92 | 2024 Membership Directory 15. Failure to comply with the FBPA provisions concerning statements made in writing or by telephone that a person has won or will receive a prize or thing of value [O.C.G.A. § 10-1-393(b)(23)]; 16. Conducting a going-out-of-business sale for more than ninety days, or continuing to do business after the ninety-day time limit contrary to any representations made concerning the going-out-of-business sale [O.C.G.A. § 10-1-393(b)(24)]; and 17. Mailing any notice, notification, or similar statement to any consumer regarding winning or receiving any prize in a promotion, and the envelope or other enclosure fails to conspicuously identify on its face that the contents of the envelope or other enclosure is a commercial solicitation and, if there is an element of chance in winning a prize, the odds of winning as “odds” [O.C.G.A. § 10-1- 393(b)(27)]. B. Penalties for Violations [O.C.G.A. § 10-1-397] A violation of the FBPA can potentially subject the violator to an administrative cease and desist order, an administrative civil penalty order of up to $2,000 per violation, a court ordered civil penalty of up to $5,000 per violation, or other sanctions. It is important to note that bulk solicitation mailings may constitute either single or multiple violations of the Fair Business Practices Act.2 The fact that a dealership mails thousands, as opposed to one or two single advertisements should not serve to diminish the seriousness of each individual violation. V. PRINCIPLES AND PRECEDENTS All advertisements should be in plain language, truthful and accurate, and free of express or implied claims that misrepresent or are otherwise deceptive. Representations made in an advertisement are evaluated based on their capacity/tendency to deceive and/or the likelihood of deception. Statements susceptible to both a misleading and a truthful interpretation shall be construed to be deceptive. 3The FBPA is violated if the first contact with a consumer is secured by deception, even though the true facts are made known to the buyer before he enters into the contract of purchase or lease.4 It is important to note that an advertisement may be considered to contain deceptive representations even if no complaints are received from consumers. Since statements and representations in advertisements are evaluated based on their tendency to deceive, no actual harm to consumers need occur for there to be a violation.5 Deception may arise from any of the following: direct statements; failure to clearly and conspicuously disclose material facts, limitations, disclaimers, qualifiers, conditions or exclusions; or reasonable inferences or overall impressions that may be drawn from the advertisement. An advertisement may be deceptively framed or constructed, or its net impression may have a capacity to deceive, even though its words and sentences may be literally and technically true or factually accurate. Examples A statement such as “we’ll pay off your trade no matter what you owe” is deceptive, because it implies that consumers will not bear any cost for the balances due on their trade-ins, when such is not the case. A statement such as “All credit applications accepted” may be considered deceptive, because, although literally true, it implies that acceptance is the same as approval. “Buy a Wheeler, get a Wheeler free” when the “free” Wheeler is a bicycle, not a second car. A representation that vehicles are being offered for a specific amount below the MSRP should be stated so that the most prominent text or statement is the final sales price. MSRP: $20,000.00 Discount: $5,000.00 Sale Price: $15,000.00 2 See, e.g., United States v. Reader’s Digest Ass’n, Inc., 662 F.2d 955, 966 (3d Cir. 1981), United States v. Golden Fifty Pharmaceutical Co., Inc., 421 F. Supp. 1199, 1207 (N.D.Ill. 1976), United States v. Wilson Chem. Co., 1962 U.S. Dist. LEXIS 5522 (D. Pa. 1962). 3 See, e.g., National Comm’n on Egg Nutrition v. F.T.C., 570 F.2d 157, 161 (1976). 4 Carter Products, Inc. v. F.T.C., 186 F.2d 821, 824 (7th Cir. 1951). See also, 15 U.S.C.S. § 45 (2006). 5 In the Matter of Cliffdale Assoc., Inc., 103 F.T.C. 110, 176 (1984).
RkJQdWJsaXNoZXIy MTg3NDExNQ==