H. B. 4616
(By Delegates Amores, Craig, Kominar, Pethtel,
Williams, Stemple, Eldridge and Tucker)
[Introduced February 17, 2006; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact §46A-6-101 of the Code of West
Virginia, 1931, as amended; and to amend and reenact
§46A-6-105 of said code, all relating to encouraging
consistent statutory construction of state and federal
consumer protection laws; and providing an exemption for acts
permitted by the Federal Trade Commission.
Be it enacted by the Legislature of West Virginia:
That §46A-6-101 of the Code of West Virginia, 1931, as
amended, be amended and reenacted; and that §46A-6-105 of said code
be amended and reenacted, all to read as follows:
ARTICLE 6. GENERAL CONSUMER PROTECTION.
§46A-6-101. Legislative declarations; statutory construction.
(1) The Legislature hereby declares that the purpose of this
article is to complement the body of federal law governing unfair
competition and unfair, deceptive and fraudulent acts or practices in order to protect the public and foster fair and honest
competition. It is the intent of the Legislature that, in
construing this article, the courts be guided by the interpretation
given by the federal courts to the various federal statutes dealing
with the same or similar matters. To this end, this article shall
be liberally construed so that its beneficial purposes may be
served.
(2) It is the intent of the Legislature that in construing
this article, the courts shall give due deference to the Federal
Trade Commission and interpretations given by the Federal Trade
Commission and the federal courts to the provisions of 15 U.S.C.
§45(a)(1).
(2) (3) It is, however, the further intent of the Legislature
that this article shall may not be construed to prohibit acts or
practices which are reasonable in relation to the development and
preservation of business or which are not injurious to the public
interest, nor shall this article be construed to repeal by
implication the provisions of articles eleven, eleven-a and
eleven-b, chapter forty-seven of this code.
§46A-6-105. Exempted transactions.
(1) Nothing in this article shall apply to actions or
transactions expressly permitted by the Federal Trade Commission.
(2) Nothing in this article shall apply to acts done by the
publisher, owner, agent or employee of a newspaper, periodical or radio or television station in the publication or dissemination of
an advertisement, when the owner, agent or employee did not have
knowledge of the false, misleading or deceptive character of the
advertisement, did not prepare the advertisement and did not have
a direct financial interest in the sale or distribution of the
advertised goods or services.
NOTE: The purpose of this bill is to clarify that West
Virginia's Consumer Protection Act should not be interpreted by our
courts in a manner that would impose liability based upon conduct
permitted by the Federal Trade Commission.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
Judiciary Committee Amendment
On page one, following the enacting section, by striking out the remainder
of the bill and inserting in lieu thereof the following language:
ARTICLE 6. GENERAL CONSUMER PROTECTION.
§46A-6-101. Legislative declarations; statutory construction.
(1) The Legislature hereby declares that the purpose of this article is to
complement the body of federal law governing unfair competition and unfair,
deceptive and fraudulent acts or practices in order to protect the public and
foster fair and honest competition. It is the intent of the Legislature that,
in construing this article, the courts be guided by the interpretation given by
the federal courts to the various federal statutes dealing with the same or
similar matters. To this end, this article shall be liberally construed so that its beneficial purposes may be served.
(2) It is the intent of the Legislature that in construing the definition
of unfair methods of competition and unfair or deceptive acts or practices
declared unlawful by this article, the courts shall give due deference to the
interpretation given by the Federal Trade Commission and the federal courts to
the provisions of 15 U.S.C. §45(a)(1).
(2) (3) It is, however, the further intent of the Legislature that this
article shall may not be construed to prohibit acts or practices which are
reasonable in relation to the development and preservation of business or which
are not injurious to the public interest, nor shall this article be construed to
repeal by implication the provisions of articles eleven, eleven-a and eleven-b,
chapter forty-seven of this code.
§46A-6-105. Exempted transactions.
(1) Nothing in this article shall apply to actions or transactions
specifically authorized under the laws administered by, or rules and regulations
promulgated by, the Federal Trade Commission.
(2) Nothing in this article shall apply to acts done by the publisher,
owner, agent or employee of a newspaper, periodical or radio or television
station in the publication or dissemination of an advertisement, when the owner,
agent or employee did not have knowledge of the false, misleading or deceptive
character of the advertisement, did not prepare the advertisement and did not
have a direct financial interest in the sale or distribution of the advertised
goods or services.
Judiciary Title Amendment
H. B. 4616 - - "A Bill to amend and reenact §46A-6-101 and §46A-6-105 of
the Code of West Virginia, 1931, as amended, all relating to encouraging
consistent statutory construction of state and federal consumer protection laws;
and providing an exemption for acts specifically authorized by the Federal Trade
Commission."