practice for any person to engage in a game promotion in connection with the sale or lease of subdivided land, condominiums, time-share interests or campground memberships unless the game promotion is in compliance with the following regulations:
A. General regulations.
(1) Claims or representations contained in
any promotional material shall be accurate.
(2) Promotional materials shall state fully
and clearly all factual material so as neither to misrepresent the facts nor to
create misleading impressions.
B. Specific regulations.
(1) No promotional materials shall:
(a) misrepresent a fact or create a false or
misleading impression;
(b) make a
prediction of specific or immediate increases in the price or value of the
property interest promoted, unless it is registered as a security with the
securities division of the New Mexico department of regulation and
licensing;
(c) contain a statement
concerning future price increases by the seller of the property interest
promoted which are nonspecific or not bona fide;
(d) describe any improvement to the property
interest promoted that is not required to be completed or that is uncompleted
unless the improvement is conspicuously labeled as, for example, "NEED NOT BE
COMPLETED", "PROPOSED" or "UNDER CONSTRUCTION";
(e) misrepresent the size, nature, extent of
development, qualities or characteristics of the offered accommodations or
facilities;
(f) misrepresent the
amount or period of time or nature of the period of time during which the
accommodations or facilities will be available to any purchaser. (For example,
time-share weeks are commonly characterized with colors or other adjectives,
such as "red", "white" and "blue", or "high", "medium" and "low." Prospective
purchasers should know whether they have purchased the use of a specific week
or a "floating week" during a specific period.);
(g) misrepresent the nature or extent of any
services incident to the property interest being promoted;
(h) make any misleading or deceptive
representation with respect to the contents of any disclosure statement, the
contract or any other statement of the purchaser's rights, privileges, benefits
or obligations; or
(i) misrepresent
the conditions under which a purchaser may exchange the right to use
accommodations or facilities in one location for the right to use
accommodations or facilities in another location. For example, if a consumer
purchases a "red "or "high" week at the resort visited, but it will not be
honored as a "red" or "high" week for exchange purposes, that fact should be
disclosed.
(2) All
promotional materials shall clearly and conspicuously disclose any and all
conditions on or eligibility requirements for:
(a) the receipt of anything of value offered
in connection with the promotion;
(b) and the sale or lease of the property
being promoted.
(c) This does not
mean that each and every term of sale must be included on a game promotion
piece; only conditions of eligibility for purchase must be disclosed. Subject
to applicable federal and state law, promotions may request information
regarding age, income level and marital status. For example, the piece may
contain a statement similar to the following: The recipient named in this
letter is eligible to receive a gift in these sweepstakes. However, (resort
name) is designed to be of particular interest to credit-worthy single persons
or married couples between the ages of 21 and 60 who have an individual or
combined income of at least $20,000. We request that if you are married,
husband and wife must be present. Both must also attend a sales presentation of
at least one hour to claim the gift.
(3) Offers of anything of value at no cost or
reduced cost made in connection with a promotion shall not be described as
"awards", "prizes", "gifts" or by words of similar meaning if the recipient
must purchase anything or give, or promise to give, any sum or other
consideration, other than visiting the property to claim the gifts, in exchange
for the item. The word "sweepstakes" should not be used if the offer is in fact
a "giveaway".
(4) Recipients of any
promotion offer shall not be described as "winners" or "finalists" or notified
that they have "won a prize" unless either:
(a) the prizes that have been won are to be
given to the recipients without condition (i.e., there are no eligibility
requirements, sales tours or other requirements to receive the gifts or
prizes); or
(b) any conditions
attached to the receipt of anything of value offered in such a promotional
piece are clearly and conspicuously disclosed in the offer and leave no
reasonable possibility that the offer will be misunderstood.
(5) All promotional materials must
specifically and affirmatively disclose in boldface type that the purpose of
the promotion is the sale of interests in subdivided land, condominiums,
time-shares or membership campgrounds. If the recipient of the promotional
material must attend any sales presentation, this fact must be prominently
stated in boldface type, together with a reasonable estimate of the least
amount of time required to attend the sales presentation. (For example: YOU
MUST ATTEND A SALES PRESENTATION OF AT LEAST ONE HOUR BEFORE YOU WILL RECEIVE
YOUR GIFT.)
(6) It is unlawful to
make offers of anything of value in connection with a promotion unless
contemporaneously, with the offer, all expenses the recipient must pay,
excluding the cost of travel to the area being promoted, are disclosed to the
recipient in the offer.
(7) In the
case of vacation certificates, all conditions of the vacation must be clearly
and conspicuously disclosed in the promotional piece, including any required
deposits, points of departure if outside of New Mexico, the nature of the
accommodation and all items and conditions of the trip. For example, if two
persons must take the trip, but free airfare is provided for only one person,
this should be clearly disclosed. Vacation certificates must be redeemable
within a reasonable period of time, which should be disclosed, and they must
not include unduly burdensome or unreasonable procedures which must be followed
in order to take the trip.
(8)
Complete rules and procedures for any contest or drawing advertised in
connection with a promotion shall be included clearly and conspicuously in
promotional materials.
(9) All
written promotional materials shall contain the name and address of the entity
conducting the promotion, and of the sponsor, developer, broker or owner, as
applicable, on whose behalf the promotional material is distributed.
(10) Promotional materials shall not employ
any term that creates confusion, misunderstanding or a reasonable impression
that the promotion is connected with a government agency.
(11) Promotional pieces shall not include any
words or graphics which simulate a notary "seal" or which otherwise tend to
mislead the recipient as to the legal significance of the document.
(12) The manner in which winners are selected
must be accurately disclosed. The following are examples of such disclosures:
(a) The prize which you receive has been
randomly pre-selected by computer. You must match your number to numbers on the
official gift list at the resort to determine the particular gift you will
receive.
(b) Every person visiting
the resort will receive the set of luggage. In addition, your number will be
placed in a container at the resort. When there are 1,000 numbers in the
container, an independent accounting firm will draw three numbers, the holders
of which will receive the car, the $500 and the TV set, in that
order.
(13) It is
unlawful to represent that a promotion is a "survey" or a "research project" if
it is not, and if the primary purpose of the promotion is to lease or sell a
property interest.
(14) Promotional
material shall not describe any gift to be given in terms which are confusing
or misleading. The verifiable retail value must be clearly disclosed in arabic
numbers following a dollar sign. In disclosing the verifiable retail value of
any gift, the promoter or seller must be able to substantiate it at the time
the alleged value is asserted. Such substantiation may be provided with the
following:
(a) the name and address of the
retail outlet at which the product or a substantially similar product is or has
been sold, the price at which the product was advertised or sold and the dates
on which the product was advertised or sold at that place or places;
or
(b) proof that the value stated
is no more than three times the price paid for the item by the promoting entity
or developer.
(15) The
odds of receiving each gift must be clearly and conspicuously disclosed.
(a) An example of stating the odds clearly
for any gift other than a premium gift is as follows: "Your chances of winning
the _______________ (gift) are one in 100,000."
(b) An example of stating odds clearly for a
premium gift is as follows: "Out of 100,000 persons who respond to this
mailing, 99,997 persons will receive the (premium gift)."
(16) Offered gifts must be delivered on site
when the recipient appears and establishes his/her eligibility for the gift. If
the gift is of a kind not capable of immediate delivery (e.g., a vacation,
automobile, etc.), then the recipient must be given specific documentation to
enable him to claim the gift. Promoters and owners shall have an adequate
supply of premium gifts on site and if an item cannot be supplied to an
eligible recipient, it must be shipped within 30 days to the recipient's
address without additional cost or burden to the recipient.
(17) The geographic area covered by the
promotional mailing must be clearly and conspicuously stated in the promotional
piece. If the promotion is part of a national sweepstakes, it must be clearly
and conspicuously stated that the described prizes may be awarded to people
outside of the geographical area within which that particular promotional piece
is distributed, with a corresponding explanation that every gift may not be
given away at every location.
(18)
Names of winners of previous gifts may not be used on a future promotion unless
disclosure of future use is made known to the recipient on the original
promotional piece, or unless the recipient provides written consent for such
disclosure. Every promotional piece must also include an explanation of the
procedure by which the consumer may receive a list of names and addresses of
major gift recipients who have consented to have their names made available to
recipients of promotional pieces.
(19) The date upon which the promotion begins
and the date upon which it terminates must be clearly stated.
(20) Promotional pieces shall not represent
that there is a limited time in which to accept the terms of the offer, or that
a gift is only available on the day the recipient visits the resort, if such is
not the case.
(21) Promotional
pieces shall disclose that the supplier reserves the right to substitute gifts
of greater or equal value or to give rain checks if such is the case.
(22) No offer shall be made of items commonly
given recipients if there is reason to know that the items are not or will not
be readily available at the time and place the recipient is to receive
them.
(23) Items shall not be
represented by way of description, name, pricing, narrative copy or graphic
depiction so as to mislead or deceive the recipient as to the true nature, size
or kind of an item.
(24)
Promotional pieces shall not use any type size, style, location, color, layout,
headline or illustration which renders misleading any material fact of the
offer, including but not limited to using excessively small size type and/or an
inconspicuous location for eligibility conditions, odds or value.
(25) Telephone solicitations which involve
game promotions need not disclose all information described herein but they
must disclose at least the following information:
(a) that the purpose of the solicitation is
the sale of a time-share, subdivided land, condominium or membership campground
interest;
(b) that to claim an
offered gift, the listener must visit the resort and hear a sales presentation,
including a reasonable estimate of the least amount of time that the sales
presentation will take;
(c) the
principal conditions attached to claiming the gift;
(d) the verifiable retail value of any gift
promoted and the odds of receiving each such gift offered if the promotion is a
sweepstakes, as set forth in paragraph 9.1.2.15 above [now Paragraph (15) of
Subsection B of 12.2.3.9 NMAC].
(26) All promotional material may be
submitted to the attorney general for review before distribution in this state.
The attorney general may comment on the legal sufficiency of the material or
take such other action as he deems appropriate. The attorney general's failure
to respond shall not be construed, however, as an approval, exemption or waiver
of any statutory or other enforcement authority by the attorney general. No
person shall use or refer to any correspondence to or received from the
attorney general in any promotional piece or in any sales presentation. It
shall be an unfair or deceptive trade practice to state directly or indirectly
that the attorney general or the state of New Mexico has approved, sanctioned,
authorized or given any favorable opinion concerning the legality of any game
promotion.
Disclaimer: These regulations may not be the most recent version. New Mexico may have more current or accurate information. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or the information linked to on the state site. Please check official sources.
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