State Consumer Protection Laws

• Pages: 711-1201

711

CHAPTER VI

STATE CONSUMER PROTECTION LAWS

A. Introduction

The 50 states, the District of Columbia, and many local governments

have enacted consumer protection laws. These laws generally fall into

one of two broad categories “Little FTC Acts,” patterned after Section 5

of the Federal Trade Commission Act (FTC Act), 1 or “Uniform

Deceptive Trade Practice Acts” (UDTPA).2 Collectively, these laws are

often referred to as unfair and deceptive acts and practices (UDAP)

statutes. Many of these laws were enacted during and shortly after the

wave of consumerism that swept the United States starting in the mid-

1960s. They are often broadly worded and liberally interpreted so as to

permit substantial breadth and flexibility for the protection of

consumers.3

Despite their relative youth, many UDAP statutes have been subject

to substantial judicial interpretation. Indeed, the consumer protection

statutes of several of the more active states have been the subjects of

entire treatises.4 In other states consumer protection case law may be

1. 15 U.S.C. § 45.

2. Uniform Deceptive Trade Practices Act (1964) (reprinted in

Commissioners on Uniform State Laws, Handbook of the National

Conference of Commissioners on Uniform State Laws and Proceedings

of the Annual Conference Meeting in Its Seventy-Third Year 253-64

(1964)). The UDTPA was originally adopted in 1964 and was revised in

1966. Commissioners on Uniform State Laws, Handbook of the National

Conference of Commissioners on Uniform State Laws and Proceedings

of the Annual Conference Meeting in Its Seventy-Fifth Year 306-16

(1964).

3. E.g., Ly v. Nystrom, 615 N.W.2d 302, 308 (Minn. 2000); Iadanza v.

Mather, 820 F. Supp. 1371, 1377-79 (D. Utah 1993); Smith v.

Commercial Banking Corp., 866 F.2d 576, 581-83 (3d Cir. 1989).

4. See, e.g., MICHAEL C. GLLLERAN,THE LAW OFCHAPTER 93A

(Massachusetts Practice Series No. 53, 2d ed. 2007); ROBERT M.

LANGER,JOHN T. MORGAN &DAVID L. BELT,UNFAIR TRADE PRACTICES

(Connecticut Practice Series No. 12, 2014-15 ed.); see also Michael M.

Greenfield, Unfairness under Section 5 of the FTC Act and Its Impact on

State Law, 46 WAYNE L. REV. 1869, 1915 (2000).

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quite sparse. Some states limit the scope of UDAP statutes by (1)

including an intent requirement, (2) limiting the application to conduct

that occurred in the context of the purchase of a product solely for

personal, family or household purposes and thereby eliminating standing

for businesses or competitors, (3) exempting conduct subject to the

regulation of another state or federal agency, or (4) excluding a cause of

action for unfairness. Some states identify many specific types of

prohibited conduct, while others describe the unlawful conduct in broad

terms. What is most remarkable about the array of UDAP statutes, even

those labeled Little FTC Acts, is how much they vary from each other.

Accompanying the introduction to this chapter are 51 subchapters

that provide an overview of the UDAP laws of the 50 states and the

District of Columbia. Each subchapter includes a discussion of the scope

of the statute, including the elements of a cause of action, and both

private and government enforcement of the statute.

B. General Provisions of State Consumer Protection Laws

1. Scope of the Statutes

Many state consumer protection statutes contain specific laws,

provisions, or regulations addressing particular practices or areas of

commerce. At the same time, most statutes contain general language that

enables enforcers to respond to innovative or unanticipated tactics. Thus,

the practitioner must be aware not only of what the applicable statutes

indicate about a specific practice or product area under consideration, but

also must consider whether general provisions may govern the conduct at

issue.

Some state consumer protection statutes, however, explicitly exempt

certain practices or industries that are already subject to regulation by

other laws.5 In other cases, extensive state regulation of a particular area

of commerce may partly or wholly displace the UDAP statute without

5. For example, the Louisiana Unfair Trade Practices and Consumer

Protection Law does not apply to “actions or transactions subject to the

jurisdiction of the Louisiana Public Service Commission or other public

utility regulatory body, the commissioner of financial institutions, the

insurance commissioner, the financial institutions and insurance

regulators of other states, or federal banking regulators who possess

authority to regulate unfair or deceptive trade practices.” LA.REV.STAT.

ANN. § 51:1406(1).

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STATE CONSUMER PROTECTION LAWS 713

explicit notice in the statute to this effect, or by a general provision in the

UDAP statute exempting “regulated practices.”6

Many state consumer protection laws or regulations provide a

laundry list of practices that are deemed per se unfair or deceptive.7 For

example, in Illinois, the Consumer Fraud and Deceptive Business

Practices Act8 enumerates dozens of practices considered unlawful under

its general definition.9

In addition, a state’s other consumer-oriented statutes may

themselves refer to and incorporate by reference its UDAP statute,

providing that any violation of those statutes also constitutes a UDAP

violation. In Connecticut, for example, violations of over 70 separate

statutes are deemed per se violations of the Connecticut Unfair Trade

Practices Act,10 including statutes concerning rent-to-own agreements,11

fictitious trade names,12 health clubs,13 sweepstakes,14 and funeral service

contracts.15

6. Massachusetts law, for example, provides that, “nothing in this chapter

shall apply to transactions or actions otherwise permitted under laws as

administered by any regulatory board or officer acting under statutory

authority of the commonwealth or of the United States.” MASS.GEN.

LAWS ch. 93A, § 3; see Haynes v. Yale-New Haven Hosp., 699 A.2d 964,

972 (Conn. 1997) (applying the Connecticut Unfair Trade Practices Act

(CUTPA), via judicial gloss, only to the “entrepreneurial” aspects of

professional services, including the medical profession).

7. As described below, many state UDAP statutes do not provide for true

per se liability, especially when enforced by private litigants as opposed

to state attorneys general, inasmuch as they may include one or more

additional required elements such as intent to deceive, actual deception,

materiality, reliance by the plaintiff, causation, and/or injury. Laundry

lists thus often create per se violations only in the limited sense that

defenses may not be raised as to the conduct itself.

8. 815 ILL.COMP.STAT. 505/1 through 505/12.

9. Id. at 505/2A through 2RRR; see MICH.COMP.LAWS § 445.903 (defining

“unfair, unconscionable, or deceptive methods, acts, or practices” under

Michigan law by listing specifically prohibited acts or practices).

10. CONN.GEN.STAT. §§ 42-110a through 42-110q.

11. Id. § 42-251(a).

12. Id. § 35-1(a), (b).

13. Id. § 21a-222(b).

14. Id. § 42-300.

15. Id. § 42-206.

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