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It is a deceptive and unconscionable trade practice for any person to design, compile and furnish any form knowing that such form would be used to create the false belief in a consumer that a person other than the creditor of such consumer is participating in the collection of or in an attempt to collect a debt such consumer allegedly owes such creditor, when in fact such person is not so participating.
If any provision of this part or the application of such provision to any person or circumstances shall be held unconstitutional or invalid, the constitutionality of the remainder of the part and the applicability of such provision to other persons or circumstances shall not be affected thereby.
Part 7: 'Sales' and 'Discounts'
Advertiser. Where the "advertiser" is a chain store, the requirements of this part shall apply to each branch as if it were a separate store.
Advertiser's bona fide selling price. "Advertiser's bona fide selling price" shall mean the immediately preceding price at which the same item or service was actually offered for sale to the public by the advertiser for a reasonably substantial period of time in the recent regular course of the advertiser's business, unless an earlier time period is clearly specified, and not a price charged for the purpose of establishing a fictitious higher price on which a deceptive comparison might be based.
(1) "Recent regular course of business" shall mean the current selling season on seasonal goods; or, on services or non-seasonal goods, the period of the current model or twelve months, whichever is shorter.
(2) It is prima facie evidence that a selling price for a service or an item is bona fide if:
(i) the item was offered for a reasonably substantial period of time and a substantial quantity of sales were made at that price, or
(ii) if a substantial number of sales was not made at such price, that the item was openly offered for sale to the public for a reasonably substantial period of time and that such offering price was reasonable based upon the manner in which such items were displayed or offered for sale, and such other factors as the mark-up reflected in such price and the price of comparable items.
Genuine. "Genuine," when used in this part with such phrases as "open stock price," "list price," "suggested retail price," and "catalog price" shall mean that the price is one at which substantial quantities of the identical merchandise have actually been sold to the public within the recent regular course of business, by the advertiser or principal retail outlets within the New York City trading area, or, if identical merchandise is not available in the New York City trading area, in principal retail outlets in other similar trading areas provided that the fact is disclosed. During the first two weeks after a new model or item has been introduced, a "list price," "suggested retail price" or "catalog price" may be considered "genuine" only if:
(1) the list price, suggested retail price or catalog price for the last previous model was genuine, or,
(2) where no previous model existed, the list price, suggested retail price or catalog price for other similar goods, produced by the same manufacturer and sold in the preceding selling season or twelve month period, was genuine. Where no previous model or similar goods existed or where the manufacturer has not previously made use of list price or suggested retail price, the list price, suggested retail price or catalog price may be used for up to thirty days after introduction of the new model or item after which time, the advertiser must be able to demonstrate that the price is genuine.
In-store. "In-store" representation shall mean any written statement, visual description, advertisement, or other written representation of any kind, or any oral statement by a demonstrator which is made inside the interior premises of the merchant.
Models and types. "Models" and "types" refer to models and types exclusive of differentiations attributable only to sizes or colors except where sizes or colors are material, e.g. mattresses, paint.
Out-of-store. "Out-of-store" representations shall mean any oral or written statement, visual description, advertisement or other representation of any kind made outside the interior premises of the advertiser, including representations made in newspapers, magazines, handbills, billboards, direct mailings, on radio and television and in store windows, storefronts, and other similar places where the representations can be perceived by the public not yet inside the premises of the merchant.
Retail market price. "Retail market price" shall mean:
(1) the price at which substantial sales of the same article or service are presently being made in principal retail outlets in the New York City trading area, or
(2) where no substantial sales have been made, the bona fide, usual and customary selling price of the item or service as offered in principal retail outlets in the New York City trading area.
It is a deceptive practice in the sale or offering for sale of consumer goods or services for a person (including any business entity) having a store, place of business for sales or mailing address for sales in the City of New York, or otherwise selling in the City of New York to advertise or represent in connection with sales made in the City of New York or offerings for sales to be made in the City of New York that such goods or services are being or will be offered or sold to New York City consumers at a reduction, discount, or savings in a manner in violation of this part.
An out-of-store representation or advertisement containing words or numbers indicating a savings, reduction, discount or sale price, must include limiting language which permits the consumer to identify the merchandise or services being offered at savings, reductions, discounts or sale price. Identification simply by former price is not sufficient unless the items so identified constitute a percentage of the advertised brands, styles, types, models, classes, or categories of merchandise or services sufficiently large to meet reasonable consumer expectations created by the advertisement.
(a) Such limiting language should be sufficiently precise to permit consumers to distinguish the applicable merchandise or services. This can be accomplished only by setting forth the brand, price, style, type, model, class or category, as appropriate in the context of the out-of-store representation or advertisement. Vague language such as "percentage off some merchandise" does not comply with this requirement. An advertisement shall be construed to apply to every piece of merchandise (or every service) within that category, type, make, model, (etc.).
Examples:
(1) "Brand X aluminum tennis rackets." Acceptable.
(2) "Steel belted radial tires." Acceptable if all steel belted radial tires are now on sale.
(3) "Famous manufacturer's single lens reflex cameras." Acceptable if all of the particular manufacturer's single lens reflex cameras are on sale.
(4) "Men's cashmere sweaters, formerly $40, now $30." This is acceptable if all men's cashmere sweaters that were formerly $40 are now on sale, and these sweaters constitute a percentage of the store's total supply of cashmere sweaters sufficiently large to meet reason able consumer expectations created by the advertisement.
(b) (1) If the merchandise or services referred to in the out-of-store representation or advertisement as being offered at a savings, reduction, discount or sale price cannot be specified with precision because the sale involves:
(i) less than all of the brands, styles, types, models, classes or categories of merchandise or services identified;
(ii) a storewide sale in a broad cross-section of departments; or
(iii) one or more established departments, but less than all of the merchandise or services in such departments, the terms "selected," "many," "representative," "assorted," or terms of similar import, may be used as limiting language to comply with identification requirement of this section, provided that a meaningful percentage of such merchandise or services is so offered. "Meaningful percentage" shall mean an amount of merchandise that will meet reasonable consumer expectations created by the advertisement. For 5 RCNY § 5-88(b)(1)(i), it shall be prima facie evidence of a violation of the meaningful percentage requirement if at least 15 percent of such brands, styles, types, models, classes or categories identified are not on sale, provided however, that the advertiser shall be permitted to show that under the particular circumstances involved the amount on sale was not deceptive.
(2) In the absence of words of limitation, an advertisement shall be construed to apply to every piece of merchandise or every service within that category, type, make, model, etc.
Examples:
(i) "Numerous pottery vases" complies if at least 15 percent of the pottery vases are on sale, unless the advertiser can demonstrate that under the particular circumstances involved the amount on sale, in light of the advertisement itself, is not deceptive.
(ii) "Assistant Managers' birthday sale – storewide savings on selected merchandise" complies if the amount of merchandise on sale meets reasonable consumer expectations created by the advertisement.
(iii) "Representative low-cut tennis sneakers" complies provided 15 per cent of the types of brands, makes or etc., are on sale, unless the advertiser can demonstrate that under the particular circumstances involved the amount on sale in light of the advertisement itself was not deceptive.
(iv) "Special grouping of Misses' slacks, regularly $20 now $15" complies if at least 15 percent of all Misses' slacks regularly $20 are now $15 unless the advertiser can demonstrate that under the particular circumstances involved the amount on sale, in light of the advertisement itself, was not deceptive.
(v) "Reduction on many items in the Sporting Goods and Luggage Department" complies if the amount of merchandise on sale in each department meets reasonable consumer expectations created by the advertisement.
(c) An out-of-store representation or advertisement concerning a storewide sale or a sale in a broad cross-section of departments which displays, pictures, or mentions specific items which are on sale must also disclose whether the items displayed, pictured or mentioned are the only ones on sale. If they are not the only ones on sale, the advertisement must disclose the extent to which items not displayed, pictured or mentioned are on sale.
Example: "Semi-annual White Sale – These and many other savings" complies if the complete supply of all pictured items is on sale and a meaningful percentage of the ether sale items is offered at a savings.
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