Code of Massachusetts Regulations › 940 CMR - OFFICE OF THE ATTORNEY GENERAL › Title 940 CMR 6.00 - Retail Advertising › Section 6.01 - Definitions

Current through Register 1525, July 5, 2024
Advertisement
(including the terms
				advertise and advertising) means any oral, written, graphic, or pictorial
				representation made by a seller in the course of the solicitation of retail
				business or which encourages a person to purchase a retail product.
				Advertisement includes a: representation made in a newspaper, magazine, on or
via
the Internet or other publication or on radio or
				television or contained in any notice, handbill, sign, billboard, banner,
				poster, display, circular, pamphlet, catalog, or letter, or printed on or
				contained in any tag or label which is attached to or accompanies any product
				offered for sale. Advertisement includes any representation disseminated within
				Massachusetts if the advertisement is directed to consumers in Massachusetts,
				or accessible to Massachusetts consumers on or
via
the
				Internet.
Clear and Conspicuous
(including the
				terms clearly and conspicuously) means that the material representation being
				disclosed is of such size, color, contrast or audibility and is so presented as
				to be readily noticed and understood by a reasonable person to whom it is being
				disclosed. Without limiting the requirements of the preceding sentence:
(a) A material representation in a printed, written, typed or
				graphic advertisement, except a representation in a catalog or in a finance,
				lease or rent-to-own advertisement covered by the requirements of 940 CMR 6.01:
Clear and Conspicuous
(e), is not clear and
				conspicuous unless such material representation either:
1. appears in type which is a minimum of eight point type;
				or
2. in the case of a material representation modifying eight
				point type copy, appears in type which is bold and a minimum of six point type;
				or
3. in the case of a material representation modifying eight
				point bold type, appears in type which is contrasting and a minimum of six
				point type.
(b) In addition to the mandatory minimum type size requirements
				for clear and conspicuous disclosures in printed advertisements set forth in
				940 CMR 6.01:
Clear and Conspicuous
(a) and (e), the
				following non-mandatory guidelines will be considered in determining if such
				disclosures are clear and conspicuous:
1. whether the disclosure is in close proximity to the
				information which it modifies and is not obscured by any information which it
				does not modify;
2. whether the leading and spacing of the typeface or font used
				in the disclosure is of such size and appearance as to be readily noticed and
				legible;
3. whether the disclosure is printed in letters which
				noticeably contrast with the background against which it appears;
4. when an asterisk or similar symbol is used to denote that a
				disclosure appears elsewhere in the advertisement, whether every asterisk in
				the advertisement appears as prominent as the disclosure it accompanies,
				whether the asterisk adjacent to the disclosure is of the same size and
				appearance as the original asterisk;
5. where a disclosure applies to an entire advertisement which
				consists of more than one page or to a significant number of identified
				products in the advertisement, that the disclosure appears on each page of the
				advertisement or in an area, or by reference to another page, in the
				advertisement, if the disclosure or reference, respectively, is readily
				noticeable by a reasonable person;
6. where the disclosures are made with respect to a particular
				product or service in an advertisement on the Internet, that all of the
				material terms of the disclosures must be prominently referenced by the seller
				and be accessible by the consumer before a purchase transaction can be
				completed.
(c) A disclosure is not clear and conspicuous if any material
				terms of the offer that affect the price of an item, impose conditions on
				acceptance of the offer, or affect the scope of eligibility for the promotion,
				prize or program, are not disclosed in the advertisement itself, but require
				reference to an outside source, including but not limited to those offers that
				specify: see store for details, see web site for details, call this number for
				additional details.
(d) A material representation in a radio advertisement, in the
				audio portion of a television advertisement, or broadcast in any other audio
				medium is not clear and conspicuous unless:
1. It is at an audible decibel level;
2. It is at a speed equal to or less than any other
				representation contained in the advertisement; and
3. No other words are used and no sounds are used which have
				the effect of obscuring or distracting attention from the material
				representation, or disparaging its meaning or importance.
(e) A material representation, other than a material
				representation covered by the requirements of
				940 CMR
				6.09,
				6.10
				or
				6.11,
				in the video portion of a television advertisement or appearing in any video
				medium, including videos accessible on or
via
the Internet, is
				not clear and conspicuous unless:
1. It contains letters of a color or shade that noticeably
				contrast with the background, and the background does not consist of colors
				and/or images which obscure or detract attention from the material
				representation or are disparaging to its meaning or importance; and
2. It appears on the screen for a time period reasonably
				sufficient for a viewer to read, given the length of the disclosure, but in any
				event, for at least three seconds.
(f) An advertisement containing a representation subject to the
				requirements of
				940 CMR
				6.09,
				6.10
				or
				6.11
				is not clear and conspicuous unless:
1. for a printed, written, typed or graphic advertisement, such
				material representation appears in type which is at least one-third the size of
				the largest type of information which it modifies;
2. for the video portion of a television advertisement, such
				material representation:
a. contains letters of a color or shade that noticeably
				contrast with the background, and the background does not consist of colors
				and/or images which obscure or detract attention from the material
				representation or are disparaging to its meaning or importance; and
b. appears on the screen for a duration equal to at least one
				second for every three words of the material representation but in any event,
				not less than a total of five seconds.
3. for a radio advertisement or the audio portion of a
				television advertisement, such material representation complies with the
				requirements of 940 CMR 6.01:
Clear and Conspicuous
(c).
(g) It shall be an unfair or deceptive act or practice for a
				seller to use a disclosure set apart from the primary claim to which it refers,
				such as by use of an asterisked footnote, if such disclosure imparts a meaning
				that contradicts or materially alters the meaning of the term, statement or
				claim to which it refers.
Comparative Price
means the price or
				value of a product to which a seller is comparing his or her current price in
				any advertisement.
Disseminate
means to publish,
				broadcast, deliver, circulate, mail, display, post, make available for access
				on or
via
the Internet, or otherwise distribute to a
				consumer.
Dissemination Date
means the earlier
				of:
(a) the first date an advertisement is disseminated; or
(b) the first date an advertisement takes effect.
Hard Goods
mean any electrical,
				mechanical or thermal item produced or distributed for sale to a consumer for
				use in or around a permanent or temporary household or residence or as a part
				for or an accessory to a motor vehicle and shall include, but not be limited
				to, air conditioners, audio-video equipment, computers, dehumidifiers,
				dishwashers, dryers, electric blankets, electronic or mechanical games or toys,
				fans, freezers, humidifiers, motorized kitchen aids, ovens, radios, ranges,
				refrigerators, sports, recreational, hobby and exercise equipment, stereophonic
				equipment, televisions, and washers.
Material Representation
means any
				oral, written, graphic or pictorial claim or statement, the disclosure of which
				has the tendency or capacity to influence the decision of reasonable buyers or
				reasonable prospective buyers whether to purchase the product.
Measurement Date
means the
				Dissemination Date or the Submission Date, as determined by
				940 CMR
				6.04(3).
Person
means an association, a
				corporation, an individual, an institution, an organization, a partnership, a
				trust or any other legal entity.
Price Comparison
means the comparison
				in any advertisement (whether or not expressed wholly or in part in dollars,
				cents, fractions, or percentages) of a seller's current price for a product
				with any other price or representation of value, whether or not such other
				price is actually stated in the advertisement. Price comparison includes any
				price reduction claim or savings claim which a seller makes with respect to the
				seller's current price for any product.
Product
means any and all goods,
				whether tangible or intangible, real, personal or mixed and any and all
				services or franchise or distribution systems of any nature which are used for
				personal, family or household purposes.
Representation
means any oral,
				written, graphic or pictorial claim or statement.
Seller
means any person who offers any
				product for sale, rental or lease. Seller includes any authorized
				representative of a seller; however seller shall exclude an individual not
				engaged in trade or commerce under M.G.L. c. 93A, who places a classified
				advertisement in a newspaper, magazine, on or
via
the
				Internet, or other publication.
Submission Date
means the most recent
				of:
(a) the date an advertisement is submitted for publication or
				dissemination; or
(b) the last date upon which changes can be made to the
				advertisement prior to publication or dissemination.
Trade Area
means the geographic area
				where the seller's outlets are located and where the seller's advertisements
				are disseminated. A trade area may include a sales location in a state other
				than Massachusetts only if it is reasonably foreseeable that Massachusetts
				buyers would regularly purchase at such out-of-state locations; however, a
				seller may compare its price for a product or a class of products to the
				price(s) offered by a competitor outside of Massachusetts for the same or
				similar products as long as the competitor is identified by location and name
				or by reputation in the advertisement, and the comparison complies with the
				provisions of
				940 CMR
				6.05(8) or
				(9).