Senate Bill No. 567
(By Senator Anderson)
________
[Introduced February 11, 2002; referred to the Committee on
on the Judiciary.]
A BILL to amend and reenact section one hundred two, article six,
chapter forty-six-a of the code of West Virginia, one thousand
nine hundred thirty-one, as amended, relating to changing the
definition of consumer to include any person, firm or
corporation in the consumer protection act.
Be it enacted by the Legislature of West Virginia:
That section one hundred two, article six, chapter forty-six-a
of the code of West Virginia, one thousand nine hundred thirty-one,
as amended, be amended and reenacted to read as follows:
ARTICLE 6. GENERAL CONSUMER PROTECTION.
§46A-6-102. Definitions.
When used in this article the following words, terms and
phrases and any variations thereof required by the context, shall
have the meaning ascribed to them in this article, except where the
context indicates a different meaning:
(a) "Advertisement" means the publication, dissemination or
circulation of any matter, oral or written, including labeling,
which tends to induce, directly or indirectly, any person to enter
into any obligation, sign any contract, or acquire any title or
interest in any goods or services and includes every word device to
disguise any form of business solicitation by using such terms as
"renewal," "invoice," "bill," "statement" or "reminder," to create
an impression of existing obligation when there is none, or other
language to mislead any person in relation to any sought-after
commercial transaction.
(b) "Consumer" means a natural any person, firm or corporation
to whom a sale or lease is made in a consumer transaction, and a
"consumer transaction" means a sale or lease to a natural any
person, firm or corporation or persons for a personal, family,
household, or agricultural or business purpose.
(c) "Merchantable" means, in addition to the qualities
prescribed in section three hundred fourteen, article two, chapter
forty-six of this code, that the goods conform in all material
respects to applicable state and federal statutes and regulations
establishing standards of quality and safety of goods and, in the
case of goods with mechanical, electrical or thermal components,
that the goods are in good working order and will operate properly
in normal usage for a reasonable period of time.
(d) "Sale" includes any sale, offer for sale or attempt to sell any goods for cash or credit or any services or offer for
services for cash or credit.
(e) "Trade" or "commerce" means the advertising, offering for
sale, sale or distribution of any goods or services and shall
include any trade or commerce, directly or indirectly, affecting
the people of this state.
(f) "Unfair methods of competition and unfair or deceptive
acts or practices" means and includes, but is not limited to, any
one or more of the following:
(1) Passing off goods or services as those of another;
(2) Causing likelihood of confusion or of misunderstanding as
to the source, sponsorship, approval or certification of goods or
services;
(3) Causing likelihood of confusion or of misunderstanding as
to affiliation, connection or association with, or certification by
another;
(4) Using deceptive representations or designations of
geographic origin in connection with goods or services;
(5) Representing that goods or services have sponsorship,
approval, characteristics, ingredients, uses, benefits or
quantities that they do not have, or that a person has a
sponsorship, approval, status, affiliation or connection that he
does not have;
(6) Representing that goods are original or new if they are deteriorated, altered, reconditioned, reclaimed, used or
secondhand;
(7) Representing that goods or services are of a particular
standard, quality or grade, or that goods are of a particular style
or model, if they are of another;
(8) Disparaging the goods, services or business of another by
false or misleading representation of fact;
(9) Advertising goods or services with intent not to sell them
as advertised;
(10) Advertising goods or services with intent not to supply
reasonably expectable public demand, unless the advertisement
discloses a limitation of quantity;
(11) Making false or misleading statements of fact concerning
the reasons for, existence of or amounts of price reductions;
(12) Engaging in any other conduct which similarly creates a
likelihood of confusion or of misunderstanding;
(13) The act, use or employment by any person of any
deception, fraud, false pretense, false promise or
misrepresentation, or the concealment, suppression or omission of
any material fact with intent that others rely upon such
concealment, suppression or omission, in connection with the sale
or advertisement of any goods or services, whether or not any
person has in fact been misled, deceived or damaged thereby;
(14) Advertising, printing, displaying, publishing, distributing or broadcasting, or causing to be advertised, printed,
displayed, published, distributed or broadcast in any manner, any
statement or representation with regard to the sale of goods or the
extension of consumer credit including the rates, terms or
conditions for the sale of such goods or the extension of such
credit, which is false, misleading, or deceptive, or which omits to
state material information which is necessary to make the
statements therein not false, misleading or deceptive;
(15) Representing that any person has won a prize, one of a
group of prizes or any other thing of value, if receipt of the
prize or thing of value is contingent upon any payment of a service
charge, mailing charge, handling charge or any other similar charge
by the person or upon mandatory attendance by the person at a
promotion or sales presentation at the seller's place of business
or any other location: Provided, That a person may be offered one
item or the choice of several items conditioned on the person
listening to a sales promotion or entering a consumer transaction
if the true retail value and an accurate description of the item or
items are clearly and conspicuously disclosed along with the
person's obligations upon accepting the item or items; such
description and disclosure shall be typewritten or printed in at
least eight point regular type, in upper or lower case, where
appropriate; or
(16) Violating any provision or requirement of article six-b of this chapter.
(g) "Warranty" means express and implied warranties described
and defined in sections three hundred thirteen, three hundred
fourteen and three hundred fifteen, article two, chapter forty-six
of this code and expressions or actions of a merchant which assure
the consumer that the goods have described qualities or will
perform in a described manner.
NOTE: The purpose of this bill to clarify that the definition
of "consumer", for purposes of invoking the consumer protection
act, includes any person, firm or corporation which enters into a
consumer transaction.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.