Code of Massachusetts Regulations › 940 CMR - OFFICE OF THE ATTORNEY GENERAL › Title 940 CMR 6.00 - Retail Advertising › Section 6.04 - General Requirements

Current through Register 1525, July 5, 2024
(1)
Misleading Representations.
It is an unfair or deceptive act for a
			 seller to make any material representation of fact in an advertisement if the
			 seller knows or should know that the material representation is false or
			 misleading or has the tendency or capacity to be misleading, or if the seller
			 does not have sufficient information upon which a reasonable belief in the
			 truth of the material representation could be based.
(2)
Disclosure of Material
			 Representations
. It is an unfair or deceptive act for a seller to fail
			 to clearly and conspicuously disclose in any advertisement any material
			 representation, the omission of which would have the tendency or capacity to
			 mislead reasonable buyers or prospective buyers. For purposes of 940 CMR 6.00,
			 material representations which must be clearly and conspicuously disclosed
			 shall include but are not limited to the following:
(a) The fact that a mandatory fee in addition
			 to the advertised price will be charged for any service such as delivery,
			 handling, installation, or an initiation fee;
(b) The amount of any handling, service or
			 other additional fee for an admission ticket to an entertainment event charged
			 to any purchaser who purchases such ticket through a ticket service or similar
			 entity other than the box office for the facility holding such event when the
			 advertisement refers to the price of such ticket;
(c) The fact that the product advertised is
			 available for the advertised price only after the purchaser receives a rebate
			 from the manufacturer of the product. If the advertised price includes a
			 rebate, and either the rebate is in a form other than cash or check, then the
			 seller must disclose the form of the rebate clearly and conspicuously in
			 immediate proximity to the reference to the rebate and the advertised price;
			 and if the rebate is available only after certain conditions or limitations are
			 satisfied, then the seller must disclose all terms, conditions and limitations
			 of the rebate, either at the point it is promoted, or otherwise by asterisked
			 disclosure as described in
			 940 CMR 6.01,
			 Definitions, "Clear and Conspicuous" (b)(4);
(d) The fact that the product advertised is
			 used, rebuilt, remanufactured, reconditioned, imperfect, irregular or a second,
			 unless the context of the advertisement readily so indicates, such as an
			 advertisement for sales of used or consigned goods;
(e) In the case of hard goods, the fact that
			 a hard good advertised has been discontinued by the manufacturer, if the seller
			 knows:
1. that there is a significant risk
			 that the product will not have replacement parts and supplies essential to the
			 operation of the product available during its average useful life or for three
			 years after purchase, whichever is less; or
2. that the product has been discontinued and
			 either:
a. is the subject of a notice from the
			 manufacturer that the manufacturer will voluntarily add a safety improvement to
			 the product; or
b. lacks safety
			 improvements that the manufacturer either has agreed to make or has been
			 required to make by a regulatory agency; provided, however, that no product
			 subject to a recall pursuant to the Consumer Product Safety Improvement Act of
			 2008 or the Federal Hazardous Substances Act may be sold or distributed within
			 the Commonwealth after a recall notice has issued and the seller has had a
			 reasonable opportunity to comply, not to exceed three (3) calendar
			 days.
(f) In
			 the case of hard goods individually identified for sale in any advertisement,
			 the manufacturer's name or trade name, the seller's proprietary trademark, or
			 if a seller is prohibited by law or by contract from using the manufacturer's
			 name or trade name in an advertisement, the phrase "famous brand names" or any
			 similar phrase, and the model number of any hard goods, unless it is the only
			 model of the hard good currently being sold in the trade area or the item is
			 not customarily identified and distinguished by its model number, or it is
			 being offered for sale at a price under $50.
(g) The fact that the product advertised at a
			 stated price does not include parts, accessories or equipment customarily
			 included and necessary or usual to the proper functioning, appearance, or use
			 of such product.
(h) With respect
			 to tags, labels and in-store signs:
1. a tag
			 need only contain material representations regarding the price of an
			 item;
2. a label need only contain
			 material representations regarding the quality of an item;
3. an in-store sign need only contain
			 material representations regarding the price or quality of an item.