Deceptive Practices

PURPOSE: This rule protects the public by requiring full disclosure of the type and extent of the relationship between the licensee and the consumer. (1) It shall be an unfair and deceptive practice to engage in bait advertising as defined in Chapter 407, RSMo. In determining whether there has been a violation of this rule, consideration will be given to acts or practices that demonstrate that the advertising offer was not made in good faith for the purpose of selling the advertised product or service, but was made for the purpose of selling a product or service other than the product or service offered to the prospective purchaser. (2) It shall be an unfair and deceptive practice for the licensee to misrepresent— (A) The manufacturer, model, quantity, price, terms of sale, type, performance, fit, benefits, or resistance to climatic conditions; (B) Any service or adjustment offered, promised, or to be supplied to purchasers of any product; (C) Any material fact pertaining to the manufacturer, distribution, or marketing of any product; (D) The scientific or technical knowledge, training, experience or other qualifications of the licensee, or of his/her employees, relating to the selection, fitting, adjustment, maintenance or repair of any product; (E) The repair ability, including the cost thereof, or the adequacy of a prospective purchaser’s own hearing instrument or ancillary equipment; and (F) For the purpose of this rule “misrepresent” shall mean making misleading, deceiving, improbable or untruthful representations, or in any other material respect, regarding the character, intent, or type of business. (3) It shall be an unfair and deceptive practice for the licensee to misrepresent in advertising or otherwise misrepresent that a hearing instrument has a guarantee, warranty, or promise similar in nature without a clear and conspicuous disclosure of— (A) The nature and extent of the guarantee; (B) Any material conditions or limitations in the guarantee which are imposed by the guarantor; (C) The manner in which the guarantor will perform the guaranteed services; and (D) The identity of the guarantor. The necessary disclosure requires that any guarantee made by the licensee which is not binding upon the manufacturer must clearly state that the guarantee is offered by the licensee only. (4) It shall be an unfair and deceptive practice for the licensee to represent, unless it is true, directly or indirectly through the use of any word or term in his/her corporate or trade name, in his/her advertising, or otherwise— (A) That the licensee is a manufacturer of hearing instruments or devices, batteries, parts, or accessories; and (B) That the licensee is the owner or operator of a factory or producing company manufacturing such products. (5) It shall be an unfair and deceptive practice, for the licensee directly or by implication to— (A) Omit disclosure that instruments have been used, or contain used parts. In such cases the licensee shall make full and non- deceptive disclosure of such facts in all advertising and promotional literature relating to the product, on the container, box, or package in which such product is packed or enclosed. The required disclosure shall be made by both verbal and written use of such words as “used,” “secondhand,” “repaired,” or “rebuilt,” whichever most accurately describes the product involved; and (B) Misrepresent the identity of the rebuilder of the hearing instrument. If the rebuilding of the hearing instrument was done by other than the original manufacturer, the licensee shall disclose such fact whenever the original manufacturer is identified. (6) It shall be an unfair or deceptive practice for the licensee to represent, either directly or by implication, through the use of words or expressions that any hearing instrument, device or part is hidden or cannot be seen unless such is the fact. (7) The licensee shall not misrepresent, either directly or by implication, that batteries sold only by such licensee or bearing a specified brand, label, or other identifying mark, are the only batteries suitable for use in a particular type or make of hearing instrument or device when such is not the fact. It shall also be unethical to imply in any manner, that a hearing instrument does not need batteries when such is not the case. (8) It shall be an unfair, deceptive practice or unethical conduct for the licensee to advertise or otherwise represent to prospective purchasers any statement which has the capacity and tendency or effect of misleading them into the belief that any hearing instrument or device, or part or accessory therefor, is a new invention or involves a new mechanical or scientific principle, when such is not the fact. (9) It shall be an unfair or deceptive practice and unethical conduct for the licensee to— (A) Represent or use any seals, emblems, shields, or other insignia which represent, directly or by implication, in any manner that a hearing instrument or device has been tested, accepted, or approved by any individual, organization, group, or association, unless such is the fact and unless the hearing instrument or device has been tested by such individual, organization, group, or association in such manner as reasonable to insure the quality and performance of the instrument in relation to its intended usage and the fulfillment of any material claims made, implied, or intended to be supported by such representation or insignia; and (B) Make any other false, misleading, or deceptive representation respecting any testing, acceptance, or approval of a hearing instrument or device by any individual, organization, group, or association. (10) When the licensee initiates contact through direct mail or other advertisement, the licensee shall display clearly on each promotional item the business/establishment name, the principal establishment’s street address and telephone number. AUTHORITY: section 346.125, RSMo 2016.* This rule originally filed as 4 CSR 165-3.020. Emergency rule filed Oct. 18, 1996, effective Nov. 1, 1996, expired April 29, 1987. Original rule filed Nov. 6, 1996, effective May 30, 1997. Moved to 20 CSR 2165-3.020, effective Aug. 28, 2006. Amended: Filed Sept. 25, 2019, effective March 30, 2020. *Original authority: 346.125, RSMo 1973, amended 1981, 1995, 2009.