Pub. 19 2020-2021 Issue 4

N E W J E R S E Y C O A L I T I O N O F A U T O M O T I V E R E T A I L E R S 21 new jersey auto retailer W W W . N J C A R . O R G must offer a toll-free number from 9 a.m. to 9 p.m., Mon- day through Saturday, to answer customer questions? How about that audible ads ( radio, TV, internet video, podcast ) must meet certain decibel levels and speed requirements? You can’t blast out your offers and speed whisper your terms and conditions. ( See N.J.A.C. 13:45A-26A.5 and A.6 ). 6. The Thirteen Dirty Words. George Carlin once famously spoke about the seven words you cannot say on television. Here are the 13 words and phrases you should avoid using in advertising: a. Authorized Sale b. Authorized Distribution Center c. Factory Outlet d. Factory-Authorized Sale e. Lowest Prices f. Lower Prices Than Anyone Else g. Lowest Prices of the Year h. We Will Beat Your Best Deal i. Dealer Cost j. Factory Invoice k. Floor Plan Balance l. Wholesale m. At No Profit ( See N.J.A.C. 13:45A-26A.7 ). 7. Make on-site disclosures and keep good records . Are you aware that the MVPA requires posting any advertise- ment that quotes a price for the sale or lease of a vehicle at the main entrance to the dealership where the vehicle is displayed, in proximity to where the vehicle is otherwise displayed, or actually on the vehicle itself? Alternatively, the dealership can attach a tag to the vehicle stating the ad- vertised price and the applicable mandatory disclosures re- quired by the MVPA. New vehicles shouldn’t be advertised without the Monroney label attached, and used vehicles shouldn’t be advertised without a properly displayed Used Car Buyer’s Guide. Advertised vehicles for sale or lease must be on the premises and available during the publica- tion period. If sold during that period, records of the sale must be maintained, including a copy of the advertisement and any executed customer contract. All documentation must be kept for 180 days after the sale and made avail- able for inspection by the Division of Consumer Affairs. Customers inquiring by telephone or in person about any advertised vehicle during the publication period must be informed if the vehicle was sold or leased. ( See N.J.A.C. 13:45A-26A.9 and N.J.A.C. 13:45A-26A.10 ). 8. Disclose your credit terms and conditions. When it comes to the advertising of financed deals, the MVPA identifies unique disclosures required and unlawful practices that are prohibited. The total cost of the installment sale, the annual percentage rate, the monthly payment and number of pay- ments, and the amount of any down payment or trade-in must appear adjacent to the advertised vehicle description. There are also specific requirements when using footnotes. Utilizing credit terms like easy credit or one-day credit is unlawful if not regularly offered in the normal course of business. The use or statement of an installment payment on anything other than a monthly basis is also illegal. ( See N.J.A.C. 13:45A-26A.8 ). Scrutinizing credit and installment sale advertising is a central focus of the FTC. 9. Avoid the FTC. It’s not just state law you have to worry about, but federal law too. The FTC will label advertising unfair or deceptive if the following facts are true: An advertising act or practice is unfair if it: An advertising act or practice is deceptive if: Causes or is likely to cause substan- tial injury to consumers; A representation, omission or prac- tice misleads or is likely to mislead the consumer; Cannot be reasonably avoided by consumers; and A consumer’s interpretation of the representation, omission or prac- tice is considered reasonable under the circumstances; and Is not outweighed by counter- vailing benefits to consumers or competition. The misleading representation, omission, or practice is material. Review your ads from the perspective of a consumer and exam- ine content by putting each bullet point in the form of a ques- tion. For example, is it likely to mislead someone? If the answer is yes, rework the ad. ADVERTISING  continued on page 22 Advertising in the COVID era is more critical than ever to attract customers, so it’s a good time to refresh your familiarity with certain legal requirements and perform an audit of your advertising program. The following focuses on the important provisions of the New Jersey Motor Vehicle Advertising Practices Act ( “MVPA” ) and Federal Trade Commission ( “FTC” ) rules and regulations.