If so, the practice is material, and consumer injury is likely, because consumers are likely to have chosen differently but for the deception. In many instances, materiality, and hence injury, can be presumed from the nature of the practice. In other instances, evidence of materiality may be necessary. Thus, the Commission will find deception if there is a representation, omission or practice that is likely to mislead the consumer acting reasonably in the circumstances, to the consumer's detriment. We discuss each of these elements below.
Most deception involves written or oral misrepresentations, or omissions of material information.
The issue is whether the act or practice is likely to mislead, rather than whether it causes actual deceptions. In cases of implied claims, the Commission will often be able to determine meaning through an examination of the representation itself, including an evaluation of such factors as the entire document, the juxtaposition of various phrases in the document, the nature of the claim, and the nature of the transactions. The Commission has also found deception where a sales representative misrepresented the purpose of the initial contact with customers. There may be a concern about the way a product or service is marketed, such as where inaccurate or incomplete information is provided.17 A failure to perform services promised under a warranty or by contract can also be deceptive. The test is whether the consumer's interpretation or reaction is reasonable.20 When representations or sales practices are targeted to a specific audience, the Commission determines the effect of the practice on a reasonable member of that group.