### EXE OIRNEY GENERAL OF TEXAS

Department of Agriculture Austin, Texas

Gentlemen: Att'entlon:W. 3. Bussey OpinionNo. O-2470 Re: Certainprice advertlsements which might be of a deceptive and misleading nature.
We have received your request for an opinion department. We quote from your letter as follows:

"ThisDepartment has been receiving numerous complaints from cltlzens of this stateregarding the use of price tags or posters, in connection of thFs

with the sale of certain commodltles and services, which are designed to decefve and mislead the public, in thematerial particular thst the public is !.eadto believe that the cost of the commodity or serviccbeingadvertised Is less than the price actually charged therefor.
"To illustratethis point, we are enclosing, herewith, three hotographs of a gasoline price sign, reading 12 #,

P said photographsbeing taken at,approximately, the followingdistances; number one, 150 feet, number two, 50 feet, and number three, 15 feet. You will note that from a distance of 150 feet, the12 is clearlyvisible and readable, horever, the2 cannot be dFstinguishsd at all. Then from a distance of only 50 feet, you will note that the 4 is still unreadable, but when you look very closTlg you can see a dim outline of the fraction,while at a distance of 15 feet the & does showup. "Row the purpose of this type of sign, according to many of the service station operatorswho have been displaying them, Is to have the whole number so large and the fraction so small that the prospective customer ~111 read the whole number quite a distance away, thus getting the ImpressionDepartment of Agriculture, page 2 O-2470

that he can buy gasollne at that price, but as he gets near the stationhe probably will not watch the algn closely enough to notice that a fraction of a cent also appears in connection with the whole number, and after he gets in the station and orders his tank filled, then he finds that he must pay 12& per gallon for his gasoline, instead of 12# per gallon as he was lead to bellevs.
"Wealso findmany price signswhere this fraction is g/10 of a cent, instead of onehalf, thus,making it necessary for the customer to purchase ten gallons of gasoline to save one penny, while the large figuresused to dlsplag the whole number In the sign leads them to believe that they are saving a penny on lon."Many of the station operatorsdieplaying signs similar to the one shown in the photographs are very free to tell our inspectors justwhat the purpose of this type of sign Is, and most of them are strongly opposed to using suchmethods to securebusiness and only do so in order to meet competitionbecause when a competitoracross the street puts up a sign similar to this, it leads the public to bellsve that he is sellinggasoline for one cent per gallon less than his neighbor.
"Wealso find signs similar to this used in connectionwl'chother businesses, and would apprsclateyour advisingwhether or not this type of misleading and deceptive advertlslng is in violation of Article 1554 of the Penal' Cods of Texas. "If the above question Is answered in the affirmative,vould not any price sign containing a whole number and a fraction, and Inwhich the fractionwas not clearly visible and readable from approximately the same distance as the whole number, be consideredmisleading and deceptive and also in violation of the above mentionedArticle.
"Wenotice in readingArticle 1554 of the Penal Cods that no particular law enforcementagency is chargdwith the enforcementthereof,we would, therefore, appreciatebeing advised as to which law snforcement agency or agsncisswould be a;thorlzsd to enforce the provisions of this Article.Department of Agriculture, page 3 O-2470

Article 1554,Vernon's Annotated Penal Code, provides:
"Art.1554. Untrue advertisement

"Whoeverwith Intent to sell or in any way dispose~ofmerchandise, securltles, service, or anything offeredby such person, or by any firm, corporation or associationwhich he owna or of which he has control directly or indirectly,to the public for sale or distribution, or with lntent to increasethe consumption thereof, or to induce the public In any manner to enter into any obligationrelating thereto, or to acquire title thereto, or any Interesttherein,makes, publishes,disseminates, circulates or places before the public or causes to be made, published, disseminated, circulated or placed before the public in a newspaper, or other publication, or in the form of a book, notice, handbill,window display card or price tag, poster, bill, circular, pamphlet or letter, or in any otherway, an advsrtlssment of any eort regardingmerchandise, as to Its character or cost, sscuritles, service, or anything so offered to the public, which advertisement contains any assertion,representation or statement of factwhich is known by said person or could have been known by use of reasonable diligence or inquiry to be untrue, deceptive or misleading in any material particular as to suchmatters or things so advertised, shall be flned not lszs+t;$n ten nor more than two hundred dollars.
It is to be noted that the advertisementmust be "untrue,deceptive, or misleading."

The Court of CriminalAppeals in the case of Plncus v. State , 126 Cr. R. 188, 70 S.W. (2) 417, consideredArticle 1554, supra. We quote from that decision:

"On the first propositionwe express the opinion that such part of the statuteas undertakes to penalize one who 'couldhave known by uss of reasonablediligence or lnqulry'that the advertisementwas untrue is of doubtful validity. It undertakes to make a criminal of one who might be guilty of negligence only in the absence of any willful wrong in connectionwith an act which results in no harm to any one. OvertDepartment ofAgriculture, page 4 O-2470

v. State, 97 Tex. Cr. R. 202, 260 S. W. 856. Likewise, the term 'deceptiveor misleading' seems to be vague and fraughtwith uncertainty. Surely in an attempted practical applicationmuch difficultywould be experienced both in avermentswhich would be necessary and inproof to sustain them. * * * * * * fl
The languageused by the court is plain and unambiguous; accordingly itwould be a futilegesture to attempt an elaboration of itsmeaning. The gasoline advertisement in question here isnot, to ourmind, untrue. However, an element of deception is readily discernible; but the statutory phrase "deceptiveormisleading" is "vagueand fraught with uncertainty". In any event, the question of possible deceptive or misleading attributes of any given advertisement would appear a fact Issue for the determination of a .iury

. This d.epartment must refrain from acting in the capacity. Article 5710,Vernon's Annotated Civil provides that:

"TheCommissioner,his deputy, sealers inspectorsand all local sealersand their Statutes,

&-

_ . utlks In the performance of their officialduties, shallhave the same power as peace officers in this State." (Underscoringours)
In conclusion,we will advise you that the statutes place no duty upon you, in your capacity as Chief ofDeputy Weights & Measures, to enforce the provlsions,ofArticle 1554, supra. Trusting that this answers your Inquiry,we remain Yours very truly ATTORNEYGENERAL OF TEXAS
GW:RS:wc By s/Wm. J. Fanning Wm. J. Fanning Assistant APPROVED JULY 8, 1940 s/GlennR. Lewis By s/GrundyWilliams ATTORNEYGENERAL OF TEXAS (acting) GrundyWilliams
Approved Opinion CommitteeBy s/BWB Chairman