Chapter 7 - § 7.2 • COLORADO CONSUMER PROTECTION ACT (CCPA)

• Jurisdiction: Colorado

§ 7.2 • COLORADO CONSUMER PROTECTION ACT (CCPA)

Colorado has a consumer protection statute called the "Colorado Consumer Protection Act,"¹ commonly abbreviated as CCPA. The CCPA is intended to deter and punish deceptive trade practices,² and provides for a private right of action.³ The federal counterpart to the Colorado Consumer Protection Act is the Lanham Act, but it is rarely invoked in product liability actions as it applies to lawsuits between competitors.⁴

Although the Colorado Consumer Protection Act is not one of the core product liability claims, it is frequently pleaded in product liability actions. Relief under the CCPA includes attorney fees and also treble damages (if, as to the latter, it is shown by clear and convincing evidence that the defendant engaged in bad faith conduct).⁵ Thus, a CCPA claim may greatly increase the potential damage award.

Practice Pointer
Owing to the potential for treble damages and attorney fees, although a CCPA claim is not one of the traditional product liability claims, it is frequently pleaded in product liability actions.

The propriety of a CCPA claim as part of a product liability action largely depends upon the facts of the case. On one hand, CCPA claims are often asserted in cases that merely address private wrongs, and a plaintiff should not "invoke[] the Colorado Consumer Protection Act as an additional remedy to redress a purely private wrong."⁶ On the other hand, simply because "a plaintiff may have other statutory or common law causes of action based on the same set of facts does not affect the plaintiff's right to assert a claim under the CCPA."⁷

The elements of a CCPA claim are:

1) The defendant engaged in a deceptive trade practice;
2) The deceptive trade practice occurred in the course of the defendant's business;
3) The deceptive trade practice significantly impacted the public as actual or potential consumers of the defendant's goods;
4) The plaintiff suffered an injury in fact to a legally protected interest; and
5) The deceptive trade practice caused the plaintiff's injury.⁸

As CCPA claims are related to fraud claims, several federal district courts have held that CCPA claims must be plead with particularity.⁹

Practice Pointer
CCPA claims should be pleaded with particularity.

§ 7.2.1—Element One: Deceptive Trade Practice

The first element of a CCPA claim is that the defendant's conduct constitutes a deceptive trade practice.¹⁰ What constitutes a deceptive trade practice is defined by statute,¹¹ and the statute contains a non-exclusive list of over two dozen types of deceptive practices.¹² Of these numerous items, there are three items in the list of deceptive trade practices that are frequently plead in product liability actions. They are, in descending order of frequency:

• Subsection (1)(e), which provides that it is a deceptive trade practice for the defendant to "[k]nowingly makes a false representation as to the characteristics, ingredients, uses, benefits, alterations, or quantities of goods, food, services, or property or a false representation as to the sponsorship, approval, status, affiliation, or connection of a person therewith;"¹³
• Subsection (1)(u), which provides that it is a deceptive trade practice if the defendant "[f]ails to disclose material information concerning goods, services, or property which information was known at the time of an advertisement or sale if such failure to disclose such information was intended to induce the consumer to enter into a transaction;"¹⁴ and
• Subsection (1)(g), which provides that it is a deceptive trade practice if the defendant "[r]epresents that goods, food, services, or property are of a particular standard, quality, or grade, or that goods are of a particular style or model, if he knows or should know that they are of another."¹⁵

Plaintiffs occasionally rely upon other enumerated deceptive trade practices in product liability cases.¹⁶

There are several other notes on this element worth reviewing. First, a deceptive trade practice cannot apply to conduct in compliance with governmental rules.¹⁷ Second, "mere puffery" (i.e., a general statement of opinion as opposed to a specific representation of fact) cannot constitute deceptive trade practices.¹⁸

Third, with the caveat of the 2019 statutory change discussed below, there is a knowledge component to this element. The plaintiff must show that the defendant "knowingly" engaged in a deceptive trade practice.¹⁹ Thus, the CCPA "provides an absolute defense" for a defendant who made a misrepresentation caused by negligence or an honest mistake.²⁰ Similarly, a promise is not actionable under the CCPA "unless the promisor did not intend to honor it at the time it was made."²¹

It should be noted that there are significant changes to the statutory definition of deceptive trade practices, and other changes, under HB19-1289. The concept of recklessness is added to C.R.S. § 6-1-105 in subsection (1)(e), which will now provide that it is a deceptive trade practice if the defendant "either knowingly or recklessly makes a false representation as to the characteristics, ingredients, uses, benefits, alterations, or quantities of goods, food, services, or property or a false representation as to the sponsorship, approval, status, affiliation, or connection of a person therewith" (emphasis added). And, there is a new catch-all deceptive trade practice, subsection (1)(nnn), which will provide that it is a deceptive trade practice for the defendant to "either knowingly or recklessly engage[] in any unfair, unconscionable, deceptive, deliberately misleading, false, or fraudulent act or practice."

§ 7.2.2—Element Two: Practice Occurred In Course Of Defendant's Business

The second element of a CCPA claim is that the deceptive practice must have occurred in the course of the defendant's "business, vocation, or occupation."²² This element is self-explanatory, and would be easily met in all but the most unusual product liability cases.

§ 7.2.3—Element Three: Significant Public Impact

The third element of a private CCPA claim is that the deceptive trade practice "must significantly impact the public as actual or potential consumers of the defendant's goods."²³ The CCPA does not provide relief for a purely private wrong. "[I]f a wrong is private in nature, and does not affect the public, a claim is not actionable under the CCPA."²⁴ Thus, the plaintiff must come forward with "evidence that the challenged practice has...