Misrepresentation in General

PURPOSE: The attorney general administers and enforces the provisions of the Merchandising Practices Act, Chapter 407, RSMo. The attorney general may make rules necessary to the administration and enforcement of the provisions of Chapter 407, RSMo and, in order to provide notice to the public, may specify meanings of terms used in the Act. This rule specifies the settled meanings of certain terms used in the enforcement of the Act and provides notice to the public of their application. (1) A misrepresentation is an assertion that is not in accord with the facts (see Restatement, Second, Contracts, section 159; Packard v. K C One, Inc., 727 SW2d 435 (Mo.App., W.D. 1987)). (2) Reliance, knowledge that the assertion is false or misleading, intent to defraud, intent that the consumer rely upon the assertion, or any other capable mental state such as recklessness or negligence, are not elements of misrepresentation as used in section 407.020.1, RSMo. (see State ex rel. Danforth v. Independence Dodge, Inc., 494 SW2d 362 (Mo.App., W.D. 1973); State ex rel. Ashcroft v. Marketing Unlimited, 613 SW2d 440 (Mo.App., E.D. 1981); State ex rel. Webster v. Areaco Investment Co., 736 SW2d 638 (Mo.App., E.D. 1988)). AUTHORITY: sections 407.020, RSMo Supp. 1992 and 407.145, RSMo Supp. 1993.* Original rule filed March 18, 1993, effective Sept. 30, 1994. *Original authority: 407.020, RSMo 1967, amended 1973, 1985, 1986, 1992 and 407.145, RSMo 1986, amended 1993.