N.J. Admin. Code § 13:45A-9.2

Current through Register Vol. 56, No. 8, April 15, 2024

Section 13:45A-9.2 - General advertising practices

(a) Without limiting the application of 56:8-1 et seq., 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 reasonably anticipated consumer demand therefor. When an advertisement states a specific period of time during which merchandise will be available for sale, a sufficient quantity of such merchandise shall be made available to meet reasonably 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 reasonably anticipated consumer demand during three consecutive business days commencing with the effective date of the advertisement. The requirement of this subsection shall not be applicable 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 meets the definition of a closeout sale; or if represented to be permanently reduced.

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. By way of illustration, and not by limitation, the following shall be deemed violative of this subparagraph:

i. The failure to specifically designate which merchandise items are below cost, if any amount less than all advertised items are below cost, when a statement of below cost sales is set forth in an advertisement;

ii. The failure to specifically designate which merchandise items, if any, are damaged or in any way less than first quality condition;

iii. The failure to specifically designate merchandise as floor models, discontinued models or one of a kind, when applicable;

iv. The failure to clearly designate or describe the retail outlets at which advertised merchandise will or will not be available. Such information need not be disclosed on any in-store advertisement.

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," "as advertised," "20% off."

4. In any price advertisement in which a home appliance is offered for sale, the failure of an advertiser to disclose the following information relating to the advertised merchandise: the manufacturer's name or the merchandise trade name, the model or series number and such other information as may be necessary to clearly delineate the advertised item from other similar merchandise produced by the same manufacturer.

5. The use of any type, size, location, lighting, illustration, graphic depiction, or color resulting in the obscuring of any material fact. Disclaimers permitted or required under this section, such as "terms and conditions apply" and "quantities limited," shall be set forth in a type size and style that is clear and conspicuous relative to the other type sizes and styles used in the advertisement.

6. The use of the terms "Public Notice," "Public Sale" or words or terms of similar meaning in any advertisement offering merchandise for sale, where such sale is not required by court order or by operation of law, other than a sale conducted by an auctioneer on behalf of a non-business entity.

7. Describing the advertiser through the use of the terms "warehouse," "factory outlet," "discount," "bargain," "clearance," "liquidators," "unclaimed freight," 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.

8. 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 or, if after a good faith effort an advertiser cannot procure for the holder of the raincheck the advertised merchandise within the 60-day period, failure to offer the holder of the raincheck a different item of merchandise of substantially the same kind, quality and price as the original advertised merchandise; and

ii. Give written or telephonic notice to the holder thereof when the merchandise is available and hold such merchandise for not less than 10 days after giving such notice or to the end of the 60-day period for which the raincheck is valid, whichever is longer, for all merchandise with an advertised unit price greater than $ 15.00;

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; and

iv. Conspicuously post its raincheck policy on a sign in at least one of the following locations:

(1) Affixed to a cash register or location of the point of sale;

(2) So situated as to be clearly visible to the buyer;

(3) Posted at each store entrance used by the public;

(4) At the location where the merchandise was offered for sale;

(5) In an advertisement for merchandise; or

(6) Printed on the receipt of sale.

9. 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.

10. 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 Division or its designee at the advertiser's regular place of business or central office in New Jersey, or, at the advertiser's option, the Division's designated offices, for a period of 90 days following the effective date of the advertisement.

11. 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 the comparison between the cost of supply and the price at retail for the advertised merchandise.

12. 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. In the computation of the price per unit of the advertised merchandise, freight may be included if the advertiser pays for same and is not reimbursed therefore, but handling and all overhead or operating expenses shall be excluded.

13. The advertising of a free-to-pay conversion as a "risk free trial," or a "free trial," or as any other offer that requires the consumer to do nothing other than accept merchandise or a service without any obligation, unless the advertisement clearly states the length of the period the offer is without obligation or that terms and conditions apply.

N.J. Admin. Code § 13:45A-9.2

Amended by R.1993 d.6, effective 1/4/1993.
See: 24 N.J.R. 684(a), 25 N.J.R. 192(a).
Added new (a)11.
Amended by R.1996 d.309, effective 7/1/1996 (operative August 15, 1996).
See: 28 N.J.R. 1186(a), 28 N.J.R. 3304(a).
In (a)1iii excluded merchandise represented to be permanently reduced, and added provision relating to use of the terms "cost" or "wholesale".
Amended by R.2007 d.337, effective 11/5/2007.
See: 39 N.J.R. 2586(a), 39 N.J.R. 4850(b).
Rewrote (a)8i through (a)8ii; in (a)8iii, substituted "; and" for the period at the end; and added (a)8iv.
Amended by R.2012 d.016, effective 1/17/2012.
See: 43 N.J.R. 1130(a), 44 N.J.R. 166(b).
In (a)5, inserted the last sentence; and added (a)13.
Amended by R.2012 d.146, effective 8/20/2012.
See: 44 N.J.R. 1184(a), 44 N.J.R. 2131(a).
In (a)5, inserted a comma following "depiction", and substituted "a type size and style that is clear and conspicuous relative to the other type sizes and styles used in the advertisement" for "at least 10-point type".