By Albert Kelley

Have you ever ordered something and when the package comes, open it to find that the item is not the same as you expected? Maybe the size is wrong, or the color, or the amount, or the price.  Sometimes these are honest mistakes by the sales company, but occasionally, these are fraudulent acts that the sales company is hoping you won’t notice or complain about. While these type of actions may be civil in nature, they also can be criminal. 

 Florida has a couple of statutes against fraudulent marketing.  The first statute prohibits false advertising. A shirt-hand version of the law states that: No person shall, with intent to offer or sell merchandise, securities, diplomas, etc., service or anything offered by such person, knowingly or intentionally make, publish, disseminate, circulate in a newspaper or other publication or in the form of a book, notice, handbill, poster, bill, circular, pamphlet or letter or in any other way, an advertisement of any sort regarding such merchandise, security, service or anything so offered to the public, which advertisement contains any assertion, representation or statement which is untrue, deceptive, or misleading.

 Now there is a difference between untrue deceptive or misleading and mere puffing.  Puffing is when the seller exaggerates the qualities of the item, or gives an opinion of the qualities of an item.  Florida Courts have held that puffing is not a violation of the fraud law. There must be a misrepresentation of a material fact.  So a statement that “We only use the best” is not actionable. Nor is saying “Only normal maintenance is required.” These phrases are generally an opinion, not a fact.  However, if the statement is a factual statement about a material aspect of the good or service, falseness could be criminal. So if a car dealer states that a car gets 60 mile to the gallon when it actually gets 30, or if a doctor advertises says he studied cardiology when he merely watched an episode of Grays Anatomy, that could be fraud.  However, the penalty is not very harsh. False advertising is deemed only a second degree misdemeanor.

Another type of business fraud is when a company sends an invoice for services or goods they have not yet sent or which were not ordered.  This can includes charities and even ads where items such as a pen or return address stickers are sent with an invoice attached. I see this nearly every year in the corporate world.  Forms are sent out by companies claiming they are the Yellow Pages (Strangely, the creators of the Yellow Pages never trademarked their name). These forms look like invoices even though they are for nonexistent books or books that will never see your neighborhood.  I see similar situations with companies sending what appears to be government forms for companies to file their annual reports. This type of advertising is also illegal unless it complies with the statutory language. Specifically, every such ad must contain the following language in 30-point type: “This is a solicitation for the order of goods or services, and you are under no obligation to make payment unless you accept the offer contained herein.”  Any person who is damaged by an ad not in compliance can sue the company civilly for three times the amount spent and the company may be charged with a second-degree misdemeanor.

Al Kelley is a Florida business law attorney located in Key West and previously taught business law, personnel law and labor law at St. Leo University.  He is also the author of four law books: (“Basics of Business Law” “Basics of Florida’s Small Claims Court”, “Basics of Florida’s Landlord/Tenant Law” and “Basics of Starting a Florida Business” (Absolutely Amazing e-Books)). This article is being offered as a public service and is not intended to provide specific legal advice.  If you have any questions about legal issues, you should confer with a licensed Florida attorney.

[livemarket market_name="KONK Life LiveMarket" limit=3 category=“” show_signup=0 show_more=0]