§ 5-88 Identification of Merchandise and Services (Out-of-Store Representations).
RCNY § 5-88
An out-of-store representation or advertisement containing words or numbers indicating a savings, reduction, discount or sale price, must include limiting language which permits the consumer to identify the merchandise or services being offered at savings, reductions, discounts or sale price. Identification simply by former price is not sufficient unless the items so identified constitute a percentage of the advertised brands, styles, types, models, classes, or categories of merchandise or services sufficiently large to meet reasonable consumer expectations created by the advertisement.
(a)Such limiting language should be sufficiently precise to permit consumers to distinguish the applicable merchandise or services. This can be accomplished only by setting forth the brand, price, style, type, model, class or category, as appropriate in the context of the out-of-store representation or advertisement. Vague language such as "percentage off some merchandise" does not comply with this requirement. An advertisement shall be construed to apply to every piece of merchandise (or every service) within that category, type, make, model, (etc.). Examples: (1) "Brand X aluminum tennis rackets." Acceptable.
(2)"Steel belted radial tires." Acceptable if all steel belted radial tires are now on sale.
(3)"Famous manufacturer's single lens reflex cameras." Acceptable if all of the particular manufacturer's single lens reflex cameras are on sale.
(4)"Men's cashmere sweaters, formerly $40, now $30." This is acceptable if all men's cashmere sweaters that were formerly $40 are now on sale, and these sweaters constitute a percentage of the store's total supply of cashmere sweaters sufficiently large to meet reason able consumer expectations created by the advertisement.
(b)(1) If the merchandise or services referred to in the out-of-store representation or advertisement as being offered at a savings, reduction, discount or sale price cannot be specified with precision because the sale involves: (i) less than all of the brands, styles, types, models, classes or categories of merchandise or services identified; (ii) a storewide sale in a broad cross-section of departments; or (iii) one or more established departments, but less than all of the merchandise or services in such departments, the terms "selected," "many," "representative," "assorted," or terms of similar import, may be used as limiting language to comply with identification requirement of this section, provided that a meaningful percentage of such merchandise or services is so offered. "Meaningful percentage" shall mean an amount of merchandise that will meet reasonable consumer expectations created by the advertisement. For 5 RCNY § 5-88(b)(1)(i), it shall be prima facie evidence of a violation of the meaningful percentage requirement if at least 15 percent of such brands, styles, types, models, classes or categories identified are not on sale, provided however, that the advertiser shall be permitted to show that under the particular circumstances involved the amount on sale was not deceptive.
(ii)"Assistant Managers' birthday sale – storewide savings on selected merchandise" complies if the amount of merchandise on sale meets reasonable consumer expectations created by the advertisement.
(iii)"Representative low-cut tennis sneakers" complies provided 15 per cent of the types of brands, makes or etc., are on sale, unless the advertiser can demonstrate that under the particular circumstances involved the amount on sale in light of the advertisement itself was not deceptive.
(iv)"Special grouping of Misses' slacks, regularly $20 now $15" complies if at least 15 percent of all Misses' slacks regularly $20 are now $15 unless the advertiser can demonstrate that under the particular circumstances involved the amount on sale, in light of the advertisement itself, was not deceptive.
(v)"Reduction on many items in the Sporting Goods and Luggage Department" complies if the amount of merchandise on sale in each department meets reasonable consumer expectations created by the advertisement.
(c)An out-of-store representation or advertisement concerning a storewide sale or a sale in a broad cross-section of departments which displays, pictures, or mentions specific items which are on sale must also disclose whether the items displayed, pictured or mentioned are the only ones on sale. If they are not the only ones on sale, the advertisement must disclose the extent to which items not displayed, pictured or mentioned are on sale. Example: "Semi-annual White Sale – These and many other savings" complies if the complete supply of all pictured items is on sale and a meaningful percentage of the ether sale items is offered at a savings.
