2018 GNYADA Membership Directory

The advertising requirements for dealers are different in each state. The Attorney General and state Motor Vehicle Department websites are two good resources to find rules and regulations concerning what activities are permissible and impermissible for auto dealer advertising. Attorney General websites usually publicize enforcement actions brought against auto dealers for deceptive trade practices, including deceptive advertising. Many State Attorney General offices publish specific guidelines for auto dealer advertising in that state as well. For example, many states prohibit a dealer from selling a vehicle at a price higher than an advertised price even if the consumer has not seen the advertisement. In some states, this rule will not apply if the advertisement provides clearly and conspicuously that the consumer must bring in or at least mention the advertisement to get the advertised price. A number of states also have laws governing advertising of rebates. There are states that require a disclaimer that dealer participation may affect consumer cost when a dealer must contribute to the cost of an incentive in order to participate in a manufacturer or distributor incentive. You should check all your advertising against your state guidelines as well as the FTC’s rules and guidelines. In the present environment of aggressive enforcement, it is a best practice to have your local attorney review all advertising. Recommended Practices 1. If you conduct direct marketing, scrub your target lists for persons who have excluded themselves from the means of communication you intend to use (telemarketing, faxes, and email). You should keep a separate list of consumers who opt out of telemarketing, faxes, and email and be careful before using an auto dialer or prerecorded message to obtain the appropriate consents from the party you are calling or texting. This consent must include specific disclosures and comply with specific content requirements. Adequately scrub telemarketing lists of phone numbers against the FTC’s National Do Not Call Registry, your state’s Do-Not-Call list and your dealership’s list of persons who have asked not to be called. The Data & Marketing Association (www.the-dma.org) also maintains “do not contact” lists that you should scrub your lists against. If you are telemarketing, get assurances from vendors on having obtained customer consents and exclusions of persons listed on federal and state Do-Not-Call lists, then double-check against Do-Not-Call lists, as well as your own dealership’s list of customers who have asked not to be called. The class action liability potential under the TCPA makes this a critical area for you to be compliant. Also, note that many State Attorneys General and Motor Vehicle Departments have their own rules or guidelines for advertising motor vehicles. 2. Advertisers must ensure that any express or implied claims made in their advertisements are truthful and substantiated. Remember that every statement in an ad can be literally true, but if its net impression is misleading, the ad is deceptive. Be able to prove the truth of every statement made or implied in your advertising and consider your advertising’s net impression. For example, if you are advertising sales of repossessed or off-lease vehicles, be prepared to show that substantially all of the vehicles meet those criteria. If your ad says “factory authorized,” be prepared to produce the written “factory authorization” that supports that statement. Be wary of advertisements promising credit to subprime borrowers (e.g., “bankruptcy not a problem”). 3. Don’t stack rebates to advertise the price of a vehicle. Rebates that are available to the general public can be itemized as deductions from the MSRP. You can show additional conditional rebates separately from the vehicle pricing and those should be itemized along with a clear and conspicuous explanation of the qualifications for each. Note that state laws also govern the advertising of rebates such as the California and

171 2 0 1 8 MEMBERSHIP DIRECTORY Hot TOPICS