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Division of Consumer Affairs v. General Electric Co.

Decided: November 16, 1990.

DIVISION OF CONSUMER AFFAIRS, COMPLAINANT-RESPONDENT,
v.
GENERAL ELECTRIC COMPANY, RESPONDENT-APPELLANT



On appeal from New Jersey Division of Consumer Affairs.

Pressler, Deighan and Baime. The opinion of the court was delivered by Baime, J.A.D.

Baime

[244 NJSuper Page 350] This is an appeal from a determination of the Division of Consumer Affairs (Division), finding that General Electric Company (General Electric) violated regulations promulgated under the Consumer Fraud Act (N.J.S.A. 56:8-1 through -48) by failing to include a reference price in a price reduction advertisement. The regulations require that an "advertiser" who suggests that merchandise is being offered for a price less than

that for which it has been routinely sold set forth in the advertisement either its pre-sale selling price, the price usually charged by competitors in the trade area or the manufacturer's suggested retail price. See N.J.A.C. 13:45A-9.1 and 9.3(a)(3)i, ii, iii. An "advertiser" is defined as a person "who in the ordinary course of business is engaged in the sale or rental of merchandise at retail." N.J.A.C. 13:45A-9.1. It is undisputed that General Electric does not sell or offer its products at retail, but rather it manufacturers goods and wholesales them to retail distributors. The administrative law judge (ALJ) found that General Electric was nonetheless an "advertiser" because it "voluntarily advertise[d] to promote the retail sales" of its products. The initial decision became final when it was not acted upon by the Division within 45 days. See N.J.S.A. 52:14B-10(c). We now reverse.

The facts are not in dispute and are essentially a matter of public record. On October 22, 1987, General Electric, through an independent advertising agency, caused an advertisement to be placed in the Star Ledger, stating that a "[n]ational [a]ppliance [s]ale" was in progress, and that it had reduced the price of several identified appliances to its dealers. The advertisement represented that the savings might be "passed on" and that potential customers should contact dealers in their area for information as to price. There is no suggestion in the record that the facts represented in the advertisement were untrue. The Division concedes that General Electric did in fact reduce the prices of the identified items which it charged its dealers. However, the advertisement did not contain a pre-sale reference price for the advertised appliances. The Division thus charged General Electric with having violated N.J.A.C. 13:45A-9.3(a)(3)i, ii, and iii for having failed to include a reference price in a price reduction advertisement.

General Electric denied liability and the matter was referred to the Office of Administrative Law as a contested case. Before the ALJ, it was stipulated that General Electric is engaged in the business of manufacturing, distributing and servicing

consumer appliances and electronics. However, it was also agreed that it does not offer for sale or sell any products at retail. Instead, all its products are distributed to the public by a network of independent retailers. General Electric cannot, and does not, require retailers to sell its products at a specific price. Nor can it dictate actual percentage or specific dollar reductions.

It is against this factual and regulatory backdrop that we consider the ALJ's decision, adopted by the Division by reason of its inaction, that General Electric "depart[ed] from its pure fabrication function" and engaged in the sale of its products at retail. As we noted at the outset of our opinion, this determination was grounded in the finding that General Electric, by its advertising, promoted the retail sales of its dealers. The critical question presented is whether a manufacturer "is engaged in the sale or rental of merchandise at retail," under N.J.A.C. 13:45A-9.1, by reason of its advertisement which seeks to promote retail sales by independent retailers.*fn1

We commence our analysis by referring to the unbroken line of decisions which require that the Consumer Fraud Act and its implementing regulations be liberally construed in favor of protecting consumers. Barry v. Arrow Pontiac, Inc., 100 N.J. 57, 69, 494 A.2d 804 (1985); Fenwick v. Kay American Jeep, Inc., 72 N.J. 372, 378, 371 A.2d 13 (1977); Levin v. Lewis, 179 N.J. Super. 193, 200, 431 A.2d 157 (App.Div.1981); State v. Hudson Furniture Co., 165 N.J. Super. 516, 520, 398 A.2d 900 (App.Div.1979). Where, as here, a commercial practice is not inherently deceptive or fraudulent and is thus not violative of the enabling act itself under N.J.S.A. 56:8-2, we are obliged nonetheless to liberally apply the regulations adopted by the Department of Law and Public Safety. See Chattin v. Cape

May Greene, Inc., 243 N.J. Super. 590, 603 n. 4, 581 A.2d 91 (App.Div.1990); Levin v. Lewis, 179 N.J. Super. at 200, 431 A.2d 157; cf. Barry v. Arrow Pontiac, Inc., 100 N.J. at 69 n. 6, 494 A.2d 804. It bears repeating that the act and the regulations are not "aimed solely at the 'shifty, fast talking and deceptive merchant.'" Hyland v. Zuback, 146 N.J. Super. 407, 413, 370 A.2d 20 (App.Div.1976). The statutory and regulatory scheme is also designed to promote the disclosure of relevant information to enable the consumer to make intelligent decisions in the selection of products and services.

We also acknowledge the fundamental maxim that the construction of a statute or regulation by the administrative agency charged with its enforcement is entitled to great weight. New Jersey Guild of Hearing Aid Dispensers v. Long, 75 N.J. 544, 575, 384 A.2d 795 (1978). We are obliged to accord substantial deference to an interpretation of a statute or regulation by the agency responsible for its implementation and application. Mortgage Bankers Ass'n v. New Jersey Real Estate Comm'n., 102 N.J. 176, 506 A.2d 733 (1986); In re Adamar, 222 N.J. Super. 464, 469-470, 537 A.2d 704 (App.Div.1988); In re Lembo, 151 N.J. Super. 242, 249, 376 A.2d 971 (App.Div.1977). However, "[t]his deference is . . . not total, as the courts remain the 'final authorities' on issues of statutory [or regulatory] construction. . . ." New Jersey Guild of Hearing Aid Dispensers v. Long, 75 N.J. at 575, 384 A.2d 795; Service Armament Co. v. Hyland, 70 N.J. 550, 560-564, 362 A.2d 13 (1976); ...


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