§ 5-90 "Less Than Cost," "At a Loss," and Similar Terms.

If the advertiser uses the words:

"less than cost" "at a loss" "below retailer's cost"

or other similar terms implying that the purchaser is paying a lower price than the advertiser, the price to the consumer must actually be less than the price paid by the advertiser.

§ 5-91 Reductions Based on Advertiser's Own Price; "Formerly," "Regularly," "Reduced," "Percent Off," "Save," and Similar Terms.

   (a)   Immediately preceding price. If an advertiser uses the words:

      "percent off" "formerly ..., now ..." "reduced" "reduced to" "regularly..., now ..." "now only" "save $ ..." "was ..., now ..., "item now $ ..."

      or any similar term implying a reduction from a prior price charged by the advertiser, the price to which the reduced offering price is being compared must be the advertiser's bona fide selling price for that item or service unless the advertiser clearly discloses another basis of comparison or qualification.

   (b)   Intermediate reductions. If the term "originally," or any similar term, is used in any advertisement, the price stated as the "original" price must be the advertiser's bona fide selling price for the same article or service prior to intermediate reductions, and the price immediately prior to the current reduction must be disclosed, unless intermediate reductions are clearly indicated by the language used.

      Example: "Originally $75; then $68; now $65" "Earlier this year $75; now $65" "Further reduced to $50."

   (c)   Comparison not recent. If a claim is based on a past bona fide selling price of the advertiser prior to the recent, regular course of business, the advertiser must clearly disclose that fact.

      Example: "Last year $40, now $20."

§ 5-92 Comparisons Based on Price of Identical Merchandise or Services Sold Elsewhere: "Value," "Nationally Advertised at," "Usually," "List," and Similar Terms.

   (a)   "Value," "nationally advertised at," "sold nationally at," "made to sell for," "woven to sell for," "usually." If the terms:

      "value" "nationally advertised at" "sold nationally at" "made to sell for" "woven to sell for" "elsewhere"

      or other similar terms implying a generally accepted value or price are used with regard to any item or service, then the price to which the reduced offering price is being compared must be the retail market price of the item or service. Furthermore, the terms "value," "nationally advertised at," or "sold nationally at" or any similar terms implying a generally accepted value or price in a national market may be used only

      (1)   in relation to articles or services whose prices have been nationally advertised to the consuming public and

      (2)   i)   in relation to prices which are retail market prices, or,

         (ii)   if the advertised item or service is not available elsewhere in the New York City trading area, the prices for which the article or service is currently selling in principal retail outlets in a substantial number of other representative communities in the United States.

   (b)   If the term "usually" is used with regard to any item or service, then the price to which the reduced offering price is being compared must be either

      (1)   the advertiser's own bona fide price for the item or service, or

      (2)   the retail market price.

   (c)   "list," "catalog," "suggested," "manufacturer's suggested," prices. Any "list" price, "catalog" price, "suggested" price, "manufacturer's suggested" price, "retailer's suggested" price or a preticketed price displayed by the advertiser must be genuine, unless, in the case of a price printed by a supplier of the advertiser, the advertiser has made every reasonable effort to remove or obliterate totally the printed price, or if removal or obliteration is impracticable taking into account the cost thereof, has conspicuously disclaimed that it is genuine. The display of any list price or printed price accompanied by a lower price constitutes a representation that such price is genuine and that the merchandise is being offered at a discount from such genuine price unless in the case of a price printed by a supplier of the advertiser, the advertiser has made every reasonable effort to remove or obliterate totally the printed price, or if removal or obliteration is impracticable taking into account the cost thereof, has conspicuously disclaimed that it is genuine.

§ 5-93 Claims Based on Price of Comparable Merchandise or Services:"Comparable Value" and Similar Terms.

If the term:

"comparable value" "compare with" "equal to"

or other similar term implying comparison with non-identical merchandise is used

   (a)   the advertisement must not imply that the comparison is with the former or usual price of the advertised merchandise or service itself; and

   (b)   the compared merchandise or service must be of essentially similar quality in those material respects which affect consumer preferences and marketability; and

   (c)   the price to which the advertiser's price is compared must be the retail market price or the genuine list, suggested or catalog price of the comparable article or service; and

   (d)   the comparable article or service must be generally available in New York City at the price stated; and

   (e)   the advertisement must clearly and conspicuously disclose that "comparable value" pertains to similar but not identical merchandise or services. If an aggregate "open stock" price is used as a comparative price for an advertised set, the advertisement must disclose this fact and indicate that the advertised saving is based upon the difference between the price for the set and the total open stock price for items comprising the set.

§ 5-94 Range Discounts: "% to % Off," "Up to % Off Selected" and Similar Terms.

   (a)   If an advertiser uses terms such as:

      "Savings of ____ % to ____ %" "____ % to ____ % off"

      or other similar terms to indicate a price range, then:

      (1)   the minimum percentage reduction must be stated as conspicuously as the maximum percentage reduction; and

      (2)   the price from which the discount or reduction is taken must be either a genuine list, suggested or catalog price, the retail market price or the advertiser's bona fide selling price, for the same articles or services, unless another basis is clearly stated; and

      (3)   "out-of-store" advertisements must disclose which of the above standards was or were used (if a single advertisement relates to merchandise or services offered at reductions according to different standards, it must disclose which standards apply to which types of merchandise or services);

         Example: "____ % to ____ % off the manufacturer's price" "____ % to ____ % off last year's price."

      (4)   at least 15 percent of all types, models, or categories of items or services on sale in the advertised category must in fact be reduced by the maximum percentage reduction and a representative number of other models or types or services must be offered at various points in the range significantly separated and representatively scattered.

         Example: "PORTABLE RADIOS AND TELEVISIONS 10%-50% off our former prices"

         Complies if at least 15 percent of all models of portable radios and televisions available are selling at 50 percent off, and a representative number of the remaining models are offered at various points between 10 and 50 percent representatively scattered throughout that range.

   (b)   If the terms:

      "discounts from ..... %" "up to ...... % off" "as high as" "save up to ..... %"

      or other similar terms are used to advertise a range of reductions with no specified minimum reduction,

      (1)   the prices used for comparison must be the advertiser's bona fide selling price, the retail market price, or a genuine list, suggested price for the same articles or services, unless another basis or a qualification is clearly stated;

      (2)   "out-of-store" advertisements must disclose which of the above standards was or were used;

      (3)   at least 15 percent of all the types, models, or services on sale in the advertised categories must be offered for sale at the stated maximum percentage reduction; and

      (4)   a representative number of the remaining models or types or services must be offered at various points representatively scattered throughout the range from the stated maximum percentage reduction to the bottom of the range, or the majority of such other models or types or services must be offered at points in the higher portion of the range.

         Example: "BRAND Y CASSETTE TAPE RECORDERS" "Up to 30 percent off"

         Complies if at least 15 percent of all models of Brand Y Cassette tape recorders available are selling at 30 percent off and the remaining models are offered at various points representatively scattered throughout the range below 30 percent or the majority of the remaining models are offered at points in the higher portion of the range. If the range is 0-30 percent, the majority of the remaining models would have to be offered above 15 percent; if the range is 10-30 percent, the majority would have to be offered above 20 percent.

   (c)   If terms such as "formerly $ ..... to $ .....; now $ ....." are used, the maximum price in the range of advertised former prices must represent the advertiser's bona fide selling price for at least 15 percent of all the types, models or services advertised. Bona fide selling prices for the other items or services must have been at levels representatively scattered through the range of advertised former prices.

§ 5-95 "Advance Sale" or "Introductory Offer."

   (a)   If an advertiser uses the words "advance sale" or "introductory offer" or statements such as "if there are any left they will be marked $ .....," or any other words or statements implying that the goods or services are offered for sale at a reduced price in relation to a future mark-up, he must also

      (1)   have, in fact, in the case of goods, either a reasonable quantity of merchandise in stock, or an order to be marked up; or demonstrate his intention to order such merchandise for future mark-up; and

      (2)   mark up the goods or services within a reasonable period of time and maintain the mark-up for a reasonable period of time not less than 30 days, unless he can show that competitive circumstances occurring subsequent to the advertisement required him to maintain or lower the price in order to maintain a competitive position.

   (b)   If the words "introductory offer" or words of similar meaning are used, they must pertain only to merchandise or services not previously sold by the advertiser nor sold by him for more than six weeks prior to the advertisement.

§ 5-96 Combination Offers.

   (a)   If the advertiser uses "combination offers," in which he offers his product in combination with one or more additional articles or services at a stated price, and claims that the combined articles or services have a "value" greater than the total advertised selling price of the individual items, the total "value" claimed must not be greater than the total of the retail market prices of the articles and services as sold separately.

   (b)   If none of the combination articles is being sold in the New York City trading area and the comparison is based on comparable merchandise, the phrase "comparable value" may be used only if it complies with 6 RCNY § 5-93.

   (c)   If one or more of the articles offered in combination is in general retail distribution, but one or more is not, comparative prices for the articles may be stated separately, according to the facts.