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