N.J. Admin. Code § 13:33-7.2

Current through Register Vol. 56, No. 9, May 6, 2024

Section 13:33-7.2 - Unlawful practices

(a) The following practices shall be unlawful with respect to all advertisements:

1. The failure of an advertiser to maintain and offer for immediate purchase advertised merchandise in a quantity sufficient to meet anticipated consumer demand. When an advertisement states a specific period of time during which merchandise will be available for sale, such merchandise shall be made available to meet anticipated consumer demand during the stated period. When no stated period appears in the advertisement, a sufficient quantity of merchandise shall be made available to meet anticipated consumer demand during three consecutive business days commencing with the effective date of the advertisement. This paragraph shall not apply to merchandise which is advertised:

i. On an in-store sign only with no corresponding out-of-store sign;

ii. As being available in a specific quantity; or

iii. As being available in a "limited supply," pursuant to a "closeout sale" or pursuant to a "clearance sale" if such offering is represented to be permanently reduced, or the sale is one in which the advertiser offers for sale at a reduced price items of merchandise remaining at one or more specified locations which the advertiser will not have available for sale within a reasonable period of time after all such items have been sold;

2. The failure of an advertiser to specifically designate within an advertisement which merchandise items possess special or limiting factors relating to price, quality, condition or availability;

3. The failure to conspicuously post notice of advertised merchandise, on the business premises to which the advertisement applies, in proximity to the advertised merchandise or at all entrances to the business premises. Such notice may consist of a copy of the advertisement or may take the form of a tag attached to the merchandise or any sign with such terms as "sale," or "as advertised";

4. The use of any type, size, location, lighting, illustration, graphic depiction or color resulting in the obscuring of any material fact;

5. Describing the advertiser through the use of the terms "warehouse," "factory outlet," "discount," "bargain," "clearance," "liquidators," or other words or terms of similar meaning, whether in the advertiser's corporate, partnership or trade name or otherwise, where such terms do not reflect a bona fide description of the advertiser being described;

6. Whenever an advertiser provides a raincheck for an advertised item which is not available for immediate purchase, the failure to:

i. Honor or satisfy such raincheck within 60 days of issuance unless an extension of such time period is agreed to by the holder thereof;

ii. Give written or telephonic notice to the holder thereof when the merchandise is available and hold such merchandise for a reasonable time after giving such notice; and

iii. Offer a raincheck to all customers who are unable, due to the unavailability thereof, to purchase the advertised merchandise during the period of time during which the merchandise has been advertised as available for sale.

7. The making of false or misleading representations of facts concerning the reasons for, existence or amounts of price reductions, the nature of an offering or the quantity of advertised merchandise available for sale;

8. The failure of an advertiser to substantiate through documents, records or other written proof any claim made regarding the safety, performance, availability, efficiency, quality or price of the advertised merchandise, nature of the offering or quantity of advertised merchandise available for sale. Such records shall be made available upon request for inspection by the Board;

9. The use, directly or indirectly, of a comparison to a suggested retail price, inventory price, invoice price or similar terms that directly or indirectly compare or suggest a comparison between the cost of supply and the price at retail for the advertised merchandise; or

10. Use of the term "cost," "wholesale" or other similar terms to describe an advertised price where such price is not equal to or less than the price per unit paid by the advertiser to the manufacturer or distributor of the merchandise.

(b) An advertiser shall not use a fictitious former price in an advertisement. Use of a fictitious former price shall be deemed professional misconduct.

1. A former price or price range or the amount of reduction shall be deemed fictitious if it cannot be substantiated, through a showing of:

i. Sales of the advertised merchandise, or comparable merchandise of like grade or quality, made within the advertiser's trade area, the geographical area in which an advertiser solicits or makes a substantial number of sales, in the regular course of business at any time within 60 days prior to, or after, the effective date of the advertisement;

ii. That the advertised merchandise, or comparable merchandise of like grade or quality, was offered for sale at that price within the advertiser's trade area in the regular course of business during at least 28 days of a 90 day period before or after the effective date of the advertisement; or

iii. That the price does not exceed the supplier's cost plus the mark-up on the merchandise used by the advertiser in the regular course of business.

2. If the former price specifically references a time in the remote past during which it was offered, it shall be deemed fictitious unless substantiated pursuant to either (b)1i or iii above.

(c) It shall be unlawful to advertise or employ displays in such a manner as to suggest, infer or indicate that persons licensed under 52:17B-41.1 et seq. are qualified to give professional advice concerning eye care or perform eye examinations.

N.J. Admin. Code § 13:33-7.2