Printable Format50-626. Deceptive acts and practices. (a) No supplier shall engage in any deceptive act or practice in connection with a consumer transaction.
(b) Deceptive acts and practices include, but are not limited to, the following, each of which is hereby declared to be a violation of this act, whether or not any consumer has in fact been misled:
(1) Representations made knowingly or with reason to know that:
(A) Property or services have sponsorship, approval, accessories, characteristics, ingredients, uses, benefits or quantities that they do not have;
(B) the supplier has a sponsorship, approval, status, affiliation or connection that the supplier does not have;
(C) property is original or new, if such property has been deteriorated, altered, reconditioned, repossessed or is second-hand or otherwise used to an extent that is materially different from the representation;
(D) property or services are of particular standard, quality, grade, style or model, if they are of another which differs materially from the representation;
(E) the consumer will receive a rebate, discount or other benefit as an inducement for entering into a consumer transaction in return for giving the supplier the names of prospective consumers or otherwise helping the supplier to enter into other consumer transactions, if receipt of benefit is contingent on an event occurring after the consumer enters into the transaction;
(F) property or services has uses, benefits or characteristics unless the supplier relied upon and possesses a reasonable basis for making such representation; or
(G) use, benefit or characteristic of property or services has been proven or otherwise substantiated unless the supplier relied upon and possesses the type and amount of proof or substantiation represented to exist;
(2) the willful use, in any oral or written representation, of exaggeration, falsehood, innuendo or ambiguity as to a material fact;
(3) the willful failure to state a material fact, or the willful concealment, suppression or omission of a material fact;
(4) disparaging the property, services or business of another by making, knowingly or with reason to know, false or misleading representations of material facts;
(5) offering property or services without intent to sell them;
(6) offering property or services without intent to supply reasonable, expectable public demand, unless the offer discloses the limitation;
(7) making false or misleading representations, knowingly or with reason to know, of fact concerning the reason for, existence of or amounts of price reductions, or the price in comparison to prices of competitors or one's own price at a past or future time;
(8) falsely stating, knowingly or with reason to know, that a consumer transaction involves consumer rights, remedies or obligations;
(9) falsely stating, knowingly or with reason to know, that services, replacements or repairs are needed;
(10) falsely stating, knowingly or with reason to know, the reasons for offering or supplying property or services at sale or discount prices;
(11) sending or delivering a solicitation for goods or services which could reasonably be interpreted or construed as a bill, invoice or statement of account due, unless:
(A) Such solicitation contains the following notice, on its face, in conspicuous and legible type in contrast by typography, layout or color with other printing on its face:
"THIS IS A SOLICITATION FOR THE PURCHASE OF GOODS OR SERVICES AND NOT A BILL, INVOICE OR STATEMENT OF ACCOUNT DUE. YOU ARE UNDER NO OBLIGATION TO MAKE ANY PAYMENTS UNLESS YOU ACCEPT THIS OFFER"; and
(B) such solicitation, if made by any classified telephone directory service not affiliated with a local telephone service in the area of service, contains the following notice, on its face, in a prominent and conspicuous manner:
"_____________________________ IS NOT
(name of telephone directory service)
AFFILIATED WITH ANY LOCAL TELEPHONE COMPANY";
(12) using, in any printed advertisement, an assumed or fictitious name for the conduct of such person's business that includes the name of any municipality, community or region or other description of the municipality, community or region in this state in such a manner as to suggest that such person's business is located in such municipality, community or region unless: (A) Such person's business is, in fact, located in such municipality, community or region; or (B) such person includes in any such printed advertisement the complete street and city address of the location from which such person's business is actually conducted. If located outside of Kansas, the state in which such person's business is located also shall be included. The provisions of this subsection shall not apply to the use of any trademark or service mark registered under the laws of this state or under federal law; any such name that, when applied to the goods or services of such person's business, is merely descriptive of them; or any such name that is merely a surname. Nothing in this subsection shall be construed to impose any liability on any publisher when such publisher had no knowledge the business was not, in fact, located in such municipality, community or region;
(13) (A) making an oral solicitation for products or services based on a mortgage trigger lead unless the solicitation clearly and conspicuously states in the initial phase of the solicitation that the solicitor is not affiliated with the lender or broker with which the consumer initially applied and that the solicitation is based on personal information about the consumer that was purchased, directly or indirectly, from a consumer reporting agency without the knowledge or permission of the lender or broker with which the consumer initially applied;
(B) making a written solicitation for products or services based on a mortgage trigger lead unless the solicitation clearly and conspicuously states on the first page of the solicitation that the solicitor is not affiliated with the lender or broker with which the consumer initially applied and that the solicitation is based on personal information about the consumer that was purchased, directly or indirectly, from a consumer reporting agency without the knowledge or permission of the lender or broker with which the consumer initially applied. Clear and conspicuous shall include legible type in contrast by typography, layout or color with other printing on the first page of the correspondence; and
(C) any solicitor under clause (A) or (B) shall be in compliance with the provisions of the Kansas mortgage business act, unless otherwise exempted from such act, and any other law or regulation; and
(14) failing to release funds representing an insurance settlement payment for damage to real property subject to a mortgage by the mortgage holder to the mortgagor within 30 days after receiving written proof that the damaged property is replaced or otherwise repaired to the satisfaction of the mortgagor and the mortgage holder. Any person who submits false information regarding the condition of the property shall be liable in damages to the mortgage holder or the mortgage holder's assignee for the amount of the funds together with interest thereon, attorney fees, and any additional damages that the mortgage holder or the mortgage holder's assignee has incurred.
History: L. 1973, ch. 217, § 4; L. 1976, ch. 236, § 3; L. 1991, ch. 159, § 2; L. 1993, ch. 177, § 1; L. 2000, ch. 167, § 1; L. 2009, ch. 67, § 2; L. 2010, ch. 103, § 3; July 1.
KANSAS COMMENT, 1973
1. Subsection (a) generally prohibits any deceptive practice in a consumer transaction. It is modeled after section 5 of the Federal Trade Commission Act and the old Kansas Buyer Protection Act. The acts and practices listed in subsection (b) are treated as per se deceptive, and are merely illustrative of the acts and practices which violate the act as set forth in the broadly worded subsection (a). The old Buyer Protection Act contained no list of per se deceptive practices, but relied on general language.
2. Subsection (b)(1)(A) forbids such conduct as misrepresenting the durability or components of a product, or the efficacy of a service.
Subsection (b)(1)(B) would, for example, preclude a seller from holding himself out as an authorized dealer, or having received a favorable rating from an organization like Underwriters' Laboratories, when such was not the case.
Subsection (b)(1)(C) forbids such conduct as misrepresenting that returned goods which were used by the original purchaser are unused. On the other hand, repossessed goods which were never used by the consumer might be represented as new.
Subsection (b)(1)(D) forbids such conduct as misrepresenting that a superseded style or model is the latest style or model of a product, or that a particular product, service, or intangible is the equivalent of another product, service, or intangible; misrepresenting that a two-ply tire is the equivalent of a four-ply tire would be an example.
Subsection (b)(1)(E) forbids referral commission arrangements in which a consumer is to receive future commissions based upon events which occur after the time at which he enters into a related consumer transaction. The old Buyer Protection Act outlawed only those referral sales involving a cash price in excess of $50; there is no dollar minimum under this subsection. Since this subsection includes cash referral sales as well as credit transactions, its scope is somewhat broader than the parallel provision in the Kansas Consumer Credit Code (K.S.A. 16a-3-309).
Subsection (b)(2) is intended to cover those cases where the supplier goes beyond innocent "puffing" expected by the consumer.
Subsection (b)(3) makes it clear that the act covers not only affirmative misrepresentation, but omissions of act as well.
Subsection (b)(4) is aimed at unfair trade practices flowing from competition among suppliers.
Subsections (b)(5) and (6) outlaw "bait and switch selling." This is a practice by which a supplier seeks to attract customers through advertising bargains which he does not intend to sell in more than nominal amounts. In order to induce acquisition of unadvertised items on which there is a greater mark-up, acquisition of the "bait" is discouraged through various artifices, including disparagement and exhaustion of an undisclosed miniscule stock. A supplier who is willing to sell all of the advertised items that he has in stock can avoid violating this subsection by disclosing that he has only "limited quantities" available. However, in the absence of such a willingness and disclosure, the existence of a violation should be determined on the basis of such objective factors as the representations made, and, in view of reasonably expectable public demand, the reasonableness of the quantity of the advertised goods, services, or intangibles available.
Subsection (b)(7) parallels the FTC Deceptive Pricing Guides which proscribe former price comparisons (former price must be actual, bona fide price at which article was offered on a regular basis for a reasonably substantial period of time in the recent, regular course of business), competitor price comparisons (advertised higher price must be price at which substantial sales are being made by other sellers in the same trade area), and comparable value comparisons (other merchandise must be of essentially similar quality and obtainable in the area). However, general pricing claims or descriptions, such as "good prices," are not proscribed.
Subsection (b)(8) proscribes statements such as one asserting that an installment contract must be paid in full irrespective of a defense, or that a supplier can granish exempt wages.
Subsection (b)(9) forbids such conduct as misrepresenting that a television picture tube must be replaced or that a roof needs repair.
Subsection (b)(10) forbids conduct such as representations that a sale is for "seasonal clearance" or to facilitate "going out of business," when such is not the case.
Law Review and Bar Journal References:
"The New Kansas Consumer Legislation," Barkley Clark, 42 J.B.A.K. 147, 152, 189 (1973).
Consumer protection in Tenth Judicial District, William P. Coates, Jr., 44 J.B.A.K. 67, 71 (1975).
"A New Kansas Approach to an Old Fraud," consumer protection, Polly Higdon Wilhardt, 14 W.L.J. 623 (1975).
"Survey of Kansas Law: Consumer Law," John C. Maloney, 27 K.L.R. 197, 208, 211 (1979).
"The Kansas Tort Claims Act and School Districts," Susan C. Jacobson, 28 K.L.R. 619, 621 (1980).
"Survey of Kansas Law: Consumer Law," 29 K.L.R. 483, 484 (1981).
"Overstating the Value of Property to Induce a Listing," Murray S. Levin, 34 K.L.R. 757, 783 (1986).
"Broker Beware—Real Estate Agent Liability in Kansas After Johnson v. Geer Real Estate Co.," Marilyn M. Eddy, 35 K.L.R. 645, 650 (1987).
"Caveat plaintiff: Congress has defederalized private securities litigation," Steven A. Ramirez, 67 J.K.B.A. No. 9, 16 (1998).
"Addressing the Consumer's Worst Nightmare: Toward a More Expansive Development of the Law of Tortious Fraud and Deceptive Practices in Kansas," Ellen Byers, 38 W.L.J. 455 (1999).
"The Untapped Potential of the Kansas Consumer Protection Act," Amy Fellows, 74 J.K.B.A. No. 4, 24 (2005).
"Williamson v. Amrani: The KCPA Applies to the Practice of Medicine ‒ For a Limited Time," Nancy Ogle, K.D.J. Summer (2007).
"State Attorney General Enforcement of Unfair or Deceptive Acts and Practices Laws: Emerging Concerns and Solutions," Cary Silverman & Jonathan L. Wilson, 65 K.L.R. 209, 215 (2016).
Attorney General's Opinions:
Utility may violate act by engaging in deceptive or unconscionable conduct related to an opt-out bill round-up charitable program. 2018-2.
CASE ANNOTATIONS
1. Violation of section; vehicle repaired and represented as new. Bell v. Kent-Brown Chevrolet Co., 1 K.A.2d 131, 132, 133, 561 P.2d 907.
2. Statement made in sale of new home held to be "puffing"; Consumer Protection Act did not apply. Baldwin v. Priem's Pride Motel, Inc., 224 K. 432, 580 P.2d 1326.
3. Cited; on counterclaim for damages under Consumer Protection Act for violations of the Residential Landlord and Tenant Act, held that the Residential Landlord and Tenant Act was specific and took precedence over the broader Consumer Protection Act. Chelsea Plaza Homes, Inc. v. Moore, 226 K. 430, 431, 432, 601 P.2d 1100.
4. Debt collection agency is "supplier" within meaning of Consumer Protection Act. State ex rel. Miller v. Midwest Service Bureau of Topeka, Inc., 229 K. 322, 323, 623 P.2d 1343.
5. Selling of feeder pigs was a consumer transaction under the Kansas Consumer Protection Act. Plaintiff failed to produce sufficient evidence to support claim. Musil v. Hendrich, 6 K.A.2d 196, 198, 200, 627 P.2d 367.
6. Delay of over three months in notifying plaintiff that order for a limited production car could not be filled held a deceptive practice. Willman v. Ewen, 6 K.A.2d 321, 325, 627 P.2d 1190.
7. Solicitation by a supplier may be sufficient to subject supplier to the act; act is not constitutionally impermissible for vagueness. Watkins v. Roach Cadillac, Inc., 7 K.A.2d 8, 9, 12, 15, 637 P.2d 458 (1982).
8. Decision in Willman v. Ewen, 6 K.A.2d 321, affirmed. Willman v. Ewen, 230 K. 262, 634 P.2d 1061 (1981).
9. Purpose and application of act considered; disputed material facts on issue of supplier's guilt of deceptive or unconscionable act not resolved. Stair v. Gaylord, 232 K. 765, 775, 776, 659 P.2d 178 (1983).
10. A deceptive act or practice is not a question of law for the court; right to jury trial. Waggener v. Seever Systems, Inc., 233 K. 517, 522, 524, 525, 664 P.2d 813 (1983).
11. Deceptive act is not question of law for court; recission is suit in equity and party not entitled to jury trial. Waggener v. Seever Systems, Inc., 233 K. 517, 522, 664 P.2d 813 (1983).
12. Whether deceptive act has occurred is not question of law but one for trier of fact; application of Federal Trade Commission Act and Truth in lending act considered. Manley v. Wichita Business College, 237 K. 427, 432, 433, 439, 701 P.2d 893 (1985).
13. Cited; applicability of statutes of limitations (60-512, 60-513, 60-514) to claims for actual damages and civil remedies examined. Agristor Leasing v. Meuli, 634 F.Supp. 1208, 1218 (1986).
14. Issue of whether deceptive act committed is question for jury; whether act unconscionable is question for court. Bailey v. Morgan Drive-Away, Inc., 647 F.Supp. 648, 656 (1986).
15. Cited; act held applicable to real estate transactions; claim dismissed on theory no evidence of deceptive act or practice shown. Hoffman v. Haug, 242 K. 867, 873, 752 P.2d 124 (1988).
16. Cited; punitive damages award for fraud, attorney fees award even though factor in considering punitive damages examined. Equitable Life Leasing Corp. v. Abbick, 243 K. 513, 514, 757 P.2d 304 (1988).
17. Section (b)(3) does not proscribe mere nondisclosure, only intentional failure to state or concealment of a material fact. Heller v. Martin, 14 K.A.2d 48, 52, 782 P.2d 1241 (1989).
18. Considered in determining propriety of removal to federal court; preemption by federal law considered. State of Kan. ex rel. Stephan v. TWA, 730 F.Supp. 366 (1990).
19. Question of deceptive practice is one for jury; what constitutes deceptive act examined. Farrell v. General Motors Corp., 249 K. 231, 243, 815 P.2d 538 (1991).
20. Considered in action for damages based on agreement for replacement of roof of residence. Enlow v. Sears, Roebuck & Co., 249 K. 732, 739, 822 P.2d 617 (1991).
21. Discussed in holding a university student is not considered an aggrieved consumer under 50-634. Finstad v. Washburn University, 252 K. 465, 470, 473, 845 P.2d 685 (1993).
22. Trial court's refusal to instruct on intent as a required element is reversible error. Porras v. Bell, 18 K.A.2d 569, 571, 857 P.2d 676 (1993).
23. Trial court's failure to instruct jury that deceptive act must be shown by clear and convincing evidence not clearly erroneous. Ray v. Ponca/Universal Holdings, Inc., 22 K.A.2d 47, 48, 913 P.2d 209 (1995).
24. Franchisor did not violate KCPA in sale of gasoline to franchisee. Wayman v. Amoco Oil Co., 923 F.Supp. 1322, 1365 (1996).
25. Defendant which sold numerous residential lots over an extended period of time considered supplier for KCPA purposes. York v. InTrust Bank, N.A., 265 K. 271, 288, 962 P.2d 405 (1998).
26. Charge by lender of nonrefundable origination fee based on amount financed was not deceptive under KCPA (50-623 et seq.). Gonzales v. Associates Financial Serv. Co. of Kansas, 266 K. 141, 166, 967 P.2d 312 (1998).
27. Issue concerning willfulness of auto seller's allegedly deceptive acts precluded summary judgment under KCPA (50-623 et seq.). Griffin v. Security Pacific Automotive Financial, 33 F.Supp.2d 926, 929 (1998).
28. Evidence did not support claim recreational vehicle dealer misrepresented the weight or net carrying capacity of vehicle. Tufts v. Newmar Corp., 53 F.Supp.2d 1171, 1177 (1999).
29. Insuring against civil penalties associated with wrong doer's own actions violates state public policy. State Farm Fire & Cas. Co. v. Martinez, 26 K.A.2d 869, 870, 995 P.2d 890 (2000).
30. Kansas Consumer Protection Act applies to services of professional engineer, intent to deceive not required to prove a deceptive act. Moore v. Bird Engineering, 273 K. 2, 41 P.3d 755 (2002).
31. Whether supplier of goods has engaged in deceptive act is question of fact to be submitted to jury. Kiley v. Petsmart, Inc., 32 K.A.2d 228, 80 P.3d 1179 (2003).
32. Multiple violations of KCPA can be based on single telephone call if multiple violations were committed. Lowe v. Surpas Resource Corp., 253 F.Supp.2d 1209, 1227 (2003).
33. Plaintiffs alleged willful misrepresentation element sufficient to state claim under KCPA. In re Universal Serv. Fund Tele. Billing Practices, 300 F.Supp.2d 1107, 1150 (2003).
34. Deceptive act to tell renters of storage space they had exclusive control of space when space had already been rented to someone else. Dodson v. U-Needa Self Storage, 32 K.A.2d 1213, 96 P.3d 667 (2004).
35. Action was not removable to federal court because nondiverse distributor was fraudulently joined. Cooper v. Zimmer Holdings, Inc., 320 F.Supp.2d 1154, 1163 (2004).
36. Summary judgment appropriate if there is no evidence of deceptive or unconscionable acts. Bomhoff v. Nelnet Loan Services, Inc., 279 K. 415, 109 P.3d 1241 (2005).
37. Directed verdict in error, defendant's state of mind and credibility as to willful misrepresentation jury question. State ex rel. Kline v. Berry, 35 K.A.2d 896, 903, 905, 137 P.3d 500 (2006).
38. Summary judgment affirmed where plaintiffs did not assert defendant intended to deceive them. Crandall v. Grbic, 36 K.A.2d 179, 196, 138 P.3d 365 (2006).
39. A physician may be found to violate the Kansas consumer protection act; expert testimony. Williamson v. Amrani, 283 K. 227, 244, 246, 152 P.3d 60 (2007).
40. KCPA claims against towing company relating to price not preempted by federal law. State ex rel. Kline v. Transmasters Towing, 38 K.A.2d 537, 168 P.3d 60 (2007).
41. KCPA provides that willful omission of material act is a deceptive act; specific conduct alleged found not material. Thompson v. Jiffy Lube Intern., Inc., 505 F.Supp.2d 907, 929 (2007).
42. Elements of action under Kansas consumer protection act are identical to fraud actions except intent requirement. Thompson v. Jiffy Lube Intern., Inc., 505 F.Supp.2d 907, 932 (2007).
43. Mentioned; summary judgment denied on claim alleging deceptive act or practice in loan transactions. In re Miner, 369 B.R. 655, 658, 673 (2007).
44. Cited; jury's finding of no negligence in medical malpractice action does not preclude claim under consumer protection act. Kelly v. VanZant, 287 K. 509, 513, 520, 522-524, 197 P.3d 803 (2008).
45. Kansas consumer protection act statute of limitations begins when violation of act occurs, no discovery period applicable. Campbell v. Hubbard, 41 K.A.2d 1, 201 P.3d 702 (2009).
46. Plaintiff's consumer protection act claim dismissed; no consumer transaction involved. Berry v. National Medical Services, Inc., 41 K.A.2d 612, 205 P.3d 745 (2009).
47. Evidence sufficient to prove a violation of the KCPA; definition of "willful" discussed. Unruh v. Purina Mills, 289 K. 1185, 221 P.3d 1130 (2009).
48. Seller's failure to provide manufacturer's statement of origin does not alone constitute deceptive or unconscionable act. Cornerstone Homes v. Skinner, 44 K.A.2d 88, 235 P.3d 494 (2010).
49. Consumer held not an aggrieved party where there was an intervening event between seller's misrepresentation and consumer's damages. Schneider v. Liberty Asset Management, 45 K.A.2d 978, 251 P.3d 666 (2011).
50. Out-of-state consumer debt settlement service would qualify as "suppliers" but the fees charged would not be a "deceptive act." In re Kinderknecht, 470 B.R. 149 (Bkrtcy. D. Kan. 2012).
51. The court held that there is no record of deceptive or unconscionable acts by the defendant funeral home and staff; summary judgment upheld. Dana v. Heartland Management Co., 48 K.A.2d 1048, 301 P.3d 772 (2013).
52. Plaintiff failed to show casual connection between attorney's allegedly deceptive advertising and claimed harm when plaintiff's father hired attorney and there was no evidence plaintiff's father relied on attorney's advertisements. Hernandez v. Pistotnik, 58 K.A.2d 501, 472 P.3d 110 (2020).
53. District court erred in dismissing claims under the Kansas consumer protection act and Kansas restraint of trade act where petition, related to pet food manufacturers' prescription practices, sufficiently apprised defendant of the facts upon which the plaintiff claimed to be entitled to relief. Kucharski-Berger v. Hill's Pet Nutrition, Inc., 60 K.A.2d 510, 494 P.3d 283 (2021).
54. Vehicle dealer did not willfully conceal, suppress, omit or fail to state material facts regarding a condition in a lifetime powertrain limited warranty that would terminate the warranty upon the purchaser's failure to obtain periodic vehicle inspections. Marksberry v. FCA US LLC, 606 F. Supp. 3d 1075, 1081–85 (D. Kan. 2022).