NAC598.260. Required disclosure; basis for comparison; substantiation; temporary lowering of price to distort survey prohibited.

     1. An advertisement containing an assertion of price must clearly and distinctly disclose the date on which the comparison of prices was made, the method used in comparing prices, and the name of the seller or other person representing the seller who performed the survey of prices and who will substantiate the assertion of price upon request pursuant to subsection 3.

     2. An assertion of price in an advertisement must be based on a comparison of the shelf, sticker or tag price of the products being compared or other evidence that the price being compared was in existence on the date of the comparison.

     3. Upon the timely request of the Commissioner or any other person, including a competitor mentioned in the advertisement containing an assertion of price, information substantiating the assertion of price must be provided by the seller making the assertion or an independent representative of the seller who is qualified to conduct a comparison of prices based on a survey of the prices of products of the seller and prices of products of a competitor. A request is timely if made within the period prescribed for maintaining written documentation pursuant to subsection 4.

     4. The information substantiating an assertion of price must include:

     (a) The date that the comparison of prices was performed;

     (b) The location of the stores of the seller and the competitor specified in the advertisement where the prices were compared;

     (c) A list specifying the products and the prices of the products compared in the stores of the seller and the competitor; and

     (d) Any additional information required by the Commissioner.

Ê The seller shall maintain for not less than 1 year after making an assertion of price, written documentation containing the information specified in paragraphs (a), (b) and (c).

     5. A price of a product of the seller being used in a comparison of prices for the purpose of making an assertion of price in an advertisement must not be temporarily lowered for the purpose of distorting the results of the survey in a manner favorable to the seller. For the purposes of this subsection, a rebuttable presumption arises that a price of a product has been temporarily lowered for the purpose of distorting the results of the survey in a manner favorable to the seller if the product has been offered for sale for less than the 21 days immediately preceding the date of the comparison at a price equal to or less than the price stated in the survey. The Commissioner may find that the presumption is rebutted if evidence is offered, which he or she deems sufficient and credible, that:

     (a) The lower price stated in the survey is caused by conditions in the marketplace or by factors not within the control of the seller; or

     (b) The price was lowered for some other purpose deemed reasonable by the Commissioner.

     (Added to NAC by Dep’t of Commerce, eff. 10-29-93)