2006 Utah Code - 13-11a-3 — Deceptive trade practices enumerated -- Records to be kept -- Defenses.

     13-11a-3.   Deceptive trade practices enumerated -- Records to be kept -- Defenses.
     (1) Deceptive trade practices occur when, in the course of his business, vocation, or occupation:
     (a) A person passes off goods or services as those of another.
     (b) A person causes likelihood of confusion or of misunderstanding as to the source, sponsorship, approval, or certification of goods or services.
     (c) A person causes likelihood of confusion or of misunderstanding as to affiliation, connection, association with, or certification by another.
     (d) A person uses deceptive representations or designations of geographic origin in connection with goods or services.
     (e) A person represents that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, or qualities that they do not have or that a person has a sponsorship, approval, status, affiliation, or connection that he does not have.
     (f) A person represents that goods are original or new if they are deteriorated, altered, reconditioned, reclaimed, used, or second-hand.
     (g) A person represents that goods or services are of a particular standard, quality, or grade, or that goods are of a particular style or model, if they are of another.
     (h) A person disparages the goods, services, or business of another by false or misleading representation of fact.
     (i) A person advertises goods or services or the price of goods and services with intent not to sell them as advertised. If specific advertised prices will be in effect for less than one week from the advertisement date, the advertisement must clearly and conspicuously disclose the specific time period during which the prices will be in effect.
     (j) A person advertises goods or services with intent not to supply a reasonable expectable public demand, unless:
     (i) the advertisement clearly and conspicuously discloses a limitation of quantity; or
     (ii) the person issues rainchecks for the advertised goods or services.
     (k) A person makes false or misleading statements of fact concerning the reasons for, existence of, or amounts of price reductions.
     (l) A person makes a comparison between his own sale or discount price and a competitor's nondiscounted price without clearly and conspicuously disclosing that fact.
     (m) A person, without clearly and conspicuously disclosing the date of the price assessment makes a price comparison with the goods of another based upon a price assessment performed more than seven days prior to the date of the advertisement or uses in an advertisement the results of a price assessment performed more than seven days prior to the date of the advertisement without disclosing, in a print ad, the date of the price assessment, or in a radio or television ad, the time frame of the price assessment.
     (n) A person advertises or uses in a price assessment or comparison a price that is not his own unless this fact is:
     (i) clearly and conspicuously disclosed; and
     (ii) the representation of the price is accurate. With respect to the price of a competitor, the price must be one at which the competitor offered the goods or services for sale in the product area at the time of the price assessment, and must not be an isolated price.
     (o) A person represents as independent an audit, accounting, price assessment, or comparison of prices of goods or services, when such audit, accounting, price assessment, or

comparison is not independent. Such audit, accounting, price assessment, or comparison shall be independent if the price assessor randomly selects the goods to be compared, and the time and place of such comparison, and no agreement or understanding exists between the supplier and the price assessor that could cause the results of the assessment to be fraudulent or deceptive. The independence of such audit, accounting, or price comparison is not invalidated merely because the advertiser pays a fee therefor, but is invalidated if the audit, accounting, or price comparison is done by a full or part time employee of the advertiser.
     (p) A person represents, in an advertisement of a reduction from the supplier's own prices, that the reduction is from a regular price, when the former price is not a regular price as defined in Subsection 13-11a-2 (12).
     (q) A person advertises a price comparison or the result of a price assessment or comparison that uses, in any way, an identified competitor's price without clearly and conspicuously disclosing the identity of the price assessor and any relationship between the price assessor and the supplier. Examples of disclosure complying with this section are: "Price assessment performed by Store Z"; "Price assessment performed by a certified public accounting firm"; "Price assessment performed by employee of Store Y."
     (r) A person makes a price comparison between a category of the supplier's goods and the same category of the goods of another, without randomly selecting the individual goods or services upon whose prices the comparison is based. For the purposes of this subsection, goods or services are randomly selected when the supplier has no advance knowledge of what goods and services will be surveyed by the price assessor, and when the supplier certifies its lack of advance knowledge by an affidavit to be retained in the supplier's records for one year.
     (s) A person makes a comparison between similar but nonidentical goods or services unless the nonidentical goods or services are of essentially similar quality to the advertised goods or services or the dissimilar aspects are clearly and conspicuously disclosed in the advertisements. It is prima facie evidence of compliance with this subsection if:
     (i) the goods compared are substantially the same size; and
     (ii) the goods compared are of substantially the same quality, which may include similar models of competing brands of goods, or goods made of substantially the same materials and made with substantially the same workmanship.     It is prima facie evidence of a deceptive comparison under this section when the prices of brand name goods and generic goods are compared.
     (t) A person engages in any other conduct which similarly creates a likelihood of confusion or of misunderstanding.
     (2) Any supplier who makes a comparison with a competitor's price in advertising shall maintain for a period of one year records that disclose the factual basis for such price comparisons and from which the validity of such claim can be established.
     (3) It shall be a defense to any claim of false or deceptive price representations under this chapter that a person:
     (a) has no knowledge that the represented price is not genuine; and
     (b) has made reasonable efforts to determine whether the represented price is genuine.
     (4) Subsections (1) (m) and (q) do not apply to price comparisons made in catalogs in which a supplier compares the price of a single item of its goods or services with those of another.
     (5) In order to prevail in an action under this chapter, a complainant need not prove

competition between the parties or actual confusion or misunderstanding.
     (6) This chapter does not affect unfair trade practices otherwise actionable at common law or under other statutes of this state.

Enacted by Chapter 205, 1989 General Session