A. It
shall be a deceptive act or practice in connection with a consumer transaction
involving any direct solicitation sale for a supplier to do any of the
following:
(1) Solicit a sale without
clearly, affirmatively, and expressly revealing at the time the seller
initially contacts the consumer or prospective consumer, and before making any
other statements or asking any questions, except for a greeting: the name of
the seller, the name or trade name of the company, corporation or partnership
the seller represents, and stating in general terms the nature of the consumer
commodities the seller wishes to show or demonstrate.
(2) Represent that the consumer or
prospective consumer will receive a discount, rebate, or other benefit for
permitting his home or other property, real or personal, to be used as a
so-called "model home" or "model property" for demonstration or advertising
purposes when such, in fact, is not true;
(3) Represent that the consumer or
prospective consumer has been specially selected to receive a bargain,
discount, or other advantage when such, in fact, is not true;
(4) Represent that the consumer or
prospective consumer is a winner of a contest when such, in fact, is not
true;
(5) Represent that the
consumer commodities that are being offered for sale cannot be purchased in any
place of business, but only through direct solicitation, when such, in fact, is
not true;
(6) Represent that the
salesman representative, or agent has authority to negotiate the final terms of
a consumer transaction when such, in fact, is not true;
(7) Sell, lease, or rent consumer goods or
services with a purchase price of $25 or more and fail to furnish the buyer
with a fully completed receipt or copy of any contract pertaining to such sale
at the time of its execution which is in the same language (e.g. Spanish) as
that principally used in the oral sales presentation and which shows the date
of the transaction and the name and address of the seller.
(8) Except as otherwise provided in the "Home
Solicitations Sales Act", Section
70C-5-102(5)
and or the "Telephone Fraud Prevention Act", Section
13-26-5,
to fail to provide a notice of the buyer's right to cancel within three (3)
business days at the time of purchase if the total of the sale exceeds $25,
unless the supplier's cancellation policy is communicated to the buyer and the
policy offers greater rights to the buyer than three days, which notice shall
be in conspicuous statement written in dark bold at least 12 point type on the
front page of the purchase documentation, and shall read as follows: "You, the
Buyer, May Cancel This Transaction At Any Time Prior to Midnight of the Third
Business Day (or Time Period Reflecting the Supplier's Cancellation Policy But
Not Less Than Three Business Days) After the Date of This Transaction or
Receipt of The Product, Whichever is Later."
(a) Paragraph (8) shall not apply to
"fixture" solicitation sales where the supplier:
(i) automatically provides the buyer a right
to cancel within three (3) or more business days from the time of purchase;
or
(ii) automatically provides a
refund for return of goods within three (3) or more business days from the time
of purchase, but prior to installation as a fixture; or
(iii) supplies merchandise to a buyer without
prior full payment and allows the buyer three (3) or more business days from
the time of receipt of the merchandise, but prior to installation as a fixture
to cancel the order and return the merchandise; or
(iv) discloses its refund/return policy in
its advertising, catalog and contract, and that policy provides for a return of
merchandise within a period of three (3) or more business days from the time of
purchase, but prior to installation as a fixture or that policy indicates no
return or refund will be offered or made on special merchandise (such as
uniquely sized items, custom made or special ordered items); or
(9) Fail or refuse to
honor any valid notice of cancellation by a consumer and within 30 calendar
days after the receipt of such notice, to:
(i) refund all payments made under the
contract or sale;
(ii) return any
goods or property traded in, in substantially as good condition as when
received by the supplier;
(iii)
cancel and return any negotiable instrument executed by the buyer in connection
with the contract or sale and take any action necessary or appropriate to
terminate promptly any security interest created in the transaction.
B. "Direct
Solicitation" means solicitation of a consumer transaction initiated by a
supplier, at the residence or place of employment of any consumer, and includes
a sale or solicitation of sale made by the supplier by direct mail or telephone
or personal contact at the residence or place of employment of any consumer. In
the case of a subscription or club membership (e.g., tape, book, or record
club) solicitation, "direct solicitation" means solicitation of the initial
consumer transaction pursuant to a subscription or club membership agreement,
made by the supplier at the residence or place of employment of any consumer,
and includes a solicitation of an initial sale made by the supplier by direct
mail or telephone or personal contact at the residence or place of employment
of any consumer, but excludes all subsequent consumer transactions which are
provided for in the subscription or club membership agreement.
C. "Time of Purchase" is defined as the day
on which the buyer signs an agreement or accepts an offer to purchase consumer
goods or services where the total of the sale is $25 or more.
D. Except for direct solicitations subject to
Section 13-26-5, for the purposes of this rule "business day" does not include
Saturday, Sunday, or a federal or state holiday.
