What You Say Matters  
Landmines in the Consumer Protection Laws  
b y C h a r l e s A . C h i p ” G e n t r y  
any glass companies are well yet, several of these DTP-lenient states event a company’s marketing mistake  
aware of our litigious society. only allow for the state attorney general resulted in $1 million in damages, the  
They understand that claims to bring claims on behalf of consumers company could be forced to pay up to $3  
for breach of contract, negligence, war- and don’t allow private causes of action million, which may or may not be cov-  
ranties and product defect claims are a for civil damages.Therefore,the company ered by liability insurance. In addition,  
risk of doing business. However, most may be forced to pay a small penalty or cases that reach litigation often incur  
of us don’t think about the vast sea of fine to the state for any product perfor- monumental legal fees, court costs and  
consumer protection laws that exist in mance claims that were not substanti- litigation expenses.  
every state.  
ated in advance of marketing efforts but  
Every state has laws against fraud,false wouldn’t assume any further excess risk. HaRd CoRe  
advertising and misleading consumers. If the company has a fine levied against  
A minority of states are hard core  
The government wants to prevent decep- it, the penalties are often capped based with extremely consumer-friendly and  
tive trade practices (DTP), and to pro- on whether the misrepresentation was anti-business DTP laws that allow for  
tect the public from dangerous products intentional or unintentional.  
criminal charges. Consider this exam-  
ple. A company is sued when its win-  
dows failed during an earthquake. The  
Numerous states are less forgiving company markets its windows as earth-  
made by manufacturers and distributed  
by vendors.Virtually all DTP laws aim at FiRm  
deterring the same kind of conduct, but  
states vary widely in their penalties and of DTP violations and quite firm in quake-resistant, but, unfortunately, the  
can be categorized into three groups: re- their penalties. Consider a case where San Andreas finally produced “the big  
laxed,firm and hard core.  
a company is sued under allegations its one,” resulting in extensive property  
windows failed to comply with argon damage. Due to marketing representa-  
gas and low-E glass standards repre- tions that the windows are“100 percent  
This category is the most forgiving. sented in various marketing material. earthquake-resistant,” the company  
Consider this example: A company is Although the company advertised that may be forced to compensate the in-  
sued relating to claims that their win- its windows had superior low-E per- jured party, incur excessive levies and  
dows can withstand any amount of formance due to argon gas fill, no one fines, and management may even face  
water pressure. Unfortunately, a hur- validated the claims with independent jail time. Criminal prosecution could  
ricane hits a project, causing the win- testing in various geographic areas of result in more extensive fines or im-  
dows to burst and water to penetrate the country. Although windows may prisonment ranging from 30 days to  
the structure. Because the company have left the factory with argon gas, six months. These states aim to deter  
advertised their product to withstand certain atmospheric conditions based misleading or deceptive practices by  
any amount of water pressure,” they in the area of the country and the alti- manufacturers and often disregard  
may be on the hook for the damage. tude of the project may have caused the whether the violation was intentional  
If these events occurred in a relaxed gas to dissipate.  
or simply a mislabeled shipment or  
The“firm”category of states provides confusing advertisement. n  
DTP state, the company may be forced  
to pay for the damage,but wouldn’t be on triple damages,attorney’s fees,and  
the hook for any further penalties.Better costs to the prevailing party.In the  
C h a r l e s A . C h i p ”  
G e n t r y is a founding  
member of Call & Gentry  
Law Group in Jefferson City,  
Mo. He can be reached at  
State by State  
While each state has its own mandates, here are a few examples of  
ones considered relaxed, firm and hard core.  
Colorado, South Dakota, Rhode Island  
Georgia, New York, South Carolina  
Hard Core: California, Louisiana, Nevada  
USGlass, Metal & Glazing | February 2017  

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