Deceptive Trade Practices

• Author: Richard Leiter
• Pages: 31-43

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A deceptive trade practice is an activity in which an individual or business engages that is calculated to mislead or lure the public into purchasing a product or service. False advertising and odometer tampering are two of the most blatant examples of this commercial lying. Such activities are given special status as offenses against the citizenry in general and are therefore accorded by law special enforcement status.

Deceptive trade practices result in criminal prosecution in some states; in others, statutes provide for private enforcement, whereby a citizen is entitled to sue a business for violating deceptive trade practice laws and may be able to recover punitive damages and/or statutory fines. The attorney general of the state may also bring a lawsuit against an offending business enterprise.

Because a deceptive trade practice may affect individuals or businesses from more than one state, a number of states have adopted the standardized Uniform Deceptive Trade Practices Act (UDTPA). The Uniform Act does not add or detract from the law of any one state; rather, it is inclusive and tends to cover, in general terms, all the prohibitions and issues addressed in state law in this area. For example, the Uniform Act prohibits making deceptive representations in connection with commercial goods. This obviously covers odometer tampering, but it also addresses all forms of deception in the marketing or advertising of goods and services. Those states that have not adopted the UDTPA have laws similar to it.

There is little controversy among the states over what activity amounts to a deceptive trade practice. However, there is a great deal of variety concerning the remedies available for the violations and who may sue for those violations. There are two main purposes of the statutes providing for remedies for businesses engaging in unlawful activity: (1) injunctions or restraining orders forbidding the continued deceptive trade practice and (2) punishment via fines, damages, and imprisonment. But because businesses are generally in violation of deceptive trade practice laws, and because it is difficult to determine whom to punish in the violating business, fines are generally the most effective method of extracting restitution.

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Table 3: Deceptive Trade Practices
State	Uniform Deceptive Trade Practices Act Adopted	False Advertising Forbidden	Who May Bring Suit	Remedies Available	Auto Odometer Tampering Forbidden
ALABAMA	No §§8-19-1 et seq.	Yes (§13A-9-42)	Private parties, attorney general, district attorney (§8-19-8)	Restraining orders (§8-19-8); actual damages or $100, whichever is greater, or in court’s discretion up to three times actual damages (§8-19-10); continuous willful violation is Class A misdemeanor (§8-19-12); civil penalty up to $25,000 per violation (§8-19-11)	Yes §8-19-5(15)
ALASKA	No; Article 3. Unfair Trade Practices and Consumer Protection	Yes §45.50.471(b)	Attorney general (§45.50.501); private or class action suites (§45.50.531)	Injunction; $500 or 3 times actual damages, whichever is greater; treble damages or equitable relief (§45.50.531)	Yes §45.50.471(b)(18)
ARIZONA	No	Yes (§44-1522; §13-2203); Class 1 misdemeanor	Attorney general (§44-1524); No language that indicates a consumer or private party may bring an action.	Subpoena; injunction, civil damages (§44-1526-1528); if willfully violated: $10,000 civil penalty (§44-1531); violating injunction: $25,000 penalty (§44-1532).	Yes; Class 1 misdemeanor (§44-1223)
ARKANSAS	No; Chap. 88 Deceptive Trade Practices	Yes (exception for those falsely advertising unknowingly) (§4-88-107)	(§4-88-111)Attorney general will bring claim, private party files petition with attorney general.	Injunction and return any money for purchased good to consumer; suspend corporate charter or business permit; possible $10,000 fine per violation if violation of injunction willful; actual damages and reasonable attorney’s fee §4-88-113; if willful deceptive trade practice, Class A misdemeanor (4-88-103)	Yes; license may be denied, suspended or revoked for violation (§23-112-308(21)
CALIFORNIA	No	Yes (Bus. & Prof. §17500 et seq.)	Attorney general; district attorney or other prosecuting attorney may bring suit for injunctive and civil penalties (Bus & Prof. §17535); any individual may bring suit for injunction or restitution (Bus. & Prof. §17203)	Violation of provision misdemeanor punishable by imprisonment in county jail not exceeding 6 months or a fine not exceeding $2500/both. (Bus. & Prof. §17500) May be both imprisoned and fined.	Yes (Veh. C. §28050, et seq.); misdemeanor (Veh. §40000.15)

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State	Uniform Deceptive Trade Practices Act Adopted	False Advertising Forbidden	Who May Bring Suit	Remedies Available	Auto Odometer Tampering Forbidden
COLORADO	Yes; “Colorado Consumer Protection Act, an Update” (6-1-101)	Yes (§6-1-105)	Class action; attorney general; private citizens; district attorney (§6-1-113)	The amount of actual damages, $500, or 3 times the actual damages, whichever is greatest if established by clear and convincing evidence that the person engaged in bad faith; cost of reasonable attorney’s fee	Yes (§42-6-202)
CONNECTICUT	Connecticut Unfair Trade Practices Act (§§42-110a to 42-110q; 42-144 to 42-149)	None generally but §42-110b describes “unfair or deceptive acts” in trade, defined as including advertising by §42-110a(4)	Private parties; attorney general; class action; Commissioner of Consumer Protection (§§42-110d, g)	Willful violation: $5,000 for each offense; costs; attorney’s fees; injunctive or equitable relief; punitive damages	Yes (§14-106b); class A misdemeanor
DELAWARE	Yes (Tit. 6 §§2531, et seq.) Uniform Deceptive Trade Practices Act (6 §2536)	Yes (Tit. 6 §2532)	Attorney general and victims of deceptive trade practices (6 §2522) Service in accordance with 6 §2514	Violation of Tit.6 §2501 is $100 (Tit. 6 §2503); not more than $10,000 for each willful violation, enjoin practice or other appropriate relief (Tit. 6 §§2522 to 2524); actual damages (Tit. 6 §2524); treble damages (Tit. 6 §2533[c]); injunction, attorney’s fees (Tit. 6 §2533)	Yes (Tit. 21 §§6401, 6404)
DISTRICT OF COLUMBIA	Yes (§28-3904)	Yes (§28-3904)	Director of Department of Consumer and Regulatory Affairs; consumer (§28-3905)	Appropriate civil penalties: injunction, actual and treble damages, attorney’s fees; consumer redress remedies; punitive damages (§28-3905)	No

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State	Uniform Deceptive Trade Practices Act Adopted	False Advertising Forbidden	Who May Bring Suit	Remedies Available	Auto Odometer Tampering Forbidden
FLORIDA	No (§§501.201, et seq.)Florida Deceptive & Unfair Trade Practices Act	Yes	Enforcing authority for specific industry; consumer in private action §501.203	False advertising: 2nd degree misdemeanor (§817.45); food: 2nd degree misdemeanor (§500.177); actual damages if in bad faith; injunction; declatory judgment that act is violation (§501.207). Damages vary based on industry where deceptive trade practice is used. Generally false advertising is a 2nd degree misdemeanor; willful unfair trade practices in any industry may result in up to $10,000 civil penalty for each violation; reasonable attorney’s fees and costs (§501.2075)	Yes; 3rd degree felony (§319.35)
GEORGIA	Yes (§10-1-370 to 375; 390 to 407)Uniform Deceptive Trade Practices Act	Yes (§§10-1-420, 421)	Administrator; private party (§§10-1-397, 398)	Misdemeanor (§10-1-420); civil penalty $25,000 (10-1-405); enjoining practices (§10-1-423); exemplary damages for intentional violation, limited to actual damages if bona fide error (§10-1-399, 400); fine over $100 but less than $1,000 or prison for up to 20 days or both (§10-1-421); exception for ignorance (§10-1-396)	Yes (§40-8-5); violator liable for three times actual damages or $1,500, whichever is greater, costs and attorney’s fees
HAWAII	Yes (§481A)Uniform Deceptive Trade Practice Act	Yes (§481A-3; 708.871 Criminal Code) false advertising misdemeanor	Consumer Protection Agency (§487); private parties (§481A-4)	Injunction; costs to prevailing party; attorney’s fees (481A-4); false advertising misdemeanor	Yes (§486-77)(1) and (4)
IDAHO	Yes (§48-601) Idaho Consumer Protection Act	Yes (48-603)	State (48-606); private party (48-608)

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