13:45A-26A.1 Scope
Without limiting any other practices which may be unlawful under the Consumer Fraud Act, N.J.S.A. 56:8-1 et seq., the rules contained in this subchapter set forth
motor vehicle advertising practices which are prohibited as unlawful under the Consumer Fraud Act; the rules also include mandatory disclosure in advertisements of certain information relating to advertised motor vehicles as well as on-site disclosures relating to advertised motor vehicles.
§ 13:45A-26A.2 Application
(a) These rules shall apply to the following advertisements:
1. Any advertisement, including radio and television broadcasts, uttered, issued, printed, disseminated, published, circulated or distributed within this State concerning motor vehicles offered for sale or lease at locations exclusively within this State; and
2. Any advertisement, including radio and television broadcasts, uttered, issued, printed, disseminated, published, circulated or distributed to any substantial extent within this State concerning motor vehicles offered for sale or lease at locations within this State and outside this State, or at locations exclusively outside the State.
§ 13:45A-26A.3 Definitions
The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise.
"Advertised motor vehicle" means any new or used motor vehicle offered for sale or lease and specifically identified by an advertised price. With respect to an advertisement which offers a group of new or used vehicles for sale or lease covering a specified price range (for example, "1995 Metros for sale--$ 10,000 to 12,999," or "Lease a new Olds for $ 298 a month and up."), the least expensive motor vehicle in that advertised range is considered to be an advertised motor vehicle.
"Advertised price" means the dollar amount required to purchase or lease a motor vehicle, advertised as:
1. The total price; or
2. The monthly payment price; or
3. The deferred payment price; or
4. A specific discount or savings on the manufacturer's suggested retail price.
"Advertisement" means any advertisement as defined by N.J.S.A. 56:8-1(a) of any motor vehicle, including any statement appearing in a newspaper, periodical, pamphlet, circular or other publication, paper, sign, radio or television broadcast, electronic medium or delivered to or through any computer, which offers a motor vehicle for sale or lease at retail.
"Advertiser" means any person as defined by N.J.S.A. 56:8-1(d) who in the ordinary course of business is engaged in the sale, leasing or financing of motor vehicles at retail or who in the course of any 12 month period offers more than three motor vehicles for sale or lease or who is engaged in the brokerage of motor vehicles whether for sale or lease and who causes an advertisement to be made for the retail sale or lease of
motor vehicles. An advertising agency and the owner or publisher of a newspaper, magazine, periodical, circular, billboard or radio or television station acting on behalf of an advertiser shall be deemed an advertiser within the meaning of this subchapter, when the agency or owner's or publisher's staff prepares and places an advertisement for publication. The agency, owner, or publisher shall not be liable for a violation of this subchapter when reasonably relying upon data, information or material supplied by the person for whom the advertisement is prepared or placed or when the violation is caused by an act, error or omission beyond the preparer's control, including but not limited to, the post-publication performance of the person on whose behalf such advertisement was placed.
"Broker" means a person who in the course of any 12 month period arranges or offers to arrange the retail sale or lease of more than three motor vehicles from the inventory of other business entities.
"Closed-end lease" means a lease in which the lessee is not responsible for the value of the motor vehicle at the end of the lease term unless there is excessive damage, wear and tear, or mileage.
"Dealer" means any person who in the ordinary course of business is engaged in the sale or leasing of motor vehicles at retail or who in the course of any 12-month period offers more than three motor vehicles for sale or lease at retail.
"Demo" means a motor vehicle used exclusively by a dealer or dealer's employee that has never been titled and to which the new vehicle warranty still applies.
"Dealer-installed option" means optional equipment installed by the dealer at an additional cost.
"Lease" means a contract for the use of a motor vehicle for a period of time exceeding four months whether or not the lessee may become the owner of the motor vehicle at the expiration of the lease.
"Lessee" means a person as defined in the Consumer Fraud Act, N.J.S.A. 56:8-1(d), who leases a motor vehicle from a broker or dealer.
"Open-end lease" means a lease in which the lessee may owe additional amounts that is, a "balloon" payment, depending on the value of the motor vehicle at the end of the lease term.
"Monroney label" is the label required by Section 3 of the Automobile Information Disclosure Act, 15 U.S.C. §§ 1231-1233.
"Motor vehicle" means any vehicle driven otherwise than by muscular power, excepting such vehicles as those which run only upon rails or tracks.
"MSRP" means the manufacturer's suggested retail price.
"Period of publication" means two calendar days prior to the date of first publication of an advertisement and midnight of the third calendar day following the date of final publication; in the case of a special offer, the period of publication shall extend until midnight of the date the special offer ends.
"Person" means a person as defined in the Consumer Fraud Act, N.J.S.A. 56:8-1(d).
"Rebate" means any payment of money by the manufacturer to or on behalf of a consumer who has bought or leased a motor vehicle, whether called "rebate", "factory rebate", "cash back", "money back", or a term of similar import.
"Sale" means a sale as defined by N.J.S.A. 56:8-1(e) of any motor vehicle.
"Special offer" means any advertisement of a reduction from the usual selling price for an applicable time period, whether called "sale", "sale days", "bargain", "bargain days", "special offer", "discount", "reduction", "clearance", "prices slashed", "special savings", or a term of similar import.
"Taxes, licensing costs and registration fees" means those usual taxes, charges and fees payable to or collected on behalf of governmental agencies and necessary for the transfer of any interest in a motor vehicle or for the use of a motor vehicle.
"Used motor vehicle" means any motor vehicle with an odometer reading of greater than 1,000 miles, except for a "demo".
13:45A-26A.4 Bait and switch
(a) The following
motor vehicle advertising practices constitute "bait and switch" and are prohibited and unlawful:
1. The advertisement of a motor vehicle as part of a plan or scheme not to sell or lease it or not to sell or lease it at the advertised price.
2. Without limiting other means of proof, the following shall be prima facie evidence of a plan or scheme not to sell or lease a motor vehicle as advertised or not to sell or lease it at the advertised price:
i. Refusal to show, display, sell, or lease the advertised motor vehicle in accordance with the terms of the advertisement, unless the vehicle has been actually sold or leased during the period of publication; in that case, the advertiser shall retain records of that sale or lease for 180 days following the date of the transaction, and shall make them available for inspection by the Division of Consumer Affairs.
ii. Accepting a deposit for an advertised motor vehicle, then switching the purchaser to a higher-priced motor vehicle, except when the purchaser has initiated the switch as evidenced by a writing to that effect signed by the purchaser.
iii. The failure to make delivery of an advertised motor vehicle, then switching the purchaser to a higher-priced motor vehicle; except when the purchaser has initiated the switch as evidenced by a writing to that effect signed by the purchaser.
13:45A-26A.5 Advertisements; mandatory disclosure requirements in all advertisements for sale
(a) In any advertisement in which an advertiser offers a new motor vehicle for sale at an advertised price, the following information must be included:
1. The advertiser's business name and business address;
2. A statement that "price(s) include(s) all costs to be paid by a consumer, except for licensing costs, registration fees, and taxes". If this statement appears as a footnote, it must be set forth in at least 10 point type. For purposes of this subsection, "all costs to be paid by a consumer" means manufacturer-installed options, freight, transportation, shipping, dealer preparation, and any other costs to be borne by a consumer except licensing costs, registration fees, and taxes;
3. The manufacturer's suggested retail price as it appears on the Monroney label, clearly denominated by using the abbreviation "MSRP";
4. The year, make, model, and number of engine cylinders of the advertised motor vehicle;
5. Whether the transmission is automatic or manual; whether the brakes and steering mechanism are power or manual; and whether the vehicle has air conditioning, unless those items are standard equipment on the advertised motor vehicle. This provision shall not apply to advertisements for motorcycles;
6. The last eight digits of the vehicle identification number, preceded by the letters "VIN". This provision shall not apply to radio and television broadcasts, or to advertisements for motorcycles;
7. A list of any dealer installed options on the advertised motor vehicle and the retail price of each, as determined by the dealer.
(b) In any advertisement offering for sale a used motor vehicle at an advertised price, the information described in (a)1, 2, 4, 5 and 6 above must be included, as well as the following additional information:
1. The actual odometer reading as of the date the advertisement is placed for publication; and
2. The nature of prior use unless previously and exclusively owned or leased by individuals for their personal use, when such prior use is known or should have been known by the advertiser.
(c) In any advertisement offering a "demo" for sale, the information listed in (a) above must be included, as well as:
1. Identification as a "demo"; and
2. The actual odometer reading as of the date the advertisement is placed for publication.
(d) It shall be an unlawful practice to fail to include the information required by this section.
§ 13:45A-26A.6 Advertisements: mandatory disclosure in advertisements for lease of a new or used motor vehicle
(a) In any advertisement offering a new or used motor vehicle for lease, at an advertised price, the following information shall be included:
1. That the transaction advertised is a lease;
2. The amount of any payment required at the inception of the lease or that no payment is required if that is the case;
3. The number, amounts, due dates or periods of scheduled payments and the total of such payments under the lease;
4. A toll-free number that may be used by consumers to obtain the information required under (f) below; and
5. The business name and, if an individual dealer, the address of the advertiser.
(b) In all written advertisements the information required in (a) above shall be prominently displayed in at least 10 point type and shall be easy to find, read and understand.
(c) If the advertiser elects to use a full disclosure format in a written advertisement, then the information in (f) below shall be prominently displayed in at least 10 point type and must be easy to find, read and understand.
(d) An advertisement which is not in writing shall clearly and audibly state the information in (a) above at a decibel level equal to the highest decibel level used in the advertisement and at a speed equal to or slower than any other statement contained in the advertisement. In a television broadcast, the information shall be prominently and conspicuously displayed for at least five continuous seconds for each model advertised.
(e) The toll free number required pursuant to (a)4 above shall be operational not later than the date on which the advertisement is broadcast or published. The advertiser shall:
1. Maintain the toll free number for 48 hours after the last day of the advertisement;
2. Ensure that the toll free number is operational from 9:00 A.M. to 9:00 P.M. Monday through Saturday;
3. Provide the information required under (f) below in a clear and audible manner, to any person who calls the toll free number; and
4. If requested, provide the information required under (f) below in written form to be mailed, postage paid, to the consumer's address.
(f) Information provided through the use of a toll free telephone number shall include:
1. The advertiser's business name and address;
2. Identification of the transaction as a lease;
3. Whether or not the advertised price refers solely to a business lease;
4. Whether it is an open-end or closed-end lease;
5. The number, amounts, due dates or periods of scheduled payments and the total of such payments under the lease;
6. All other itemized payments such as security deposits or capitalized cost reduction required at the initiation of the lease;
7. The cost of the lease which shall include the sum of (f)5 and 6 above;
8. The manufacturer's suggested retail price as it appears on the Monroney label; when given in writing to the consumer, clearly denominated by using the abbreviation "MSRP";
9. A statement that "price(s) include(s) all costs to be paid by the consumer, except for licensing, registration and taxes." When given in writing to the consumer, it must be set forth in at least 10 point type;
10. Whether the lessee has the option to purchase the advertised motor vehicle and at what price and time; the method of determining the price may be substituted for disclosure of the price;
11. The amount (including termination charge, if any) or method of determining any liability imposed upon the lessee at the end of the term and a statement that the lessee shall be liable for the difference, if any, between the estimated value of the leased motor vehicle and its realized value at the end of the lease term, if the lessee has such liability;
12. A statement of the items included as standard equipment on the advertised motor vehicle;
13. Whether the transmission is automatic or standard; whether the brakes and steering mechanism are power or manual and whether the vehicle has air conditioning, unless such items are included under *(f)12* above. This provision shall not apply to motorcycles;
14. The year, make, model and number of engine cylinders of the advertised vehicle;
15. The last eight digits of the vehicle identification number or "VIN." This provision shall not apply to motorcycles;
16. If the advertised vehicle is a used vehicle, the actual odometer reading at the date of placing the advertisement for publication; and the nature of prior use, unless previously and exclusively owned or leased by individuals for their personal use, when such use is known or should have been known by the advertiser; and
17. If the advertised vehicle is a "demonstration vehicle" or "demo," identification of the vehicle as a "demonstration vehicle" or "demo;" and the actual odometer reading at the date of placing the advertisement for publication.
(g) It shall be an unlawful practice to fail to include the information required by this section.
§ 13:45A-26A.7 Unlawful advertising practices
(a) In any type of
motor vehicle advertising, the following practices shall be unlawful:
1. The use of any type size, location, lighting, illustration, graphic depiction or color so as to obscure or make misleading any material fact;
2. The setting forth of an advertised price which has been calculated by deducting a down payment, trade-in allowance or any deductions other than a manufacturer's rebate and dealer's discount;
3. The setting forth of an advertised price which fails to disclose, adjacent to the advertised price, that it has been calculated by deducting a manufacturer's rebate or dealer's discount;
4. The failure to state all disclaimers, qualifiers, or limitations that in fact limit, condition, or negate a purported unconditional offer (such as a low APR or high trade-in amount), clearly and conspicuously, next to the offer and not in a footnote identified by an asterisk. Such disclosure shall be made verbally in a radio or television advertisement. Identical information pertaining to all motor vehicles in a group of advertised motor vehicles, however, may appear in a footnote, provided the type is no smaller than 10 point;
5. The failure to state the applicable time period of any special offer, in at least 10-point type immediately adjacent to the special offer, unless the special offer is a manufacturer's program;
6. The use of the word "free" when describing equipment or other item(s) to be given to the purchaser or lessee of a motor vehicle, if the "free" item has a value which has increased the advertised price. In using the word "free" in advertising, the advertiser shall comply with the Federal Trade Commission Rule, 16 CFR § 251, and any amendments thereto;
7. The failure to disclose that the motor vehicle had been previously damaged and that substantial repair or body work has been performed on it when such prior repair or body work is known or should have been known by the advertiser; for the purposes of this subsection, "substantial repair or body work" shall mean repair or body work having a retail value of $ 1,000 or more;
8. The use of the terms "Public Notice", "Public Sale", "Liquidation", "Liquidation Sale", or terms of similar import, where such sale is not required by court order or by operation of law or by impending cessation of the advertiser's business;
9. The use of terms such as "Authorized Sale", "Authorized Distribution Center", "Factory Outlet", "Factory Authorized Sale", or other term(s) which imply that the advertiser has an exclusive or unique relationship with the manufacturer;
10. The use, directly or indirectly, of a comparison to the dealer's cost, inventory price, factory invoice, floor plan balance, tissue, or terms of similar import; or the claim that the advertised price is "wholesale" or "at no profit";
11. The use of the terms "guaranteed discount", "guaranteed lowest prices" or other term of similar import unless the advertiser clearly and conspicuously discloses the manner in which the guarantee will be performed and any conditions or limitations controlling such performance; this information shall be disclosed adjacent to the claim and not in a footnote;
12. The use of the statement "We will beat your best deal", or similar term or phrase if a consumer must produce a contract that the consumer has signed with another dealer or lessor in order to receive the "better" deal;
13. The use of such terms or phrases as "lowest prices", "lower prices than anyone else" or "our lowest prices of the year", or similar terms or phrases if such claim cannot be substantiated by the advertiser.
§ 13:45A-26A.8 Certain credit and installment sale advertisements
(a) The following information must be stated in any credit and installment sale advertising. It must appear adjacent to the description of the advertised motor vehicle and not in a footnote or headline unless the information is the same for all motor vehicles advertised. If in a footnote, it must be in at least 10-point type. Failure to include this information shall be an unlawful practice.
1. The total cost of the installment sale, which shall include the down payment or trade-in or rebate, if any, plus the total of the scheduled periodic payments;
2. The annual percentage rate;
3. The monthly payment figure and the number of required payments; and
4. The amount of any down payment or trade-in required or a statement that none is required.
(b) The following
motor vehicle advertising practices concerning credit and installment sale advertisements shall be unlawful:
1. The advertising of credit, including but not limited to such terms as "easy credit" or "one-day credit", other than that actually provided by the advertiser on a regular basis in the ordinary course of business;
2. The use or statement of an installment payment on any basis other than a monthly basis.
§ 13:45A-26A.9 On-site disclosures
(a) The following information relating to an advertised motor vehicle must be provided at the main entrance(s) to the business premises where the motor vehicle is displayed or in proximity to the vehicle or on the vehicle itself:
1. A copy of any printed advertisement that quotes a price for the sale or lease of that vehicle; alternatively, a tag may be attached to the motor vehicle(s) stating the advertised price as well as the other information required in N.J.A.C. 13:45A-26A.5 or 26A.6.
2. A fuel economy label, if required by the Motor Vehicle Information and Cost Savings Act, 15 U.S.C. § 2006; and
3. The Used Car Buyers Guide, if required by the Federal Trade Commission's Used Car Rule, 16 C.F.R. Part 455.2.
(b) A dealer shall not advertise a new motor vehicle which does not have the Monroney label, if required by the Automobile Information Disclosure Act, 15 U.S.C. §§ 1231-1233.
(c) It shall be an unlawful practice to fail to comply with the disclosures required by this section.
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