Sec.42-110b-12a. Price comparison advertisements

(a) It shall be an unfair or deceptive act or practice for a seller to make any price comparison based upon a price at which consumer property or services were sold by the seller unless:

(1) the price is a price at which such property or services were actually sold by the seller in the last ninety days immediately preceding the date on which the price comparison is stated in the advertisement; or

(2) the price is a price at which such property or services were actually sold by the seller during any other period, and the advertisement discloses with the price comparison the date, time or seasonal period when such sales were made.

(b) It shall be an unfair or deceptive act or practice for a seller to make any price comparison based upon a price at which the seller has offered for sale but has not sold consumer property or services unless:

(1) the price is a price at which such property or services were actually offered for sale by the seller for at least four weeks during the last ninety days immediately preceding the date on which the price comparison is stated in the advertisement; or

(2) the price is a price at which such property or services were actually offered for sale by the seller for at least four weeks during any other ninety day period, and the advertisement clearly discloses the date, time, or seasonal period of such offer.

(c) It shall be an unfair or deceptive act or practice for a seller to make any price comparison in which the seller represents that it is conducting a "sale" unless:

(1) the termination date of the "sale" is clearly set forth in the advertisement; and

(2) the day after the "sale" ends, the consumer property or services reverts in price to the price charged by the seller for said item before the "sale" began or to a price which is higher than the "sale" price, except for "clearance," "closeout" or "permanent markdown" sales where the item will be reduced in price until it is removed from the seller's inventory.

(d) It shall be an unfair or deceptive act or practice for a seller to make any price comparison referencing a higher price at which consumer property or services will be offered or sold in the future unless:

(1) the advertisement clearly discloses that the price comparison is based upon a future price increase;

(2) the effective date of the future higher price, if more than ninety days after the price comparison is first stated in an advertisement, is clearly disclosed in the advertisement; and

(3) the future higher price increase takes effect on the date disclosed in the advertisement or, if not disclosed in the advertisement, within ninety days after the price comparison is stated in the advertisement, except where compliance becomes impossible because of circumstances beyond the seller's control.

(e) It shall be an unfair or deceptive act or practice for a seller to make any price comparison based upon advertised savings of a particular percentage or a range of percentages (e.g. "save 30%" or "20% to 60% off") unless:

(1) the minimum percent reduction is clearly stated in the advertisement in a manner as conspicuously as the maximum percentage reduction, when applicable;

(2) the basis for the advertised percent reduction is clearly and conspicuously disclosed in the advertisement (e.g. "20% off our regular price"); and

(3) the number of items available at the maximum savings comprise at least 10% of all the items in the offering.

(f) It shall be an unfair or deceptive act or practice for a seller to use the terms "wholesale prices," "factory outlet," "at cost," and other similar terms in a price comparison, unless the stated savings can be substantiated and the terms meet the following requirements:

(1) the terms "factory to you," "direct from maker," "factory outlet" and words of similar meaning shall not be used unless all advertised merchandise is actually manufactured by the advertiser or in factories, owned or controlled by the advertiser;

(2) the terms "wholesale," "wholesale outlet," "distributor" and words of similar meaning shall not be used unless the advertiser actually owns and operates or directly and absolutely controls a wholesale or distribution facility which sells the majority of its products to retailers or other wholesalers for resale, rather than to the ultimate consumer for use; and

(3) the terms "wholesale price," "at cost" and the like shall not be used unless they are the current prices which retailers usually and customarily pay when they buy such merchandise for resale.

(g) It shall be an unfair or deceptive act or practice for a seller, using the term "original" or "originally" in a price comparison, to fail to disclose that intermediate markdowns have been taken, if such is the case. A seller may use the term "original" or "originally" when offering a reduction from an original price that was the price at which such consumer property or services was actually offered for sale in the recent, regular course of business. If the comparative price, identified as "original" or "originally," is not also the last previous selling price, that fact shall be disclosed, by stating the last previous selling price, (e.g., "originally $599.95, formerly $499.95, now $399.95,") or indicating "intermediate markdowns taken."

(h) It shall be an unfair or deceptive act or practice for a seller to advertise consumer property or services for sale under special circumstances using terms such as "closeout," "clearance sale," "must be sacrificed" or similar terms unless the advertised item is permanently reduced in price in order to remove it from the seller's inventory.

(Effective February 26, 1986)