SB 1130, as introduced, Wieckowski. False advertising: substantiation of claims: county counsel.
Under existing law, it is unlawful for a person doing business in California and advertising to consumers in California to make any false or misleading advertising claim. Existing law requires any person doing business, and in whose behalf advertising claims are made to consumers, in California to, upon request of the Director of Consumer Affairs, the Attorney General, any city attorney, or any district attorney, provide evidence of the facts on which the advertising claims are based. Existing law authorizes the Director of Consumer Affairs, the Attorney General, any city attorney, or any district attorney to take specified actions upon failure of the advertiser to adequately substantiate a claim within a reasonable time or if the requesting official has reason to believe that the advertising claim is false or misleading.
This bill would additionally authorize a county counsel to request official evidence of the facts on which the advertising claims are based and take the above-referenced actions on the failure of the advertiser to respond or if the county counsel has reason to believe the advertising claim is false or misleading.
Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.
The people of the State of California do enact as follows:
Section 17508 of the Business and Professions
2Code is amended to read:
(a) It shall be unlawful for any person doing business
4in California and advertising to consumers in California to make
5any false or misleading advertising claim, including claims that
6(1) purport to be based on factual, objective, or clinical evidence,
7(2) compare the product’s effectiveness or safety to that of other
8brands or products, or (3) purport to be based on any fact.
9(b) Upon written request of the Director of Consumer Affairs,
10the Attorney General,begin insert orend insert any city attorney,begin insert county counsel,end insert orbegin delete anyend delete
11
district attorney, any person doing business in California and in
12whose behalf advertising claims are made to consumers in
13California, including claims that (1) purport to be based on factual,
14objective, or clinical evidence, (2) compare the product’s
15effectiveness or safety to that of other brands or products, or (3)
16purport to be based on any fact, shall provide to the department or
17official making the request evidence of the facts on which the
18advertising claims are based. The request shall be made within
19one year of the last day on which the advertising claims were made.
20Any citybegin delete attorneyend deletebegin insert attorney, county counsel,end insert or district attorney
21who makes a request pursuant to this subdivision shall give prior
22notice of the request to the Attorney General.
23(c) The Director of Consumer Affairs,
Attorney General,begin insert orend insert any
24city attorney,begin insert county counsel,end insert orbegin delete anyend delete district attorney may, upon
25failure of an advertiser to respond by adequately substantiating
26the claim within a reasonable time, or if the Director of Consumer
27Affairs, Attorney General, city attorney,begin insert county counsel,end insert or district
28attorney shall have reason to believe that the advertising claim is
29false or misleading, do either or both of the following:
30(1) Seek an immediate termination or modification of the claim
31by the person in accordance with Section 17535.
32(2) Disseminate information,
taking due care to protect
33legitimate trade secrets, concerning the veracity of the claims or
34why the claims are misleading to the consumers of this state.
35(d) The relief provided for in subdivision (c) is in addition to
36any other relief that may be sought for a violation of this chapter.
37Section 17534 shall not apply to violations of this section.
P3 1(e) Nothing in this section shall be construed to hold any
2newspaper publisher or radio or television broadcaster liable for
3publishing or broadcasting any advertising claims referred to in
4subdivision (a), unless the publisher or broadcaster is the person
5making the claims.
6(f) The plaintiff shall have the burden of proof in establishing
7any violation of this section.
8(g) If an advertisement is in violation of subdivision (a) and
9Section 17500, the court shall not impose a separate civil penalty
10pursuant to Section 17536 for the violation of subdivision
(a) and
11the violation of Section 17500 but shall impose a civil penalty for
12the violation of either subdivision (a) or Section 17500.
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