General Advertising Information
Laws regulating advertising can be complex and specialized. There are general laws that apply to all types of advertisements and specific laws that deal with consumer credit, employment, housing and other topics. A good starting point for the analysis of any advertisement is to review the laws that are generally applicable to all types of advertising, such as the Pennsylvania Unfair Trade Practices and Consumer Protection Law and the False Advertising Law. After checking for compliance with these laws, look to specific laws that regulate the particular type of good or service being advertised. You will find individual sections on some of these laws below.
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Unfair Trade Practices and Consumer Protection Law (73 P.S. Â§ 201-2)
The most important law dealing with advertising is the Unfair Trade Practices and Consumer Protection Law (UTPCPL). This law should be the starting point in any analysis of the legality of an advertisement. Under the UTPCPL, unfair or deceptive acts and practices are unlawful. Any advertising practice or advertisement that causes confusion, misunderstanding, or misrepresentation of a good or service violates the UTPCPL. The Pennsylvania Attorney General's Bureau of Consumer Protection is empowered to enforce the UTPCPL, but private lawsuits may also be brought to enforce its provisions.
Full text of the Unfair Trade Practices
and Consumer Protection Law
Deceptive acts or practices covered by the UTPCPL include the following:
- advertising goods or services with intent not to sell them as advertised
- advertising goods or services with intent not to supply reasonably expectable public demand, unless the advertisement discloses a limitation of quantity
- representing the goods of one business as another business's goods
- advertisements that may cause confusion as to the source or sponsorship of an advertisement
- advertisements that may cause confusion as to affiliations with other products (such as falsely implying that one item is made by the makers of another product)
- advertisements which are deceptive as to the geographic origin of the goods or services (for example, stating that something is made in the U.S.A. when this is not true).
- advertisements that state a product has uses, ingredients, approval, benefits, etc. that it does not have
- advertisements which make damaging statements about a competitor's products but do not necessarily injure the reputation of the competitor (disparagement)
- advertisements relating to bait and switch practices (for example, advertising one product at a low price to attract customers and then trying to convince them to buy a similar, but more expensive product)
- conduct causing a likelihood of confusion
- breach of warranty (failing to perform a guarantee or warranty given to the buyer)
- promotion of "Chain Letter Plans" or "Pyramid Clubs"
- engaging in any other fraudulent or deceptive conduct which creates a likelihood of confusion or misunderstanding
Under this act, if a price reduction is advertised, the advertiser must be truthful concerning the reason for such a reduction.
Newspaper Liability Under the UTPCPL
The provisions of the Unfair Trade Practices and Consumer Protection Law shall not apply to any owner, publisher, printer, agent, or employee of a newspaper or other publication, periodical or circular, who, in good faith and without knowledge of the falsity or deceptive character thereof, publishes, causes to be published or takes part in the publication of such advertisement. (73 P.S. Â§201-3)
If a newspaper has any knowledge of the false or deceptive character of an advertisement and proceeds to publish the advertisement, then it may be held liable under the UTPCPL. However, there is no requirement that a newspaper investigate advertiser's claims if there is no reason to suspect impropriety.
See: Com. by Creamer v. Monumental Properties, Inc., 329 A.2d 812, 459 Pa. 450, 1974, on remand 365 A.2d 442, 26 Pa.Cmwlth. 399.
See Also: Automobiles, False Advertising
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False Advertising (18 Pa. C.S.A. Â§Â§ 4107(a)(4), (5), (7), 4107(b))
In Pennsylvania the following acts are offenses ranging from misdemeanors of the second degree, if the amount does not exceed $200, to felonies of the third degree, if the amount exceeds $2,000:
- offering for sale adulterated or mislabeled commodities (goods);
"Adulterated" is defined as varying from the standard of composition or quality prescribed by or pursuant to any statute providing criminal penalties for such variance or set by established commercial usage.
"Mislabeled" is defined as varying from the standard of trust or disclosure in labeling prescribed by or pursuant to any statute providing criminal penalties for such variance or set by established commercial usage.
- making false or misleading statements in advertisements promoting the purchase or sale of goods or services;
- making false or misleading written statements for the purpose of obtaining property or credit;
- making false or misleading statements or omission of information required by law in promoting the sale of securities
A defense to this statute is proof by a preponderance of the evidence that the conduct was not knowingly or recklessly deceptive. Note: A preponderance of the evidence standard means that the party making the assertion or argument must show that the greater weight of evidence supports his argument. It is more likely then not that the argument is correct because there is stronger evidence to support the argument than there is to defeat it. Therefore, a logical explanation that the defendant did not know that the advertisement was false is a defense for a person charged with false advertising. This defense will win unless the plaintiff can, in the court's judgement, present a better argument that the defendant deliberately or recklessly made the false advertisement.
See: Com. v. Masters of Lancaster, Inc., 184 A.2d 347, 199 Pa.Super. 36, (1962) (conviction under 18 P.S. Â§ 4857 [repealed; now, this section] proscribing publication of untrue, false or misleading advertising could not be sustained on basis that advertisements contained statement which, although in no sense deceptive, was technically untrue).
See Also: Drug Advertising, Unfair Trade Practices and Consumer Protection Law (Newspaper Liability Under the UTPCPL)
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Use of the Word "Free" in Advertisements (16 C.F.R. Â§ 251.1, 18 Pa. C.S.A. Â§ 4107, 73 P.S. Â§ 201-2)
Advertisers are not deceiving consumers when advertising goods as "free" if, in fact, the goods are provided at no cost to the consumer. An advertisement is deceptive if "free" goods are offered and no disclosure is made that the price of the "free" goods is included in the cost of other merchandise.
The use of words or phrases that have the same effect as the word "free" are also affected by these regulations. Examples of these words or phrases include such words as: without charge, at no cost, giveaway, complimentary, gift, bonus, one cent sale, and any other language that implies the word "free.
Examples of legal use of the word "free" would include:
- When businesses offer free goods to attract new customers without raising the prices of their merchandise to cover the free give away.
- When no purchase is necessary to obtain the free item.
Although it is illegal for a merchant to charge a premium to cover the cost of the "free" item that is being given away, it is legal to advertise additional items with purchases if the proper disclosures are made. A safe rule of thumb is to clearly and conspicuously disclose any additional or hidden cost that may be applied to the item being purchased.
Examples of how an advertiser can legally advertise additional items with purchases:
- Buy an [item] and an [additional item] for [price].
- An [additional item] is included with the purchase of this [item].
- The price for this item includes an [additional item].
Note: advertisers must make one of the following disclosures when making one of the above offers:
- "The cost of this promotion may increase the price of the [item]."
- "This is a combined offer. Make your best deal on a package price."
The National Advertising Division of the Council of Better Business Bureaus is of the position that "when offering 'free' merchandise, '2 for 1', 'half price sale', rebates, etc. advertisers should make sure that all the terms and conditions necessary to realize the savings are clearly and conspicuously made." NAD Commentary: Price Claims, NAD Case Reports, Vol. 24, no. 2, at 31-32 (April 1994).
When advertising goods as "free", all the terms, conditions and obligations for receiving and retaining the "free" item must be set forth in a clear and conspicuous manner. The use of an asterisk to disclose the terms of the "free" offer is not permitted by federal regulations. (16 C.F.R. 251.1(c))
See Also: Unfair Trade Practices and Consumer Protection Law, False Advertising Act
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Use of Currency in Advertising (18 U.S.C.A. Â§ 504)
Under federal law, advertisements may contain black and white illustrations of United States and foreign currency, including savings bonds. Any such illustrations must either be of a size less than three-fourths (3/4) of each part of the currency illustrated or of a size more than one and one-half (1 1/2) times of each part of the currency illustrated.
The Secretary of the Treasury has the power to make additional regulations regarding the use of currency in advertising.
Note: the negatives and plates used in making the illustrations of currency must be destroyed after their final use.
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Use of Flags in Advertising (4 U.S.C. Â§Â§ 3, 18 P.S. Â§ 2102)
Under both federal and state statutes, state and federal flags cannot be used for any advertising purposes. This means that the flag may not be marked or written upon in an advertisement or desecrated in any manner. Illustrations of the flag are also prohibited.
The exceptions to the Pennsylvania statue regarding desecration of the flag (both state and federal) are as follows:
- The government of the United States has granted permission for the use of a flag, standard, color, or ensign as a trademark.
- A flag illustration may be printed on letterhead used for correspondence that is disconnected from any advertisement for the purpose of sale or trade.
- Patriotic or political demonstrations or decorations.
Although these statutes are rarely enforced against newspapers, publishers should be aware that using the flag in an ad may offend readers. As an alternative, some newspapers use patriotic banners or streamers.
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Use of Stamps in Advertising (18 U.S.C.A. Â§ 504)
Under federal law, advertisements may contain black and white illustrations of canceled or uncanceled U.S. and foreign postage stamps. These black and white illustrations may be in any size.
Colored illustrations of canceled stamps are also permitted in any size; however, colored illustrations of uncancelled stamps must be of a size less than three-fourths (3/4) of each part of the stamp illustrated or of a size more than one and one-half (1 1/2) times of each part of the stamp illustrated.
Note: the negatives and plates used in making the illustrations of stamps must be destroyed after their final use.
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Using United States Seal in Advertisements (18 U.S.C.A. Â§ 713)
Under federal law, it is unlawful to display any printed or other likeness of the great seal of the United States, or the seals of the President or the Vice President, or the seal of the Senate in connection with any advertisement for the purpose of conveying a false impression of sponsorship or approval by the United States government. Fines and imprisonment for up to six (6) months may be imposed for a violation of this statute.
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Using the Great Seal of the Commonwealth in Advertising (71 P.S. Â§Â§ 243, 801)
Under Pennsylvania law, only the Secretary of the Commonwealth may authorize the use of the Great Seal (and the Less Seal) of the Commonwealth. This use is restricted to official documents that require the Governor's signature. Any unauthorized use of the Great Seal is prohibited. However, there is no such restriction on the Coat of Arms of the Commonwealth and it may be used in advertisements as long as it does not deceptively indicate the official involvement of the Commonwealth, its government, or its officers.
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Specific Advertising Information
The Federal Trade Commission has issued regulations in accordance with the federal "Telephone Disclosure and Dispute Resolution Act" governing the advertising of 900 telephone numbers.
The Act requires "clear and conspicuous" general disclosures for 900 numbers as follows:
- In the same language as the advertisement itself;
- Of a color or shade in contrast to that of the advertisement; and
- Parallel with the base of the advertisement.
Disclosure Requirements - Cost of the Call
The cost of all 900 numbers must be stated clearly in any advertisements as follows:
- Flat fee rate - The advertisement must contain the total cost of the call.
- Time-sensitive basis - The advertisement must state the cost per minute plus any minimum charges. If the length of the call can be determined in advance, the ad should also state the maximum charges for listening to the entire call.
- Variable rate basis - The advertisement must state the cost of the initial connection, any minimum charges and the range of rates that may be charged.
The advertisement must also contain any additional fees that will be charged to the caller. If the caller has the option of being transferred to another 900 service, the advertisement must also include the cost of this other call.
Cost of call disclosures must be placed near each display of the 900 number. When the advertisement contains more than one 900 number with the same cost, the disclosure must only be next to the largest display of the number. The type size of the disclosure must be at least one-half that of the 900 number display to which it applies.
Disclosure Requirements - Sweepstakes and Games of Chance
900 number service providers that advertise prizes or awards to be distributed to winners of sweepstakes are required to disclose, within their advertisements, the odds of winning. In addition, the advertisement must clearly and conspicuously state that a call to the 900 number is not required to participate in the sweepstakes and disclose a free alternative method of participation.
Sweepstakes and games of chance disclosures must appear in sufficient size and location to be noticeable and understandable to consumers.
Disclosure Requirements - Federal Programs
If a 900 number provider offers information on a Federal program, but is not operated or expressly authorized by a Federal agency, the advertisement must conspicuously disclose that the service is not authorized, endorsed, or approved by any Federal agency. Advertisements providing information on a Federal program shall include ads containing a seal, insignia, trade or brand name or any other term or symbol that could imply Federal connection, approval or endorsement.
This type of disclosure must appear in the top one-third of the ad and be of sufficient size and location to be noticeable and understandable to consumers.
Disclosure Requirements - Individuals Under the Age of Eighteen
When a 900 number service is primarily directed to individuals under the age of 18, the advertisement for such service must contain a clear disclosure that individuals under the age of 18 must have the permission of a parent or legal guardian before placing such a call.
The type such of such a disclosure must be at least one-half the size of the displayed 900 number.
Prohibitions on Advertising to Children
It is unlawful for 900 providers to direct their advertisements to children under the age of 12, unless the service is proven to be a bona fide educational service.
Referral to Toll-free Telephone Numbers
900 number providers are prohibited from referring to an 800 phone number or other number usually thought to be a toll-free number in their advertisements unless there is no charge to the caller for the other phone call.
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Automobiles (37 Pa. Code Â§Â§ 301.1,301.2; 63 P.S. Â§ 818.5)
Both state and federal law heavily regulate automobile advertising. A number of laws strive to create clarity and standardization among advertisements for new and used automobiles and also for automobile repair. In addition, the fields of automobile lending and leasing are also heavily regulated and add to the complexity of automobile advertising.
The primary laws that affect automobile advertising are the Unfair Trade Practices and Consumer Protection Law, the Automotive Industry Trade Practices Regulations, the Truth in-Lending Act, and the Truth in Leasing Act. If an automobile dealer has any questions regarding these laws, it is strongly recommended that you refer the dealer to an attorney.
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Unfair Trade Practices and Consumer Protection Law (73 P.S. Â§ 201-2)
Full text of the Unfair Trade Practices
and Consumer Protection Law
One or more parts of any automobile advertisement may trigger the UTPCPL in addition to other applicable laws. Requirements and prohibitions listed in the Handbook's earlier section on the UTPCPL all apply to the sale of automobiles.
Common automobile advertising terms that my violate the UTPCPL are:
- Guaranteed credit/financing
- No one refused credit
- Guaranteed $ ____ trade-in allowance
- We will beat every other dealer's prices
Whenever claims such as these are made, they must be completely true. Otherwise, they are violations of the UTPCPL. For example, if an automobile dealer advertises that no one is denied credit, but someone who has no income cannot receive an auto loan, the advertisement is in violation of the UTPCPL. It does not matter if the company who denies the buyer credit is a third party financial institution. If the dealer advertises that everyone receives credit, everyone must receive credit. Additionally, when using statements in disclaimers such as "down payment may vary," the advertiser's practices must be within auto industry standards. An unreasonable down payment (such as half-down) that is required in order to receive financing may be considered a violation of the UTPCPL.
See Also: UTPCPL (in the general advertising section)
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Automotive Industry Trade Practices Regulations (37 Pa. Code 301.1 et. seq.)
Full text of the Automobile Industry
Trade Practices Regulations
The Automotive Industry Trade Practices Regulations do not just apply to licensed automobile dealerships. Under the Regulations, the term "dealer" includes sales people and other employees of automotive dealerships, as well as anybody who sells or negotiates the sale of five or more motor vehicles in a calendar year or sells or negotiates the sale of a vehicle which is not owned by the person or which is acquired for resale purposes. 37 Pa. Code Â§ 301.1
The Regulations make it unlawful to engage in unfair methods of competition and unfair or deceptive acts or practices. Examples of behavior considered to be unfair or deceptive include:
- Failing to disclose the business name and address of the advertiser.
- Failing to include the word "dealer" in the advertisement.
- Using different type, fonts, sizes, or styles in an advertisement to misrepresent material facts.
- Misrepresenting the size, inventory or nature of business of the advertiser or seller; or the expertise, ability or capability of the advertiser or seller.
- Using advertising as part of a plan not to sell the vehicles that are advertised or not to sell the vehicles at the advertised price.
- Failing or refusing to sell vehicles according to the terms and conditions of the advertisement.
- Misrepresenting the style, model, standard, quality or grade of the vehicle(s) in the advertisement.
- Making statements or representations for which the advertiser does not have adequate information upon which to make such representations.
- Stating specific prices or dollar amounts that do not include extra charges that are necessary and usual prior to delivery.
- Using phrases such as "at wholesale" or other similar terms ("similar terms" is not defined in the Regulations).
- Advertising sales promotions without stating any expiration dates or other sale conditions such as a limited supply.
- Advertising specific motor vehicles when no such vehicle is in stock unless phrases such as "Not in Stock" or "Order Yours Now" are included.
Note: Pennsylvania's Board of Vehicles Act (63 P.S. Â§ 818.5) requires persons engaged in the business of salesperson, broker, dealer, manufacturer, factory branch, distributor, etc. to obtain licenses.
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Truth in Lending Act (15 U.S.C.A. Â§1601 et. seq.)
A recent trend in automobile advertising is the use of financing as a marketing device. It is the purpose of the Truth in Lending Act to assure a meaningful disclosure of credit terms so that the consumer will be able to compare more readily the various credit terms available and avoid the uninformed use of credit, and to protect the consumer against inaccurate and unfair credit billing practices.
The Truth in Lending Act sets specific guidelines for the advertisement of automobile financing. Any automobile advertisements must include the following:
- The amount of the down payment, if any.
- The terms of repayment.
- The rate of the finance charge expressed as an annual percentage rate.
Many infractions of the Truth in Lending Act occur because the "finance charge" is not expressed as an "annual percentage rate."
Finance Charge: Under Â§1605, the "finance charge" is the sum of all charges, payable directly or indirectly by the person to whom the credit is extended, and imposed directly or indirectly by the creditor as an incident to the extension of credit. Charges such as interest, time price differential, loan fee, finder's fees, and fees for a credit report are the most common types of charges included into the finance charge. Fees imposed by third party closing agents (including settlement agents, attorneys, and escrow and title companies) cannot be included in the financing charge if the creditor does not require the imposition of the charges or the services provided and does not retain the charges. Therefore, any fee that the dealer imposes that cannot be omitted from the transaction must be included in the finance charge, but optional, non-mandatory fees cannot be included.
Annual Percentage Rate (A.P.R.): An A.P.R. is the charge for credit, stated as a percentage, and expressed as an annualized rate. Under Â§1606, the "annual percentage rate" to be used is either:
(a) That nominal A.P.R. which will yield a sum equal to the amount of the finance charge when it is applied to the unpaid balances of the amount financed, calculated according to the actuarial method of allocating payments made on a debt between the amount financed and the amount of the finance charge, pursuant to which a payment is applied first to the accumulated finance charge and the balance is applied to the unpaid amount financed; or
(b) The rate determined by any method prescribed by the Board of Governors of the Federal
Reserve System as a method which materially simplifies computation while retaining reasonable accuracy as compared with the rate determined under (a).
There is no liability under the Truth in Lending Act on the part of any owner or personnel, as such, of any medium in which an advertisement appears or through which it is disseminated. 15 U.S.C.A. Â§1665
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Truth in Leasing Act (15 U.S.C. Â§ 1604 et seq., 12 C.F.R. Â§213.1 et. seq.)
The Truth in Leasing Act and its accompanying regulations, also known as Regulation M, set specific guidelines dealing with leases. This act applies to all persons who lease "personal property" (which means movable property, such as automobiles, televisions, etc.) under consumer leases. The Truth in Leasing Act is designed to ensure that lessees of personal property receive accurate and meaningful disclosures of lease terms that enable them to compare lease terms with other leases, and, where appropriate, with credit transactions.
To comply with the Truth in Leasing Act, an automobile dealer must make a number of clear and conspicuous disclosures in any advertisement for an automobile lease. These disclosures include:
- That the advertised transaction is a lease;
- The total amount of money due at signing or delivery;
- The number, amounts, and due dates or periods of scheduled payments under the lease;
- Whether or not a security deposit is required; and
- Whether an extra charge may be imposed upon the lessee at the end of the lease term if the lesseeâ€™s liability is based upon the difference in value between the residual value of the automobile and the realized value of the automobile at the completion of the lease term.
See 12 C.F.R. Â§213.7 for a complete list of advertising disclosure requirements.
See Also: Consumer Credit,Leases,False Advertising,Unfair Trade Practices and Consumer Protection Law
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Bingo and Small Games of Chance (10 P.S. Â§Â§305, 313, 314, 325)
Bingo and small games of chance are permitted under Pennsylvania law as a way for associations (including churches, volunteer fire companies, and other non-profit organizations) to raise money. These games may be conducted if an association receives the proper licenses from the county treasurer or other official designated by the local government. Once these licenses are obtained the games may be advertised subject to the restrictions stated below. It is important to note that these games are strictly regulated to prevent influences from organized crime upon these activities.
Eligible Organizations 10 P.S. Â§ 313
Those organizations eligible to obtain licenses to conduct bingo are nonprofit charitable, religious, fraternal and veterans organizations, and clubs and civic and service associations. In addition, the organization must have been in existence for one year prior to application for a license.
Bingo Advertising 10 P.S. Â§ 305(c)(4)
Under Pennsylvania law, only those associations who are licensed to conduct bingo games are permitted to advertise bingo.
Bingo advertisements must contain the following information:
1. Date of game
2. Time of game
3. Location of game
4. Name of the licensed association conducting game
5. Name of individual in charge of game
6. Whether cash or merchandise prizes will be awarded
The ads may not contain the following information:
1. Specific prize or dollar value
2. Guaranteed prize dollar value
Advertising Small Games of Chance (10 P.S. Â§325)
Small games of chance include non-mechanical and non-electronic games such as punchboards, daily drawings, raffles and pull-tabs. Winning small games of chance must not be contingent upon the winning of any other contest or the occurrence of any other event (the individual piece must be determinant of whether the person wins or loses). Slot machines and video poker are not considered small games of chance.
Licensed, nonprofit associations may hold and advertise small games of chance. However, it is unlawful to advertise the prizes or the dollar value of such prizes unless the advertisement is in a publication limited in circulation to members of the organization holding the game, such as its trade publication.
See Also: Lotteries
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Boxing (5 P.S. Â§ 1114)
Boxing advertisements must contain the admission price and a noticeable statement as to whether the presentation is a contest or an exhibition.
The promoter is held responsible for violating this statute and runs the risk of having its license revoked.
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Business opportunity advertising (such as advertising franchises, delivery routes, or sales positions) is a form of advertising that is frequently abused by scam-artists. While many of these fraudulent advertisements are pursuable under Pennsylvania's Unfair Trade Practices and Consumer Protection Law and various Federal Trade Commission (FTC) regulations, many of the people who place these advertisements defraud innocent consumers out of money and never get caught. The FTC is asking newspapers 'as a matter of policy' to take three steps to educate their readers about business opportunity scams. These three steps are:
1) Publish one of the four model consumer notices at the top of the newspaper's business opportunity classified advertisement listing:
a) WANT TO OWN YOUR OWN BUSINESS?
When it comes to earnings or locations, there are no guarantees! Call the Pennsylvania Attorney General's Bureau of Consumer Protection at (610) 821-6690 or the Federal Trade Commission at (877) FTC-HELP for free information. Or visit our Web site at www.ftc.gov./bizop.
b) INVESTIGATE BEFORE YOU INVEST
Always a good policy, especially for business opportunities and franchises. Call the Pennsylvania Attorney General's Bureau of Consumer Protection at (610) 821-6690 or the Federal Trade Commission at (877) FTC-HELP for free information. Or visit our Web site at www.ftc.gov./bizop.
Promises of big profits often mean big risk! Call the Pennsylvania Attorney General's Bureau of Consumer Protection at (610) 821-6690 or the Federal Trade Commission at (877) FTC-HELP for free information. Or visit our Web site at www.ftc.gov./bizop.
d) CHECK OUT ALL EARNINGS CLAIMS
Take the time to meet prior purchasers of the business opportunity or franchise you are considering. Call the Pennsylvania Attorney General's Bureau of Consumer Protection at (610) 821-6690 or the Federal Trade Commission at (877) FTC-HELP for free information. Or visit our Web site at www.ftc.gov./bizop.
2) Substitute generic descriptions for references to well-known brand names in business opportunity advertisements (for example, "snacks" instead of "Frito Lay"), unless the advertiser provides evidence that the brand-name owner has authorized use of the brand name or trademark.
3) Delete specific dollar figures for sales, income or profits from business opportunity advertisements unless the seller discloses in the advertisement the number and percentage of past purchasers who have made as much as or more than the claim (these disclosures and others must be made at the earlier of the "time for making of disclosures" or the first "personal meeting," after the person responds to the advertisement (16 CFR Â§436.1)).
Warning: While these suggestions are voluntary and not binding, it is the policy of PNA that the above "invitation" from the FTC requires newspapers to make choices regarding their internal advertising acceptance policies and newspaper content. The decision to accept or reject the FTC's invitation appropriately rests with each recipient newspaper. However, if newspapers substitute generic descriptions for references to well-known brand names in business opportunity advertisements or delete specific dollar figures for sales, income or profits from business opportunity advertisements, they may risk potential liability through "re-writing" the business opportunity advertisements. By voluntarily complying with the FTC's "advertisement modification" suggestions, parties to lawsuits may argue that newspapers, not the advertisers, are responsible for ensuring that the text of the advertisement comply with the law. Although PNA knows of no instances where such an argument was made, this argument remains untested and any newspaper that complies with the above suggestions runs the possible risk, albeit slight, that they may be held liable for publishing such an advertisement.
See Also: Unfair Trade Practices and Consumer Protection Law, False Advertising
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Cable Intercepting Devices (18 Pa. C.S.A. Â§ 3926)
Under Pennsylvania law, it is illegal to sell or obtain cable-intercepting devices; therefore, advertising for such devices is unacceptable.
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Cigarette Advertising (15 U.S.C. Â§ 1333, 21 C.F.R. Â§897.30 et. seq., 72 P.S. Â§ 201-A)
Cigarette Advertising (15 U.S.C. Â§ 1333)
Under Federal law all cigarette advertisements must contain one of the following four (4) rotating Surgeon General's warnings.
1. SURGEON GENERAL'S WARNING: Smoking Causes Lung Cancer, Heart Disease, Emphysema, And May Complicate Pregnancy.
2. SURGEON GENERAL'S WARNING: Quitting Smoking Now Greatly Reduces Serious Risks to Your Health.
3. SURGEON GENERAL'S WARNING: Smoking By Pregnant Women May Result in Fetal Injury, Premature Birth, And Low Birth Weight.
4. SURGEON GENERAL'S WARNING: Cigarette Smoke Contains Carbon Monoxide.
The label must be in a conspicuous and legible type in contrast to that of the other printed material in the advertisement. The format to be used for these warning labels is the format required for label statements in cigarette advertising as of October 12, 1984, except the following differences
1. The phrase "Surgeon General's Warning" must appear in capital letters.
2. The area of the rectangle enclosing the label and the size of the type must be 50 per centum larger in size than as in October 12, 1984.
3. The width of the rule forming the border around the label must be twice that as in October 12, 1984.
4. The label may be placed a distance from the outer edge of the advertisement half the distance permitted on October 12, 1984.
The above provisions regarding warning labels in cigarette advertisements do not apply to distributors or retailers of cigarettes who do not manufacture, package or import for sale within the United States.
Cigarettes and Smokeless Tobacco (21 C.F.R. Â§897.30 et. seq.)
Cigarettes or smokeless tobacco products may be advertised in newspapers. However, a number of labeling requirements must be followed. These requirements are:
1. Any labeling or advertising for cigarettes or smokeless tobacco shall use only black text on a white background.
Note: This requirement does not apply to "adult publications." An adult publication is a publication whose readers younger than 18 years of age constitute 15 percent or less of the total readership as measured by competent and reliable survey evidence and is read by fewer than 2 million persons younger than 18 years of age as measured by competent and reliable survey evidence.
2. Each advertisement shall include the product's established name and a statement of its intended use as follows: "Cigarettes--A Nicotine-Delivery Device for Persons 18 or Older," "Cigarette Tobacco--A Nicotine-Delivery Device for Persons 18 or Older," or "Loose Leaf Chewing Tobacco," "Plug Chewing Tobacco," "Twist Chewing Tobacco," "Moist Snuff" or "Dry Snuff," whichever is appropriate for the product, followed by the words "A Nicotine-Delivery Device for Persons 18 or Older."
Note: Tobacco regulation is a popular topic in Congress and there are bills pending that may alter the above requirements. Consult with an attorney to determine the status of the law before placing any tobacco advertisements.
Pennsylvania Law (72 P.S. Â§ 201-A)
Under Pennsylvania law, it is prohibited to advertise or offer cigarettes for sale below cost if the intent is to increase the incidence of cigarette usage or to injure, destroy or substantially lessen competition. An advertiser may advertise cigarettes at a price to meet the price of a competitor. The price may not be the competitor's price in bankruptcy or some other permitted, below-cost price.
See Also: Close Out Sales
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Close Out Sales (53 P.S. Â§Â§ 4471-1 et. seq.)
(Close Out Sales, Going Out of Business Sales)
An advertiser must obtain a license from the local government to conduct a "close out sale," sale of goods damaged by fire, smoke or water, or a "defunct business sale".
The term "closing-out sale" includes, but is not limited to, all sales advertised under the designation of "quitting business," "going out of business," "discontinuance of business," "selling out," "liquidation," "lost our lease," "must vacate," "forced out," "removal," "branch store discontinuance sale," "building coming down," "end," "final days," "last days," "lease expires," "we give up sale," "we quit sale," "warehouse closing sale," "warehouse removal sale" and "reorganization sale" etc.
The term "sale of goods damaged by fire, smoke or water" includes, but is not limited to, all sales advertised as "fire sale," 'smoke damage sale," "water damage sale," 'flood damage sale" and "insurance sale" etc.
The term "defunct business sale" includes, but is not limited to, all sales advertised as "adjuster's sale," "administrator's sale," "assignees sale," "bankrupt sale," "bankrupt stock sale," "benefit of administrator's sale," "benefit of creditor's sale," "benefit of trustee's sale," "creditor's committee sale," "creditor's sale," "executor's sale," "insolvent sale," "mortgage sale," "receiver's sale" and "trustee's sale" etc.
Note: These regulations do not apply to any sale advertised as an "alteration sale," "remodeling sale," "clearance sale," "surplus stock liquidation sale," or "special purchase sale."
License Must be Referred to in Advertisement
Any advertisement for a "close out sale", sale of goods damaged by fire, smoke or water, or a "defunct business sale" must include:
1. the number of the license;
2. the expiration date; and, if applicable,
3. the location where the business is to be resumed.
Under Pennsylvania law, newspapers and publishers are not held liable if the advertisement was published in good faith without knowledge of its false, deceptive, or misleading character and without knowledge that the advertiser did not comply with the statute by filing for a license. However, newspapers still need to make sure that the form of the advertisement is in compliance with the law.
Any person who violates this act may be subject to a $100 fine and up to 30 days imprisonment for each violation of the act. Each day a sale is conducted in violation of the law is a separate violation.
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Consumer Credit Advertising (15 U.S.C. Â§Â§ 1661-1665, 1603, 1605)
(Consumer Credit Advertising, Credit Cards, Loans)
Truth in Lending Act (15 U.S.C. Â§Â§ 1602-1605, 1661-1665)
The federal Truth in Lending Act was designed for the purpose of protecting consumers against inaccurate and unfair credit billing and credit card practices and for promoting intelligent comparison shopping by consumers contemplating the use of credit by full disclosure of terms and conditions of credit charges. This act regulates advertisements for consumer credit (credit offered or extended to a consumer primarily for personal, family, or household use). Credit is deemed to be extended when a finance charge is imposed or when the borrower may repay the loan or item in four or more installments, not counting the down payment. An "advertisement" within the meaning of the Act includes the traditional notice of selling of goods and services designed and generally circulated to attract public attention.
This Act not only prohibits certain types of advertisements, but it also imposes disclosure requirements, depending on the type of credit offered.
Prohibitions: Advertisements which aid, promote, or assist any extension of consumer credit or which offer credit or credit terms (including down payment terms) which are not "usually and customarily" arranged are prohibited. Thus, "bait" ads, where advertised credit terms are not available to creditworthy consumers, are unlawful (this may also be a violation of the PA. Unfair Trade Practices and Consumer Protection Law). Although a creditor may not advertise terms that will not be available, he may advertise terms that will be offered for only a limited time or terms that will become available at a future date.
Required Disclosures: If an advertisement promoting a credit plan uses certain "trigger' terms, then certain required disclosures must be advertised in a clear and conspicuous manner.
Open-Ended Credit Plans
Open-ended credit plans are those under which the creditor reasonably contemplates repeated transactions, which prescribes the terms of such transactions, and which provides for a finance charge that may be computed from time to time on the outstanding unpaid balance. Examples of open-ended credit plans include lines of credit that may be used over and over again, credit cards and overdraft credit accounts.
Trigger terms (terms that require the application of the Truth in Lending Act) include:
- terms relating to the amount of the finance charge and the circumstances under which it will be imposed
- terms relating to other charges levied as part of the plan;
- terms relating to the security interests which may be taken as part of the plan; and
- terms relating to the customer"s billing rights.
If a trigger term is present, then the advertisement must also set forth:
- any minimum, fixed, transaction, activity or similar charge that could be imposed;
- any membership or participation fee that could be imposed (such as an annual fee); and
- Any periodic rate that may be applied must be expressed as an "Annual Percentage Rate." If the annual percentage rate is a variable (non-fixed) rate, the ad must state that the annual percentage rate is variable. If the annual percentage rate is a discounted variable rate, both the initial rate and the current indexed rate must be stated.
Closed-End Credit Plans
Closed-end credit plans are those under which credit is extended for a particular period of time. Examples of closed-end credit plans are car loans and appliance financing plans.
Trigger terms include:
- terms stating the amount of the down payment (if a down payment is required);
- the amount of any installment payment;
- the dollar amount of the finance charge; and
- the number of installments or the period of the repayment.
If a trigger term is present the advertisement must also disclose:
- the down payment, if any;
- the terms of the repayment (such as amount due per month); and
- the rate of the finance charge expressed as an annual percentage rate.
Open-Ended Consumer Credit Plans Secured by a Consumers Principal Dwelling
Advertising of open end consumer credit plans secured by a consumer's principal dwelling, such as a home equity loan, are also governed by the Truth in Lending Act.
Trigger terms include:
- terms relating to the periodic payment amount; and
- any specific terms of the plan (such as interest rates and points).
If a trigger term is present, then the advertisement must clearly and conspicuously set forth:
- loan fees (including points) and opening cost estimates (an estimate of the aggregate amount of other fees for opening the account);
- periodic rates (if periodic rates are used to calculate finance charge, they must be expressed as an annual percentage rate); and
- the maximum annual percentage rate.
Other advertising requirements:
- If the advertisement states that an interest expense for the loan may be tax deductible, the advertisement shall not be misleading with respect to such deductibility.
- No advertisement may describe or refer to the loan as "free money" or other similar but misleading term.
Interest Rate Disclosures:
- If the loan has a "discounted initial rate" (an introductory rate that is lower than the what will be charged later in the life of the loan), the advertisement shall also state with equal prominence the current annual percentage rate that would have been applied using the index or formula if such initial rate had not been offered (the normal, non-discounted rate).
The quoted annual percentage rate must be current as of a reasonable time it is given to the media.
- Any advertisement shall also state the period of time during which the initial annual percentage rate will be in effect.
- If any advertisement contains a statement regarding the minimum monthly payment under the plan, the advertisement shall also disclose, if applicable, the fact that the plan includes a "balloon payment."
- A "balloon payment" is defined as any loan repayment option under which -
(1) the account holder is required to repay the entire amount of any outstanding balance as of a specified date or at the end of a specified period of time, as determined in accordance with the terms of the agreement pursuant to which such credit is extended; and
(2) the aggregate amount of the minimum periodic payments required would not fully amortize such outstanding balance by such date or at the end of such period.
To be considered a single advertisement, a multiple-page advertisement must clearly and conspicuously display a credit terms table on which the information required by the Truth in Lending Act is set forth. If a trigger term appears anywhere in a multiple page advertisement, then a clear reference must be made to the page in which the credit table appears. If this is not done, then each advertisement is independent from the others and must individually meet the requirements of the Truth in Lending Act.
The federal statute specifically states that there is no liability on the part of the medium in which the advertisement appears.
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Equal Credit Opportunity Act (15 U.S.C. Â§1691 et. seq.)
The Equal Credit Opportunity Act (ECOA) makes it illegal to discriminate against borrowers for non-financial reasons. Consumers are given an equal chance to obtain credit based upon factors such as their income, expenses, debt, and credit history.
The ECOA applies to banks, credit card companies, credit unions, finance companies, retail and department stores, and other creditors who regularly extend credit.
Unlawful Activities under ECOA
It shall be unlawful for any creditor to discriminate against any applicant, with respect to any aspect of a credit transaction:
- on the basis of race, color, religion, national origin, sex or marital status, or age (provided the applicant has the capacity to contract);
- because all or part of the applicant's income derives from any public assistance program; or
- because the applicant has in good faith exercised any right under this chapter.
Allowable inquiries not constituting discrimination under ECOA:
Marital status: A creditor may make an inquiry of marital status as long as the inquiry is for the purpose of ascertaining the creditor's rights and remedies and not to discriminate in a determination of credit-worthiness.
Public Assistance: A creditor may make an inquiry as to whether the applicant's income derives from any public assistance program as long as the inquiry is for the purpose of determining the amount and probable continuance of income levels, credit history, or other pertinent element of credit-worthiness.
Age: A creditor may make an inquiry of the applicant's age if:
- the inquiry is for the purpose of determining the amount and probable continuance of income levels, credit history, or other pertinent element of credit-worthiness;
- the inquiry is for an empirically derived credit system (credit scoring system) which does not treat age as a negative factor; and
- the inquiry of the applicant's age is to be used by the creditor in the extension of credit in favor of such applicant.
Note: Credit regulation is an active topic in Congress and new regulations are being considered that may affect the current regulations.
See Also: Automobiles, Leases
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Drug Advertisements (21 U.S.C. Â§ 352(n), 63 P.S. Â§ 390-8, 35 P.S. Â§ 780-113)
Pennsylvania law requires that all advertising of drug products may only be done by a registered pharmacist or a pharmacy licensed by the State Board of Pharmacy.
Additionally, under the Federal Food, Drug, and Cosmetic Act, prescription drug advertisements must include the following:
- the established name of the drug must be noted in type at least one half (1/2) as large as that used for any trade or brand name of the drug;
- the ingredients of the drug;
- a brief summary relating to side effects, contraindications, and effectiveness as required by regulations.
Both Federal and Pennsylvania law prohibit the publication of any false or materially misleading advertisements. Additionally, advertising the sale of objects designed or intended for use as drug paraphernalia is also prohibited.
Advertising alternative or herbal supplements, such as echinacea, ginseng, chromium picolinate, or other non-traditional medical supplements is permitted, but any advertisements must meet state and federal requirements for truthful advertising. Under Pennsylvania law, any advertisements must comply with the Unfair Trade Practices and Consumer Protection Law and False Advertising Law. A number of federal regulations exist concerning advertising such supplements, the most important of which are promulgated by the Federal Trade Commission. It is a violation of the FTC Act for advertisements to contain direct or indirect misrepresentations or omissions that will mislead consumers. If a supplement is claimed to have a nutritional or health benefit claim, the claim must be based upon a reasonable basis (such as scientific evidence) substantiating the claim. Unless there is such as claim, the advertisement should not be made. An example of this would be ads for Vitamin C and echinacea. There is scientific proof that Vitamin C boosts immune systems, but echinacea, although widely believed to do so, is not supported by such evidence. Therefore, an ad claiming that Vitamin C can fight colds would be legal by an ad stating that echinacea fights colds may not be legal.
See Also: False Advertising, Unfair Trade Practices
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The Pennsylvania Human Relations Act (PHRA) makes it unlawful for any employer to refuse to hire, discharge, or otherwise discriminate against an individual based upon the following factors:
- national origin
- non-job related handicap or disability (refers to physical or mental impairment which substantially limits one or more major life activities). Note: this category includes diseases, such as AIDS.
- use of guide or support animal due to blindness, deafness or physical handicap.
Under PHRA, it is also illegal for employers to:
- Print, publish, or cause to be printed or published any notice or advertisement relating to employment or membership indicating any preference, limitation, specification or discrimination based upon the above factors.
- Elicit any information (including through forms and applications) or make any records of the above factors (including past handicaps) prior to employment. However, employers may inquire as to the individual's ability to perform the essential functions of the employment. Â§955(b)(1)
- Discriminate against an employee or prospective employee because the individual has a diploma based upon passing a general educational development test (G.E.D.) as compared to a high school diploma.
- To exclude or otherwise deny equal jobs or benefits to a person because of the handicap or disability of an individual with whom the person is known to have a relationship or association.
- A religious corporation or association may hire or employ on the basis of sex in those certain instances where sex is a bona fide occupational qualification because of the religious beliefs, practices, or observances of the corporation or association.
- Apprenticeship programs of two years or more approved by the State Apprenticeship and Training Council of the Department of Labor and Industry may place age limitations upon entrance into the program.
- Institutions and organizations for handicapped or disabled persons may limit or give preference in employment or membership to handicapped or disabled persons.
- Employers are allowed to refuse to hire and dismiss people who are not able to function properly in the job applied for or engaged in.
Advertisements for Individuals Seeking Employment:
Individuals seeking employment may not publish or cause to be published any advertisement which in any manner expresses a limitation or preference for any of the above factors of any prospective employer.
A number of federal laws regulate employment practices in an attempt to prevent discrimination. Among these are the Civil Rights Act of 1991, the Civil Rights Act of 1964, the Age Discrimination in Employment Act, and the Americans with Disabilities Act of 1990. Each of these acts contains provisions that either directly or indirectly affect employment advertisements in newspapers.
Civil Rights Act of 1991 (42 U.S.C. Â§1981 et. seq.)
Equal rights are guaranteed to United States citizens under a number of laws. Prominent among these laws is the Civil Rights Act of 1991. The main provision of this act is 42 U.S.C. Â§1981, which states:
All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.
This statute makes it illegal to engage in discriminatory employment practices and provides for compensatory and punitive damages if this occurs. Under the Civil Rights Act of 1991, discriminatory employment practices are those that are described in the Civil Rights Act of 1964, the Age Discrimination in Employment Act, and the Americans with Disabilities Act of 1990.
The Civil Rights Act of 1964
Discriminatory employment advertising is regulated by the Civil Rights Act of 1964. Under Â§2000e-3 of the act, it is illegal for an employer* to print, publish or cause to be printed or published an advertisement that indicates any preference, limitation, specification, or discrimination, based on race, color, religion, sex, or national origin. However, advertisements may indicate a preference, limitation, specification, or discrimination based on religion, sex, or national origin when religion, sex, or national origin is a bona fide occupational qualification for employment.
*The term employer includes labor organizations, employment agencies, or joint labor-management committees controlling apprenticeship or other training or retraining, including on-the-job training programs.
The Age Discrimination in Employment Act
The Age Discrimination in Employment Act makes it unlawful for an employer, labor organization, or employment agency to print or publish, or cause to be printed or published, any notice or advertisement indicating any preference, limitation, specification, or discrimination, based on age. This act protects employees over the age of forty from discrimination based upon age.
However, employers, employment agencies, and labor organizations may advertise age restrictions when:
- age is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business;
- the differentiation is based on reasonable factors other than age;
- such practices involve an employee in a workplace in a foreign country, and compliance with this act would violate the laws of the country in which such workplace is located; or
- it is required to observe the terms of certain bona fide seniority systems or bona fide employee benefit plans (see 29 U.S.C. Â§623(f) for more details).
Note: These exceptions are relatively rare, and it is usually best not to mention any age restrictions in advertisements.
The Americans with Disabilities Act of 1990
Under the Americans with Disabilities Act of 1990 (ADA), employers, employment agencies, labor organizations, or joint labor-management committees are not allowed to discriminate against a qualified individual with a disability regarding job application procedures, hiring, employee compensation, job training, and other terms, conditions, and privileges of employment. The term "disability" is defined by the ADA as a physical or mental impairment that substantially limits one or more of the major life activities of an individual; having a record of such an impairment; or being regarded as having such an impairment.
The term "qualified individual with a disability" shall not include any employee or applicant who is currently engaging in the illegal use of drugs.
Homosexuality and bisexuality are not impairments and as such are not disabilities under the ADA.
Under the ADA, the term "disability" shall not include -
1. transvestitism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders;
2. compulsive gambling, kleptomania, or pyromania; or
3. psychoactive substance use disorders resulting from current illegal use of drugs.
Note: the ADA also prohibits excluding or otherwise denying equal jobs or benefits to a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association.
Advertising to Replace Striking Workers (43 P.S. Â§ 217.25)
Advertisements seeking workers to replace those involved in a labor dispute must meet the following guidelines:
1. The ad must contain notice of the existence of a dispute; and
2. The ad must indicate that the nature of the employment is "replacement" labor.
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Advertisement by Employment Agencies (43 P.S. Â§ 574(d),(i))
An employment agent/agency is defined as a person or office whose purpose is to procure employment for people for a fee. Employment agencies are required to be licensed by the Commonwealth.
Employment agencies are prohibited from publishing any false, fraudulent or misleading advertisements. In addition, the following requirements must also be met:
- All advertisements from employment agencies must contain the name and address of the agency and also the words "employment agency."
- Employment agencies cannot advertise for any position unless there is a bona fide job order for the position.
- If the employment agency charges applicants a fee for its services, this must also be indicated in the advertisement.
- Employment agencies cannot charge fees for its services until an applicant has accepted a position.
- Employment agencies cannot charge a "registration fee."
Note: Companies that place advertisements for jobs that require payment of a fee before employment can begin (such as sales companies that require an "administrative fee" or a "background check") may fall within the definition of an employment agency and must follow the above regulations.
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Firearms (18 P.S. Â§6105)
Advertisements for the sale of firearms are legal but the sale of firearms and other deadly weapons to minors is illegal. A person who has been convicted of serious criminal offenses may not possess or sell a firearm in this Commonwealth.
However, when accepting ads such as these, a newspaper should keep in mind that victims of gun related accidents or crimes might attempt to hold the publisher of the ad liable. In October of 1991 a Texas judge dropped the Boy Scouts of America from a wrongful death suit that claimed an ad in the group's magazine led to the fatal shooting of a 12 old boy. This action follows a trend that holds advertisement publishers not liable, but the mere possibility of a suit means that newspapers should proceed with caution when considering ads for firearms.
Although sellers, distributors, and manufacturers are often the parties held liable in weapons-related negligence suits, newspapers should avoid any advertising that may have the effect or perceived effect of providing access to firearms to minors or dangerous persons.
See Also: Firearms
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Fortune Telling (18 Pa. C.S.A. Â§ 7104)
(Fortune Telling, Psychics)
Under Pennsylvania law, it is illegal for a person to tell fortunes or predict future events for money; therefore, advertising for these practices is unacceptable. They are acceptable for amusement purposes only.
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Game Animals (34 Pa. C.S.A. Â§2312)
It is illegal to sell or trade game, edible parts of game, or any protected bird or animal (or parts thereof) taken in Pennsylvania.
Inedible parts of game and wildlife (such as game heads) taken within Pennsylvania may be sold if they are disposed of by the original owner within 90 days after the close of the season in which the animal was killed. Game raised domestically (with a valid permit) may be sold within Pennsylvania and is not regulated by the above statute.
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Housing (42 U.S.C. Â§3601 et. seq., 43 P.S. Â§951 et. seq. 16 Pa. Code Â§45.101 et. seq.)
Note: A number of changes to the Pennsylvania Human Relations Act (PHRA) are currently being discussed by committees of the Pennsylvania Legislature. Check this website for any new changes in the law.
Under the federal Fair Housing Act (as amended in 1989) and the Pennsylvania Human Relations Act (PHRA), it is unlawful to discriminate in the sale, rental or financing of housing on the basis of certain factors. The federal regulations generally correspond with Pennsylvania's regulations, and a violation of one is typically a violation of the other.
The Pennsylvania Human Relations Act (PHRA) makes it unlawful to print, publish, circulate and advertise any statement or advertisement that indicates any preference, limitation, specification or type of discrimination in the sale, rental or financing of residential housing and commercial property on the basis of the prospective owner's, user's or occupant's:
- national origin
- familial status (refers to persons under the age of 18 years who live with a parent or guardian; also refers to families with children, or to persons who are pregnant or in the process of adopting or securing legal custody of a person under the age of 18 years).
- handicap or disability (refers to physical or mental impairment which substantially limits one or more major life activities). Includes: diseases, such as AIDS
- use of guide or support animal due to blindness, deafness or physical handicap
- the handling or training of support or guide animals
It is also illegal to discriminate against disabled persons who are associated with or related to the prospective owner, user or occupant.
Note: The PHRA does not make it illegal to discriminate against people who are currently involved in the illegal use of, or are addicted to, a controlled substance.
Note: It is unlawful to advertise any discrimination, even for an exempt property (such as the rental of an owner occupied duplex).
Pennsylvania Human Relations Commission Guidelines and Statement of Policy by Protected Class
On October 18, 1997, the Pennsylvania Human Relations Commission issued a "Statements Policy" regarding guidelines for housing advertisements. This "Statements Policy" has been codified at 16 Pa. Code Â§45.121 et. seq. and lists terms and words that may indicate discrimination for particular protected classes when used in real estate ads.
1. Race/Color/National Origin
a. Words that describe current or potential residents or neighbors and neighborhoods in terms of race or ethnic status.
b. Words like white, black, brown, yellow, or red to describe people; however, the use of colors for any other reason is okay (i.e., describing the property itself).
c. Words like Caucasian, Negroid, Chinese, Asian immigrant, French, Hawaiian, Arab, Oriental, African-American, or Irish; however, the use of such words to describe property such as French doors is okay.
d. The use of landmarks or organizational locations that are characteristic of certain races or nationalities should not be used unless all such landmarks in the area are used. For example, if a reference is made to a particular place of worship, references must be made to all places of worship in the area.
e. Code words used to denote a white neighborhood should also be avoided. (i.e., "restricted," "exclusive," "board approval" and "traditional")
2. Familial Status/Age
a. Unless property is "housing for older persons", it is illegal to discriminate against families with children or people based on their age. Some examples of phrases that indicate discrimination against families with children include "empty nesters" or "honeymooners".
b. The following phrases may be used when advertising housing for older persons: "senior housing," "senior community," "retirement housing, "retirement community," "adult community, 55 and over," "adult community, 62 and over," "adult 55+," and "adult 62+".
c. A reference cannot be made as to how many children are allowed, but the number and/or size of rooms and/or bedrooms available may be included.
d. Ads may state that housing meets the requirements for "housing for older persons." If, in fact, the complex does not meet these requirements, the complex and the person placing the advertisement will be held liable. As long as the publisher relied on the representations of the owner, the publisher would not be held liable.
a. Housing can be described as being accessible to persons with disabilities, but no limits can be placed on those with disabilities by stating the property is not handicapped accessible.
Note: It is illegal for landlords to refuse to permit (at the tenant' expense) reasonable modifications to the premises if the modifications are necessary for the tenant's full enjoyment of the premises.
a. Housing ads should not make any actual or implied preferences with regard to religious beliefs. Phrases like "near parochial school" or near "synagogue" may indicate preferences and should be avoided.
a. Ads cannot discriminate based on sex; however, in the case of an advertisement for housing in which a common living space is shared, a limitation may be placed based on sex.
Helpful Guidelines to Follow in Housing Advertisements
1. Avoid selective use of advertising media or content. For example:
a. Advertising properties in sensitive neighborhoods only in minority orientated news media. Property that is advertised in minority orientated media should also be advertised in media or newspapers of general circulation.
b. Placing the equal housing opportunity slogan, logo, or statement in advertising reaching only limited geographic areas, or with respect to some properties but not others.
2. No advertising should misrepresent, by actual statement or innuendo, the availability, condition, terms of sale or rental, etc., of any advertised property.
3. Ads for sale or rental should contain the legitimate business name and address or telephone number of the broker handling the property.
4. All advertising for the sale, rental or financing of housing should contain the equal housing slogan, logo or statement to indicate to the public that the property is available to everyone regardless of race, color, religion, sex, age, familial status, handicap or national origin.
Housing Advertising Situations where Limited Discrimination is Permitted
It is permissible to advertise housing that falls within the following exemptions:
1. Housing for older persons, where the housing is "(1) designed and operated to assist elderly persons under a state or federal program, (2) occupied solely by persons 62 years of age or older, or (3) has at least 80 percent of its occupied units occupied by at least one person 55 years of age or older per unit and has significant facilities and services to meet the physical or social needs of older persons."
2. Housing at private clubs "not in fact open to the public."
3. Housing which reasonably limits the maximum number of occupants per unit because of local, state or federal regulations.
4. Housing that is restricted to persons with handicaps or accessible to handicapped persons.
5. Housing offered exclusively to members of a religious group, provided by a religious organization or its non-profit affiliates is permissible as long as membership in that religion is not restricted to a certain race, color, or national origin.
6. Rental of rooms in a landlord occupied rooming house with a common entrance.
7. Housing involving rentals in which a common living space is shared may place limitations based on sex.
Note: these exemptions are narrowly interpreted and do not permit discrimination in a manner not specifically permitted by the above exemptions. For example, a landlord may restrict housing by only offering it to persons with handicaps, but cannot discriminate against any handicapped persons of a specific age, race, or national origin.
Good Faith Effort on the Part of Advertisers
Advertisers can be held liable for violations of the PHRA if they knowingly and willfully violate the Act. However, an advertiser may avoid liability if it can show that it has acted in good faith by:
1. Regarding "housing for older persons", the advertiser received from the housing provider a signed, written statement that the housing complies with all the requirements of housing for older persons and the advertiser has no knowledge that the housing does not meet the requirements.
2. The word or phrase in question conforms with the list offered in 16 Pa. Code Â§ 45.151 regarding examples of unlawful advertisements and within the context of the ad, the language is not discriminatory on its face.
3. The advertiser relies on the advice of a Human Relations Commission staff person that the language in question was lawful.
Questions regarding advertisements shall be directed to the Housing Director (717) 783-8274 or Assistant Chief Counsel of the Housing Division (717) 783-8132 in Room 300, Executive House, 101 South Second Street, Harrisburg, Pennsylvania 17105-2125 Text-Telephone (717) 787-4087, Fax (717) 772-4340.
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Advertisement Words/Phrases to Avoid
Insurance (18 P.S. Â§ 7308)
It is illegal to run an advertisement soliciting business for, or setting forth the advantages of, any insurance company unless the newspaper has in its possession a true and attested or a photostatic copy of a certificate from the Insurance Department granting authority to the insurance company, association, society, etc. to do business within Pennsylvania.
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Intercepting Devices (18 Pa. C.S.A. Â§ 5705)
Under Pennsylvania law, it is illegal to advertise any electronic, mechanical or other device (known as "wiretapping" devices) if the ad promotes the use of the devices for unauthorized interception of wire or oral communications.
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Leases (15 U.S.C. Â§ 1667c(a),(c))
A lease is defined as a contract in the form of a lease or bailment for the use of personal property by a natural person for a period exceeding four (4) months, primarily for personal, family or household purposes. The statute excludes leases imposing a contractual obligation in excess of $25,000, as well as, leases for agricultural, business, or commercial purposes, or leases made to a government entity or to an organization.
As with consumer credit advertising, "bait" advertising is prohibited and specified "trigger" terms require disclosures to be stated in the advertisement.
- the amount of any payment;
- statement of any capitalized cost reduction or other payment required prior to or at consummation; or
- statement that no payment is required.
If any of the above trigger terms are present in the advertisement, a clear and conspicuous disclosure of the following terms is mandatory:
- that the transaction is a lease;
- the total amount due at signing;
- the number, amount, and due dates or periods of scheduled payments;
- for an open-end lease, a short statement that an additional charge may be imposed at the end of the lease; and,
- a statement of whether a security deposit is required.
Any reference to a charge that is part of the total amount due at lease signing or delivery may not be more prominent than the disclosure of the total amount due. The reference may not be obscured. There is no minimum type-size, but the reference must be legible.
- All "persons" are covered, not just "lessors," but the law specifically exempt owners and personnel of the media from civil liability for violations.
- It is allowable to advertise a single item or new leasing program, but ads of the terms that are not and will not be available are prohibited.
- The total amount due at signing and delivery does not have to be itemized.
- Regarding the location of the lease rate, language or symbols cannot separate the rate and the required notice that the rate may not measure the overall cost of financing the lease. An ad may not use an asterisk when referring to the location of the lease rate.
- Multiple page ads are treated as a single ad that requires only one set of disclosures. If the advertiser is using trigger terms, he or she must specifically refer to the table, chart or schedule.
See Also: Automobile: Truth in Leasing, Consumer Credit
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Liquor (47 P.S. Â§ 4-493, 4-498)
Under Pennsylvania law, manufacturers and retailers are allowed to advertise their products and prices; however, all such advertisements are subject to Federal and State laws.
Any advertisements of price may not contain any of the following:
- False, deceptive or misleading statements;
- Statements disparaging of the products of competitors; or
- Monetary comparisons of brands.
The following restrictions apply to advertisements for alcoholic or malt beverages:
- The advertiser must be clearly identified in the ad.
- No licensee may distribute price lists off of the premises as a means of advertising (note: this does not affect newspaper advertisements).
- No printed advertisements are permitted within 300 feet of a church, school or public playground.
- No advertisements may be directed at minors to promote the illegal consumption of alcoholic beverages.
- No advertisements are permitted in publications by, for, or on behalf of any educational institution.
- Obscene advertisements are prohibited.
- Advertisements may not contradict the ideals of safety or safe driving programs.
In addition to the above restrictions, it is illegal for any licensee to advertise any alcoholic beverages if he does not actually have a sufficient supply of the beverages on hand to meet the normally expected demands. Licensees and manufacturers are also prohibited from referring to the alcoholic strength of a malt beverage in any manner in order to induce consumers to buy the product. Terms such as "full strength," "extra strength," "high proof," etc. are prohibited. However, indirect price advertising terms such as "special," "half price, rebate available," are permissible.
Note: Publishers should be aware of special dangers of advertisements that may be construed as encouraging people to drink (such as 10Â¢ drafts or $1 pitchers). Although PNA is unaware of any such case, there is potential for a lawsuit against the newspaper by a victim injured by a drunk driver who learned of such an event by reading the newspaper. Even though such a suit is unlikely to win, a newspaper will nonetheless have to pay attorneys costs for the defense of the lawsuit.
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Lotteries (18 U.S.C. Â§ 1307, 18 P.S. Â§ 5512)
(18 U.S.C. Â§ 1307, 18 P.S. Â§ 5512)
Because private lotteries are prohibited, it is unlawful to publish an advertisement for any lottery or number game that is not specifically authorized by law. Traditional elements of a lottery include the following:
- a prize to be won
- determination of a winner by chance
Under federal law an advertisement for an interstate lottery may not be published unless the advertisement is contained in a newspaper published in that state or in an adjacent state which conducts the lottery or the lottery is conducted by a non-profit governmental organization.
Note: It is illegal to mail any "newspaper, circular, pamphlet, or publication of any kind containing any advertising of a lottery or similar enterprise, or any list of prizes awarded in such an enterprise." (Domestic Mail Services Â§123.432(d)).
See Also: Bingo And Small Games Of Chance
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In Pennsylvania, movie advertising is self regulated. There are no state or federal laws that specifically address their advertisement. However, to obtain a rating from the Motion Picture Association of America (MPAA), all advertisements for movies must be submitted to the MPAA's Advertising Administration prior to release. If an advertisement for a movie does not contain a rating, this omission is most likely a contractual violation and not a violation of law. Therefore, the newspaper cannot be held liable for publishing the advertisement unless it has specifically entered into an agreement not to publish such advertisements.
Note: Movies that are not rated, such as independent or foreign films, are not bound by the above restrictions.
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Obscene Ads (18 Pa. C.S.A. Â§ 5903)
Under Pennsylvania law it is illegal to knowingly advertise any obscene materials in any manner. Furthermore, information which directly or indirectly states how, where, and from whom obscene materials may be purchased or obtained may not be advertised.
The statute defines "obscene" as any material or performance, if:
- the average person applying contemporary community standards would find that the subject matter taken as a whole appeals to the "prurient interest" (shameful and morbid interest in sexuality or nudity);
- the subject matter depicts or describes in a patently offensive way, sexual conduct of a type described in this section; and
- the subject matter, taken as a whole, lacks serious literary, artistic, political, educational or scientific value.
Note: This statute does not prevent the advertisement of "exotic" clubs or bars that are legally operating within the Commonwealth.
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Political Advertisements (25 P.S. Â§Â§ 3253, 3258)
Political Disclaimer Notices
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Private Driver Training Schools (22 Pa. Code Â§ 101)
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