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Barry v. Arrow Pontiac Inc.

Decided: February 9, 1984.

JAMES S. BARRY, JR., DIRECTOR OF CONSUMER AFFAIRS, RESPONDENT,
v.
ARROW PONTIAC, INC., A CORPORATION ORGANIZED UNDER THE LAWS OF THE STATE OF NEW JERSEY, APPELLANT



Botter, Polow and Brody. The majority opinion of the court was delivered by Brody, J.A.D. Botter, P.J.A.D. (dissenting).

Brody

Adopting the findings and conclusions of an administrative law judge, respondent Director of the Division of Consumer Affairs (Division) adjudged appellant, a new car dealer, guilty of distributing in the mail an advertisement which violates N.J.A.C. 13:45A-2.2(a)(7)(iv). The advertisement states that many of its cars are "priced well below dealer invoice." The regulation prohibits "[t]he use in any advertisement of a comparison to the dealer's cost or inventory price." Appellant was ordered to cease and desist the practice and pay a penalty of $1,600 and costs. It contends that the regulation falls outside the purposes and policies of the Consumer Fraud Act (the act) (N.J.S.A. 56:8-1 et seq.) under which it was promulgated, unconstitutionally abridges the right of free speech, and either does not apply to appellant's ad or, if it does, is unconstitutionally vague and overbroad. We disagree and affirm.

Appellant's arguments rest on its assertion, which we reject, that the ad is not deceptive and misleading but rather informs the public of a fact helpful in deciding on the purchase of a new car.

Because of product standardization, price is a major competitive factor in the sale of new cars. An advertisement is particularly luring if it persuades the potential buyer that the advertiser's prices are lower than its competitor's. Because it is difficult if not impossible for an advertiser to compare each of its prices with those of its competitors, competitive price advertising tends to take a different form. The advertiser tries to persuade the reader that its price compares favorably to a fixed and generally understood point of comparison such as the manufacturer's suggested retail price.

Acting under the rule-making authority of N.J.S.A. 56:8-4, the Attorney General promulgated regulations regarding comparison price advertising intended to assure the integrity of the point of comparison and a full disclosure of the components of the advertised price with which it is being compared. A dealer

may advertise that its sales price is a reduction from the manufacturer's suggested retail price so long as the sales price includes the same costs, such as dealer preparation and freight charges, as the suggested retail price and the manufacturer's suggested retail price is "clearly denominated as such." N.J.A.C. 13:45A-2.2(a)(2)(iii) and (v). A dealer may advertise that his sales price is a reduction from his usual sales price so long as he can prove by his records at least three occasions during the previous 90-day period when "the advertised motor vehicle or its substantial equivalent" was "sold or offered for sale" at that "usual" price. The reduction must be at least 5% of his "usual retail sale price." N.J.A.C. 13:45A-2.2(a)(4)(i). A dealer may advertise that his sales prices are lower than those of his competitors so long as his prices are in fact "reasonably below those usually offered in the business area of the advertiser." N.J.A.C. 13:45A-2.2(a)(7)(iii).

The regulation in question expressly prohibits "any advertisement of a comparison to the dealer's cost or inventory price." The regulation is reasonable because a dealer's cost or what he pays to put or keep a vehicle in inventory is not a fixed, uniform and generally understood point from which meaningful comparisons can be made. When a dealer advertises that he is selling a car for what it cost, a reader can easily be misled into believing that if he purchased the car he would be getting a bargain not realizing that the advertiser's idea of cost may include a portion of overhead and payments to the manufacturer which will later be refunded. Appellant's general manager conceded the point. He testified, "Very often it is almost impossible to tell what your true cost of a car will be because of many factors."

Appellant's precise point is that "dealer invoice," the point of comparison used in its ad, is a specific, identifiable dollar amount and therefore may be fairly used. According to its general manager, the invoice price is "an amount of money which the dealer pays for the automobile to the factory. And

that is it." By way of example, appellant put into evidence a typical invoice showing "invoice total" to be $5,566.81. According to its manager, that is the "dealer invoice" price. However, the invoice itself shows that the figure includes a "holdback" of $178.89, "adv. assn." of $100 and "SFPIPP" of $25 -- all of which the factory will return to the appellant. Nevertheless, appellant insists that it should be free to advertise in effect that $5,566.81 is what it paid the factory for the car. It may be, as the manager testified, that if a customer asked to see the invoice these reductions of the invoice price would be explained. However, we are dealing here with whether the ad is misleading, not with whether its misleading features will later be explained to a customer who is sophisticated enough to ask to see the invoice.*fn1

In addition to the rebates appearing on the invoice, there was unrefuted evidence that some dealers may expect other payments from the factory in the form of sales bonuses and subsidies to meet various adverse market conditions. One may well argue that some or all of these payments reduce what "the dealer pays for the automobile to the factory." We are satisfied that like "cost" and "inventory price," "dealer invoice" is not a fixed, uniform term generally understood by the public to mean what the advertiser may intend it to mean.

Quite apart from our own view of the matter, we must defer to the expertise of the Division which has reasonably concluded that cost-price advertising in general is inherently deceptive and that appellant's ad is such a prohibited practice. See Gloucester Cty. Welfare Bd. v. N.J. Civ. Serv. Comm'n., 93 N.J. 384, 389-391 (1983); Fenwick v. Kay American Jeep, Inc., 72 N.J. 372 (1977). A car buyer could easily be misled by an ad featuring cost-price comparisons into believing that the stated cost is what the dealer paid for the car. The same danger exists when the dealer expresses cost as "dealer invoice." The regulation as interpreted and applied here is consistent with and advances the act's purpose to declare unlawful an advertising practice which misrepresents "any material fact . . . whether or not any person has in fact been misled, deceived or damaged thereby. . . ." N.J.S.A. 56:8-2.

The constitutional right of commercial speech does not include the right to mislead the public. Central Hudson Gas v. Public Serv. Comm'n., 447 U.S. 557, 566, 100 S. Ct. 2343, 2351, 65 L. Ed. 2d 341, 351 (1980); In re Professional Ethics Advisory Comm. Op. 475, 89 N.J. 74, 83 (1982), app. dism. 459 U.S. 962, 103 S. Ct. 285, 74 L. Ed. 2d 272 (1982). It should also be noted that commercial speech is accorded less constitutional protection than "pure" noncommercial speech. Town Tobacconist v. Kimmelman, 94 N.J. 85, 124-125 (1983).

The regulation is not rendered unconstitutionally vague by including "dealer invoice [price]" within the meaning of "dealer's cost or inventory price." Those against whom the regulation operates and those who enforce it cannot mistake its prohibitory scope. See Grayned v. City of Rockford, 408 U.S. 104, 108-109, 92 S. Ct. 2294, 2298-2299, 33 L. Ed. 2d 222, 227-228 (1972). Whether a regulation is unconstitutionally vague must be analyzed from the point of view of those to whom it applies, taking into account their "peculiar expertise in being able to assess the meanings of [its] terms." In re Polk License Revocation, 90 N.J. 550, 575 (1982).

A law may be unconstitutionally overbroad if in "proscribing constitutionally protected activity, it . . . reach[es] farther than is permitted or necessary to fulfill the state's interests." Town Tobacconist v. Kimmelman, supra, 94 N.J. at 125, n. 21. We have held that the regulation is reasonable and not vague as applied to appellant. The overbroad objection may be raised only to protect the rights of others. Because "those affected are apt to challenge overbroad laws that affect their commercial well-being, . . . the overbreadth doctrine does not apply to commercial speech. . . ." Id. at 126.

Affirmed.

BOTTER, P.J.A.D. (dissenting).

By preventing advertising in relation to the dealer's invoice price, a portion of the regulation in question tends to reduce a legitimate mode of competition through advertising and deprives the public of information that would be useful in shopping for a new automobile. In the name of preventing deception and misleading advertising, the regulation goes beyond the means necessary to achieve a lawful, regulatory purpose, and it unduly restricts ...


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