California Code of Regulations › Title 16 - Professional and Vocational Regulations › Division 19 - Structural Pest Control Board › Article 6 - Enforcement › Section 1999.5 - False and Misleading Advertising

Current through Register 2024 Notice Reg. No. 28, July 12, 2024
It is the purpose of this regulation to protect the public
				  from false, misleading, deceptive, or unfair representations or claims
				  concerning structural pest control while enabling the public to receive
				  truthful and legitimate information about those structural pest control
				  products and services and the potential of these products and services to
				  reduce impact to health or the environment.
(a) It is unlawful for any licensee, or any
				employee thereof, directly or indirectly to make, disseminate, represent,
				claim, state, or advertise, or cause to be made, disseminated, represented,
				claimed, stated or advertised by any manner or means whatever, any statement or
				representation concerning structural pest control, as defined in Business and
				Professions Code section
				8505,
				which is unfair, deceptive, untrue or misleading, and which is known, or which
				by the exercise of reasonable care should be known, to be unfair, deceptive,
				untrue or misleading.
(b) As used
				in this section, the terms "make," "disseminate," "represent," "claim,"
				"state," or "advertise" and any of their variants include, but are not limited
				to any print communications (for example, telephone directories, newspapers,
				magazines or other publications or books, notices, circulars, pamphlets,
				letters, handbills, posters, bills, signs, placards, cards, labels, tags,
				vehicle or equipment signage, window displays, or store signs), electronic
				communication (for example, radio, television, audio or video tape, telephone,
				or the Internet), demonstration, direct person-to-person contact, or other
				means or methods now or hereafter employed to bring structural pest control
				services, methods, products, pesticides, or devices to the attention of the
				public for the direct or indirect purpose of performing or offering to perform
				services for which a license is required by section
				8500 and following of the
				Code.
(c) As used in this section
				"the exercise of reasonable care" includes a duty to investigate the basis of
				any statement or representation to assure that the statement or representation
				is not unfair, deceptive, untrue or misleading. The making of a statement or
				representation without knowledge of its truthfulness breaches the duty to
				investigate.
(d) Violation of this
				section occurs at the time an unfair, deceptive, untrue or misleading statement
				or representation is made. Once a violation occurs, subsequent disclosures,
				caveats, disclaimers, or waivers cannot eliminate it.
(e) The remedies or penalties provided by
				this section are cumulative to each other and to the remedies or penalties
				available under all other laws and regulations of this State.
(f) Examples of direct or indirect statements
				or representations which are unfair, deceptive, untrue or misleading include,
				but are not limited to, the following:
(1) any
				advertising in violation of Business and Professions Code sections
				17200,
				and
				17500;
(2) any statement or representation that
				misrepresents or fails to disclose an important or necessary fact about a pest
				control service, method, product, pesticide or device;
(3) any unfair, deceptive, untrue or
				misleading statement or representation about the effects of a pest control
				service, method, product or device;
(4) any expressed or implied statement or
				representation that one or a combination of pest control services, methods,
				products, pesticides, or devices is an alternative or substitute for, is
				comparable to, or is better than any other pest control service, method,
				product, pesticide, device, or combination thereof, if what is being compared
				provides different treatment coverage of a structure, including but not limited
				to differences in the extent that accessible and inaccessible areas can
				reasonably be treated, unless said differences in treatment coverage are
				clearly and conspicuously stated. This subsection (f)(4) shall only apply to
				Branch 3 activities;
(5) any
				representation that a service, method, product, pesticide, or device, or
				combination thereof, intended to treat infested wood in a structure, will be
				used to treat an entire structure for target pests if the service, method,
				product, pesticide, or device or combination thereof is not capable of treating
				all potentially infested wood in a structure including inaccessible areas. This
				subsection (f)(5) shall only apply to Branch 3 activities;
(6) any statement or representation that a
				pest control service, product, pesticide, or device or combination thereof
				offers a general environmental protection or benefit unless the statement or
				representation can be substantiated within the meaning of section
				260.5 of title 16 of the Code of
				Federal Regulations (2008), hereby incorporated by reference, and is limited to
				the specific nature of the environmental or health benefit being
				asserted;
(7) any unfair,
				deceptive, untrue or misleading statement concerning the composition of a pest
				control service, method, product, pesticide or device;
(8) any unfair, deceptive, untrue or
				misleading statement concerning the effectiveness of a pest control service,
				method, product, pesticide or device;
(9) any unfair, deceptive, untrue or
				misleading statement about the value of a pest control product for purposes
				other than as a pesticide or pest control device;
(10) any unfair, deceptive, untrue or
				misleading comparison of pest control services, methods, products, pesticides
				or devices;
(11) any statement or
				representation that a pesticide or device is certified, sponsored, recommended,
				endorsed, or approved by any agency of the Federal Government or the State of
				California, including but not limited to, "tested by the Department of the
				Interior," "EPA approved," "EPA registered," "approved by the Structural Pest
				Control Board," or "recommended by the Structural Pest Control Board," except
				that a statement or representation of this type is permissible if specifically
				authorized by the Federal or State agency to which it refers;
(12) a statement which is literally true but
				is used in such a way as to give an unfair, deceptive, untrue or misleading
				impression to the consumer;
(13)
				claims that a pesticide application, a pesticide or pesticide ingredients are
				safe, including statements such as "safe," "nonpoisonous," "non-injurious,"
				"harmless" or "nontoxic to humans and pets" with or without such a qualifying
				phrase as "when used as directed";
(14) claims regarding services and products
				for which the licensee does not have substantiation in the form of tests,
				analysis, research, studies, or other evidence that was conducted and evaluated
				in an objective manner by persons qualified to do so, using procedures
				generally accepted by others in the profession or science to yield accurate and
				reliable results; and
(15) any
				statement or representation concerning structural pest control that is
				conditioned or subject to any requirement, condition, limitation, disclaimer or
				waiver, that is not immediately followed by a clear and conspicuous statement
				of said requirement, condition, limitation, disclaimer or
				waiver.