A LOCAL LAW to amend the Nassau County administrative code, in relation to unfair trade practices
(Became a law on February 18, 1970 with the approval of the County Executive. Passed by the Board of Supervisors of the County of Nassau on February 16, 1970.)
BE IT ENACTED by the Board of Supervisors of the County of Nassau as follows:
Section 1. Title D of chapter twenty-one of the Nassau county administrative code is hereby amended by adding thereto a new section, to be section 21-10.2, to read as follows:
21-10.2 Unfair Trade practices prohibited:
Enforcement
1. Unfair trade practices prohibited. No person shall engage in any deceptive or unconscionable trade practice in the sale, lease, rental or loan, or in the offering for sale, lease, rental or loan, of any consumer goods or services, in the extension of consumer credit, or in the collection of consumer debts.
2. Definitions
a. "Person." An individual, merchant, partnership, firm or corporation.
b. "Deceptive trade practice." Any false, falsely disparaging, or misleading oral or written statement, visual description or other representation of any kind, which has the capacity, tendency or effect of deceiving or misleading consumers and is made in connection with the sale, lease, rental or loan of consumer goods or services; the offering for sale, lease, rental or loan of consumer goods or services; the extension of consumer credit; or the collection of consumer debts. Deceptive trade practices include but are not limited to:
(1) representations that:
(a) goods or services have sponsorship, approval, accessories, characteristics, ingredients, uses, benefits, or quantities that they do not have;
(b) the merchant has a sponsorship, approval, status, affiliation, or connection that he does not have;
(c) goods are original or new if they are deteriorated, altered, reconditioned, reclaimed, or second-hand;
(d) goods or services are of particular standard, quality, grade, style, or model, if they are of another.
(2) the use, in any oral or written representation, of exaggeration, innuendo or ambiguity as to a material fact;
(3) failure to state a material fact if such use or failure deceives or tends to deceive;
(4) disparaging the goods, services, or business of another by false or misleading representations of material facts;
(5) offering goods or services without intent to sell them;
(6) offering goods or services without intent to supply reasonably expectable public demand, unless the offer discloses the limitation;
(7) making false or misleading representations of fact concerning: the reason for, existence of, or amounts of price reductions; or the price in comparison to prices of competitors or one's own price at a past or future time;
(8) falsely stating that a consumer transaction involves consumer rights, remedies or obligations;
(9) falsely stating that services, replacements or repairs are needed; and
(10) falsely stating the reasons for offering or supplying goods or services at sale or discount prices.
(11) causing, permitting, allowing or approving the blockage, obstruction or concealment from the view of a purchaser or purchasers, the indicators of any machine, device or register used to itemize and/or total sales to such purchaser or purchasers, by any person engaged in any commercial business activity in which consumer goods and/or services are sold to the public. (Effective 10/1/73) (See Regulation 9)
(12) advertising a price for goods or services which price is a comparative price to the price of a specified merchant or to the prices of other specified merchants, unless such comparative price is a price at or below the price at which goods or services of identical or substantially the same kind or quality are or have been offered for sale by the specified merchant.
(13) advertising a former price unless goods or services of identical or substantially the same kind or quality have been sold in reasonable quantities for a price equal to or below the former price or openly and actively offered for sale to the public for a reasonable period of time in the regular course of business in good faith and not for the purpose of establishing a fictitious price comparison. "Former price" shall mean the price at which goods or services were previously sold in reasonable quantities or offered for sale to the public for a reasonable period of time.
c. "Unconscionable trade practice." Any act or practice is unconscionable if it takes unfair advantage of the lack of knowledge, ability, experience or capacity of a consumer which results in a gross disparity in the rights of a consumer as against the merchant or results in a gross disparity between the value received by a consumer and the price paid by the consumer.
d. "Consumer goods, services, credit and debts." Goods, services, credit and debts which are primarily for personal, household or family purposes.
e. "Consumer." A purchaser, lessee or recipients or prospective purchaser, lessee or recipient of consumer goods or services or consumer credit, including a co-obligor or surety.
f. "Merchant." A manufacturer, supplier, sellers, lessor, creditor or other person, firm or corporation who makes available to consumers, either directly or indirectly, goods, services, or credit.
g. "Commissioner." The commissioner of consumer affairs.
3. Regulations. The commissioner may, after a public hearing, adopt such rules and regulations as may be necessary to effectuate the purposes of this section, including regulations defining specific deceptive or unconscionable trade practices. At least seven days' prior notice of such public hearing shall be published in the official newspapers of the county. A copy of the rules and regulations adopted hereunder and any amendments thereto shall be filed in the office of the clerk of the board of supervisors.
4. Enforcement.
a. The violation of any provision of this section or of any rule or regulation promulgated hereunder shall render the violator liable for the payment to the county of a civil penalty, recoverable in a civil action, in the sum of not more than two thousand five hundred ($2,500) for the first violation, and in the sum of not less than one thousand dollars ($1,000) and not more than four thousand ($4,000) for the second violation, and in the sum of not less than two thousand five hundred ($2,500), and not more than five thousand ($5,000) for the third and subsequent violations, together with, in each instance, the costs of investigation incurred by the commissioner.
b. Whenever any person has engaged in any acts or practices which constitute repeated, persistent or multiple violations of any provision of this section or of any rule or regulation promulgated hereunder, the county attorney, upon the request of the commissioner of consumer affairs, may make application to the supreme court for a temporary or permanent injunction, restraining order, or other equitable relief.
5. Settlements. In lieu of instituting or continuing an action or proceeding, the commissioner may accept written assurance of discontinuance of any act or practice in violation of this section. Such assurance may include a stipulation for the payment by the violator of the costs of investigation, a fine, and/or a stipulation for the restitution by the violator to consumers of money, property or other things received from such consumers in connection with a violation of this section. Any civil penalty authorized by subdivision 4 of 21-10.2 may be waived or compromised by the commissioner or his designated representative.
b. An assurance entered into pursuant to this subdivision shall not be deemed to admit the violation unless it does so by its terms. Violation of an assurance entered into pursuant to this subdivision shall be treated as a violation of this section and shall be subject to all the penalties provided therefor.
6. Exclusions. Nothing in this section shall apply to any television or radio broadcasting station or to any publisher or printer of a newspaper, magazine, or other form of printed advertising, who broadcasts, publishes, or prints an advertisement which violates this section except insofar as such station or publisher or printer engages in a deceptive or unconscionable practice in the sale or offering for sale of its own goods or services.
7. Separability. If any provision of this section or the application of such provision to any person or circumstance shall be held unconstitutional or invalid, the constitutionality or validity of the remainder of this section and the applicability of such provision to other persons or circumstances shall not be affected thereby.
Section 2. This local law shall take effect March first nineteen hundred seventy, except that subdivision three of section 21-10.2 shall take effect immediately.
RULES AND REGULATIONS OF THE OFFICE OF CONSUMER AFFAIRS
ADOPTED PURSUANT TO THE PROVISIONS OF LOCAL LAW 2-1970
Notice is hereby given that pursuant to section 21-10.2 (3) of the Nassau County Administrative Code, the Commissioner of Consumer Affairs for the County of Nassau, subsequent to a hearing held on April 19, 1972, at Mineola in the County of Nassau has promulgated the following rules and regulations:
1. It shall be deemed a deceptive trade practice if any facts required to be disclosed in the extension of consumer credit by the Federal Consumer Protection Act or the Personal Property Law of the State of New York are not so disclosed.
2. It shall be deemed an unconscionable trade practice in the collection of a debt concerned with the sale or rental of a consumer good or service if:
a) An alleged creditor, his assignee, agent or employee contacts the alleged debtor's employer prior to obtaining final judgment.
b) Said alleged creditor, his assignee, agent or employee creates the notion of legal service or sanction of a governmental agency when contacting the alleged debtor.
c) Contact with the alleged debtor by an alleged creditor, his assignee, agent or employee is attempted at hours of the day or night considered not to be reasonable. For purposes of this regulation, attempted contact of an alleged debtor shall not be made after 11:00 p.m. nor before 6:00 a.m.
d) When any default judgement has been entered against an alleged judgement debtor, by an alleged judgement creditor, such alleged judgement creditor, his assignee, agent or employee contacts or communicates with the alleged judgement debtor's employer except thru such supplementary proceedings as are provided by New York State Law.
3. It shall be deemed an unconscionable trade practice for any person, firm, partnership or corporation who engages in the rental or lease of powered or mechanical equipment to fail to warn the customer in writing of the potential danger resulting from the careless use of the equipment or lack of knowledge as to how such equipment is operated. Said person, firm, partnership or corporation must also at the time of the rental or lease, instruct the customer as to the operation of the subject equipment.
4. "It shall be deemed an unconscionable and deceptive trade practice for any person, firm, partnership or corporation to violate any provisions of the Rules and Regulations of the Agriculture and Markets Law of the State of New York as set forth in 1 NYC RR Part 260 or Part 262." (Effective 5/8/78)
5. It shall be deemed a deceptive trade practice to use the word "free" except as herein provided:
a) When making "free" or similar offers, all substantial terms, conditions and obligations upon which the right to take advantage of such offer is directly dependent shall appear in close conjunction with offer of "free" merchandise or service. For the purposes of this regulation, placement of the terms of an offer set forth in a footnote of an advertisement to which reference is made by an asterisk or other symbol placed next to the offer is not in "close conjunction".
b) If a consumer good or service is to be given free upon the purchase of some additional merchandise or service said additional service or merchandise must not be sold at above the regular price nor may the quantity or quality of the product be diminished.
c) A "free" offer of a single size of a product or a single kind of a service shall not be advertised by the same person in a trade area for more than six (6) months in any twelve (12) month period. At least thirty (30) days shall elapse before another such offer is promoted in the same trade area. No more than three (3) such offers should be made in the same area in any twelve (12) month period.
d) No "free" offer shall be made in connection with the introduction of a new product or service offered for sale at a specified price unless offerer expects, in good faith, to discontinue the offer after a limited time and to commence selling the product or service promoted, separately, at the same price at which it was promoted with a "free" offer.
e) Where the common business practice is to negotiate an individual sale said regulations do not apply.
f) The use of any term in any advertisement which imparts or tends to impart the interpretation of "free" shall fall within the purview of these regulations.
For the purpose of this regulation the following definitions shall apply:
1) Free - "free" shall mean that a consumer shall pay nothing for an article so offered and no more than the regular price for any other article which must be purchased by the consumer in order to avail himself of said "free" offer.
2) Regular Price - The term regular price shall mean the price in the same quantity, quality and with the same service, at which the seller or advertiser of said product or service has openly and actively sold the product or service in the trade are in which he is making a "free or similar" offer for a prior period of thirty (30) days. For consumer products or services which fluctuate in price, the regular price shall be the lowest price at which any substantial sales were made during the aforesaid 30-day period.
6. It shall be deemed a deceptive trade practice to advertise price except as follows:
a) When price is advertised in dollar amounts and fractions thereof, said numbers indicating the fractional amounts must be clear and conspicuous in the body of such advertisement.
b) The price advertised must be clearly and conspicuously related to a specific consumer good or service.
c) If at any time there are substantial conditions or obligations upon which the right to take advantage of a sale item is dependent, such conditions or obligations must be made known in the body of the advertisement of such sale. As used in this section, the phrase "conditions or obligations" shall mean such conditions and obligations upon which receipt and retention of an item are directly dependent.
For purposes of this section conditions such as length of sale, locations of sale, limitation of supply, credit restrictions and shipping and handling charges shall be deemed to be conditions which must be made known. Such terms as "Sorry no mail or phone," "No C.O.D.'s," and the like, are not to be considered substantial conditions or obligations.
7. "It shall be deemed an unconscionable and deceptive trade practice for any person, firm, partnership or corporation to violate any provisions of Sec. 328-a or Sec. 391-a of the General Business Law of the State of New York." (Effective 5/8/78).
8. It is a deceptive trade practice in the sale or lease, or offering for sale or lease, of consumer goods and services of any person (including any business entity) engaged in the delivery, pick-up, inspection or repair of consumer goods in the home to fail to keep an appointment to perform such services on the day agreed upon with the consumer unless the consumer received written or verbal notice of delay or cancellation before the end of the preceding business day.
Where unexpected circumstances, such as mechanical breakdown, preclude notification by the end of the preceding business day no violation shall occur if actual notice is given to the consumer as soon as practicably possible.
Extenuating circumstances which shall excuse the failure to perform without notice shall be limited to cases in which a consumer has requested same-day emergency service, or in which the consumer is responsible for the cancellation or delay, or strikes or natural disasters.
As used in this regulation, inspection of consumer goods includes but is not limited to examination of goods for future repair, exchange or refund.
The provisions of this regulation shall not be construed to supersede any existing rule, regulation or guideline promulgated by the Office of Consumer Affairs.
Nothing in this regulation shall be construed to waive any right that a consumer has under the common law or by statute.
9. "It shall not be deemed a violation of Sub-paragraph Eleven of paragraph b of Subdivision two of Section 21-10.2 of the Nassau County Administrative Code as amended October 1, 1973, in those instances where the vendor gives to the purchaser or purchasers at time of the transaction utilizing such machine, device or register, an itemized sales slip designating in words each item purchased and the cost thereof, plus taxes and the total cost for all items purchased." (Effective 5/8/78).
10. Deceptive Representations Concerning Furniture Delivery.
10.1 Definition: For purposes of this Regulation the term "furniture" shall include articles which are intended for use as furniture in a house, apartment,
or other dwelling place. Such articles include various kinds and types of chairs, tables, cabinets, desks, sofas, carpets, rugs, bedsteads and chests, but shall not include furniture which is in substantial part custom-made, custom finished, or special ordered.
10.2 It is a deceptive practice in the sale or lease or the offering for sale or lease of consumer goods for any person (including any business entity) which sells or leases furniture (hereinafter referred to as "the seller")
a) to fail to disclose an estimated delivery date, or an estimated range of delivery dates, conspicuously in writing on the contract for the sale of furniture at the time the order is taken; and
b) to fail to deliver the furniture by the latest date promised or stated for delivery, except in conformity with this Regulation.
For the purpose of this Regulation the term "as soon as possible" will not be permitted.
10.3 a) The seller must deliver the furniture no later then the last date for delivery disclosed on the contract, unless the customer is notified in writing, or by verbal communication supplemented within one day by a writing, of the day and the anticipated delivery date or range of delivery dates.
b) If the furniture has not been delivered within 30 days of the originally promised date, the seller must, at the option of the customer:
(i) cancel the contract with full refund;
(ii) cancel the contract and give the customer a credit;
(iii) negotiate a new delivery date with the customer;
(iv) allow the customer to make a new selection of furniture.
c) The customer shall be notified in writing of these options prior to the expiration of this 30 day period.
d) When a customer requests a refund pursuant to the provisions of this Regulation, the refund must be made within two weeks of the request.
e)(i) When a partial delivery has been made, subsection 10.3 applies only to the undelivered portion of a furniture order.
(ii) Where a delay in delivery beyond the originally promised date is cause by a strike, the delivery date can be extended by an amount of time equal to the delay caused by the strike.
10.4 Exemption. There is no violation of section 10.3 when the failure to deliver is cause solely by the customer or cause by circumstances which prevent the seller from giving timely notice to the customer.
10.5 Nothing in this regulation shall be construed to waive any right that a customer has under the common law or by status. (effective 3/1/80)
11. "It shall be deemed an unconscionable and deceptive trade practice for any person, firm, partnership or corporation to violate any provisions of Sections 190a and 190b of the Agriculture and Markets Law of the State of New York."
These sections apply to "home food service plans and sale of meat in bulk." (Effective 3/19/94)
12. "It shall be deemed an unconscionable and deceptive trade practice for any person, firm, partnership or corporation to violate any provisions of the New York State General Business Law, Article 12-B Section 218a - Disclosure of refund policies." (Effective 4/11/84)
13. It shall be deemed a deceptive trade practice in the sale or lease, or offering for sale or lease, of any consumer goods or services to fail to comply with the following:
13.1 Duration of Sale. Once a specific discount, sale, reduction or savings claim is made for an article or service, such claim may not be made for more than 30 days within any 90 day period.
13.2 Sales. An advertiser may not use the word "sale", "discount", "savings", "price cut", "bargain", "reduced", or other similar terms which imply a saving from a former price, unless the price currently offered is substantially less that the former, actual bona fide price at which the same item or service was actually offered to the public during at least the 14 days immediately preceding the date on which a price comparison claim relating to that price is made.
13.3 Lowest Priced Guaranteed Claims. An advertiser may not use the terms "lowest prices", "guaranteed lowest prices", "prices lower than anyone else" or similar terms, when generally referring to all prices or the prices of specific items, unless the retailer has systematically monitored and continues to monitor in the Nassau County metropolitan trading area competitive prices on every such item to which the claim refers and can substantiate such claims.
13.4 Price Matching or Price Beating Claims. An advertiser may not use terms such as "we will meet your best price" or "we won't be undersold" or similar terms which imply that the advertiser will beat or match a competitor's price unless:
(a) The advertiser clearly and conspicuously discloses its price matching policy and any limitations; and
(b) Such policy does not require the taking of any action which places an unreasonable burden on consumers.
13.5 Adequacy of Disclosures. All disclosures shall be made clearly and conspicuously in print that is easily readable. The use of color contrasts which make the text difficult to read (such as grey print on a grey background) would constitute a violation of this regulation. The use of print that is too small to be easily readable would constitute a violation of this regulation.
(Effective 1/22/97)
Enforcement action by the Office of Consumer Affairs in the area of advertising is based primarily on the Nassau County Administration Code Unfair Trade Practices Law. These statutes, however, do not specifically enumerate proscribed advertising practices; they contain general prohibitions against false, deceptive, or bait and switch advertising. These regulations are intended to clarify that certain dealer advertising will be considered in violation of these consumer protection laws and may lead to enforcement action.
These regulations are intended to serve both the public and the dealers. The public is provided with a reliable basis for comparison between competing dealers and protected from deceptive advertising, while the dealer is provided a fair, competitive marketplace in which they may advertise their stock.
SECTION I. STATEMENT OF PRINCIPLES
All automobile advertising by dealers, whether printed or broadcast, should be in plain language, clear and conspicuous and non-deceptive. Deception may result from direct statements in the advertisement or from reasonable inferences that may be drawn from an ad, or from disclaimers that contradict, confuse, unreasonably limit or materially modify a principle message of the advertisement. Deception may also result from the failure to clearly and conspicuously disclose any material facts, including limitations, disclaimers, qualifications, conditions, exclusions or restrictions.
Any advertisement for new or used automobiles – including passenger cars, utility vehicles, and light trucks – for sale or lease in Nassau County must comply with Nassau County Administrative Code § 21-10.2, which defines and prohibits unfair trade practices.
SECTION II. DEFINITIONS
For purposes of these regulations, the term "dealer" includes all those in the business of selling or leasing automobiles who hold themselves out as dealers or have sold, leased or negotiated or brokered the sale or lease of more than five automobiles in the preceding twelve months, including, but not limited to, banks, retail auto auctioneers, leasing companies, and auto brokers, but excluding state or local governmental entities.
The terms "clear and conspicuous" or "clearly and conspicuously" mean that the statement, representation or term is so presented as to be readily apparent and understood by the person to whom it is being addressed. Factors to be considered for this purpose include, but are not limited to, size, color contrast, length and crawl time.
SECTION III. DECEPTIVE ADVERTISING PRACTICES
The following are advertising practices which the Commissioner of Consumer Affairs considers to be deceptive:
A. General Advertising Practices
1. With regard to the disclosure of material facts, terms, limitations, conditions, restrictions, or exclusions, the clear disclosure of such information in immediate proximity to each offer to which such facts, terms, limitations, conditions, restrictions, or exclusions apply shall be deemed conspicuous disclosure.
2. Footnotes and Asterisks
Use of one or more footnotes or asterisks which, alone or in combination, contradict, confuse, materially modify or unreasonably limit a principal message of the ad.
3. Print Size
Use of any print in type size so small as to not be easily readable. For the purposes of these regulations, any type size 10-point type or larger in advertising is deemed easily readable.
4. Color Contrasts
Use of color contrasts which render the text difficult to read. For example, grey print on a grey background without sufficient contrast to make it easily readable would violate this section.
1. Photos and Illustrations
Use of inaccurate photos or illustrations when describing specific automobiles. For example, depicting a fully-loaded car when the advertisement actually refers to a minimally-equipped automobile in the text would violate this section.
2. Abbreviations
Use of any unexplained abbreviation or jargon which is confusing, misleading or not readily understood by the general public. For example, use of "C.R." without further explanation for "Capitalized Cost Reduction" (a mandatory and usually substantial initial payment in a lease transaction), would violate this section.
B. Price Advertising
1. Advertised Selling Price
a) Use of any price figure in an advertisement, unless such figure represents the actual purchase price of the advertised automobile, exclusive of registration and title fees and taxes.
b) Failure to include a statement, prominently placed, that the price includes everything except registration and title fees and taxes.
c) Failure to include a statement, where an advertised automobile is not in stock, that the automobile is not in stock.
d) Failure to include a statement indicating the number of vehicles in stock at the advertised selling price, if the number is not likely to meet reasonable anticipated demand.
e) Failure to disclose the major options affecting the value of the car that are included in the advertised price. For example, air-conditioning, power windows, cruise control and AM/FM stereo.
f) The dollar amount of any "balloon payment" shall be clearly and conspicuously disclosed in the dealer's advertising in immediate proximity to the offer to which it applies.
e) The advertised price should be the true and actual price of the car, not subject to conditions such as having excellent credit or contingent upon financing through the dealer.
2. Selling Above Advertised Price
Selling an automobile for more than the advertised price, if such price has not been communicated to the purchaser, unless the ad specifically conditions the obtaining of the automobile at the advertised price upon the presentation or mention of the ad.
3. "Low Prices"
Use of the term "low prices", or similar words, unless the prices offered are lower than those usually offered by the dealer or other dealers in the same business area.
4. "Lowest Prices", "Guaranteed Lowest Prices"
Use of the term "lowest prices", "guaranteed lowest prices", "prices lower than anyone else", or similar terms, unless the dealer has systematically monitored and continues to monitor competitive prices in the trade area and can substantiate such claim.
5. Price Matching
Use of the terms "meet your best offer" or "we won't be undersold", or similar terms which suggest that a dealer will meet or beat or match a competitor's price, unless (a) the dealer clearly and conspicuously discloses its price matching policy and any limitations and (b) such policy does not require the presentation of any evidence which places an unreasonable burden on the consumer. For example, a dealer's policy which requires a signed sales order from another dealer would violate this section.
6. Disclosure of Basis for Price Comparison
a) Use of any advertising which compares the dealer's selling price with a higher price, unless the basis for the higher price comparison is disclosed. For example, "Save $1000" or "25% off" would violate this section.
b) Use of any advertising which compares the dealer's current selling price with a "list price", or other term, unless such price list is the manufacturer's suggested retail price ("MSRP"), is identified as such and the MSRP figure is included in the ad. (The MSRP figure is as stated on the Monroney sticker where such a sticker is required.) For example, "$1000 Off List" price would violate this section.
7. "Sales"
Use of the words "sale", "discount", "savings", "price cut", "bargain", "reduced", "clearance", "tent sale", and other similar terms, which state or imply a savings from a former price, if the price currently offered is not substantially less than the former actual, bona fide price at which the dealer has sold or offered for sale the same or similar automobiles in the recent regular course of business for a reasonable period of time.
8. "Liquidation Sale"
Use of the terms "Liquidation Sale", "Public Notice", "Public Sale", or similar terms used to connote or imply a court-ordered or other forced liquidation of assets, unless such is the case.
9. "Dealer Cost"
Use of terms which compare the price of an automobile to the dealer's purported cost, (such as "inventory price", "factory invoice", " wholesale", "dealer's cost", or similar terms), unless such term represents the dealer's ultimate total vehicle cost. Such ultimate total vehicle cost must reflect all hold backs, incentives, rebates, allowances, promotional fees, or any other consideration that has been or will be paid or credited by the manufacturer to the dealer for the purchase of the automobile.
10. Rebates
Use of any cash rebate offer, unless the rebate is provided through a manufacturer's rebate program; and, if the dealer offers a rebate through a manufacturer's rebate program, failure to include a statement, if such is the case, disclosing the amount or the percentage of the rebate that the dealer is paying and that such participation may increase the price of the car accordingly. It is considered false advertising to represent an item's price after the reduction of a rebate as the dealer's price where the rebates do not apply to all buyers (restricted rebates limited to certain classes of buyers, such as military personnel or college graduate, etc.) unless the item's actual (pre-rebate) selling price is disclosed as well. Financing cannot be a condition of rebate eligibility.
The advertised price cannot include restricted rebates, but must be the price before rebates. Rebates must be clearly identified and listed adjacent to the actual price of the car. For these purposes, the terms "cash back from manufacturer, loyalty programs, manufacturer's discounts" or similar terms shall be considered rebates.
11. Duration of Sale
Failure to disclose the duration of a time-limited offer, including manufacturer's rebate, sale or special promotion.
12. Trade-Ins
a) Use of any advertising offering a specific trade-in allowance (i.e. "Push it, pull it, tow it. $2000 minimum trade-in") if (i) the price of the automobile offered for sale is increased because of the amount of the allowance; or (ii) the offer fails to disclose that it is conditioned upon the purchase of additional options or services, if such is the case. For example, "Extended service contract must be purchased" would be acceptable.
b) Use of any advertising offering a range of prices, for trade-ins (for example, "up to $500" or "as much as $500"), unless the advertisement discloses the criteria which the dealer will use to determine the amount to be paid for a particular trade-in, such as age, condition or mileage.
13. Delivery or Destination Fee
It is considered deceptive to charge or advertise a delivery or destination fee for a car when such fee is already included in the MSRP. The advertised price should represent the actual purchase price, exclusive of registration, title fees and taxes only.
C. Other Advertising Practices
1. Dealer Size
Use of statements as to dealer size, dealer inventory, or sales volume to represent or imply that the dealer can and does sell automobiles at a lower price, as a result of such size, inventory or volume, than do other dealers, unless such is the fact.
2. "Factory Outlet"
Use of the term "Factory outlet", "Authorized Distribution Center", "Factory Authorized Sale", or similar terms to imply that the dealer has a special affiliation, connection or relationship with the manufacturer that is greater or more direct than that of any other dealer, when in fact no such special affiliation, connection or relationship exists.
3. "No Money Down"
Use of the phrase "No Money Down" where a dealer fails to disclose that any charges, such as taxes or registration and title fees, must be paid by the consumer to the dealer at the time that the contract is signed.
4. Gifts and "Free" Merchandise
(a) Use of the term"free" in advertising, unless the advertiser shall comply with the Federal Trade Commission's Guide Concerning Use of the Word "Free" and similar Representations, 16 CFR 251, and any amendments thereto. For example:
i) Use of the term "free" or words which convey a similar meaning, including but not limited to "without charge", "giveaway", "gift", "bonus", "complimentary" or "on us", when conditioned upon a purchase or lease, (a) if the price for the product or service to be purchased or leased, or any material factor of the product or service such a quantity, quality or size, is arrived at through bargaining with the purchaser or lessee; or (b) if the price of the item to be purchased or leased is increased over its regular price; or (c) if the item to be purchased or leased can be purchased or leased for a lesser price without the "free" item; or (d) if the quality of the item to be purchased or leased is reduced when sold with the "free" item.
(ii) Use of any advertising (not prohibited by paragraph (i) above) which promises "free" equipment, accessories or other merchandise or service or offers a gift or other incentive, unless all terms and conditions for receiving such "free" items, gifts or incentives are fully disclosed in the advertisement.
(b) Failure of the dealer to provide the gift or incentive under the terms and conditions disclosed, even if the gift or incentive is to be provided by a third party.
5. Advertising of Repurchased Vehicles
A. Use of any term to describe vehicles that were repurchased by a manufacturer or dealer under a repurchase program for vehicles previously used as rentals, which fails to clearly and conspicuously disclose such prior use. For example, the terms "Program Cars' or "Almost New Cars", when used to describe repurchased rentals, without further disclosure, would violate this section.
B. Use of the term "Certified" in connection with the sale or lease of used cars, unless the manufacturer has an established inspection program for pre-owned vehicles backed by the manufacturer's warranty and the vehicle to which such term is applied has passed such an inspection according to the manufacturer's standard.
D. Warranty Advertising For Used Cars
Use of any claims stating or implying that a used car warranty offers coverage beyond that covered by New York Used Lemon Car Law, unless a summary of the essential terms and conditions of the additional protection is provided. For example, "100% warranty" would violate this section.
E. Advertising Related to Specific Used, Executive or Demonstrator Automobiles
Failure to disclose the following in any advertising relating to a specific used, executive or demonstrator cars:
1. The year, make or model.
2. The actual odometer reading as of the date of placing the advertisement, unless the dealer knows or has reason to know that the odometer reading is inaccurate.
3. The prior use of the automobile, if such automobile was previously used as a police, fire, taxi, driver education, or rental automobile when such prior use is known or should have been known to the dealer.
4. The fact that the automobile was repurchased under the new or used car lemon law, if such is the case, where such repurchase is known or should have been known to the dealer.
5. All major options affecting the value of the car that are in the advertised price. For example, air conditioning, power windows, cruise control and AM/FM stereo.
SECTION IV. BAIT AND SWITCH ADVERTISING
Bait & switch advertising is unlawful (Nassau County Administrative Code § 21-10.2). Bait and switch advertising offers deals which are alluring but insincere. The dealer does not intend to sell at the price or under the conditions which are being advertised. Instead, the purpose is to switch consumers from buying the advertised vehicle to buying one at a higher price or on a basis more advantageous to the dealer. The following practices will be considered in determining whether the advertising is a "bait" ad.
1. Refusal to show, display, offer for sale, or sell the automobile advertised in accordance with the terms of the advertisement.
2. The disparagement of the advertised automobile, its service record, reliability, warranty, credit terms, delivery terms, options, availability of service, repairs or parts, or of any other material fact regarding the advertised automobile. "Disparagement", however, shall not include providing accurate factual information with respect to differences between the advertised automobile and other automobiles, in response to a consumer's questions.
3. The refusal to take orders for an advertised automobile at the advertised selling price (unless a specific advertised automobile was previously sold pursuant to the ad) or the taking of orders for the advertised automobile at a price greater than the advertised selling price.
4. The failure to promptly submit orders received from consumers to the supplier for the advertised automobile.
5. The advertising of any automobile which is known to have an undisclosed defect or condition that substantially impairs the value of the automobile to a consumer.
6. Accepting a deposit on an advertised automobile, and, thereafter, selling the customer a substitute higher-priced automobile, except if the customer has been given the choice to purchase the higher-priced automobile or the advertised automobile and had acknowledged such choice in writing to purchase the higher-priced automobile.
7. The failure to make delivery of the advertised automobile at the advertised price within the promised delivery period, unless such failure is caused by reasons beyond the control of the dealer.
8. Taking action which is designed to or has the effect of preventing or discouraging salespersons from selling the advertised automobile. For example, the payment of a bonus or another financial incentive to the salesperson for the sale of autos other than the advertised auto at the advertised price.
9. Advertising an automobile which the dealer has no reasonable basis for believing he can obtain from the supplier or other source at the advertised price.
10. Failure to disclose the limited number of automobiles available where that number likely will not meet reasonably anticipated demand.
SECTION V. CREDIT SALES ADVERTISING
In credit sales advertising, the Commissioner of Consumer Affairs considers the following practices to be deceptive:
Advertisements that state the following or similar phrases:
(a) The amount or percentage of any down payment (such as "5% down" or "$100 down");
(b) The number of payments or period of repayment (such as "36 monthly payments");
(c) The amount of any payment (such as "$100 monthly");
(d) The amount of any finance charge;
then the following terms must also be set forth:
(i.) The amount or percentage of any downpayment;
(ii.) The terms of repayment;
(iii.) The annual percentage rate, or A.P.R. (And if the A.P.R. may be increased after the contract is signed, the fact must also be disclosed).
2. Advertising credit terms which are not actually available.
3. Using terms such as "everybody financed", "no credit rejected", "we finance everyone", or "bad credit, no problem" or words which imply that credit is available to all applicants, unless a summary of the essential terms and conditions for such financing is disclosed.
4. The restriction of a rate or price to a "qualified buyer" or "qualified lessee", or similar words, unless such qualifications are conspicuously disclosed.
5. Advertising a finance rate (A.P.R.) without disclosing, if such is the fact, that such rate is limited to certain models; that the price may be increased by a dealer's contribution to lower the rate; that to take advantage of such reduced rate, a customer must purchase additional options or services; or that taking advantage of the rate will increase the final price of the vehicle or options or services purchased; or that the offer expires after a limited time period; or any other condition, qualification or limitation which materially affects the availability of such rate; or to advertise a monthly rate which includes the low interest rate which is not available to the general public.
6. The use or statement of an installation payment on any basis other than a monthly basis.
7. The use of terms such as "no money down" or "low monthly payments" or similar terms when the credit terms are conditioned on an undisclosed trade-in allowance or higher A.P.R.
8. Whenever financing terms are offered in advertisements distributed to the general population, dealers shall not require unreasonably high credit scores, such as 750 or higher, as a condition of qualifying for such financing, unless such requirement is prominently and boldly placed at the head of the advertisement. Credit scores of 750 or higher may be used as a requirement without prominent placement in direct-mail solicitations to pre-approved consumers whose credit worthiness is already known to the dealer.
9. Whenever the dealer offers financing terms in lieu of any rebate or other discount, that choice shall be clearly and conspicuously disclosed by the dealer.
SECTION VI. LEASE ADVERTISING
The regulations described in Sections III, IV, and V apply equally to lease advertising. In addition, in lease advertising, the Commissioner of Consumer Affairs considers the following practices to be deceptive:
1. The failure to comply with the applicable provisions of the Truth-In-Lending Act, 15 U.S.C. §1601 et seq., the Truth-In-Leasing Act, 15 U.S.C. §1667 et seq., and Regulations Z and M (12 CFR §213 et seq.), as amended, to the extent that each applies to lease advertising.
For example, an advertisement for a leased vehicle that states "$0 Down Payment" must disclose with equal prominence all accounts due at the inception of the lease. Such disclosure may read, for example, "$1,500 (security deposit plus first month's payment) plus taxes, title and registration fees, due at lease signing."
2. The representation that the advertised offer is extended to business and professional use only, unless such is the case.
3. The failure to state the rate of any excess mileage charge and the mileage above which that charge must be paid.
4. The failure to disclose to any lessee its responsibility for maintenance and repair.
5. The misrepresentation of the lessee's liability in the event of early termination of the lease. For example, misstating the penalty for early termination.
6. The use or statement of any lease payment on a basis other than a monthly basis.
Notice is hereby given that pursuant to section 21-10.2 (3) of the Nassau County Administrative Code, the Commissioner of Consumer Affairs for the County of Nassau, subsequent to a hearing held on XXXXXXXXXX, 2004, at Mineola in the County of Nassau has promulgated the following rules and regulations:
