Chapter 109:4-3 Deceptive Acts or Trade Practices in Connection with Consumer Transactions

109:4-3-01 Construction and purpose of rules; severability; definitions.

(A) Purposes, rules of construction

(1) These substantive rules (rule 109:4-3-01 of the Administrative Code, etc.) are adopted by the office of the attorney general pursuant to division (B) of section 1345.05 and Chapter 119. of the Revised Code. Without limiting the scope of any section of the Revised Code or any other rule, these rules shall be liberally construed and applied to promote their purposes and policies.

(2) The purposes and policies of these rules are to:

(a) Define with reasonable specificity acts and practices which violate section 1345.02 or 1345.03, or 1345.031 of the Revised Code;

(b) Protect consumers from suppliers who engage in referral selling, commit deceptive acts or practices, or commit unconscionable acts or practices;

(3) Any substantive rules adopted by the office of the attorney general pursuant to division (B) of section 1345.05 and Chapter 119. of the Revised Code are subject to all remaining provisions of Chapter 1345. of the Revised Code, including, without limitation, the bona fide error provisions of division (A) of section 1345.11 of the Revised Code.

(B) Severability

Each substantive rule and every part of each substantive rule is an independent rule and section of a rule, and the holding of any rule or paragraph of a rule to be unconstitutional, void, or ineffective for any cause does not affect the validity or constitutionality of any other rule or paragraph of a rule.

(1) “Goods” means all things (including specially manufactured goods) which are movable at time of identification to the contract for sale other than the money in which the price is to be paid, securities (as they are defined in Chapter 1707. of the Revised Code), and things in action.

(2) “Services” means performance of labor for the benefit of another. Services include, but are in no way limited to, the construction of a single-family dwelling unit by a supplier on the real property of a consumer.

(3) “Offer” means any attempt to effect, or solicitation of an offer to enter into a consumer transaction by agent, advertisement, or otherwise.

(4) “Sale” includes sale, lease, assignment, award by chance or other transfer of an item of goods, a service, franchise, or an intangible.

(5) “Advertisement” means any electronic, written, visual, or oral communication made to a consumer by means of personal representation, newspaper, magazine, circular, billboard, direct mailing, sign, radio, television, telephone or otherwise, which identifies or represents the terms of any item of goods, service, franchise, or intangible which may be transferred in a consumer transaction.

(6) “Knowledge,” “knowingly,” “knowing,” or “known” means that there is actual awareness, but such actual awareness may be inferred where objective manifestations indicate that the individual acted with such awareness.

(7) “Instruct” or “instructing” means to in any way direct, order, or inform.

(8) “Inducing” or “induce” means to persuade or influence in any way.

(9) “Coercing” or “coerce” means to force or pressure to act.

(10) “Compensate” means to promise or provide anything of value, and includes, without limitation, money, goods, services or the promise of continuing or future employment.

Effective: 01/07/2007

R.C. 119.032 review dates: 10/16/2006 and 12/28/2011

Promulgated Under: 119.03

Statutory Authority: 1345.05

Rule Amplifies: Chapter 1345.01

Prior Effective Dates: 6/5/73, 1/26/80, 3/14/05

109:4-3-02 Exclusions and limitations in advertisements.

(A)(1) It is a deceptive act or practice in connection with a consumer transaction for a supplier, in the sale or offering for sale of goods or services, to make any offer in written or printed advertising or promotional literature without stating clearly and conspicuously in close proximity to the words stating the offer any material exclusions, reservations, limitations, modifications, or conditions. Disclosure shall be easily legible to anyone reading the advertising or promotional literature and shall be sufficiently specific so as to leave no reasonable probability that the terms of the offer might be misunderstood.

(2) The following are examples of the types of material exclusions, reservations, limitations, modifications, or conditions of offers which must be clearly stated:

(a) An advertisement for any motor vehicle must disclose the amount of any additional charge for any of the features displayed in the advertisement.

(b) An advertisement for an article of clothing must state that there is an additional charge for sizes above or below a certain size if such is the case.

(c) An advertisement which offers floor covering with an additional charge for room sizes above or below a certain size must disclose the nature and amount of any additional charge.

(d)(i) An advertisement for a service or item of goods sold from more than one outlet under the direct control of the supplier causing the advertisement to be made must state:

(a) Which outlets within the area served by the publication in which the advertisement appears either have or do not have certain features mentioned in the advertisement;

(b) Which outlets within the area served by the publication in which the advertisement appears charge rates higher than the rate mentioned in the advertisement. For example: “Car Rental-seven dollars a day at the Main Street office-all other locations are more.”

(ii) An advertisement for a service or item of goods sold from outlets not under the direct control of the supplier causing the advertisement to be made does not violate divisions (A)(2)(d)(i) (a) or (A)(2)(d)(i) (b) of this rule if it states that the service or item of goods is available only at participating independent dealers.

(e) If the advertised price is available only during certain hours of the day or certain days of the week, that fact must be stated along with the hours and days the price is available.

(f) If the advertisement involves or pictures more than one item of goods (for example: a table and chairs) and the advertised price applies only if the complete set is purchased, that fact must be stated.

(g) If there is a minimum amount (or maximum amount) that must be purchased for the advertised price to apply, that fact must be stated.

(h) If an advertisement specifies a price for an item of goods which includes a trade-in, that fact must be stated. For example: “four tires for fifty dollars plus four tires off your car.”

(i) If there is an additional charge for delivery or mail orders, that fact must be disclosed.

(3) These examples are intended to be illustrative only and do not limit the scope of any section of the Revised Code or of this or any other rule or regulation.

(B) Offers made through radio or television advertising must be preceded or immediately followed by a conspicuously clear and oral statement of any exclusions, reservations, limitations, modifications, or conditions.

(C) A statement of exclusions, reservations, limitations, modifications, or conditions which appears in a footnote to an advertisement to which reference is made in the advertisement by an asterisk or other symbol placed next to the offer being limited is not in close proximity to the words stating the offer.

HISTORY: (former COcp-3-01.02); Eff 5-1-75

Rule promulgated under: RC Chapter 119.

Rule authorized by: RC 1345.05

109:4-3-03 Bait advertising/unavailability of goods.

(A) Definitions: For the purposes of this rule, the following definitions shall apply:

(1) “Raincheck” means a written document evidencing a consumer’s entitlement to purchase advertised items at an advertised price within the time limits set forth in paragraph (C) of this rule. Rainchecks shall be executed in duplicate, one copy being given to the consumer and one copy being kept by the issuing supplier, and shall contain at least the following information:

(a) The name and address of the supplier;

(b) The name, address and phone number of the consumer;

(d) The quantity entitled to be purchased by the consumer;

(e) The advertised price of the item;

(f) The date of issuance.

(2) “Salesperson” means the supplier or the supplier’s agent or employee who interacts personally or directly with a consumer in negotiating or effecting a consumer transaction.

(3) “Special purchase items” means items which are not currently or normally carried by a supplier in its regular stock of goods and that will not be re-offered for sale as a special-purchase item by the supplier for at least six months after the advertised promotion.

(4) “Clearance items” means items which have been carried by a supplier in its regular stock of goods, which have been discontinued as regular stock, and which will not be re-offered for sale for at least six months after the advertised promotion.

(5) “Seasonal items” means items which are carried by a supplier as regular stock only at certain periods during a calendar year, and which will not be re-offered for sale until the beginning of the next season in which the supplier regularly carries such items.

(B) Bait advertising

It shall be a deceptive and unfair act or practice for a supplier to make an offer of sale of any goods or services when such offer is not a bona fide effort to sell such goods or services. An offer is not bona fide if:

(1) A supplier uses a statement or illustration or makes a representation in any advertisement which would create in the mind of a reasonable consumer, a false impression as to the grade, quality, quantity, make, model, year, price, value, size, color, utility, origin or any other material aspect of the offered goods or services in such a manner that, upon subsequent disclosure or discovery of the facts, the consumer may be induced to purchase goods or services other than those offered;

(2) The first contact or interview with the consumer is secured by the supplier through deception, even if the relevant facts of the offer are disclosed to the consumer before the consumer views the offered goods or services;

(3) A supplier discourages the purchase or sale of the offered goods or services by any means, including but not limited to the following:

(a) The refusal to show, demonstrate or sell the offered goods or services in accordance with the terms of the offer;

(b) Disparagement by the supplier of the offered goods or services;

(c) The showing or demonstrating of offered goods or services which are unusable or impractical for the purposes represented, or materially different from the offered goods or services;

(d) The use of a sales plan or method of compensation of sales personnel which is designed to penalize or prevent a salesperson from selling the advertised goods or services;

(e) The failure of a supplier to have on hand at each of its outlets or available for immediate delivery a sufficient quantity of the offered goods or services to meet reasonably anticipated consumer demand, unless the supplier complies with the provisions of paragraph (C)(1)(b) or (C)(1)(c) of this rule concerning unavailability of goods.

(4) A supplier, in the event of a sale to the consumer of the offered goods or services, attempts to persuade a consumer to repudiate the purchase of the offered goods or services and purchase other goods or services in their stead, by any means, including but not limited to the following:

(a) Accepting a consideration for the offered goods or services, then switching the consumer to other goods or services;

(b) Failing to make delivery of the offered goods or services (or, with the consent of the consumer, substituting goods or services of equal or greater value) within a reasonable time, or to make a refund;

(c) Delivering offered goods or services which are unusable or impractical for the purposes represented or materially different from the offered goods or services.

The purchase on the part of some consumers of the offered goods or services is not in itself prima facie evidence that the offer is bona fide.

It shall be a deceptive and unfair act or practice for a supplier, in connection with an advertised offer for sale of goods or services, to:

(1) Fail to give a raincheck to any consumer after the original quantity of goods or services represented for sale by an out-of-store advertisement is exhausted unless:

(a) For any item whose advertised price exceeds one hundred dollars the supplier at the time of the advertised offer had a sufficient supply of the advertised goods or services to meet the reasonably expected consumer demand, and the supplier shall document upon request that the supplier’s estimate of reasonably expected consumer demand was based upon the following factors:

(i) Previous recent offers of same or similar goods or services on sale by such supplier at similar savings or prices;

(ii) Scope, manner and frequency of advertising employed to promote the sale of such item;

(iii) The existence of any significant current circumstances or events which causes or could be expected to cause an increased or decreased consumer response for the offered items of goods and services, or;

(b) The minimum quantity of the advertised goods or services available to each of the supplier’s outlets is clearly and conspicuously disclosed in the advertisement, i.e., “at least ten in stock”, or;

(c) The advertisement clearly and conspicuously discloses that the offered goods or services are “special purchase”, “seasonal” or “clearance” items and that no rainchecks will be given, or;

(d) The supplier permits the consumer, in lieu of a raincheck, at the consumer’s option, to purchase another similar or comparable item of equal or greater value in stock at a savings equal to the greater of the net difference in dollars between the former and advertised prices of the item, or the percentage of savings on the advertised price of the item compared to its former price.

(2) Fail to honor a raincheck within sixty days of the day of its issuance to a consumer or within the specific time extension agreed to by the consumer pursuant to paragraph (C)(5).

(3) Fail to notify the consumer holding a raincheck pursuant to paragraph (C)(1) of the availability of the out-of-stock item within fourteen days of its re-availability by the method most reasonably designed to inform the consumer of the availability, except a supplier may be exempt from such notification if a specific availability date is clearly and conspicuously disclosed on the raincheck and such date of availability does not exceed twenty-one days from the date of issuance of the raincheck. In the event that such raincheck item does not in fact become available to the consumer within twenty-one days, the supplier shall permit the consumer, at the consumer’s option, to substitute another similar or comparable in-stock item.

(4) Re-advertise the out-of-stock item prior to notification to consumers holding rainchecks for the item, pursuant to paragraph (C)(3) above. However, after the advertisement has been placed with the media by the supplier and is no longer within the control of the supplier, repetition of the previously placed advertisement by the media shall not constitute re-advertisement within the meaning of this rule.

(5) Fail, in the event an out-of-stock item is not available within sixty days of issuance of a raincheck, to notify the consumer holding the raincheck and permit the consumer, at the option of the consumer, to either purchase another similar or comparable in-stock item pursuant to paragraph (A)(3) above or consent to a specific time extension within which the raincheck item will be provided.

(6) Fail, in the event a supplier notifies a consumer of the re-availability of an item, and the consumer attempts to redeem their raincheck within the period prescribed by this rule, but the item is again unavailable at the time of the attempted redemption, to permit the consumer, at the consumer’s option, to purchase another similar or comparable in-stock item pursuant to paragraph (A)(3) above.

(7) Fail to document upon request the specific factors relied upon to arrive at a sufficient supply of the advertised goods or service to meet the reasonably expected consumer demand when a raincheck is not given to a consumer for such item of goods or service.

(8) Fail to redeem or otherwise honor a raincheck presented by a consumer within fourteen days of either notification of availability or the specific availability date pursuant to paragraph (C)(3).

(D) The provisions of this rule shall have no application to consumer transactions involving the advertisement or sale of a motor vehicle as that term is defined in division (B) of section 4501.01 of the Revised Code and to any advertisement which solicits orders of goods or services through a catalogue or similar device for subsequent consumer delivery from a catalogue merchandise distribution center or similar facility which is not utilized primarily as a retail store.

HISTORY: Replaces rule 109:4-3-03; Eff (Amended) 6-5-73; 8-17-81; 3-14-2005

Promulgated Under: 119.03

Statutory Authority: R.C. 1345.05

Rule Amplifies: R.C. 1345.02

109:4-3-04 Use of word "free" etc.

(A) It shall be a deceptive act or practice in connection with a consumer transaction for a supplier to use the word “free” or other words of similar import or meaning, except in conformity with this rule. It is the express intent of this rule to prohibit the practice of advertising or offering goods or services as “free” when in fact the cost of the “free” offer is passed on to the consumer by raising the regular (base) price of the goods or services that must be purchased in connection with the “free” offer. In the absence of such a base price a “free” offer is in reality a single price for the combination of goods or services offered, and the fiction that any portion of the offer is “free” is inherently deceptive.

(B) For the purposes of this rule, all references to the word “free” shall include within that term all other words of similar import and meaning. Representative of the word or words to which this rule is applicable would be the following: “Free;” “Buy 1, Get 1 Free;” “2 for 1 Sale;” “50% Off with Purchase of 2.” Offers of “free” items of goods or services which may be deceptive for failure to meet the provisions of this rule may not be corrected by the substitution, for the word “free,” of such similar words and terms as “gift,” “given without charge,” “bonus,” or other words and terms which tend to convey to the consuming public the impression that an item of goods or services is “free.”

(C) When using the word “free” in a consumer transaction, all the terms, conditions, and obligations upon which receipt and retention of the “free” goods or services are contingent shall be set forth clearly and conspicuously at the outset of the offer. Terms, conditions, and obligations of the offer must be printed in a type size half as large as the word “free,” and all of the terms, conditions, and obligations should appear in close proximity with the offer of “free” goods or services. Disclosure of the terms of the offer set forth in a footnote of an advertisement to which reference is made by an asterisk or other symbol placed next to the offer is not regarded as making disclosure at the outset.

(D) In a consumer transaction in which goods or services are offered as “free” upon the purchase of other goods or services the supplier must insure:

(1) That the unit regular price charged for the other goods or services is not increased, or if there is no unit regular price, the unit price charged for the other goods or services is continued for a reasonable period of time;

(2) That the regular quality of the other goods or services is not reduced, or if there is no regular quality, the quality level of the other goods and services is continued for a reasonable period of time;

(3) That no other conditions are attached to the offer except for the basic condition that the other goods or services must be purchased in order for the consumer to be entitled to the “free” goods or services.

(E) Only the supplier’s regular price for the goods or services to be purchased may be used as the basis for a “free” offer. It is, therefore, a deceptive act or practice for a supplier to offer “free” goods or services based on a price which exceeds the supplier’s regular price for other goods or services required to be purchased. Likewise, it is a deceptive act or practice for a supplier to make a “free” offer when the price of other goods or services required to be purchased is based on a price being charged by others in the supplier’s trade area for the same or similar goods or services when, in fact, such price is in excess of the supplier’s regular price.

(F) (1) “Regular price” means the price at which the goods or services are openly and actively sold by a supplier to the public on a continuing basis for a substantial period of time. A price is not a regular price if:

(a) It is not the supplier’s actual selling price;

(b) It is a price which has not been used in the recent past; or

(2) “Regular quality” means the quality level at which the goods and services are openly and actively sold by the supplier to the public on a continuing basis for a substantial period of time. A quality level is not a regular quality if:

(a) It is not the supplier’s actual quality level;

(b) It is a quality level that has not been used in the recent past; or

(G) It is recognized that some goods and services are almost never sold at a single regular price, but are instead sold by means of individual negotiated transactions. A supplier of goods or services sold in negotiated transactions is not precluded by this rule from making a “free” offer provided the supplier is able to establish a mean average price immediately prior to the “free” offer, the goods or services are fungible, and the mean average price during the “free” offer does not exceed the mean average price immediately prior thereto.

(H) Continuous or repeated “free” offers are deceptive acts or practices since the supplier’s regular price for goods to be purchased by consumers in order to avail themselves of the “free” goods will, by lapse of time, become the regular price for the “free” goods or services together with the other goods or services required to be purchased. Under such circumstances, therefore, an offer of “free” goods or services is merely illusory and deceptive.

(I) This rule does not preclude the use of nondeceptive, “combination” offers in which two or more items of goods and/or services such as toothpaste and a toothbrush, or soap and deodorant, or clothing and alterations are offered for sale as a single unit at a single stated price, and in which no representation is made that the price is being paid for one item and the other is “free.” Similarly, suppliers are not precluded from setting a price for an item of goods or services which also includes furnishing the consumer with a second, distinct item of goods or services at one inclusive price if no representation is made that the latter is free.

HISTORY: (former COcp-3-01.04); Eff 6-5-73; 3-14-2005

Promulgated Under: 119.03

Statutory Authority: R.C. 1345.05

Rule Amplifies: R.C. 1345.02

109:4-3-05 Repairs or services.

(A) It shall be a deceptive act or practice in connection with a consumer transaction involving the performance of either repairs or any service where the anticipated cost exceeds twenty-five dollars and there has been face to face contact between the consumer or the consumer’s representative and the supplier or the supplier’s representative, prior to the commencement of the repair or service for a supplier to:

(1) Fail, at the time of the initial face to face contact and prior to the commencement of any repair or service, to provide the consumer with a form which indicates the date, the identity of the supplier, the consumer’s name and telephone number, the reasonably anticipated completion date and, if requested by the consumer, the anticipated cost of the repair or service. The form shall also clearly and conspicuously contain the following disclosures in substantially the following language:

“ESTIMATE

YOU HAVE THE RIGHT TO AN ESTIMATE IF THE EXPECTED COST OF REPAIRS OR SERVICES WILL BE MORE THAN TWENTY-FIVE DOLLARS. INITIAL YOUR CHOICE: _____written estimate _____oral estimate _____no estimate”

(2) Fail, where no portion of a repair or service is to be performed at the consumer’s residence, to post a sign in a conspicuous place within that area of the supplier’s place of business to which consumers requesting any repair or service are directed by the supplier or to give the consumer a separate form at the time of the initial face to face contact and prior to the commencement of any repair or service which clearly and conspicuously contains the following language:

“NOTICE

IF THE EXPECTED COST OF A REPAIR OR SERVICE IS MORE THAN TWENTY-FIVE DOLLARS, YOU HAVE THE RIGHT TO RECEIVE A WRITTEN ESTIMATE, ORAL ESTIMATE, OR YOU CAN CHOOSE TO RECEIVE NO ESTIMATE BEFORE WE BEGIN WORK. YOUR BILL WILL NOT BE HIGHER THAN THE ESTIMATE BY MORE THAN FIVE DOLLARS OR TEN PER CENT, WHICHEVER IS GREATER, UNLESS YOU APPROVE A LARGER AMOUNT BEFORE REPAIRS ARE FINISHED. OHIO LAW REQUIRES US TO GIVE YOU A FORM SO THAT YOU CAN CHOOSE EITHER A WRITTEN, ORAL, OR NO ESTIMATE.”

(3) Fail, where a consumer requests a written estimate of the anticipated cost of repairs or services, to make a bona fide effort during the initial face to face contact to provide the written estimate on the form required by paragraph (A)(1) of this rule;

(4) Fail, where a consumer requests a written or oral estimate, to give the estimate to the consumer before commencing the repair or service.

(B) It shall be a deceptive act or practice in connection with a consumer transaction involving the performance of either a repair or a service where the anticipated cost exceeds twenty-five dollars and where any portion of the repair or service is to be performed at the consumer’s residence, for a supplier to fail to orally inform the consumer at the time of the initial face to face contact and prior to the commencement of any repair or service, of the consumer’s right to receive a written or oral estimate and to provide the consumer with a form which conforms to the requirements of paragraph (A)(1) of this rule. For purposes of this paragraph, where a supplier performs any part of a repair or service at a consumer’s residence, the repair or service shall not be deemed to have been commenced until the supplier arrives at the consumer’s residence.

(C) It shall be a deceptive act or practice in connection with a consumer transaction involving the performance of either a repair or a service where there has not been face to face contact between the consumer or the consumer’s representative and the supplier or the supplier’s representative prior to the commencement of the repair or service for a supplier to:

(1) Fail, upon the first contact with the consumer, to inform the consumer orally, of the consumer’s right to receive an oral or written estimate of the anticipated cost of the repair or service;

(2) Fail, where the consumer requests an oral estimate, to give the oral estimate to the consumer before commencing the repair or service;

(3) Fail, where the consumer requests a written estimate, to prepare a written estimate, inform the consumer that the estimate is available, and upon the consumer’s request, give the estimate to the consumer before commencing the repair or service.

(D) In any consumer transaction involving the performance of any repair or service it shall be a deceptive act or practice for a supplier to:

(1) Make the performance of any repair or service contingent upon a consumer’s waiver of any rights provided for in this rule;

(2) Fail, in those cases where an estimate has been requested by a consumer, and the anticipated cost of the repair is fifty dollars, or less, to obtain oral or written authorization for the anticipated cost of any additional, unforeseen, but necessary repairs when the cost of those repairs exceeds five dollars (excluding tax);

(3) Fail, in those cases where an estimate has been requested by a consumer, and the anticipated cost of the repair or service exceeds fifty dollars, to obtain oral or written authorization from the consumer for the anticipated cost of any additional, unforeseen, but necessary repairs when the cost of those repairs amounts to ten per cent or more (excluding tax) of the original estimate;

(4) Fail, where the anticipated cost of a repair or service is less than twenty-five dollars and an estimate has not been given to the consumer, to obtain oral or written authorization from the consumer for the anticipated cost of any additional, unforeseen, but necessary repairs or services when the total cost of the repairs or services, if performed, will exceed twenty-five dollars;

(5) Fail to disclose prior to acceptance of any item of goods for inspection, repair, or service, that in the event the consumer authorizes commencement but does not authorize completion of a repair or service, that a charge will be imposed for disassembly, reassembly, or partially completed work. Any charge so imposed must be directly related to the actual amount of labor or parts involved in the inspection, repair or service;

(6) Charge for any repair or service which has not been authorized by the consumer;

(7) Fail to disclose upon the first contact with the consumer that any charge not directly related to the actual performance of the repair or service will be imposed by the supplier, including but not limited to service charges, charges imposed by the supplier for traveling to the consumer’s residence, or charges for diagnosis, whether or not repairs or services are performed;

(8) Represent that repairs or services are necessary when such is not the fact;

(9) Represent that repairs have been made or services have been performed when such is not the fact;

(10) Represent that an item of goods or any part thereof which is being inspected or diagnosed for a repair or service is in a dangerous condition, or that the consumer’s continued use of it may be harmful, when such is not the fact;

(11) Materially understate or misstate the estimated cost of the repair or service;

(12) Fail to provide the consumer with a written itemized list of repairs performed or services rendered, including a list of parts or materials and a statement of whether they are used, remanufactured, or rebuilt, if not new, and the cost thereof to the consumer, the amount charged for labor, and the identity of the individual performing the repair or service;

(13) Fail to tender to the consumer any replaced parts, unless the parts are to be rebuilt or sold by the supplier, or returned to the manufacturer in connection with a warranted repair or service, and such intended reuse or return is made known to the consumer prior to commencing any repair or service;

(14) Fail to provide to the consumer upon the consumer’s request a written, itemized receipt for any item of goods that is left with, or turned over to, the supplier for repair or service. Such receipt shall include:

(a) The identity of the supplier which will perform the repair or service;

(b) The name and signature of the supplier or a representative who actually accepts the goods;

(c) A description including make and model number or such other features as will reasonably identify the goods to be repaired or serviced;

(d) The date on which the goods were left with or turned over to the supplier.

(15) Fail, at the time of the signing or initialing of any document by a consumer, to provide the consumer with a copy of the document;

(16) Fail to disclose to the consumer prior to the commencement of any repair or service, that any part of the repair or service will be performed by a person other than the supplier or his employees if the supplier disclaims any warranty of the repair or service performed by that person, the nature of the repair or service which that person will perform, and if requested by the consumer, the identity of that person;

(17) Represent that repairs or services must be performed away from the consumer’s residence when such is not the fact.

(E) The sign or form required by paragraph (A)(2) of this rule shall be printed in such a size and manner so that the notice is easily legible. Additional disclosures required by this rule may be incorporated into the sign or form so long as the language required by paragraph (A)(2) of this rule prominently appears as the first listed disclosure. Where a supplier gives written estimates to consumers prior to the commencement of any repair or service regardless of the anticipated cost of repairs or services, the language in the form required by paragraph (A)(1) and the sign or form required by paragraph (A)(2) of this rule may be modified to disclose that fact.

(F) The form required by paragraph (A)(1) of this rule may be separate or may be incorporated into another form used by the supplier as long as the required disclosures are easily legible and clearly and conspicuously appear on the form. Nothing in this rule shall preclude a supplier from incorporating into the same form additional disclosures required by this rule.

(G) In lieu of complying with the requirements of paragraphs (A), (B), and (C) of this rule, a supplier may provide a consumer, prior to the commencement of any repair or service, with a written quotation of the price at which the repair or service will be performed, which shall indicate that the quotation shall be binding upon the supplier for a period of five days, provided that the subject of the consumer transaction is made available to the supplier for the repair or service within that period.

(H) The provisions of this rule shall have no application to consumer transactions involving the repair or service of a “motor vehicle” as that term is defined in division (B) of section 4501.01 of the Revised Code.

HISTORY: Eff 9-28-78; 3-14-2005

Promulgated Under: 119.03

Statutory Authority: R.C. 1345.05

Rule Amplifies: R.C. 1345.02

109:4-3-06 Prizes.

(A) It shall be a deceptive act or practice in connection with a consumer transaction for a supplier to in any way notify any consumer or prospective consumer that the consumer has

(1) Won a prize or will receive anything of value, or

(2) Been selected, or is eligible, to win a prize or receive anything of value, if the receipt of the prize or thing of value is conditioned upon the consumer’s listening to or observing a sales promotional effort or entering into a consumer transaction, unless the supplier clearly and conspicuously discloses, at the time of notification of the prize, that an attempt will be made to induce the consumer or prospective consumer to undertake a monetary obligation irrespective of whether that obligation constitutes a consumer transaction. The supplier must further disclose the market value of the prize or thing of value, that the prize or thing of value could not benefit the consumer or prospective consumer without the expenditure of the consumer’s or prospective consumer’s time or transportation expense, or that a salesperson will be visiting the consumer’s or prospective consumer’s residence, if such is the case.

(B) A statement to the effect that the consumer or prospective consumer must observe or listen to a “demonstration” or promotional effort in connection with a consumer transaction does not satisfy the requirements of this rule, unless the consumer or prospective consumer is told that the purpose of the demonstration is to induce the consumer or prospective consumer to undertake a monetary obligation irrespective of whether that obligation constitutes a consumer transaction.

(C) The following example illustrates a violation of this rule as a result of a lack of disclosure relative to a promotional presentation which is not a consumer transaction:

A free vacation is offered in connection with the purchase of a set of encyclopedias. All disclosures required by this rule are made except that during the vacation the consumer is required to observe a sales presentation for real estate. An offer to sell real estate is not a consumer transaction, but it is an attempt to induce the consumer to undertake a monetary obligation, and such attempt was initiated in connection with a consumer transaction (the sale of encyclopedias).

(D) It shall be a deceptive act or practice in connection with a consumer transaction for a supplier to in any way notify any consumer or prospective consumer that the consumer has:

(1) Won a prize or will receive anything of value, if such is not the case; or

(2) Been selected, or is eligible, to win a prize or receive anything of value, if the receipt of the prize or thing of value is conditioned upon the payment of a service charge, handling charge, mailing charge, or other similar charge; or

(3) Been selected, or is eligible, to win a prize or receive anything of value unless the supplier clearly and conspicuously discloses to the consumer any and all conditions necessary to win the prize or receive anything of value.

HISTORY: (former COcp-3-01.06); Eff 6-5-73; 3-14-2005

Promulgated Under: 119.03

Statutory Authority: R.C. 1345.05

Rule Amplifies: R.C. 1345.02

109:4-3-07 Deposits.

It shall be a deceptive act or practice in connection with a consumer transaction for a supplier to accept a deposit unless the following conditions are met:

(A) The deposit obligates the supplier to refrain for a specified period of time from offering for sale to any other person the goods in relation to which the deposit has been made by the consumer if such goods are unique; provided that a supplier may continue to sell or offer to sell goods on which a deposit has been made if he has available sufficient goods to satisy all consumers who have made deposits;

(B) At the time of the initial deposit the supplier must provide to the consumer a dated written receipt stating clearly and conspicuously the following information:

(1) Description of the goods and/or services to which the deposit applies, (including model, model year, when appropriate, make, and color);

(2) The cash selling price and the amount of the deposit. “Cash selling price”, for purpose of this rule, as it relates to motor vehicle transactions, includes all discounts, rebates and incentives;

(3) Allowance on the goods to be traded in, or other discount, if any;

(4) Time during which any option given is binding;

(5) Whether the deposit is refundable and under what conditions, provided that no limitation on refunds in a layaway arrangement may be made except as provided by sections 1317.21 to 1317.23 of the Revised Code; and

(6) Any additional costs such as storage, assembly or delivery charges.

(C) (C) A written receipt stating the date and amount paid shall be provided to the consumer for each and every subsequent deposit made, which receipt shall also state the remaining amount due. A deposit made where the terms set forth in division (B) of this rule are altered or modified by agreement of the supplier and consumer shall not be considered as a subsequent deposit, but rather as an initial deposit.

(D) For the purposes of this rule “deposit” means any amount of money tendered or obligation to pay money incurred by a consumer for a deposit, refundable or non-refundable option, or as partial payment for goods or services.

(E) The provisions of division (B) of this rule shall not apply to deposits accepted in connection with a written contract for a layaway arrangement governed by section 1317.22 of the Revised Code.

HISTORY: (former COcp-3-01.07); Eff 6-5-73; 3-14-2005

Promulgated Under: 119.03

Statutory Authority: R.C. 1345.05

Rule Amplifies: R.C. 1345.02

109:4-3-08 New for used.

(A) Except as provided for in divisions (C) and (D) of this rule, it shall be a deceptive act or practice in connection with a consumer transaction for a supplier to represent, directly or indirectly, that an item of goods, or that any part of an item of goods, is new or unused when such is not the fact, to misrepresent the extent of previous use thereof, or to fail to make clear and conspicuous disclosure, prior to time of offer, to the consumer or prospective consumer that an item of goods has been used.

(B) For the purposes of this rule, “used” shall include used, rebuilt, remanufactured, or reconditioned goods or parts of an item of goods.

(C) For the purposes of this rule, returned goods, which have not been used by a previous purchaser, shall be considered new or unused.

(D) It shall be a deceptive act or practice in connection with a consumer transaction for a supplier of motor vehicles who has legally operated a motor vehicle as a demonstrator, without titling it to the supplier’s name, to sell the motor vehicle unless a clear and conspicuous disclosure is made in writing on the final document evidencing the sale to the consumer or prospective consumer that the motor vehicle has been operated as a demonstrator.

(E) The disclosure that an item of goods has been used or contains used parts as required by division (A) may be made by use of words such as, but not limited to, “used,” “second hand,” “repaired,” “remanufactured,” “reconditioned,” “rebuilt,” or “relined,” whichever is applicable to the item of goods involved.

HISTORY: (former COcp-3-01.08); Eff 6-5-73; 3-14-2005

Promulgated Under: 119.03

Statutory Authority: R.C. 1345.05

Rule Amplifies: R.C. 1345.02

109:4-3-09 Failure to deliver; substitution of goods or services.

(A) It shall be a deceptive act or practice in connection with a consumer transaction for a supplier:

(1) To advertise or promise prompt delivery unless, at the time of the advertisement, the supplier has taken reasonable action to insure prompt delivery;

(2) To accept money from a consumer for goods or services ordered by mail, telephone, or otherwise and then permit eight weeks to elapse without:

(a) Making shipment or delivery of the goods or services ordered;

(b) Making a full refund;

(c) Advising the consumer of the duration of an extended delay and offering to send the consumer a refund within two weeks if the consumer so requests; or

(d) Furnishing similar goods or services of equal or greater value as a good faith substitute if the consumer agrees.

(B) When a consumer transaction involves goods it shall be a deceptive act or practice for a supplier to furnish similar goods of equal or greater value when there was no intention to ship, deliver, or install the original goods ordered. The act of a supplier in furnishing similar merchandise of equal or greater value as a good faith substitute does not violate this rule.

(C) For the purposes of this rule, goods or services may not be considered of “equal or greater value” if they are not substantially similar to the goods or services ordered, or are not fit for the purposes intended, or if the supplier normally offers the substituted goods or services at a lower price than the “regular price” (as defined in 109:4-3-12 of the Administrative Code) of the goods ordered.

HISTORY: Eff (Amended) 6-5-73; 8-28-81; 3-14-2005

Promulgated Under: 119.03

Statutory Authority: R.C. 1345.05

Rule Amplifies: R.C. 1345.02

109:4-3-10 Substantiation of claims in advertising.

It shall be a deceptive act or practice in connection with a consumer transaction for a supplier to:

(A) Make any representations, claims, or assertions of fact, whether orally or in writing, which would cause a reasonable consumer to believe such statements are true, unless, at the time such representations, claims, or assertions are made, the supplier possesses or relies upon a reasonable basis in fact such as factual, objective, quantifiable, clinical or scientific data or other competent and reliable evidence which substantiates such representations, claims, or assertions of fact; or

(B) Fail, upon the written request of the attorney general or the attorney general’s representative, to produce within a reasonable time period specified, written substantiating documentation, tests, studies, reports, or other data in the possession of the supplier at or prior to the time that representations, claims, or assertions are made about the supplier or the supplier’s goods or services.

HISTORY: Eff 9-17-88; 3-14-2005

Promulgated Under: 119.03

Statutory Authority: R.C. 1345.05

Rule Amplifies: R.C. 1345.02

109:4-3-11 Direct solicitations.

(A) It shall be a deceptive act or practice in connection with a consumer transaction involving any direct solicitation sale for a supplier to do any of the following:

(1) Solicit a sale without clearly, affirmatively, and expressly revealing at the time the supplier initially contacts the consumer or prospective consumer, and before making any other statement, asking any question, or entering the residence of the consumer or prospective consumer, that the purpose of the contact is to effect a sale, stating in general terms the goods or services the supplier has to offer, provided that this paragraph shall not apply to solicitations by mail;

(2) Represent that the consumer or prospective consumer will receive a discount, rebate, or other benefit for permitting his home or other property, real or personal, to be used as a so-called “model home” or “model property” for demonstration or advertising purposes when such in fact is not true;

(3) Represent that the consumer or prospective consumer has been specially selected to receive a bargain, discount, or other advantage when such in fact is not true;

(4) Represent that the consumer or prospective consumer is a winner of a contest when such in fact is not true;

(5) Fail to conform to the requirements of sections 1345.21 to 1345.27, and 1345.99 of the Revised Code relative to home solicitation sales or misrepresent in any manner, the consumer’s or prospective consumer’s right to cancel provided for under such sections, when such sections are applicable;

(6) Represent that the goods that are being offered for sale cannot be purchased in any place of business, but only through direct solicitation, when such in fact is not true;

(7) Represent that the salesperson, representative, or agent has authority to negotiate the final terms of a consumer transaction when such in fact is not true;

(8) Send a consumer a communication that the supplier proposes to send goods to, or provide services for, the consumer, which communication, goods or services the consumer has not expressly agreed in advance to receive, and the consumer will be required to pay for those goods or services unless the consumer communicates a refusal of the offered goods or services;

(9) Send unordered goods to a consumer accompanied by a communication that requires, or purports to require, payment for the goods unless the consumer communicates a refusal to accept the goods and/or returns the goods;

(10) Send unordered goods to, or perform unordered services for, a consumer and then request payment for the provided goods or services;

(11) Interrupt, terminate, cancel, or deny delivery or provision of goods or services previously contracted for to a consumer solely on the basis that the consumer has not paid for or returned to the supplier goods or services which the consumer has not ordered, requested or authorized form the supplier;

(12) Make any attempt to collect upon, assign or convey to any other person or entity, or report to any credit reporting agency any claimed consumer debt related to unordered goods or services provided to the consumer in violation of this rule.

(B) “Direct solicitation” means solicitation of a consumer transaction initiated by a supplier, at the residence of any consumer, or at a place other than the normal place of business of the supplier or by a supplier who has no normal place of business, and includes a transaction initiated by the supplier by mail or telephone solicitation at the residence of any consumer or at a place other than the normal place of business of the supplier. The term “mail” shall include e-mail and facsimile.

(C) The provisions of subdivisions (A)(8), (9), and (10) of this rule shall have no application to goods or services sent pursuant to an agreement that is in compliance with the Federal Trade Commission rule on the use of negative option plans by sellers in commerce (16 C.F.R. Section 425).

Effective: 09/29/2005

R.C. 119.032 review dates: 11/12/2004 and 09/29/2010

Promulgated Under: 119.03

Statutory Authority: R.C. 1345.05

Rule Amplifies: R.C. 1345.02

Prior Effective Dates: 6/5/1973

109:4-3-12 Price comparisons.

(A) Declaration of policy

This rule is designed to define with reasonable specificity certain circumstances in which a supplier’s acts or practices in advertising price comparisons are deceptive and therefore illegal. For purposes of this rule, price comparisons involve a comparison of the present or future price of the subject of a consumer transaction to a reference price, usually as an incentive for consumers to purchase. This rule deals only with out-of-store advertisements as defined in section (B)(3), infra. The rule stems from the general principle, codified in section 1345.02(B) of the Revised Code, that it is deceptive for any claimed savings, discount, bargain, or sale not to be genuine, for the prices which are the basis of such comparisons not to be bona fide, genuine prices, and for out-of-store advertisements which indicate price comparisons to create false expectations in the minds of consumers.

(B) Definitions

(1) “Goods and services” means, for the purposes of this rule, all items which may be the subject of consumer transactions as defined in section 1345.01(A) of the Revised Code.

(2) “Meaningful reduction” means a reduction from a reference price, which reduction is reasonably significant when compared to the reference price as a percentage, or when otherwise compared when the reference price is greater than one hundred dollars.

(3) “Out-of-store advertising” means any advertisement, message, or representation made by a supplier outside of its interior premises. It includes but is not limited to communications made via newspapers, television, radio, printed brochures, leaflets, fliers, billboards or signs painted on or posted in windows.

(4) “Price comparison” or “comparison” means any representation, however expressed, that a savings, reduction or discount exists or will exist; provided, however, that language which does not reasonably imply a comparison to identifiable prices or items does not express a price comparison.

(5) “Reference price” means a higher price to which a supplier compares another, lower price for the purpose of indicating that a reduction in price exists or will exist.

(6) “Regular price” price:has the same meaning as in 109:4-3-04.

(7) “Trading area” means the geographical area in which a supplier in the regular course of its business solicits substantial numbers of customers. A trading area can be local, regional, or national. In the case of a supplier which does business through branch outlets, any branch outlet or group of outlets may have a trading area distinct from that of the supplier as a whole or from other of the supplier’s branch outlets. The geographical reach of the out-of-store advertising of a supplier or of any of its branches can serve as evidence of the extent of its trading area.

(1) It is deceptive for a supplier to use in its out-of-store advertising words which identify or characterize its business or a section or department thereof in terms such as “discount,” “bargain,” “outlet,” “wholesale,” “factory prices,” or other terms which indicate that substantially all or most goods and services sold are available at a meaningful reduction in price unless the supplier’s business or section or department thereof is, in fact, of such a character.

(2) Where an advertisement which characterizes a supplier’s business or a section or department thereof in a manner mentioned in section (C)(1) of this rule does not indicate a particular number, amount, or percentage of goods or services available at a meaningful reduction, it is deceptive if less than a reasonably large and substantial number of all types, brands, and models of items offered for sale by the supplier are available at a meaningful reduction.

(3) Where an advertisement which characterizes a supplier’s business or a section or department thereof in a manner mentioned in section (C)(1) of this rule does indicate a particular number, amount, or percentage of goods and services available at a meaningful reduction, it is deceptive if fewer than the advertised number, amount, or percentage of goods and services are in fact available at a meaningful reduction.

(D) Reduction for special circumstances

(1) It is deceptive for a supplier in its out-of-store advertising to indicate or to imply that a “sale,” “bargain,” or other offering of a reduction in price will terminate within a given or anticipated period of time unless it does in fact terminate within the period indicated or implied. But, if circumstances which in good faith were unforeseen at the time the reduction was advertised necessitate an extension of the time within which the reduction is to terminate, a supplier does not violate this rule if it:

(a) Extends the time of termination of the reduction; and

(b) Clearly and conspicuously discloses in its further advertising the fact of such an extension.

(2) It is deceptive for a supplier in its out-of-store advertising to indicate in any way that a reduction in price exists for reasons which are not true.

(E) Comparison with supplier’s own price

(1) It is deceptive for a supplier in its out-of-store advertising to make any price comparison by the use of such terms as “regularly . . . . . . . ., now . . . . . . . .,” ”. . . . . . . . per cent off,” “reduced from . . . . . . . . to . . . . . . . .,” “save $. . . . . . . .,” unless:

(a) The comparison is to the supplier’s regular price; or

(b) If the reference price is the regular price of a previous season, the season and year are clearly and conspicuously disclosed; or

(c) There is language in the advertisement which clearly and conspicuously discloses that the comparison is to another price and which discloses the nature of the reference price.

(2) If a supplier, in its out-of-store advertising, uses language indicating a range of savings or reduction, it is deceptive if the goods and services offered at the savings do not contain a reasonable number of items priced at the maximum reduction. Where the offering does not contain such reasonable number of items, a supplier does not violate this rule if it clearly and conspicuously discloses this fact in its out-of-store advertising.

(3) It is recognized that some goods and services are almost never sold at a “regular price” but instead are sold by means of individually negotiated transactions. A supplier of goods and services, identical in all material aspects, sold in negotiated transactions is permitted to advertise using an “average price” as a reference price as long as the advertised “average price” is the mean average selling price of all such goods or services openly and actively sold by the supplier to consumers for a substantial period of time in the recent past and the fact that the reference price is an “average price” is clearly and conspicuously disclosed in close proximity to the advertised reference price.

(F) Comparison with prices which are not the supplier’s own

(1) It is deceptive for a supplier in its out-of-store advertising to use as a reference price in making a price comparison any “list,” “catalogue,” “manufacturer’s suggested,” “competitor’s,” or any other price which is not its own unless:

(a) Such a reference price is genuine; and

(b) The advertisement clearly and conspicuously indicates that the reference price is not the supplier’s own price.

(2) For a reference price which is not a supplier’s own to be genuine, it must correspond to prices at which substantial offers for sales have recently been made at retail outlets in the trading area in which the goods or services are offered at the reference price, and it must not be an isolated price.

(3) It is prima facie evidence of compliance with sections (F)(1) and (F)(2) of this rule if the supplier:

(a) Has no knowledge that the reference price is not genuine; and

(b) Has made reasonable, bona fide efforts to determine whether the reference price is genuine.

(G) Comparison with non-identical goods

It is deceptive for a supplier in its out-of-store advertising to make a comparison between the prices of similar, but non-identical goods or services unless:

(1) The non-identical goods or services are of essentially similar quality to the advertised goods or services or the dissimilar aspects are clearly and conspicuously disclosed in the advertisements; and

(2) The advertisement clearly and conspicuously discloses that non-identical goods or services are being compared; and

(3) Either:

(a) The price comparison is to the regular price of the reference goods or services; or

(b) The nature of the reference price is clearly and conspicuously disclosed; and

(4) Either:

(a) The reference goods or services are available in the supplier’s trading area; or

(b) The fact that they are not available is clearly and conspicuously disclosed.

(H) Advance or introductory sales

(1) It is deceptive for a supplier in its out-of-store advertising to use terms such as “advance sale,” “introductory offer,” or other language which makes a comparison to a reference price which is a future price unless the reference price becomes the regular price within the period reasonably implied by the advertisement.

(2) A supplier will not be in violation of section (H)(1) of this rule if circumstances which in good faith were unforeseen at the time that the reference price was advertised as a future regular price necessitate the reference price not becoming or remaining the regular price.

(I) Significant reduction

It is deceptive for a supplier in its out-of-store advertising to use such terms as “sale,” “discount,” “bargain,” or any other terms indicating a savings or reduction in prices unless:

(1) The savings or reduction is a meaningful reduction; or

(2) The actual amount or percentage of savings is clearly and conspicuously indicated in the advertisement.

HISTORY: (former COcp-3-01.12); Eff 8-1-75; 3-14-2005

Promulgated Under: 119.03

Statutory Authority: R.C. 1345.05

Rule Amplifies: R.C. 1345.02

109:4-3-13 Motor vehicle repairs or services.

(A) It shall be a deceptive act or practice in connection with a consumer transaction involving the performance of either repairs or any service upon a motor vehicle where the anticipated cost exceeds twenty-five dollars and there has been face to face contact at the supplier’s place of business during the hours such repairs or services are offered, between the consumer or his representative and the supplier or his representative, prior to the commencement of the repair or service for a supplier to:

“ESTIMATE

YOU HAVE THE RIGHT TO AN ESTIMATE IF THE EXPECTED COST OF REPAIRS OR SERVICES WILL BE MORE THAN TWENTY-FIVE DOLLARS. INITIAL YOUR CHOICE: _____written estimate _____oral estimate _____no estimate”

(2) Fail to post a sign in a conspicuous place within that area of the supplier’s place of business to which consumers requesting any repair or service are directed by the supplier or to give the consumer a separate form at the time of the initial face to face contact and prior to the commencement of any repair or service which clearly and conspicuously contains the following language:

“NOTICE

IF THE EXPECTED COST OF A REPAIR OR SERVICE IS MORE THAN TWENTY-FIVE DOLLARS, YOU HAVE THE RIGHT TO RECEIVE A WRITTEN ESTIMATE, ORAL ESTIMATE, OR YOU CAN CHOOSE TO RECEIVE NO ESTIMATE BEFORE WE BEGIN WORK. YOUR BILL WILL NOT BE HIGHER THAN THE ESTIMATE BY MORE THAN TEN PER CENT UNLESS YOU APPROVE A LARGER AMOUNT BEFORE REPAIRS ARE FINISHED. OHIO LAW REQUIRES US TO GIVE YOU A FORM SO THAT YOU CAN CHOOSE EITHER A WRITTEN, ORAL, OR NO ESTIMATE.”

(4) Fail, where a consumer requests a written or oral estimate, to give the estimate to the consumer before commencing the repair or service.

(B) It shall be a deceptive act or practice in connection with a consumer transaction involving the performance of either repairs or any service upon a motor vehicle where there has not been face to face contact between the consumer or his representative and the supplier or his representative prior to the commencement of the repair or service for a supplier to:

(1) Fail to make available to the consumer who makes a supplier-authorized delivery of a motor vehicle for repair or service at the supplier’s place of business during non-business hours of the repair or service facility, a form in duplicate, with instructions directing the consumer to retain a copy, which indicates the identity of the supplier and contains the following disclosures in substantially the following language:

“ESTIMATE

YOU HAVE THE RIGHT TO AN ESTIMATE OF THE COST OF REPAIRS OR SERVICES WHICH YOU ARE REQUESTING. YOUR BILL WILL NOT BE HIGHER THAN THE ESTIMATE BY MORE THAN TEN PER CENT UNLESS YOU APPROVE A LARGER AMOUNT BEFORE REPAIRS ARE FINISHED. YOU CAN CHOOSE THE KIND OF ESTIMATE YOU WANT TO RECEIVE BY SIGNING YOUR NAME UNDER ONE OF THE FOLLOWING CHOICES AND INDICATING A TELEPHONE NUMBER WHERE YOU CAN BE REACHED IF NECESSARY:

(a) written estimate ______________________________ (Customer Signature) (b) oral estimate ______________________________ (Customer Signature) (c) no estimate ______________________________ (Customer Signature) Customer name _________________________________________ Customer Telephone Number _____________________________ Date: _________________________________________________“

(2) Fail in all other instances, upon the first contact with the consumer, to inform the consumer of the right to receive a written or oral estimate of the anticipated cost of the repair or service;

(3) Fail, where the consumer requests an oral estimate, to give the oral estimate to the consumer before commencing the repair or service;

(4) Fail, where the consumer requests a written estimate, to prepare a written estimate, inform the consumer that the estimate is available, and upon the consumer’s request, give the estimate to the consumer before commencing the repair or service.

(C) In any consumer transaction involving the performance of any repair or service upon a motor vehicle it shall be a deceptive act or practice for a supplier to:

(1) Make the performance of any repair or service contingent upon a consumer’s waiver of any rights provided for in this rule;

(2) Fail, where an estimate has been requested by a consumer, to obtain oral or written authorization from the consumer for the anticipated cost of any additional, unforeseen, but necessary repairs or services when the cost of those repairs or services amounts to ten per cent or more (excluding tax) of the original estimate;

(3) Fail, where the anticipated cost of a repair or service is less than twenty-five dollars and an estimate has not been given to the consumer, to obtain oral or written authorization from the consumer for the anticipated cost of any additional, unforeseen, but necessary repairs or services when the total cost of the repairs or services, if performed, will exceed twenty-five dollars;

(4) Fail to disclose prior to acceptance of any motor vehicle for inspection, repair, or service, that in the event the consumer authorizes commencement but does not authorize completion of a repair or service, that a charge will be imposed for disassembly, reassembly, or partially completed work. Any charge so imposed must be directly related to the actual amount of labor or parts involved in the inspection, repair, or service;

(5) Charge for any repair or service which has not been authorized by the consumer;

(6) Fail to disclose upon the first contact with the consumer that any charge not directly related to the actual performance of the repair or service will be imposed by the supplier whether or not repairs or services are performed;

(7) Fail to disclose upon the first contact with a consumer the basis upon which a charge will be imposed for towing the motor vehicle if that service will be performed;

(8) Represent that repairs or services are necessary when such is not the fact;

(9) Represent that repairs have been made or services have been performed when such is not the fact;

(10) Represent that a motor vehicle or any part thereof which is being inspected or diagnosed for a repair or service is in a dangerous condition, or that the consumer’s continued use of it may be harmful, when such is not the fact;

(11) Materially understate or misstate the estimated cost of the repair or service;

(12) Fail to provide the consumer with a written itemized list of repairs performed or services rendered, including a list of parts or materials and a statement of whether they are used, remanufactured or rebuilt, if not new, and the cost thereof to the consumer, the amount charged for labor, and the identity of the individual performing the repair or service;

(13) Fail to tender to the consumer any replaced parts, unless the parts are to be rebuilt or sold by the supplier, or returned to the manufacturer in connection with warranted repairs or services, and such intended reuse or return is made known to the consumer prior to commencing any repair or service;

(14) Fail to provide to the consumer upon his request a written, itemized receipt for any motor vehicle or part thereof that is left with, or turned over to, the supplier for repair or service. Such receipt shall include:

(a) The identity of the supplier which will perform the repair or service;

(b) The name and signature of the supplier or a representative who actually accepts the motor vehicle or any part thereof;

(c) A description including make and model number or such other features as will reasonably identify the motor vehicle or any part thereof to be repaired or serviced;

(d) The date on which the motor vehicle or any part thereof was left with or turned over to the supplier.

(15) Fail, at the time of the signing or initialing of any document by a consumer, to provide the consumer with a copy of the document;

(16) Fail to disclose to the consumer prior to the commencement of any repair or service, that any part of the repair or service will be performed by a person other than the supplier or his employees, if the supplier disclaims any warranty of the repair or service performed by that person. In addition the supplier shall disclose the nature of the repair or service which that person will perform, and if requested by the consumer, the identity of that person.

(17) Fail to inform the consumer, prior to the performance of any repair or service, that part(s) to be used in effectuating the repair or service will be remanufactured, rebuilt, or used.

(D) The forms required by paragraphs (A)(1) and (B)(1) of this rule may be separate or may be incorporated into another form used by the supplier as long as the required disclosures are easily legible and clearly and conspicuously appear on the form. Nothing in this rule shall preclude a supplier from incorporating into the same form additional disclosures required by this rule.

(F) In lieu of complying with the requirements of paragraphs (A)(1) and (B)(1) to (B)(4) of this rule, a supplier may provide a consumer, prior to the commencement of any repair or service, with a written quotation of the price at which the repair or service will be performed, which shall indicate that the quotation shall be binding upon the supplier for a period of five days, provided that the subject of the consumer transaction is made available to the supplier for the repair or service within that period.

(G) For purposes of paragraph (B)(1) of this rule, a supplier has not authorized delivery of a motor vehicle during non-business hours of the repair or service facility where there has not been communication of that fact to the general public by the supplier or his representative.

(H) As used in this rule, “motor vehicle” shall have the same meaning as that term is defined in division (B) of section 4501.01 of the Revised Code.

(I) Any written disclosure required by this rule must be legible.

(J) The provisions of rule 109:4-3-05 of the Administrative Code shall have no application to consumer transactions involving the performance of either repairs or any service upon a motor vehicle.

HISTORY: Eff 9-11-78; 3-14-2005

Promulgated Under: 119.03

Statutory Authority: R.C. 1345.05

Rule Amplifies: R.C.. 1345.02

109:4-3-14 Insulation.

(A) Definitions

(1) “Insulation” means, for purposes of this rule, any material used primarily to retard or to resist heat flow, whether mineral or organic, fibrous, cellular or reflective, or in rigid, semi-rigid, flexible or loose-fill form.

(2) “Manufacturer” means any supplier who processes any materials for the purpose of making insulation.

(3) “Installer” means any supplier who places or affixes, or contracts to place or affix, insulation by any means in connection with a consumer transaction.

(4) “R-value” means resistance to heat flow and is the reciprocal of thermal conductance.

(5) “ASTM” is the “American Society for Testing and Materials”.

(6) “Label” means any information provided by a manufacturer either on or attached to a package of insulation.

(7) “Package” means a bag, drum, box, wrapping, or any container in which a manufacturer provides insulation.

(8) “Vapor barrier” means any material used to retard the migration of moisture vapor into building sections.

(B) It shall be an unfair or deceptive act or practice in connection with a consumer transaction involving insulation for any supplier to make a representation:

(1) Concerning R-value at any thickness for any type of insulation unless such representation is based upon the results of testing of the supplier’s insulation, conducted in accordance with the latest existing ASTM testing standards, or comparable standards. Said testing shall have been performed not more than sixty days prior to the making of any such representation, provided, however, that such testing may be performed on an annual basis so long as the supplier utilizes a quality control procedure which is sufficient to insure that the insulation has an R-value which is identical, within tolerances permitted by testing standards authorized by this rule, to that of the insulation which was tested for R-value. The R-value represented must equal the R-value of the insulation at the settled density or cured state;

(2) Concerning fire retardancy of any type of insulation unless such representation is based upon the results of testing of the supplier’s insulation, conducted in accordance with the latest existing ASTM standards, or comparable standards for fire retardancy. Said testing shall have been performed not more than sixty days prior to the making of any such representation, provided, however, that such testing may be performed on an annual basis so long as the supplier utilizes a quality control procedure which is sufficient to insure that the insulation is fire retardant to the same extent as that insulation which was tested for fire retardancy;

(3) Concerning non-corrosiveness of any type of insulation unless such representation is based upon the results of testing of the supplier’s insulation, conducted in accordance with the latest existing ASTM testing standards, or comparable standards, for corrosiveness. Said testing shall have been performed not more than sixty days prior to the making of any such representation, provided, however, that such testing may be performed on an annual basis so long as the supplier utilizes a quality control procedure which is sufficient to insure that the insulation is non-corrosive to the same extent as that insulation which was tested for noncorrosiveness;

(4) That any type of insulation is “fireproof”;

(5) That specific amounts or percentages, including ranges of amounts or percentages, of money or fuel have been or may be saved as a result of the installation of insulation unless the supplier has a reasonable basis for making the representation at the time it is made. Such reasonable basis shall consist of information within the supplier’s actual knowledge which is based upon scientific or engineering data of such reliability and validity which would cause a reasonable and prudent supplier to believe that the representation is truthful, complete and applicable to the insulation about which the representation is made. Whenever such a representation is made, it shall be accompanied by a statement in the following language: “DON’T EXPECT TO IMMEDIATELY SAVE AS MUCH MONEY AS IT COSTS TO INSULATE. EXACT AMOUNTS OF SAVINGS CANNOT BE GUARANTEED. YOUR HEATING SYSTEM, THERMOSTAT SETTING, WEATHERPROOFING, LIVING HABITS AND OTHER UNPREDICTABLE FACTORS WILL AFFECT YOUR FUEL USAGE.”;

(6) That tax benefits are available to a consumer who purchases insulation unless such benefits have been legally enacted, are in effect, and the consumer to whom the representation is made is eligible to receive the benefits.

(C) It shall be an unfair or deceptive act or practice in connection with a consumer transaction involving insulation for any manufacturer of insulation to:

(1) Fail to label each package of insulation with the following information:

(a) The name and address of the manufacturer and the brand name and type of insulation contained in the package;

(b) For batts, blankets or boardstock, the R-value, the thickness in inches necessary to obtain the stated R-value, and except for boardstock, the square footage covered by each package and the dimensions of the insulation;

(c) For all loose-fill insulation, the R-value, the thickness and weight per square foot necessary to obtain the stated R-value and the square feet covered by each package;

(d) For aluminum foil, the number of foil sheets, the number and thickness of the air spaces, and the R-value provided when the direction of heat flow is up, down and horizontal;

(e) For sprayed-in-place foam, the R-value, the thickness in inches necessary to obtain the stated R-value and the pounds per cubic foot at the stated R-value.

(2) Except for sales to installers, fail to provide the following statements clearly and conspicuously on the label of each package of insulation:

(a) “ASK FOR THE MANUFACTURER’S INSULATION FACT SHEET.”;

(b) If installation instructions are included with the package, “THIS INSULATION MUST BE INSTALLED PROPERLY TO GET THE MARKED R-VALUE. IF YOU INSTALL IT YOURSELF, FOLLOW INSTRUCTIONS CAREFULLY.”;

(c) If no instructions are included with the package, “THIS INSULATION MUST BE INSTALLED PROPERLY TO GET THE MARKED R-VALUE. IF YOU INSTALL IT YOURSELF, GET INSTRUCTIONS AND FOLLOW THEM CAREFULLY. INSTRUCTIONS DO NOT COME WITH THE PACKAGE.”;

(d) If a full warranty under the Magnuson-Moss Warranty Federal Trade Commission Improvements Act, 88 Stat. 2183, 15 U.S.C.A. 2301 et seq., is given, “THE MANUFACTURER WARRANTS THIS PRODUCT FULLY.”;

(e) If a limited warranty under the Magnuson-Moss Warranty Federal Trade Commission Improvements Act, 88 Stat. 2183, 15 U.S.C.A. 2301 et seq., is given, “THIS PRODUCT HAS A LIMITED WARRANTY. THE MANUFACTURER WARRANTS THIS PRODUCT SUBJECT TO CERTAIN CONDITIONS AND EXCEPTIONS. ASK THE SELLER FOR A COPY OF THE WARRANTY.”.

(3) Fail to provide to any supplier in sufficient quantity to insure distribution to each ultimate consumer who purchases the manufacturer’s insulation a form designated “MANUFACTURER’S INSULATION FACT SHEET” which clearly and conspicuously provides the following information:

(a) The name and address of the manufacturer and the brand name and type of insulation contained in the package;

(b) In twelve-point type, the statement, “THIS FACT SHEET CONTAINS IMPORTANT DETAILS ABOUT __________ INSULATION. READ IT CAREFULLY.” (Fill in the blank with the type of insulation covered by the fact sheet [for example, “loose-fill cellulose,” “urea-formaldehyde foam”]);

(c) For batts, blankets or boardstock, a chart showing the R-value of the insulation, the thickness in inches necessary to obtain the stated R-value, and except for boardstock, the square footage covered by each package, and the dimensions of the insulation;

(d) For all loose-fill insulation, a chart showing the R-value, the thickness and weight per square foot necessary to obtain the stated R-value and the square feet covered by each package;

(e) For aluminum foil, a chart showing the number of foil sheets, the number and thickness of the air spaces, and the R-value provided when the direction of heat flow is up, down and horizontal;

(f) For sprayed-in-place foam, a chart showing the R-value, the thickness in inches necessary to obtain the stated R-value and the pounds per cubic foot at the stated R-value;

(g) For batts, blankets, loose-fill mineral wool, cellulose or any other insulation the R-value of which is reduced by moisture build-up, after the charts required by paragraphs (C)(3)(c) or (C)(3)(d) of this rule, the statement, “THIS INSULATION MUST BE INSTALLED PROPERLY TO GET THE MARKED R-VALUE. READ AND FOLLOW INSTALLATION INSTRUCTIONS CAREFULLY IF YOU PLAN TO INSTALL THE INSULATION YOURSELF. FOLLOW THE CHART ON THIS FACT SHEET TO OBTAIN THE RIGHT THICKNESS FOR THE MARKED R-VALUE, THEN FOLLOW INSTALLATION INSTRUCTIONS CAREFULLY. MOISTURE BUILD-UP IN THIS PRODUCT WILL REDUCE THE MARKED R-VALUE. YOU MAY NEED A VAPOR BARRIER TO PREVENT MOISTURE BUILD-UP.”;

(h) For aluminum foil or boardstock, after the charts required by paragraphs (C)(3)(c) or (C)(3)(e) of this rule, the statement, “THIS INSULATION MUST BE INSTALLED PROPERLY TO GET THE MARKED R-VALUE. OBTAIN AND FOLLOW INSTALLATION INSTRUCTIONS CAREFULLY IF YOU PLAN TO INSTALL THE INSULATION YOURSELF.”;

(i) For sprayed-in-place foam, after the chart required by paragraph (C)(3)(f) of this rule, the statement, “THIS INSULATION MUST BE INSTALLED PROPERLY. BOTH CHEMICAL MIX AND APPLICATION SHOULD BE DONE BY A TRAINED, QUALIFIED INSTALLER. PROPER VENTILATION IS NECESSARY TO REDUCE FUMES AND ODORS WHICH MAY RESULT FROM INSTALLATION. THIS INSULATION SHRINKS AFTER INSTALLATION. EXCESS SHRINKAGE WILL RESULT IN A LOWER R-VALUE THAN SHOWN ON THE CHART ABOVE. TEMPERATURE, HUMIDITY AND OTHER FACTORS AT THE TIME OF INSTALLATION ARE IMPORTANT IN THE PREVENTION OF SHRINKAGE. THIS INSULATION IS NOT RECOMMENDED FOR INSTALLATION IN ANY ATTIC OR ANY OTHER OPEN AREA.”;

(j) After the statements required by paragraphs (C)(3)(g) to (C)(3)(i) of this rule, the statement, “READ THIS CAREFULLY BEFORE BUYING. THE CHART ON THIS FACT SHEET SHOWS THE R-VALUE OF THIS INSULATION. A HIGHER R-VALUE NUMBER MEANS A GREATER RESISTANCE TO HEAT FLOW. THE AMOUNT OF INSULATION YOU NEED DEPENDS UPON THE CLIMATE IN WHICH YOU LIVE, YOUR LIVING HABITS, YOUR HEATING SYSTEM, YOUR THERMOSTAT SETTING, HOW WELL YOUR HOUSE IS WEATHERPROOFED, AND OTHER FACTORS. INSULATION PLACED TOO NEAR ELECTRICAL HEAT SOURCES MAY CAUSE FIRE. FOLLOW INSTALLATION INSTRUCTIONS CAREFULLY. TO AVOID EXCESS MOISTURE BUILD-UP, PROPER VENTILATION OF A HOME IS IMPORTANT FOLLOWING INSTALLATION OF THIS PRODUCT”.

(k) After the information required by paragraphs (C)(3)(a) to (C)(3)(j) of this rule, the following information:

(i) If a full warranty under the Magnuson-Moss Warranty Federal trade Commission Improvements Act, 88 Stat. 2183, 15 U.S.C.A., 2301 et seq., is given, “THE MANUFACTURER WARRANTS THIS PRODUCT FULLY.”;

(ii) If a limited warranty under the Magnuson-Moss Warranty Federal Trade Commission Improvements Act, 88 Stat. 2183, 15 U.S.C.A., 2301 et seq., is given, the statement, “THIS PRODUCT HAS A LIMITED WARRANTY. THE MANUFACTURER WARRANTS THIS PRODUCT SUBJECT TO CERTAIN CONDITIONS AND EXCEPTIONS. READ THE WARRANTY CAREFULLY.”;

(1) After the information required by paragraphs (C)(3)(a) to (C)(3)(k) of this rule, the full text of any warranty provided by the manufacturer.

(4) Fail to provide to any supplier in sufficient quantity to insure distribution to each ultimate consumer who purchases the manufacturer’s insulation, a form designated “CONSUMER INFORMATION CARD” for completion and placement by installers of the manufacturer’s insulation as required by paragraph (E)(3)(b) of this rule.

(D) It shall be an unfair or deceptive act or practice in connection with a consumer transaction involving insulation for any supplier to:

(1) Fail to provide to another supplier who obtains insulation from him, any materials provided by a manufacturer pursuant to the requirements of paragraphs (C)(3) and (C)(4) of this rule;

(2) Fail to provide to a consumer, prior to the consumer’s purchase of insulation, the “MANUFACTURER’S INSULATION FACT SHEET” required by paragraph (C)(3) of this rule;

(3) Without the permission of the manufacturer, supply a consumer with any package of insulation the contents of which have been removed or altered.

(E) It shall be an unfair or deceptive act or practice in connection with a consumer transaction involving insulation for an installer of insulation to:

(1) Prior to the time of contracting, fail to provide the consumer with a written list containing the following information:

(a) All warranties given by the installer, including any limitations thereon;

(b) That subcontractors will be used by the installer if such is the case;

(d) Whether the installer has met all applicable licensing and/or bonding requirements pursuant to law.

(2) At the time of contracting, fail to provide the consumer with a written contract containing the following information:

(a) The installer’s business name, address and telephone number;

(b) The anticipated completion date of the contract;

(d) The total number of square feet to be covered and the overall R-value after installation, the thickness in inches, and the number of packages to be used for each type of insulation to be installed;

(e) The total contract price;

(f) In twelve-point type, the statement, “YOU HAVE SPECIFIC RIGHTS UNDER OHIO MECHANIC’S LIEN STATUTES. IF YOU HAVE ANY QUESTIONS CONCERNING THESE RIGHTS BEFORE, DURING OR AFTER INSTALLATION UNDER THIS CONTRACT, YOU ARE ADVISED TO CONSULT YOUR LAWYER.”;

(g) The specific method of installation which will be used by the installer, including specific information about the work to be performed, materials to be used, and any alteration of the consumer’s property necessitated by installation;

(h) The information required by paragraph (E)(1) of this rule.

(3) At the time of completion of installation, fail to:

(a) To the extent that the supplier has affected the consumer’s property, return the consumer’s property to substantially the same condition in which it was found prior to installation;

(b) Provide the consumer with the “CONSUMER INFORMATION CARD” required by paragraph (C)(4) of this rule, to be placed by the installer conspicuously on or adjacent to the consumer’s electric service panel, or in another location in the consumer’s residence if required by federal law, with notice of such placement to the consumer, stating the brand name and type of insulation installed, the parts of the house insulated, the R-value of insulation installed, the date of installation, and the following information:

(i) For sprayed-in-place foam, the weight in pounds per cubic foot at which the foam was installed and the outside temperature at the time of installation;

(ii) For aluminum foil, the number and thickness of air spaces and the direction of heat flow;

(iii) For batts, blankets, and loose-fill insulation, the number of packages used;

(4) At any time, sell or provide to a consumer for any purpose other than installation by the installer any package of insulation not labeled according to the requirements of paragraph (C)(2) of this rule.

(F) Where testing under this rule requires the use of ASTM or comparable standards and testing methods, the standards and testing methods to be used shall be the latest generally accepted testing methods in the industry at the time that any such tests are conducted. Any applicable standard adopted by an agency of the federal government shall be deemed for the purposes of this rule to be a comparable standard. In the event that a supplier elects to use any standard other than an ASTM standard, or an adopted federal standard, the supplier shall retain all data which tend to show that said standard is the latest generally accepted standard in the industry at the time any testing is conducted and that the testing was conducted in conformity with that standard.

(G) Nothing in this rule shall be deemed to be in conflict with any federal statutory or regulatory requirement, and all requirements of this rule are in addition to the requirements of any federal statute or regulation either existing or to become effective at any future date. A supplier who provides any disclosures required by or under any federal law, trade regulation rule or guide adopted by the federal trade commission under the Federal Trade Commission Act, 38 Stat. 717 (1914), 15 U.S.C.A. 41, as amended, which apply to the advertisement, sale or installation of insulation in connection with a consumer transaction, and which are substantially similar to the disclosures required by this rule, shall be deemed to comply with requirements of this rule with respect to form and language, including the disclosure requirements contained in paragraphs (B)(5), (C)(2) and (3) of this rule, so long as the language mandated by such federal law, trade regulation rule or guide provides at least equal information to the consumer.

(H) Prior to May 1, 1979, a manufacturer shall provide either on a label or in a fact sheet, all information required by paragraphs (C)(1) and (C)(2) of this rule, except that the disclosure required by paragraph (C)(2) of this rule does not have to be provided in a fact sheet. After May 1, 1979, it shall be an unfair or deceptive act or practice in connection with a consumer transaction for a manufacturer of insulation to fail to label each package of insulation according to the requirements of paragraphs (C)(1) and (C)(2) of this rule.

HISTORY: Eff 12-7-78

Rule promulgated under: RC Chapter 119.

Rule amplifies: RC 1345.02

119.032 Review Date: 11-12-04

109:4-3-15 Motor vehicle rust inhibitors.

(A) It shall be a deceptive act or practice in connection with a consumer transaction for a supplier to represent that an item of goods or a service will prevent, inhibit or retard rusting or corrosion of any part of a motor vehicle if that representation is false.

(B) It shall be a deceptive act or practice in connection with a consumer transaction involving an item of goods or a service that a supplier represents will prevent, inhibit or retard rusting or corrosion of any part of a motor vehicle for a supplier to use the term “rustproofing” in connection with the advertising, the promotion or sale of any such item of goods or a service unless the supplier guarantees that the item of goods or the service will prevent rust or corrosion and agrees in writing to indemnify a consumer who purchases such an item of goods or a service for the actual cost of repairing damage caused by rusting or corrosion of any part of a motor vehicle to which the item of goods or a service has been applied.

(C) It shall be a deceptive act or practice in connection with a consumer transaction involving an item of goods or service that a supplier warrants to prevent, inhibit or retard rusting or corrosion of any part of a motor vehicle for the supplier:

(1) To fail to inform the consumer clearly and conspicuously in writing of all of the terms of any written warranty prior to the time when the consumer enters into a contract for the purchase of any such item of goods or a service;

(2) To fail to honor a warranty claim of a consumer on the basis that the consumer delayed in reporting rust or corrosion to the supplier unless the supplier’s time limitation for the presentation of claims is set forth clearly and conspicuously in writing in the warranty;

(3) To fail to repair rust or corrosion damage on the basis that the supplier believes that damage has not become extensive enough to repair;

(4) To fail to honor a warranty claim of a consumer on the basis that the item of goods or the service was provided improperly when the supplier has authorized the person who provided the item of goods or the service to the consumer to issue a warranty on behalf of the supplier;

(5) To fail to honor an otherwise valid warranty claim on the basis that the cost of repairing an area damaged by rust or corrosion is excessive or unreasonable unless the warranty itself expressly reserves to the supplier the right to limit the supplier’s obligation in this manner;

(6) To refuse to replace rusted or corroded areas when the supplier’s warranty obligates the supplier to make repairs to such areas and methods of repair other than replacement of the rusted or corroded area will not restore the rusted or corroded area to substantially the same condition as it was in prior to being damaged by rust or corrosion;

(7) To fail to honor a warranty claim on the basis that the supplier previously has allowed a different claim on the same warranty, unless a limitation on the number of claims is set forth clearly and conspicuously in writing in the warranty;

(8) To fail to inspect a motor vehicle within thirty days of receiving a consumer’s warranty claim for rust or corrosion damage, provided that the consumer makes the motor vehicle available for inspection within that period. Presentation of a claim to a supplier’s authorized or franchised dealer or distributor shall constitute receipt by the supplier. The supplier shall provide for inspection of the motor vehicle at a place within the county where the consumer resides, or where the consumer purchased the supplier’s goods or services;

(9) To fail to notify a consumer in writing within ten business days of inspecting the consumer’s motor vehicle for rust or corrosion damage whether the consumer’s warranty claim will be allowed or denied. If a claim is denied, the specific reason for that denial shall be stated in writing. For purposes of this rule, notification is effective upon mailing the supplier’s determination on the claim to the last address supplied to the supplier by the consumer or upon personal delivery to the consumer;

(10) To fail to honor a warranty claim because the person who issued the warranty to the consumer on behalf of the supplier provided the consumer with an incorrect warranty;

(11) Who applies the item of goods to any part of a consumer’s automobile to fail to provide the consumer, in advance of the application, with a written or pictorial description of the specific areas of the automobile to which the item of goods will be applied.

(D) It shall be a deceptive act or practice in connection with a consumer transaction involving an item of goods or a service that is represented by a supplier to prevent, inhibit or retard rusting or corrosion of any part of a motor vehicle for a supplier to misrepresent the cause or the origin of rust or corrosion of any part of a motor vehicle.

(E) No provision in this rule shall be construed to annul, alter or limit the application of any provision of the “Motor vehicle repairs or services” rule 109:4-3-13 of the Administrative Code or the Federal Trade Commission Improvements Act, 88 Stat. 2183, 15 U.S.C. 2301 et seq., to any consumer transaction involving the advertising, promotion or sale of any goods or services represented to prevent, inhibit or retard rusting or corrosion of any part of a motor vehicle.

(F) As used in this rule, “motor vehicle” shall have the same meaning as that term is defined in division (B) of section 4501.01 of the Revised Code.

HISTORY: Eff 1-26-80

Rule promulgated under: RC Chapter 119.

Rule amplifies: RC 1345.02

119.032 Review Date: 11-12-04

109:4-3-16 Advertisement and sale of motor vehicles.

(A) For purposes of this rule, the following definitions shall apply:

(1) “Dealer” means any person engaged in the business of selling, offering for sale or negotiating the sale of five or more motor vehicles during a twelve-month period, commencing with the day of the month in which the first such sale is made, or leasing any motor vehicles, including the officers, agents, salespersons, or employees of such a person; or any person licensed as a motor vehicle dealer or salesperson under Chapter 4517. of the Revised Code.

(2) “Manufacturer” means any person:

(a) Engaged in the business of manufacturing or assembling new or unused motor vehicles; or

(b) Engaged in the business of importing new or used motor vehicles into the United States; or

(c) Engaged in the business of selling or distributing new and unused motor vehicles to motor vehicles dealers in this state.

(3) “Motor vehicle” means any vehicle defined as such by section 4501.01 of the Revised Code.

(4) “Authorized agent” means any person within the dealership with designated authority to contractually bind the dealership.

(5) “Purchase price” means the total amount the consumer is required to pay the dealer pursuant to the contract, but excluding tax, title and registration fees and documentary service charges. A negative equity adjustment may be included in the purchase price.

(6) “MSRP,” “list,” or “sticker” means the final manufacturer’s suggested retail price as stated on the federally mandated window sticker (aka Monroney).

(7) “New motor vehicle” means a motor vehicle, the legal title to which has never been transferred to an ultimate purchaser, including a demonstrator vehicle.

(8) “Demonstrator” means a new motor vehicle of the current or previous model year, for sale only by an authorized dealer of the same make and model, which is available for demonstration purposes to prospective purchasers whether operated by the dealer, its agents or employees, a third party or prospective purchaser, and has been driven less than six thousand miles.

(9) “Factory official vehicle” means a motor vehicle of the current or previous model year which has been operated by a representative or automotive related subsidiary of the manufacturer/distributor of the vehicle.

(10) “Rental vehicle” means a motor vehicle which has been operated for hire by an entity which is engaged in the business of renting vehicles, and includes daily rentals of dealers.

(11) “Invoice” or “invoice amount” is the gross amount a dealer pays the manufacturer for a vehicle before deduction of holdback or other miscellaneous charges.

(12) “Negative equity adjustment” means an equal amount which is added to both the purchase price of a vehicle and the trade-in allowance for the trade-in vehicle in a transaction.

(13) “Conversion” means a motor vehicle, other than a motor home, which has been substantially modified by a person other than the manufacturer or distributor of the chassis of the motor vehicle and which has not been the subject of a retail sale.

(14) “Advertising association or group” means a group, collection, alliance, combination, or other joining of any persons or business entities or any combination thereof, assembled or joined for the purpose of promoting or advertising products or services to consumers through the use of visual, audio or print medias.

(15) “Purchase” includes the lease of a motor vehicle.

(B) It shall be a deceptive and unfair act or practice for a dealer, manufacturer, advertising association, or advertising group, in connection with the advertisement or sale of a motor vehicle, to:

(1) Advertise an interest rate where the extension of credit is contingent upon qualification without including the disclosure “subject to approved credit” or words of similar import;

(2) In any advertisement or sales presentation, misrepresent in any way the size, inventory or nature of the business of the dealer; the expertise of the dealer; or the ability or capacity of the dealer, manufacturer, advertising association or advertising group to offer price reductions;

(3) Use any statement, layout, or illustration in any advertisement or sales presentation which could create in the mind of a reasonable consumer a false impression as to any material aspect of said advertised or offered vehicle, or to convey or permit an erroneous impression as to which vehicles are offered for sale at which prices;

(4) Advertise any motor vehicle for sale at a specific price or on specific terms if the dealer is not in possession of said vehicle or has not previously ordered said vehicle which is expected for delivery within a reasonable time unless the advertisement clearly and conspicuously discloses that the specific price applies to a vehicle which must be ordered;

(5) Advertise any motor vehicle for sale at a specific price or on specific terms and subsequently fail to show and make available for sale said vehicle as advertised;

(6) Misrepresent the availability of an advertised motor vehicle;

(7) Fail to clearly and conspicuously disclose, in any advertisement, that a particular advertised motor vehicle is not immediately available in stock and must be ordered if such is the case;

(8) Represent that advertised motor vehicles are in stock or previously ordered and expected for delivery within a reasonable time unless the dealer has or will have on hand sufficient supply of the advertised vehicles to meet reasonably anticipated demand, unless the advertisement clearly and conspicuously discloses the exact number of said vehicles on hand as of the last date on which any change can be made in the advertisement;

(9) Use the terms “MSRP,” “list” or “sticker” in any advertisement or sales presentation except in reference to the manufacturer’s suggested retail price;

(10) Compare an advertised price for a new motor vehicle to any other price unless the other price is “list,” “sticker,” or “invoice”. An advertised price for a used motor vehicle may not be compared to a “list,” “sticker” or “invoice” price;

(11) Represent, state or imply in any advertisement that the purchase price is a “savings,” “discount” or words of similar import unless it is a “savings” or “discount” from the “list” or “sticker.” During the sales presentation only, the dealer may refer to a “savings” or “discount” or words of similar import in reference to a supplemental sticker that specifically discloses any additional charges related to a specific vehicle;

(12) Use the word “cost” or words or concepts of similar import, inference, or implication, except “invoice,” which relate to any reference price other than “list” or “sticker” in any advertisements. If a dealer uses the word “invoice” in any advertisement, the dealer must clearly and conspicuously disclose in the advertisement that the invoice price may not reflect the dealer’s actual cost of the vehicle, and must make the actual invoice or a copy thereof available to consumers upon request;

(13) Fail to disclose, in any advertisement or sales presentation, the model, year and, for current and previous model year vehicles, the fact that the vehicle is used if it is not new. For purposes of this rule, the terms “previously owned” or “pre-owned” have the same meaning and may be substituted for the term “used”;

(14) Fail to disclose prior to the dealer’s obtaining signature by the consumer on any document for the purchase of the vehicle, any defect and/or the extent of any previous damage to such vehicle, retail repair cost of which exceeds or exceeded six per cent of the manufacturer’s suggested retail price, excluding damage to glass, tires and bumpers where replaced by identical manufacturer’s original equipment. The above disclosure is required when the dealer has actual knowledge of the defect and/or damage and the vehicle is a new motor vehicle as defined in division (C) of section 4517.01 of the Revised Code.

(15) Fail to disclose prior to the dealer’s requiring signature by the consumer on any document for the purchase or lease of the vehicle, the fact that said vehicle has been previously used as a demonstrator, factory official vehicle or rental vehicle. The above disclosure is required when such is known by the dealer;

(16) Fail to immediately make available a refund of a consumer’s deposit if the consumer’s offer is not accepted within four working days of delivery of such deposit or if the transaction is otherwise rescinded pursuant to paragraphs (B)(17) or (B)(28) of this rule;

(17) Raise or attempt to raise the actual purchase price of any motor vehicle to a specific consumer except that a trade-in re-evaluation may occur pursuant to paragraph (B)(19) of this rule, a negative equity adjustment for a trade-in vehicle may be made, or the consumer otherwise consents to such price increase. In the instance that a motor vehicle is ordered by the dealer, the purchase price cannot be increased by that dealer after submission of the order to the manufacturer for a specific consumer except that the dealer may raise the actual purchase price by an amount equal to the increase if the dealer has actually paid the increased charge. In any instance where the purchase price of a vehicle has been increased, the consumer shall have the right to either pay the increased amount or rescind the transaction. A price increase due to a change in freight charges does not entitle a consumer to rescission;

(18) Lower or attempt to lower the price of a trade-in vehicle unless there exists a reasonable basis for such re-evaluation based upon change to that vehicle due to accident, failure of or damage to major components, removal or substitution of equipment or accessories or the market value of that vehicle at the time of the re-evaluation;

(19) Fail to disclose prior to the dealer’s requiring signature by the consumer on any document for the purchase of the motor vehicle, the fact that a trade-in re-evaluation may occur, if such is the case;

(20) Represent that a motor vehicle will be delivered within a given period of time unless there exists a reasonable basis upon which such representation is made;

(21) Advertise any price for a motor vehicle unless such price includes all costs to the consumer except tax, title and registration fees, and a documentary service charge, provided such charge does not exceed the maximum documentary service charge permitted to be charged pursuant to section 1317.07 of the Revised Code. Additionally, a dealer may advertise a price which includes a deduction for a discount or rebate which all consumers qualify for, provided that such advertisement clearly discloses the deduction of such discount or rebate.

(22) Fail to integrate into any written sales contract, all material statements, representations or promises, oral or written, made prior to obtaining the consumer’s signature on the written contract with the dealer;

(23) Advertise the price such dealer will pay for any trade-in vehicle unless:

(a) The price of motor vehicles offered for sale by such dealer is within the range of prices at which the dealer usually sells said motor vehicles and is not increased because of the amount offered for the trade-in; and

(b) The advertised trade-in price will be paid for all vehicles regardless of their condition or age, or unless the advertisement clearly and conspicuously discloses the conditions the trade-in vehicle must meet before such advertised price will be paid.

(24) Advertise the price to be paid for trade-in vehicles as a range of prices, e.g., “up to two thousand dollars” or “as much as two thousand dollars”;

(25) Add or substitute any equipment and/or service after acceptance of the purchase agreement except when such addition or substitution is beyond the control of the dealer or is otherwise with the consumer’s consent.

(26) Fail to disclose the beginning and ending dates of any sale or other offer for the sale of a motor vehicle. However, if the dealer states and/or lists the specific quantity of vehicles available for sale, the dealer shall only be required to disclose the beginning date of the sale and may disclose the ending date by use of the phrase “while supply lasts.” Additionally, a dealer is not required to list a beginning date for a sale, if such sale begins on the date the advertisement appears.

(27) Advertise, represent or offer a rebate, interest reduction program or similar program or procedure in which the dealer financially contributes without the following clear and conspicuous disclosure: “dealer contribution may affect consumer cost,” or other words or terms which convey to the public the effect on consumer’s cost;

(28) Fail to immediately notify the consumer of any additional or substituted equipment, features and/or service which has come to the dealer’s attention pursuant to paragraph (C)(3) of this rule, and afford the consumer an opportunity to rescind the purchase agreement;

(29) Fail to disclose prior to obtaining signature by the consumer on any document for the purchase of the vehicle the fact that such vehicle was previously titled as a salvage vehicle if the seller has actual knowledge of such fact.

(30) Deliver a motor vehicle to a consumer pursuant to a sale which is contingent upon financing without a written agreement stating the parties’ obligations should such financing not be obtained.

(31) Advertise a price for a conversion van without setting forth separately the “list” price for the vehicle, along with the price for the conversion package, or fail to show the discounts or other deductions which are being applied to each of these prices to arrive at the overall advertised price for the vehicle.

(32) Sell, offer for sale, or assist in the sale of more than five motor vehicles in any twelve month period, at retail, without being licensed as a dealer or salesperson pursuant to Chapter 4517. of the Revised Code, or otherwise being licensed pursuant to applicable law.

(33) Lease or assist in the lease of any motor vehicle to a consumer as defined in section 1345.01 of the Revised Code without being licensed as a motor vehicle leasing dealer or salesperson pursuant to Chapter 4517. of the Revised Code, or otherwise being licensed pursuant to applicable law.

(34) Fail to notify a consumer of a dealer’s currently advertised price for a motor vehicle.

(C) It shall be a deceptive and unfair act or practice for a manufacturer, in connection with the advertisement or sale of a motor vehicle, to:

(1) Advertise the price of a vehicle and represent or imply that said vehicle is available at a specific dealer, unless a sufficient number of vehicles is available at each specified dealer to meet reasonably anticipated demand or unless the advertisement clearly and conspicuously discloses that said vehicle is not immediately available for delivery and must be ordered;

(2) Increase the price of a motor vehicle which a dealer has ordered for a consumer after the date on which such order was accepted by the manufacturer from the dealer;

(3) Add or substitute any equipment unless the dealer is notified immediately of the proposed addition and/or substitution and is given the opportunity either to rescind the purchase agreement within five days of notification or purchase the substituted or additional equipment;

(4) Advertise the price of a vehicle and represent or imply that said vehicle is available at a specific dealer unless:

(a) The advertised price includes all charges to be paid by the consumer including freight, handling and dealer preparation; or

(b) The advertisement clearly and conspicuously discloses that the advertised price is a suggested base price or that the advertised price does not include charges for freight, handling, dealer preparation or any optional equipment.

(5) Advertise, represent or offer a rebate, interest reduction program or similar program or procedure in which the dealer financially contributes without the following clear and conspicuous disclosure: “manufacturer’s condition of dealer contribution may affect consumer cost,” or other words or terms which convey to the public the effect on consumer’s cost.

(6) Fail to disclose to a prospective consumer, in an itemized written statement, any increase in price to a motor vehicle which is attributable to funding an advertising association, advertising group or similar entity.

(D) For purposes of this rule, and Chapter 1345. of the Revised Code, the following shall apply:

(1) In advertising a closed-end credit (purchase) transaction, in addition to complying with Regulation Z of the federal Truth-In-Lending Act, a dealer manufacturer or advertising association or group, must clearly and conspicuously disclose in any radio, television or printed advertisement the following terms: the amount of any down payment, the number of payments, the monthly payment and the annual percentage rate which may be abbreviated as A.P.R.

(2) In advertising a lease transaction, in addition to complying with Regulation M of the federal Truth-In-Lending Act, a dealer, manufacturer or advertising association or group must clearly and conspicuously disclose the following terms in any printed, television or radio advertisement: the fact that the transaction is a lease, the amount due at lease inception, the number of payments and the monthly payment. All remaining required disclosures may be set forth in a footnote to such advertisement, which must be in close proximity to the advertised vehicle in any printed or television advertisement.

(3) The information required by paragraph (B) of rule 109:4-3-07 of the Administrative Code may be set forth on the face of a contract for sale of a motor vehicle.

HISTORY: Eff 6-5-73; 8-28-81; 2-2-82; 6-29-84; 10-24-94; 3-14-2005

Promulgated Under: 119.03

Statutory Authority: R.C. 1345.05

Rule Amplifies: R.C. 1345.02

109:4-3-17 Distress sale.

(A) Definition.

Distress Sale. A “distress sale” is any sale which is described or represented either directly or indirectly by any term which would reasonably lead a consumer to believe that the offer of such goods, either by choice or necessity, has been occasioned by any of the following factors:

(1) Termination or discontinuance by the supplier of all or any portion of the supplier’s business;

(2) Loss or termination of lease;

(3) Liquidation of assets;

(4) Fire, smoke, water or other disaster, regardless of cause;

(5) Bankruptcy or receivership;

(6) The financial condition of the supplier.

Distress sale does not include the sale of special purchase items, clearance items, or seasonal items as those terms are defined in rule 109:4-3-03 of the Administrative Code.

(B) It shall be a deceptive act or practice in connection with a consumer transaction for a supplier to:

(1) Make any representation concerning the cause, basis, reason or necessity of any distress sale unless such representation is true;

(2) Advertise, conduct or continue any distress sale for a period greater than forty-five days except that a supplier may extend the duration of a distress sale for an additional forty-five-day period by clearly and conspicuously disclosing in any advertisement or other representation regarding such distress sale the fact of such extension;

(3) Substitute or supplement the stock or inventory by purchase, consignment or transfer of goods from another outlet unless (a) such item of goods was ordered for that outlet prior to the placement of any advertisement or other representation declaring a distress sale; (b) such item of goods was ordered in compliance with rule 109:4-3-03 of the Administrative Code; or (c) suchitem of goods owned prior to the filing of bankruptcy or creation of a receivership is transferred from another outlet of the supplier in conformity with a court order and the supplier provides a clear and conspicuous notice of that fact