Record Keeping Requirements

(1) Basic Principle. In accordance with 940 CMR 6.03(1), the purpose of 940 CMR 6.14 is to require that a seller be able to substantiate the material representations it makes in an advertisement. Subject to the requirements in 940 CMR 6.14(2), the burden is on the seller to decide which records to maintain to adequately support its claims; however, 940 CMR 6.14 describes the documents which a seller could provide to substantiate its advertised claims. (2) General Requirements. It is an unfair or deceptive act for a seller to fail to maintain records for a period of six months after the last dissemination of the advertisement and to provide those records to the Attorney General, upon request, to substantiate the propriety of such advertisement under the provisions of 940 CMR 6.00. (3) Guidelines for Maintaining Records Necessary to Substantiate Advertisements. (a) Comparison to a Seller's Own Former Price. A seller may substantiate a price comparison between the seller's current price and former price, subject to regulation by 940 CMR 6.05(3), 6.05(5), 6.05(9)(a)1., 6.05(11), 6.05(13) or 6.05(14)(a)1. and 2., by maintaining records of all sales and all offers to sell the advertised product which occurred during the period commencing 12 months immediately preceding the submission date of the advertisement and ending on the termination date of the advertised sale. (b) Comparison to Other Seller's Price for an Identical Product. When a price comparison is made between the seller's current price and the price of any other seller in the trade area, pursuant to 940 CMR 6.05(7), 6.05(8) or 6.05(14)(a)1., the seller may substantiate such comparison by maintaining records which identify the specific seller(s) in the trade area who are offering the product at the comparative price as of the Measurement Date of the advertisement. (c) Comparison to Other Seller's Price for a Comparable Product. When a price comparison is made between the seller's current price and the price(s) of any other seller(s) for a comparable product, pursuant to 940 CMR 6.05(9), the seller may substantiate such comparison by maintaining records which identify the specific seller(s) offering the advertised product at the comparative price as of the Measurement Date of the advertisement and a complete description of the comparable product including the brand, make, model, and model year. (d) Comparison to a Seller's Future Price. When a price comparison is made between the seller's current and future price, pursuant to 940 CMR 6.05(4), the seller may substantiate such comparison by maintaining records of all sales or offers to sell the advertised product which occurred during the period beginning 12 months before the Measurement Date of the advertisement and ending after a period which is twice the duration of the introductory price offer period. In addition, records documenting introductory offers made to first-time purchasers pursuant to 940 CMR 6.05(5)(c) should be maintained for the 12-month period immediately following the dissemination date of the introductory offer. (e) Two for the Price of One. When a price comparison regulated by 940 CMR 6.05(13) is made, the seller should maintain records which substantiate the material representations made in the advertisement. (f) Availability. In order for 940 CMR 6.06(1)(a), (b) or (c) to apply to the seller, the seller should maintain sufficient records to show that each condition in 940 CMR 6.06 has been met. (g) Prizes or Gifts. Any seller who disseminates an advertisement that offers a gift or prize and is regulated by 940 CMR 6.05(16) or 6.08, should maintain records which substantiate the seller's material representations, including documentation of: 1. compliance with the requirements for price comparisons contained in 940 CMR 6.14(2) and 6.14(3)(a), (b), (c); and 2. compliance with the requirements of 940 CMR 6.05(16)(a), (d), (e), and 6.08(1), (3), (4), and (5).