23.19.101 UNLAWFUL ACTS OR PRACTICES

(1) A person engages in unfair or deceptive and therefore unlawful acts or practices when, in the conduct of any trade or commerce, he:

(a) represents that merchandise is of a particular make or brand, when it is on another;

(b) makes a false representation as to the source, sponsorship, approval, or certification of merchandise;

(d) makes a false representation or designation of the geographic origin of merchandise;

(e) makes a false representation as to the characteristics, ingredients, uses, benefits, alterations or quantities of merchandise, or a false representation as to the sponsorship, approval, status, affiliation, or connection of a person therewith;

(f) represents that merchandise is original or new if he knows or should have known that it is reconditioned, reclaimed, used or secondhand;

(g) represents that merchandise is of a particular standard, style, or model, if it is of another;

(h) advertises merchandise with intent not to sell it as advertised;

(i) advertises merchandise with intent not to supply reasonably expectable public demand, unless the advertisement discloses a limitation of quantity;

(j) advertises under the guise of offering employment opportunities when in fact the purpose is to sell merchandise to the applicants;

(k) makes false and misleading statements of fact concerning the price of merchandise or the reason for existence of, or amounts of a price reduction;

(l) states that a transaction involves rights, remedies or obligations that it does not involve; or

(m) employs "bait and switch" advertising which is an alluring but insincere offer to sell a product of service which the advertiser in truth does not intend or want to sell. Its purpose is to switch consumers from buying the advertised merchandise, in order to sell something else, usually at a higher price or on a basis more advantageous to the advertiser. Said advertising is generally accompanied by one or more of the following practices:

(i) the refusal to show, demonstrate, or sell the product offered in accordance with the terms of the offer;

(ii) misleading disparagement in any respect of the advertised merchandise or the terms of sale;

(iii) requiring undisclosed tie-in sales or other undisclosed conditions to be met prior to selling the advertised merchandise;

(iv) refusal to take orders for the merchandise advertised or falsely claiming that said merchandise cannot be delivered at the same price within reasonable time;

(v) showing or demonstrating defective merchandise which the seller knows or should have known is unusable or impracticable for the purpose set forth in the advertisement;

(vi) accepting a deposit for the merchandise and subsequently charging the buyer for a higher priced item unless requested to do so by the buyer; or

(vii) failure without good cause to either make deliveries of the merchandise within a reasonable time or to make a refund therefore upon the request of the purchaser.

NOTE: Sales of the advertised merchandise do not preclude the existence of a bait and switch scheme. Even though the true facts are subsequently made known to the buyer, the law is violated if the first contact or interview is secured by deception.

(n) fails to disclose in all advertising or other promotional material, the legal name of the company and the complete street address from which the business is actually conducted;

(o) fails to disclose all of the conditions relating to "free" or similar offers. When making "free" or similar offers, all the terms, conditions and obligations upon which receipt and retention of the "free" items are contingent must be set forth clearly and conspicuously at the outset of the offer so as to leave no reasonable probability that the terms of the offer might be misunderstood.

NOTE: A more complete statement of this rule is found at 16 CFR 251.

(p) employs deceptive pricing practices. Said practices generally involve advertising for sale or selling merchandise at a "bargain" price and may be characterized by the following:

(i) offering merchandise at a reduction from the advertiser's own former price when in fact the former price is not the actual, bona fide price at which the article was offered to the public on regular basis for a reasonably substantial period of time;

(ii) offering goods at prices lower than those being charged by others for the same merchandise in the advertiser's trade area when, in fact, the higher price he advertises exceeds the price at which substantial sales of the article are being made in the area;

(iii) offering additional merchandise to be given to a customer on the condition that he purchase a particular article at the price usually offered by the advertiser where the seller, in making such an offer, increases his regular price of the article required to be bought, or decreases the quantity and quality of that article, or otherwise attached conditions (other than the basic condition that the article be purchased in order for the purchaser to be entitled to the "free" or "1 cent" additional merchandise) .

NOTE: The practices covered in this section on deceptive pricing set forth the most common forms of bargain advertising and sale. A more complete list is provided by 16 CFR 233.

(2) This rule lists only some of the acts or practices considered unlawful under 30-14-103 , MCA, and is not intended to be exhaustive of all possible violations thereunder. A more complete list of unfair or deceptive acts or practices in the conduct of any trade or business is provided by the interpretations of the Federal Trade Commission and the federal courts relating to section 5(a) (1) of the Federal Trade Commission Act (15 USC, 45(a) (1) ) as amended.

History: 30-14-104, MCA; IMP, 30-14-104, MCA; NEW, Eff. 1/5/74; AMD, Eff. 3/8/74; AMD, Eff. 8/5/76; TRANS, from Commerce, 2001 MAR p. 1176; TRANS, from Administration, 2006 MAR p. 322, Eff. 2/10/06.