March 6, 2007, Introduced by Reps. Pastor, Amos, Vagnozzi, Kathleen Law, Meadows, Spade, Leland, Emmons, Nitz, Acciavatti, Meltzer, Garfield, Knollenberg, Agema, Calley, Palmer, David Law, Hansen, Robertson, Gaffney, Hune, Steil, Rick Jones, Pearce, Wenke, LaJoy, Brandenburg, Huizenga, Hildenbrand, Shaffer, Palsrok, Moss, Rocca, Ball, Marleau, Moolenaar, Caul, Booher, Moore, Meekhof and Hoogendyk and referred to the Committee on Banking and Financial Services.


     A bill to amend 1976 PA 331, entitled


"Michigan consumer protection act,"


by amending section 3 (MCL 445.903), as amended by 2006 PA 508.




     Sec. 3. (1) Unfair, unconscionable, or deceptive methods,


acts, or practices in the conduct of trade or commerce are unlawful


and are defined as follows:


     (a) Causing a probability of confusion or misunderstanding as


to the source, sponsorship, approval, or certification of goods or




     (b) Using deceptive representations or deceptive designations


of geographic origin in connection with goods or services.


     (c) Representing that goods or services have sponsorship,


approval, characteristics, ingredients, uses, benefits, or


quantities that they do not have or that a person has sponsorship,


approval, status, affiliation, or connection that he or she does


not have.


     (d) Representing that goods are new if they are deteriorated,


altered, reconditioned, used, or secondhand.


     (e) Representing that goods or services are of a particular


standard, quality, or grade, or that goods are of a particular


style or model, if they are of another.


     (f) Disparaging the goods, services, business, or reputation


of another by false or misleading representation of fact.


     (g) Advertising or representing goods or services with intent


not to dispose of those goods or services as advertised or




     (h) Advertising goods or services with intent not to supply


reasonably expectable public demand, unless the advertisement


discloses a limitation of quantity in immediate conjunction with


the advertised goods or services.


     (i) Making false or misleading statements of fact concerning


the reasons for, existence of, or amounts of price reductions.


     (j) Representing that a part, replacement, or repair service


is needed when it is not.


     (k) Representing to a party to whom goods or services are


supplied that the goods or services are being supplied in response


to a request made by or on behalf of the party, when they are not.


     (l) Misrepresenting that because of some defect in a consumer's


home the health, safety, or lives of the consumer or his or her


family are in danger if the product or services are not purchased,


when in fact the defect does not exist or the product or services


would not remove the danger.


     (m) Causing a probability of confusion or of misunderstanding


with respect to the authority of a salesperson, representative, or


agent to negotiate the final terms of a transaction.


     (n) Causing a probability of confusion or of misunderstanding


as to the legal rights, obligations, or remedies of a party to a




     (o) Causing a probability of confusion or of misunderstanding


as to the terms or conditions of credit if credit is extended in a




     (p) Disclaiming or limiting the implied warranty of


merchantability and fitness for use, unless a disclaimer is clearly


and conspicuously disclosed.


     (q) Representing or implying that the subject of a consumer


transaction will be provided promptly, or at a specified time, or


within a reasonable time, if the merchant knows or has reason to


know it will not be so provided.


     (r) Representing that a consumer will receive goods or


services "free" or "without charge", or using words of similar


import in the representation, without clearly and conspicuously


disclosing with equal prominence in immediate conjunction with the


use of those words the conditions, terms, or prerequisites to the


use or retention of the goods or services advertised.


     (s) Failing to reveal a material fact, the omission of which


tends to mislead or deceive the consumer, and which fact could not


reasonably be known by the consumer.


     (t) Entering into a consumer transaction in which the consumer


waives or purports to waive a right, benefit, or immunity provided


by law, unless the waiver is clearly stated and the consumer has


specifically consented to it.


     (u) Failing, in a consumer transaction that is rescinded,


canceled, or otherwise terminated in accordance with the terms of


an agreement, advertisement, representation, or provision of law,


to promptly restore to the person or persons entitled to it a


deposit, down payment, or other payment, or in the case of property


traded in but not available, the greater of the agreed value or the


fair market value of the property, or to cancel within a specified


time or an otherwise reasonable time an acquired security interest.


     (v) Taking or arranging for the consumer to sign an


acknowledgment, certificate, or other writing affirming acceptance,


delivery, compliance with a requirement of law, or other


performance, if the merchant knows or has reason to know that the


statement is not true.


     (w) Representing that a consumer will receive a rebate,


discount, or other benefit as an inducement for entering into a


transaction, if the benefit is contingent on an event to occur


subsequent to the consummation of the transaction.


     (x) Taking advantage of the consumer's inability reasonably to


protect his or her interests by reason of disability, illiteracy,


or inability to understand the language of an agreement presented


by the other party to the transaction who knows or reasonably


should know of the consumer's inability.


     (y) Gross discrepancies between the oral representations of


the seller and the written agreement covering the same transaction


or failure of the other party to the transaction to provide the


promised benefits.


     (z) Charging the consumer a price that is grossly in excess of


the price at which similar property or services are sold.


     (aa) Causing coercion and duress as the result of the time and


nature of a sales presentation.


     (bb) Making a representation of fact or statement of fact


material to the transaction such that a person reasonably believes


the represented or suggested state of affairs to be other than it


actually is.


     (cc) Failing to reveal facts that are material to the


transaction in light of representations of fact made in a positive




     (dd) Subject to subdivision (ee), representations by the


manufacturer of a product or package that the product or package is


1 or more of the following:


     (i) Except as provided in subparagraph (ii), recycled,


recyclable, degradable, or is of a certain recycled content, in


violation of guides for the use of environmental marketing claims,


16 CFR part 260.


     (ii) For container holding devices regulated under part 163 of


the natural resources and environmental protection act, 1994 PA


451, MCL 324.16301 to 324.16303, representations by a manufacturer


that the container holding device is degradable contrary to the


definition provided in that act.


     (ee) Representing that a product or package is degradable,


biodegradable, or photodegradable unless it can be substantiated by


evidence that the product or package will completely decompose into


elements found in nature within a reasonably short period of time


after consumers use the product and dispose of the product or the


package in a landfill or composting facility, as appropriate.


     (ff) Offering a consumer a prize if in order to claim the


prize the consumer is required to submit to a sales presentation,


unless a written disclosure is given to the consumer at the time


the consumer is notified of the prize and the written disclosure


meets all of the following requirements:


     (i) Is written or printed in a bold type that is not smaller


than 10-point.


     (ii) Fully describes the prize, including its cash value, won


by the consumer.


     (iii) Contains all the terms and conditions for claiming the


prize, including a statement that the consumer is required to


submit to a sales presentation.


     (iv) Fully describes the product, real estate, investment,


service, membership, or other item that is or will be offered for


sale, including the price of the least expensive item and the most


expensive item.


     (gg) Violating 1971 PA 227, MCL 445.111 to 445.117, in


connection with a home solicitation sale or telephone solicitation,


including, but not limited to, having an independent courier


service or other third party pick up a consumer's payment on a home


solicitation sale during the period the consumer is entitled to


cancel the sale.


     (hh) Except as provided in subsection (3), requiring a


consumer to disclose his or her social security number as a


condition to selling or leasing goods or providing a service to the


consumer, unless any of the following apply:


     (i) The selling, leasing, providing, terms of payment, or


transaction includes an application for or an extension of credit


to the consumer.


     (ii) The disclosure is required or authorized by applicable


state or federal statute, rule, or regulation.


     (iii) The disclosure is requested by a person to obtain a


consumer report for a permissible purpose described in section 604


of the fair credit reporting act, 15 USC 1681b.


     (iv) The disclosure is requested by a landlord, lessor, or


property manager to obtain a background check of the individual in


conjunction with the rent or leasing of real property.


     (v) The disclosure is requested from an individual to effect,


administer or enforce a specific telephonic or other electronic


consumer transaction that is not made in person but is requested or


authorized by the individual if it is to be used solely to confirm


the identity of the individual through a fraud prevention service


database. The consumer good or service shall still be provided to


the consumer upon verification of his or her identity if he or she


refuses to provide his or her social security number but provides


other information or documentation that can be used by the person


to verify his or her identity. The person may inform the consumer


that verification through other means than use of the social


security number may cause a delay in providing the service or good


to the consumer.


     (ii) If a credit card or debit card is used for payment in a


consumer transaction, issuing or delivering a receipt to the


consumer that displays any part of the expiration date of the card


or more than the last 4 digits of the consumer's account number.


This subdivision does not apply if the only receipt issued in a


consumer transaction is a credit card or debit card receipt on


which the account number or expiration date is handwritten,


mechanically imprinted, or photocopied. This subdivision applies to


any consumer transaction that occurs on or after March 1, 2005,


except that if a credit or debit card receipt is printed in a


consumer transaction by an electronic device, this subdivision


applies to any consumer transaction that occurs using that device


only after 1 of the following dates, as applicable:


     (i) If the electronic device is placed in service after March


1, 2005, July 1, 2005 or the date the device is placed in service,


whichever is later.


     (ii) If the electronic device is in service on or before March


1, 2005, July 1, 2006.


     (jj) Violating section 11 of the identity theft protection


act, 2004 PA 452, MCL 445.71.


     (kk) Advertising or conducting a live musical performance or


production in this state through the use of a false, deceptive, or


misleading affiliation, connection, or association between a


performing group and a recording group. This subdivision does not


apply if any of the following are met:


     (i) The performing group is the authorized registrant and owner


of a federal service mark for that group registered in the United


States patent and trademark office.


     (ii) At least 1 member of the performing group was a member of


the recording group and has a legal right to use the recording


group's name, by virtue of use or operation under the recording


group's name without having abandoned the name or affiliation with


the recording group.


     (iii) The live musical performance or production is identified


in all advertising and promotion as a salute or tribute and the


name of the vocal or instrumental group performing is not so


closely related or similar to that used by the recording group that


it would tend to confuse or mislead the public.


     (iv) The advertising does not relate to a live musical


performance or production taking place in this state.


     (v) The performance or production is expressly authorized by


the recording group.


     (ll) Subject to subsection (4), committing residential mortgage


fraud. As used in this subdivision:


     (i) "Mortgage lending process" means that term as defined in


section 219d of the Michigan penal code, 1931 PA 328, MCL 750.219d.


     (ii) "Residential mortgage fraud" means any of the following:


     (A) With the intent to defraud, making a deliberate material


misstatement, misrepresentation, or omission during the mortgage


lending process.


     (B) With the intent to defraud, using or facilitating the use


of any deliberate material misstatement, misrepresentation, or


omission, knowing that it contains a material misstatement,


misrepresentation, or omission, during the mortgage lending




     (C) With the intent to defraud, receiving any proceeds or any


other money in connection with a residential mortgage closing that


the person receiving the proceeds or other money knew resulted from


an act described in sub-subparagraph (A) or (B).


     (iii) "Residential mortgage loan" means that term as defined in


section 219d of the Michigan penal code, 1931 PA 328, MCL 750.219d.


     (2) The attorney general may promulgate rules to implement


this act under the administrative procedures act of 1969, 1969 PA


306, MCL 24.201 to 24.328. The rules shall not create an additional


unfair trade practice not already enumerated by this section.


However, to assure national uniformity, rules shall not be


promulgated to implement subsection (1)(dd) or (ee).


     (3) Subsection (1)(hh) does not apply to either of the




     (a) Providing a service related to the administration of


health-related or dental-related benefits or services to patients,


including provider contracting or credentialing. This subdivision


is intended to limit the application of subsection (1)(hh) and is


not intended to imply that this act would otherwise apply to


health-related or dental-related benefits.


     (b) An employer providing benefits or services to an employee.


     (4) Subsection (1)(ll) shall not be construed to create


additional disclosure requirements beyond those otherwise required


by law.


     Enacting section 1. This amendatory act does not take effect


unless Senate Bill No.____ or House Bill No. 4409(request no.


00316'07) of the 94th Legislature is enacted into law.