New Mexico

• Pages: 427-440

427

CHAPTER 33

NEW MEXICO

A. Scope of the Statute and Elements of a Cause of Action

New Mexico’s Unfair Practices Act (UPA),1declares unlawful

“[u]nfair or deceptive trade practices and unconscionable trade practices

in the conduct of any trade or commerce.”

2The legislature specifically

intended the statute to be construed according to the interpretations of the

FTC and federal courts.3

The UPA defines an “unfair or deceptive trade practice” as “a false or

misleading oral or written statement, visual description or other

representation of any kind knowingly made in connection with the sale,

lease, rental or loan of goods or services . . . which may, tends to or does

deceive or mislead any person.”4 Nineteen types of practices expressly fall

within the scope of this definition, including representing goods or

services as those of another when they are not,5 representing that goods

are original or new if they are not,6 failure to deliver the quality or quantity

of goods or services contracted for,7 and offering or providing differential

pricing or service based on the buyer’s gender or perceived gender

identify.8 The UPA also makes it an unfair or deceptive practice to violate

the Tobacco Escrow Act.9 The New Mexico Supreme Court has also held

1. N.M.STAT. §§ 57-12-1 through 57-12-26.

2. Id. § 57-12-3.

3. Id. § 57-12-4.

4. Id. § 57-12-2(D); see Salmeron v. Highlands Ford Sales, 271 F. Supp. 2d

1314, 1318-19 (D.N.M. 2003) (holding that failure to disclose that car had

been previously owned by a rental company was a material

misrepresentation and fell within the UPA). The UPA also extends to “the

extension of credit or in the collection of debts by a person in the regular

course of his trade or commerce.” N.M.STAT. § 57-12-2(D).

5. N.M.STAT. § 57-12-2(D)(l).

6. Id. § 57-12-2(D)(6).

7. Id. § 57-12-2(D)(17).

8. Id. § 57-12-2(D)(19).

9. Id. § 57-12-2(D)(18).The Tobacco Escrow Act imposes a number of

deposit, certification, disclosure, and other requirements on tobacco

product manufacturers selling their products in New Mexico. Id.§§6-4-14

through 6-4-24.