Amended in Assembly May 4, 2016

Amended in Assembly March 18, 2016

California Legislature—2015–16 Regular Session

Assembly Bill No. 2827

Introduced by Assembly Member Levine

February 19, 2016

An act to begin delete add Section 17533.75 to the Business and Professions Code, relating to advertising. end delete begin insert amend Section 1770 of the Civil Code, relating to unfair competition. end insert

LEGISLATIVE COUNSEL’S DIGEST

AB 2827, as amended, Levine. Advertising: Made in U.S.A. label: violations: cure.

Existing law prohibits the sale or offering of sale in the state of any merchandise on which merchandise or on its container appears the words “Made in U.S.A.,” “Made in America,” “U.S.A.,” or similar words when the merchandise or any article, unit, or part thereof, has been entirely or substantially made, manufactured, or produced outside of the United States.

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Existing law establishes the Made in California Program within the Governor’s Office of Business and Economic Development as a public and private collaboration to encourage consumer product awareness and to foster purchases of high-quality products made in this state. Under the program, in order to be eligible to represent that a product is made in this state, a company is required to, among other things, establish that the finished product could lawfully use the “Made in U.S.A.” label under the provisions set forth above.

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Existing law, the Consumers Legal Remedies Act, makes unlawful certain acts identified as unfair methods of competition and unfair or deceptive acts or practices undertaken by any person in a transaction intended to result or which results in the sale or lease of goods to any consumer.

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This bill would include a violation of the “Made in U.S.A.” provisions as an unfair method of competition and unfair or deceptive act or practice under the Consumers Legal Remedies Act.

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This bill would prohibit a civil action against a person or business that is alleged to have violated the provisions of the “Made in U.S.A.” or “Made in California” statutes unless written notice of the alleged violations is provided and the person or business has not cured the alleged violation within 33 days of receiving the notice.

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Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.

The people of the State of California do enact as follows:

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begin insert SECTION 1. end insert   

end insert

begin insert Section 1770 of the end insert begin insert Civil Code end insert begin insert is amended to
read: end insert

1770.  

(a) The following unfair methods of competition and
unfair or deceptive acts or practices undertaken by any person in
a transaction intended to result or which results in the sale or lease
of goods or services to any consumer are unlawful:

(1) Passing off goods or services as those of another.

(2) Misrepresenting the source, sponsorship, approval, or
certification of goods or services.

(3) Misrepresenting the 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
which they do not have or that a person has a sponsorship,
approval, status, affiliation, or connection which he or she does
not have.

(6) Representing that goods are original or new if they have
deteriorated unreasonably or are 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 demand, unless the advertisement discloses
a limitation of quantity.

(11) Advertising furniture without clearly indicating that it is
unassembled if that is the case.

(12) Advertising the price of unassembled furniture without
clearly indicating the assembled price of that furniture if the same
furniture is available assembled from the seller.

(13) Making false or misleading statements of fact concerning
reasons for, existence of, or amounts of price reductions.

(14) Representing that a transaction confers or involves rights,
remedies, or obligations which it does not have or involve, or
which are prohibited by law.

(15) Representing that a part, replacement, or repair service is
needed when it is not.

(16) Representing that the subject of a transaction has been
supplied in accordance with a previous representation when it has
not.

(17) Representing that the consumer will receive a rebate,
discount, or other economic benefit, if the earning of the benefit
is contingent on an event to occur subsequent to the consummation
of the transaction.

(18) Misrepresenting the authority of a salesperson,
representative, or agent to negotiate the final terms of a transaction
with a consumer.

(19) Inserting an unconscionable provision in the contract.

(20) Advertising that a product is being offered at a specific
price plus a specific percentage of that price unless (A) the total
price is set forth in the advertisement, which may include, but is
not limited to, shelf tags, displays, and media advertising, in a size
larger than any other price in that advertisement, and (B) the
specific price plus a specific percentage of that price represents a
markup from the seller’s costs or from the wholesale price of the
product. This subdivision shall not apply to in-store advertising
by businesses which are open only to members or cooperative
organizations organized pursuant to Division 3 (commencing with
Section 12000) of Title 1 of the Corporations Code where more
than 50 percent of purchases are made at the specific price set forth
in the advertisement.

(21) Selling or leasing goods in violation of Chapter 4
(commencing with Section 1797.8) of Title 1.7.

(22) (A) Disseminating an unsolicited prerecorded message by
telephone without an unrecorded, natural voice first informing the
person answering the telephone of the name of the caller or the
organization being represented, and either the address or the
telephone number of the caller, and without obtaining the consent
of that person to listen to the prerecorded message.

(B) This subdivision does not apply to a message disseminated
to a business associate, customer, or other person having an
established relationship with the person or organization making
the call, to a call for the purpose of collecting an existing
obligation, or to any call generated at the request of the recipient.

(23) (A) The home solicitation, as defined in subdivision (h)
of Section 1761, of a consumer who is a senior citizen where a
loan is made encumbering the primary residence of that consumer
for the purposes of paying for home improvements and where the
transaction is part of a pattern or practice in violation of either
subsection (h) or (i) of Section 1639 of Title 15 of the United States
Code or paragraphs (1), (2), and (4) of subdivision (a) of Section
226.34 of Title 12 of the Code of Federal Regulations.

(B) A third party shall not be liable under this subdivision unless
(1) there was an agency relationship between the party who
engaged in home solicitation and the third party or (2) the third
party had actual knowledge of, or participated in, the unfair or
deceptive transaction. A third party who is a holder in due course
under a home solicitation transaction shall not be liable under this
subdivision.

(24) (A) Charging or receiving an unreasonable fee to prepare,
aid, or advise any prospective applicant, applicant, or recipient in
the procurement, maintenance, or securing of public social services.

(B) For purposes of this paragraph, the following definitions
shall apply:

(i) “Public social services” means those activities and functions
of state and local government administered or supervised by the
State Department of Health Care Services, the State Department
of Public Health, or the State Department of Social Services, and
involved in providing aid or services, or both, including health
care services, and medical assistance, to those persons who,
because of their economic circumstances or social condition, are
in need of that aid or those services and may benefit from them.

(ii) “Public social services” also includes activities and functions
administered or supervised by the United States Department of
Veterans Affairs or the California Department of Veterans Affairs
involved in providing aid or services, or both, to veterans, including
pension benefits.

(iii) “Unreasonable fee” means a fee that is exorbitant and
disproportionate to the services performed. Factors to be
considered, when appropriate, in determining the reasonableness
of a fee, are based on the circumstances existing at the time of the
service and shall include, but not be limited to, all of the following:

(I) The time and effort required.

(II) The novelty and difficulty of the services.

(III) The skill required to perform the services.

(IV) The nature and length of the professional relationship.

(V) The experience, reputation, and ability of the person
providing the services.

(C) This paragraph shall not apply to attorneys licensed to
practice law in California, who are subject to the California Rules
of Professional Conduct and to the mandatory fee arbitration
provisions of Article 13 (commencing with Section 6200) of
Chapter 4 of Division 3 of the Business and Professions Code,
when the fees charged or received are for providing representation
in administrative agency appeal proceedings or court proceedings
for purposes of procuring, maintaining, or securing public social
services on behalf of a person or group of persons.

(25) (A) Advertising or promoting any event, presentation,
seminar, workshop, or other public gathering regarding veterans’
benefits or entitlements that does not include the following
statement in the same type size and font as the term “veteran” or
any variation of that term:

(i) “I am not authorized to file an initial application for Veterans’
Aid and Attendance benefits on your behalf, or to represent you
before the Board of Veterans’ Appeals within the United States
Department of Veterans Affairs in any proceeding on any matter,
including an application for such benefits. It would be illegal for
me to accept a fee for preparing that application on your behalf.”
The requirements of this clause do not apply to a person licensed
to act as an agent or attorney in proceedings before the Agency of
Original Jurisdiction and the Board of Veterans’ Appeals within
the United States Department of Veterans Affairs when that person
is offering those services at the advertised event.

(ii) The statement in clause (i) shall also be disseminated, both
orally and in writing, at the beginning of any event, presentation,
seminar, workshop, or public gathering regarding veterans’ benefits
or entitlements.

(B) Advertising or promoting any event, presentation, seminar,
workshop, or other public gathering regarding veterans’ benefits
or entitlements which is not sponsored by, or affiliated with, the
United States Department of Veterans Affairs, the California
Department of Veterans Affairs, or any other congressionally
chartered or recognized organization of honorably discharged
members of the Armed Forces of the United States, or any of their
auxiliaries that does not include the following statement, in the
same type size and font as the term “veteran” or the variation of
that term:

“This event is not sponsored by, or affiliated with, the United
States Department of Veterans Affairs, the California Department
of Veterans Affairs, or any other congressionally chartered or
recognized organization of honorably discharged members of the
Armed Forces of the United States, or any of their auxiliaries.
None of the insurance products promoted at this sales event are
endorsed by those organizations, all of which offer free advice to
veterans about how to qualify and apply for benefits.”

(i) The statement in this subparagraph shall be disseminated,
both orally and in writing, at the beginning of any event,
presentation, seminar, workshop, or public gathering regarding
veterans’ benefits or entitlements.

(ii) The requirements of this subparagraph shall not apply in a
case where the United States Department of Veterans Affairs, the
California Department of Veterans Affairs, or other congressionally
chartered or recognized organization of honorably discharged
members of the Armed Forces of the United States, or any of their
auxiliaries have granted written permission to the advertiser or
promoter for the use of its name, symbol, or insignia to advertise
or promote the event, presentation, seminar, workshop, or other
public gathering.

(26) Advertising, offering for sale, or selling a financial product
that is illegal under state or federal law, including any cash payment
for the assignment to a third party of the consumer’s right to receive
future pension or veteran’s benefits.

(27) Representing that a product is made in California by using
a Made in California label created pursuant to Section 12098.10
of the Government Code, unless the product complies with Section
12098.10 of the Government Code.

begin insert

(28) Representing that a product is made in the United States
by using “Made in U.S.A.,” “Made in America,” “U.S.A.,” or
similar words if the merchandise or any article, unit, or part
thereof, has been entirely or substantially made, manufactured,
or produced outside of the United States unless the product
complies with Section 17533.7 of the Business and Professions
Code.

end insert

(b) (1) It is an unfair or deceptive act or practice for a mortgage
broker or lender, directly or indirectly, to use a home improvement
contractor to negotiate the terms of any loan that is secured,
whether in whole or in part, by the residence of the borrower and
which is used to finance a home improvement contract or any
portion of a home improvement contract. For purposes of this
subdivision, “mortgage broker or lender” includes a finance lender
licensed pursuant to the California Finance Lenders Law (Division
9 (commencing with Section 22000) of the Financial Code), a
residential mortgage lender licensed pursuant to the California
Residential Mortgage Lending Act (Division 20 (commencing
with Section 50000) of the Financial Code), or a real estate broker
licensed under the Real Estate Law (Division 4 (commencing with
Section 10000) of the Business and Professions Code).

(2) This section shall not be construed to either authorize or
prohibit a home improvement contractor from referring a consumer
to a mortgage broker or lender by this subdivision. However, a
home improvement contractor may refer a consumer to a mortgage
lender or broker if that referral does not violate Section 7157 of
the Business and Professions Code or any other law. A mortgage
lender or broker may purchase an executed home improvement
contract if that purchase does not violate Section 7157 of the
Business and Professions Code or any other law. Nothing in this
paragraph shall have any effect on the application of Chapter 1
(commencing with Section 1801) of Title 2 to a home improvement
transaction or the financing of a home improvement transaction.

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SECTION 1.  

Section 17533.75 is added to the Business and
Professions Code, immediately following Section 17533.7, to read:

17533.75.  

(a) Notwithstanding any law, including, but not
limited to, Section 17200, 17500, or 17533.7, of this code or
Section 12098.10 or 129098.11 of the Government Code, or the
Consumers Legal Remedies Act (Title 1.5 (commencing with
Section 1750) of Part 4 of Division 3 of the Civil Code), a person
or business may cure an alleged de minumus violation of Section
17533.7 of this code or Section 12098.10 of the Government Code,
within 33 days of receiving written notice of the alleged violation.
The action taken to cure the violation may include, but is not
limited to, the prospective discontinued use of the words “Made
in U.S.A.,” “Made in California,” or similar words and phrases as
set forth in subdivision (a) of Section 17533.7 of this code or
Section 12098.10 of the Government Code, on any merchandise,
article, unit, or part thereof.

(b) Notwithstanding any law, no civil action may be commenced
under this article, or the Consumers Legal Remedies Act (Title
1.5 (commencing with Section 1750) of Part 4 of Division 3 of
the Civil Code), unless the person or business is provided written
notice of the alleged violation and the person or business has not
cured the violation within 33 days of receiving the notice.

end delete