The Vermont Statutes Online

Title 9: Commerce and Trade

Chapter 63: CONSUMER PROTECTION

 

Sub-Chapter 1: General Provisions

§ 2451. Purpose

The purpose of this chapter is to complement the enforcement of federal statutes and decisions governing unfair methods of competition, unfair or deceptive acts or practices, and anti-competitive practices in order to protect the public and to encourage fair and honest competition. (Added 1967, No. 132, § 1, eff. April 17, 1967; amended 2011, No. 168 (Adj. Sess.), § 2, eff. May 18, 2012.)

§ 2451a. Definitions

As used in this chapter:

(a) "Consumer" means any person who purchases, leases, contracts for, or otherwise agrees to pay consideration for goods or services not for resale in the ordinary course of his or her trade or business but for his or her use or benefit or the use or benefit of a member of his or her household, or in connection with the operation of his or her household or a farm whether or not the farm is conducted as a trade or business, or a person who purchases, leases, contracts for, or otherwise agrees to pay consideration for goods or services not for resale in the ordinary course of his or her trade or business but for the use or benefit of his or her business or in connection with the operation of his or her business.

(b) "Goods" or "services" shall include any objects, wares, goods, commodities, work, labor, intangibles, courses of instruction or training, securities, bonds, debentures, stocks, real estate, or other property or services of any kind. The term also includes bottled liquified petroleum (LP or propane) gas.

(c) "Seller" means a person regularly and principally engaged in a business of selling goods or services to consumers.

(d) "Home solicitation sale" means the sale or lease, or the offer for sale or lease, of goods or services with a purchase price of $5.00 or more, whether under single or multiple contracts, where the sale, lease, or offer thereof is either personally solicited or consummated by a seller at the residence or place of business or employment of the consumer, or at a seller's transient quarters, or solicited or consummated by a seller wholly or in part by telephone with a consumer at the residence or place of business or employment of the consumer. Transient quarters includes hotel or motel rooms, or any other place utilized as a temporary business location. The term "home solicitation sale" does not include a transaction:

(1) made pursuant to prior negotiations in the course of a visit by the consumer to a retail business establishment having a fixed permanent location where the goods are exhibited or the services are offered for sale on a continuing basis; or

(2) in which the consumer has initiated the contact and specifically requested the seller to visit his home for the purpose of repairing or performing maintenance upon the consumer's personal property. If in the course of such a visit, the seller sells the consumer the right to receive additional services or goods other than replacement parts necessarily used in performing the maintenance or in making the repairs, the sale of those additional goods or services would not fall within this exclusion;

(3) conducted and consummated entirely by mail; and without any other contact between the consumer and the seller prior to delivery of the goods or performance of the services;

(4) with a purchase price of under $25.00 where the consumer is not required to sign any contract, receipt, sales ticket, evidence of indebtedness or other writing; and the goods, services, or merchandise purchased are capable of delivery or performance at one time;

(5) pertaining to the sale or rental of real property, to the sale of insurance, to the sale of securities by a broker dealer registered with the Securities and Exchange Commission, or to the sale of commodities by and any person registered with the Commodity Futures Trading Commission;

(6) where, in the case of goods, the buyer may at any time:

(A)(i) cancel the order prior to delivery of the goods and receive a full refund for any monies paid; or

(ii) refuse to accept the goods when delivered, without incurring any obligation to pay for them and receive a full refund for any monies paid; or

(iii) return the goods to the seller and receive a full refund for any monies paid; and

(B) the buyer's right to cancel the order or return the goods without obligation or charge at any time and receive a full refund for any monies paid is clearly and unmistakably set forth on the face or reverse side of the sales ticket; and

(C) the goods or merchandise purchased under an agreement meeting the requirements specified in subdivisions (A) and (B) of this subdivision are capable of delivery at one time;

(7) solicited or consummated wholly or in part by telephone where the seller offers a full refund and right of cancellation for at least ten days after receipt of the goods or services, and a full refund within 30 days of return of the goods or cancellation of the services or under terms no more restrictive than those set forth in subsections 2454(a), (c), and (d) of this chapter, and the right of refund and cancellation is conspicuously disclosed with the goods or services;

(8) solicited or consummated wholly or in part by a federally insured depository institution or its subsidiary, affiliate, or parent organizations, or by a public utility regulated by the Federal Communications Commission or the Vermont Public Service Board;

(9) in response to an order placed by a farmer for farm-related goods or services, whether in person, by telephone, or otherwise, and the farmer has a preexisting open end credit plan with the seller.

(e) "Business day" means any calendar day except Saturday, Sunday, or any day classified as a holiday under 1 V.S.A. § 371.

(f) "Purchase price" means the total price paid or to be paid for the consumer goods or services, including all interest and service charges.

(g) "Lessor" means a person engaged in a business of leasing goods to consumers.

(h) "Collusion" means an agreement, contract, combination in the form of trusts or otherwise, or conspiracy to engage in price fixing, bid rigging, or market division or allocation of goods or services between or among persons. (Added 1973, No. 221 (Adj. Sess.), § 3, eff. June 7, 1974; amended 1985, No. 34, § 1; 1985, No. 61; 1993, No. 99, § 3; 1995, No. 23, § 1; 1997, No. 42, § 1; 2001, No. 42, § 2; 2011, No. 168 (Adj. Sess.), § 3, eff. May 18, 2012.)

§ 2452. Limitation

Nothing in this chapter shall apply to the owner or publisher of a newspaper, magazine, publication or printed matter wherein an advertisement or offer to sell appears, or to the owner or operator of a radio or television station which disseminates an advertisement or offer to sell, when the owner, publisher or operator has no knowledge of the fraudulent intent, design or purpose of the advertiser or operator. (Added 1967, No. 132, § 1, eff. April 17, 1967.)

§ 2453. Practices prohibited; antitrust and consumer protection

(a) Unfair methods of competition in commerce, and unfair or deceptive acts or practices in commerce, are hereby declared unlawful.

(b) It is the intent of the Legislature that in construing subsection (a) of this section, the courts of this State will be guided by the construction of similar terms contained in Section 5(a)(1) of the Federal Trade Commission Act as from time to time amended by the Federal Trade Commission and the courts of the United States.

(c) The Attorney General shall make rules and regulations, when necessary and proper to carry out the purposes of this chapter, relating to unfair methods of competition in commerce and unfair or deceptive acts or practices in commerce. The rules and regulations shall not be inconsistent with the rules, regulations, and decisions of the Federal Trade Commission and the federal courts interpreting the Federal Trade Commission Act.

(d) Violation of a rule or regulation as made by the Attorney General is prima facie proof of the commission of an unfair or deceptive act in commerce.

(e) The provisions of subsections (a), (c), and (d) of this section shall also be applicable to real estate transactions. (Added 1967, No. 132, § 1, eff. April 17, 1967; amended 1969, No. 45, § 8, eff. April 4, 1969; 1969, No. 278 (Adj. Sess.); 1973, No. 221 (Adj. Sess.), § 1, eff. June 7, 1974; 1999, No. 65 (Adj. Sess.), § 2; 2011, No. 109 (Adj. Sess.), § 2, eff. May 8, 2012; 2011, No. 136 (Adj. Sess.), § 1a, eff. May 18, 2012.)

§ 2453a. Practices prohibited; criminal antitrust violations

(a) Collusion is hereby declared to be a crime.

(b) Subsection (a) of this section shall not be construed to apply to activities of or arrangements between or among persons which are permitted, authorized, approved, or required by federal or state statutes or regulations.

(c) It is the intent of the General Assembly that in construing this section and subsection 2451a(h) of this title, the courts of this State shall be guided by the construction of federal antitrust law and the Sherman Act, as amended, as interpreted by the courts of the United States.

(d) Nothing in this section limits the power of the Attorney General or a state's attorney to bring civil actions for antitrust violations under section 2453 of this title.

(e) A violation of this section shall be punished by a fine of not more than $100,000.00 for an individual or $1,000,000.00 for any other person or by imprisonment not to exceed five years or both. (Added 2011, No. 168 (Adj. Sess.), § 4, eff. May 18, 2012.)

§ 2453b. Retaliation prohibited

No person shall retaliate against, coerce, intimidate, threaten, or interfere with any other person who:

(1) has opposed any act or practice of the person which is collusive or in restraint of trade;

(2) has lodged a complaint or has testified, assisted, or participated in any manner with the Attorney General or a state's attorney in an investigation of acts or practices which are collusive or in restraint of trade;

(3) is known by the person to be about to lodge a complaint or testify, assist, or participate in any manner in an investigation of acts or practices which are collusive or in restraint of trade; or

(4) is believed by the person to have acted as described in subdivision (1), (2), or (3) of this subsection. (Added 2011, No. 168 (Adj. Sess.), § 5, eff. May 18, 2012.)

§ 2454. Purchase contracts; rescission

(a) Consumer's or other obligor's right to cancel

(1) Except as provided in subdivision (5) of this subsection, in addition to any right otherwise to revoke an offer, the consumer or any other person obligated for any part of the purchase price may cancel a home solicitation sale until midnight of the third business day after the day on which the consumer has signed an agreement or offer to purchase relating to such sale, or has otherwise agreed to buy consumer goods or services from the seller.

(2) Cancellation occurs when notice of cancellation is given to the seller.

(3) Notice of cancellation, if given by mail, shall be deemed given when deposited in a mailbox properly addressed and postage prepaid.

(4) Notice of cancellation need not take the form prescribed and shall be sufficient if it indicates the intention of the consumer not to be bound.

(5) A home solicitation sale may not be cancelled if the consumer has requested the seller to provide goods or services without delay because of an emergency, and

(A) the seller in good faith has begun substantial performance of the contract before the notice of cancellation has been given, and

(B) in the case of goods, the goods cannot be returned to the seller in substantially the same condition as when received by the consumer, and

(C) the consumer's request is both handwritten and signed by the consumer.

(b) Disclosure obligations

(1) In every home solicitation sale, the seller shall furnish the consumer with a fully completed receipt or copy of any contract pertaining to such sale at the time the consumer signs an agreement or offer to purchase relating to such sale, or otherwise agrees to buy consumer goods or services from the seller. Such receipt or contract copy shall show the date of the transaction and shall contain the name and address of the seller, and in immediate proximity to the space reserved in the contract for the signature of the consumer or on the front page of the receipt if a contract is not used and in boldface type of a minimum size of ten points, a statement in substantially the following form:

You, the buyer, may cancel this transaction at any time prior to midnight of the third business day after the date of this transaction. See the attached notice of cancellation for an explanation of this right.

(2) In a home solicitation sale, unless a consumer requests the seller to provide goods or services without delay in an emergency, the seller shall furnish a notice of cancellation to the consumer at the time he signs an agreement or offer to purchase relating to such sale or otherwise agrees to buy consumer goods or services from the seller, which notice shall be attached to the contract or receipt and easily detachable.

(A) The notice of cancellation shall contain the following information and statements, printed in not less than ten point boldface type:

 

NOTICE OF CANCELLATION

 

(enter date of transaction)

                                                                                                                           ...............................................................................

                                    (date)

 

You may cancel this transaction, without any penalty or obligation, within three business days from the above date.

If you cancel, any property traded in, any payments made by you under the contract or sale, and any negotiable instrument executed by you will be returned within ten business days following receipt by the seller of your cancellation notice, and any security interest arising out of the transaction will be canceled.

If you cancel, you must make available to the seller at your residence, in substantially as good condition as when received, any goods delivered to you under this contract or sale; or you may, if you wish, comply with the instructions of the seller regarding the return shipment of the goods at the seller's expense and risk.

If you do make the goods available to the seller and the seller does not pick them up within twenty days of the date of your notice of cancellation, you may retain or dispose of the goods without any further obligation. If you fail to make the goods available to the seller, or if you agree to return the goods to the seller and fail to do so, then you remain liable for performance of all obligations under the contract.

To cancel this transaction, mail or deliver a signed and dated copy of this cancellation notice or any other written notice, or send a telegram, to

…………………. ............................................. at …………….…………......

(name of seller) (address of seller's place of business)

not later than midnight of …………………………………………….............

(date)

I hereby cancel this transaction.

    ……………..................

(date)

......................................................................

(buyer's signature)  

 

  

(B) Before furnishing copies of the "Notice of Cancellation" to the buyer, the seller shall complete both copies by entering the name of the seller, the address of the seller's place of business, the date of the transaction, and the date, not earlier than the third business day following the date of the transaction, by which the buyer may give notice of cancellation.

(C) The seller shall leave the "Notice of Cancellation" with the consumer.

(D) In addition to the written notice of cancellation the seller shall orally inform the buyer of his right to cancel at the time of the transaction.

(3) Until the seller has complied with this subsection, the consumer or any other person obligated for any part of the purchase price may cancel the home solicitation sale by notifying the seller in any manner and by any means of his intention to cancel. The cancellation period of three business days shall begin to run from the time the seller complies with this subsection.

(c) Restoration of payments

(1) Within ten days after a home solicitation sale has been cancelled or an offer to purchase revoked, the seller shall tender to the consumer any payments made by the consumer and any note or other evidence of indebtedness, and take any action necessary or appropriate to terminate promptly any security interest in the transaction, except as provided in subdivision (3) of this subsection.

(2) If payment includes goods traded in, the goods shall be tendered in substantially as good condition as when received by the seller. If the seller fails to tender the goods as provided by this subsection, the consumer may elect to recover an amount equal to the trade-in allowance stated in the agreement.

(3) Until the seller has complied with this subsection the consumer may retain possession of goods delivered to him by the seller and shall have a lien on the goods in his possession or control for any recovery to which he may be entitled.

(d) Duties of seller and consumer

(1) Within ten days after a home solicitation sale has been cancelled or an offer to purchase revoked, the seller shall either demand possession of any goods delivered by the seller pursuant to the sale or instruct the consumer regarding the return shipment of the goods at the seller's expense and risk.

(2) If the seller does not give instructions regarding the return shipment of the goods, or if the consumer does not comply with any such instructions given, the seller must pick up such goods within twenty days after a home solicitation sale has been cancelled.

(3) If the seller does not act within the time periods established in subdivisions (1) and (2) of this subsection, the goods shall become the property of the consumer without obligation to pay for them.

(4) Upon demand, the consumer shall tender to the seller any goods delivered by the seller pursuant to the sale but need not tender at any place other than his residence.

(5) If the consumer agrees to return the goods to the seller and fails to do so, then he shall remain liable for performance of all obligations under the contract.

(6) The consumer shall take reasonable care of the goods in his possession both before cancellation or revocation and for a reasonable time thereafter, during which time the goods are otherwise at the seller's risk.

(7) If the seller has performed any services pursuant to a home solicitation sale prior to its cancellation, the seller shall be entitled to no compensation therefor.

(e) If the home solicitation sale is principally negotiated in a language other than English, then all of the disclosures required by this section shall be given in that language.

(f) If the consumer is unable to write in his own handwriting, then any of the statements required to be written by him under this section shall be handwritten by a member of the consumer's household at the request of the consumer. If there is no other member of the consumer's household, then such statements must be written by the seller, at the request of the consumer, and the effect of such statements shall be orally explained to the consumer by the seller.

(g) Use of the cancellation provision provided for in this section shall not prevent any other action being taken under this chapter or otherwise against such seller.

(h) A violation of any of the provisions of this section shall be considered an unfair act in commerce within the meaning of subsection 2453(a) of this title. (Added 1967, No. 132, § 1, eff. April 17, 1967; amended 1969, No. 45, § 1, eff. April 4, 1969; 1973, No. 110, § 1; 1973, No. 221 (Adj. Sess.), § 2, eff. June 7, 1974.)

§ 2455. Defenses

The holder of a promissory note or instrument or other evidence of indebtedness of a consumer delivered in connection with a contract shall take or hold that note, instrument or evidence subject to all defenses of such consumer which would be available to the consumer in an action on a simple contract, and all rights available to him under this chapter. (Added 1967, No. 132, § 1, eff. April 17, 1967; amended 1969, No. 45, § 2, eff. April 4, 1969.)

§ 2456. Confession of judgment

Any agreement of a consumer in a contract that a power of attorney is given to confess judgment, or an assignment of wages is given, or any agreement of similar effect, is void and of no force and effect on any party. (Added 1967, No. 132, § 1, eff. April 17, 1967; amended 1969, No. 45, § 3, eff. April 4, 1969.)

§ 2457. Evidence of fraud

The failure to sell any goods or services in the manner and of the nature advertised or offered, or the refusal or inability to sell any goods or services at the price advertised or offered or in accordance with other terms or conditions of the advertisement or offer, creates a rebuttable presumption of an intent to violate the provisions of this chapter. No actual damage to any person need be alleged or proven for an action to lie under this chapter. (Added 1967, No. 132, § 1, eff. April 17, 1967.)

§ 2458. Restraining prohibited acts

(a) Whenever the Attorney General or a state's attorney has reason to believe that any person is using or is about to use any method, act, or practice declared by section 2453 of this title to be unlawful, or has reason to believe that any person has violated any assurance of discontinuance entered into pursuant to section 2459 of this title, and that proceedings would be in the public interest, the Attorney General, or a state's attorney if authorized to proceed by the Attorney General, may bring an action in the name of the State against such person to restrain by temporary or permanent injunction the use of such method, act, or practice or to dissolve a domestic corporation or revoke the certificate of authority granted a foreign corporation. The action may be brought in the Superior Court of the county in which such person resides, has a place of business or is doing business. The courts are authorized to issue temporary or permanent injunctions to restrain and prevent violations of this chapter, such injunctions to be issued without bonds, and so to dissolve, or revoke the certificate of authority of, a corporation.

(b) In addition to the foregoing, the Attorney General or a state's attorney may request and the court is authorized to render any other temporary or permanent relief, or both, as may be in the public interest including:

(1) the imposition of a civil penalty of not more than $10,000.00 for each violation;

(2) an order for restitution of cash or goods on behalf of a consumer or a class of consumers similarly situated;

(3) an order requiring reimbursement to the State of Vermont for the reasonable value of its services and its expenses in investigating and prosecuting the action;

(4) amounts other than consumer restitution recovered by the Attorney General or Department of State's Attorneys under this chapter, but not to exceed amounts annually appropriated, or authorized pursuant to 3 V.S.A. § 167 or 32 V.S.A. § 511, shall be deposited into special funds which shall be available to the Attorney General or Department of State's Attorneys, respectively to offset the costs of providing legal services.

(c) Whenever a state's attorney brings an action pursuant to this section, a copy of any pleadings shall be served on the attorney general pursuant to Rule 5 of the Vermont Rules of Civil Procedure. Failure to comply with this provision shall not affect the validity of the proceedings commenced under this section. (Added 1967, No. 132, § 1, eff. April 17, 1967; amended 1969, No. 45, § 4, eff. April 4, 1969; 1971, No. 235 (Adj. Sess.), § 1; 1973, No. 110, § 2; 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974; 1999, No. 49, § 213; 2009, No. 67 (Adj. Sess.), § 88, eff. Feb. 25, 2010.)

§ 2459. Assurance of discontinuance

(a) In any case where the attorney general or a state's attorney has authority to institute an action or proceeding under section 2458 of this title, in lieu thereof he may accept an assurance of discontinuance of any method, act or practice in violation of this chapter from any person alleged to be engaged or to have been engaged in such method, act or practice. Such assurance may include a stipulation for affirmative action by such person, payment of a civil forfeiture and the costs of investigation, or of an amount to be held in escrow pending the outcome of an action or as restitution to aggrieved consumers, or any of the above. Any such assurance of discontinuance shall be in writing and be filed with the Washington superior court. Evidence of a violation of such assurance shall be prima facie proof of violation of section 2453 of this title, or of any rule of regulation made pursuant to section 2453 of this title in any action or proceeding thereafter brought by the attorney general or a state's attorney.

(b) No assurance of discontinuance may be accepted by a state's attorney without the approval of the attorney general who shall indicate his approval by countersigning any assurance before it may become effective. (Added 1967, No. 132, § 1, eff. April 17, 1967; amended 1969, No. 45, § 5, eff. April 4, 1969; 1973, No. 110, § 3; 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974.)

§ 2460. Civil investigation

(a)(1) The Attorney General or a state's attorney whenever he or she has reason to believe any person to be or to have been in violation of section 2453 of this title, or of any rule or regulation made pursuant to section 2453 of this title, may examine or cause to be examined by any agent or representative designated by him or her for that purpose, any books, records, papers, memoranda, and physical objects of whatever nature bearing upon each alleged violation, and may demand written responses under oath to questions bearing upon each alleged violation.

(2) The Attorney General or a state's attorney may require the attendance of such person or of any other person having knowledge in the premises in the county where the person resides or has a place of business or in Washington County if the person is a nonresident or has no place of business within the State, and may take testimony and require proof material for his or her information, and may administer oaths or take acknowledgment in respect of any book, record, paper, or memorandum.

(3) The Attorney General or a state's attorney shall serve notice of the time, place, and cause of the examination or attendance, or notice of the cause of the demand for written responses, at least ten days prior to the date of the examination, personally or by certified mail, upon the person at his or her principal place of business, or, if the place is not known, to his or her last known address.

(4) Any book, record, paper, memorandum, or other information produced by any person pursuant to this section shall not, unless otherwise ordered by a court of this State for good cause shown, be disclosed to any person other than the authorized agent or representative of the Attorney General or a state's attorney or another law enforcement officer engaged in legitimate law enforcement activities, unless with the consent of the person producing the same.

(5) This subsection shall not be applicable to any criminal investigation or prosecution brought under the laws of this or any state.

(b)(1) A person upon whom a notice is served pursuant to the provisions of this section shall comply with the terms thereof unless otherwise provided by the order of a court of this State.

(2) Any person who, with intent to avoid, evade, or prevent compliance, in whole or in part, with any civil investigation under this section, removes from any place, conceals, withholds, or destroys, mutilates, alters, or by any other means falsifies any documentary material in the possession, custody, or control of any person subject of any such notice, or mistakes or conceals any information, shall be subject to a civil penalty of not more than $25,000.00 and to recovery by the Attorney General's or state's attorney's office the reasonable value of its services and expenses in enforcing compliance with this section.

(c)(1) Whenever any person fails to comply with any notice served upon him or her under this section or whenever satisfactory copying or reproduction of material pursuant to this section cannot be done and the person refuses to surrender the material, the Attorney General or a state's attorney may file, in the Superior Court in which the person resides or has his or her principal place of business, or in Washington County if the person is a nonresident or has no principal place of business in this State, and serve upon the person, a petition for an order of the court for the enforcement of this section.

(2) Whenever a petition is filed under this section, the court shall have jurisdiction to hear and determine the matter presented, and to enter one or more orders as may be required to carry into effect the provisions of this section.

(3) A person who violates an order entered under this section by a court shall be punished for contempt of court and shall be subject to a civil penalty of not more than $25,000.00 and to recovery by the Attorney General's or state's attorney's office of the reasonable value of its services and expenses in enforcing compliance with this section. (Added 1967, No. 132, § 1, eff. April 17, 1967; amended 1969, No. 45, § 6, eff. April 4, 1969; 1973, No. 110, § 4; 1973, No. 193 (Adj. Sess.), § 3, eff. April 9, 1974; 1997, No. 161 (Adj. Sess.), § 25, eff. Jan. 1, 1998; 2013, No. 44, § 5.)

§ 2461. Civil penalty

(a) Any person who violates the terms of an injunction issued under section 2458 of this title shall forfeit and pay to the State a civil penalty of not more than $10,000.00 for each violation. For the purposes of this section, the court issuing such injunction shall retain jurisdiction, and the cause shall be continued, and in such cases the Attorney General or a state's attorney acting in the name of the State may petition for recovery of such civil penalty.

(b) Any consumer who contracts for goods or services in reliance upon false or fraudulent representations or practices prohibited by section 2453 of this title, or who sustains damages or injury as a result of any false or fraudulent representations or practices prohibited by section 2453 of this title, or prohibited by any rule or regulation made pursuant to section 2453 of this title may sue for appropriate equitable relief and may sue and recover from the seller, solicitor, or other violator the amount of his or her damages, or the consideration or the value of the consideration given by the consumer, reasonable attorney's fees, and exemplary damages not exceeding three times the value of the consideration given by the consumer. Any language, written or oral, used by a seller or solicitor, which attempts to exclude or modify recovery of the penalty or reasonable attorney's fees shall be unenforceable.

(c) Any person alleged to have violated the terms of subsection (b) of this section shall be entitled to a trial by jury, unless waived according to law. (Added 1967, No. 132, § 1, eff. April 17, 1967; amended 1969, No. 45, § 7, eff. April 4, 1969; 1971, No. 235 (Adj. Sess.), § 2; 1973, No. 110, § 5.)

§ 2461a. Hearing aid violations

The attorney general shall investigate alleged irregularities and complaints relating to the fitting and selling of hearing aids, in violation of chapter 90 of Title 18, and rules and regulations promulgated thereunder. (Added 1975, No. 95, § 2.)

§ 2461b. Regulation of propane

(a)(1) In this section:

(A) "Consumer" means any person who purchases propane for consumption and not for resale through a meter or has propane delivered to one or more storage tanks of 2,000 gallons or less.

(B) "Seller" means a person who sells or offers to sell propane to a consumer.

(2) The Attorney General shall investigate irregularities, complaints, and unfair or deceptive acts in commerce by sellers.

(b) For the purpose of promoting business practices which are uniformly fair to sellers and which protect consumers, the Attorney General shall promulgate necessary rules and regulations, including notice prior to disconnection, repayment agreements, minimum delivery, discrimination, security deposits, and the assessment of fees and charges.

(c)(1) A violation of this section, or a rule or regulation promulgated under this section not inconsistent with this section, shall constitute an unfair and deceptive act in commerce in violation of section 2453 of this title.

(2) No contract for propane services shall contain any provision that conflicts with the obligations and remedies established by this section or by any rule or regulation promulgated under this section, and any conflicting provision shall be unenforceable and void.

(d) A seller shall not:

(1) assess a minimum usage fee;

(2) assess a fee for propane that is not actually delivered to a consumer; or

(3) require a consumer to purchase a minimum number of gallons of propane per year, except as part of a guaranteed price plan that meets the requirements of section 2461e of this title.

(e) When terminating service to a consumer, a seller shall comply with the following requirements.

(1)(A) If the propane storage tank has been located on the consumer's premises, regardless of ownership of the premises, for 12 months or more, the seller may not assess a fee related to termination of propane service, including a fee:

(i) to remove the seller's storage tank from the premises;

(ii) to pump out or restock propane; or

(iii) to terminate service.

(B) If a consumer has received propane service from the seller for less than 12 months, any fee related to termination of service may not exceed the disclosed price of labor and materials.

(2) Subject to subdivision (h)(5) of this section:

(A) Within 20 days of the date when the seller disconnects propane service or is notified by the consumer in writing that service has been disconnected, whichever is earlier, the seller shall refund to the consumer the amount paid by the consumer for any propane remaining in the storage tank, less any payments due the seller from the consumer.

(B) If the quantity of propane remaining in the storage tank cannot be determined with certainty, the seller shall, within the 20 days described in subdivision (2)(A) of this subsection, refund to the consumer the amount paid by the consumer for 80 percent of the seller's best reasonable estimate of the quantity of propane remaining in the tank, less any payments due from the consumer. The seller shall refund the remainder of the amount due as soon as the quantity of propane left in the tank can be determined with certainty, but no later than 14 days after the removal of the tank or restocking of the tank at the time of reconnection.

(3)(A) Any refund to the consumer shall be by cash, check, direct deposit, credit to a credit card account, or in the same method or manner of payment that the consumer, or a third party on the consumer's behalf, used to make payments to the seller.

(B) Unless requested by the consumer, a seller shall not provide a refund in the form of a reimbursement or credit to any account with the seller.

(4) If the seller fails to mail or deliver a refund to the consumer in accordance with this subsection, the seller shall within one business day make a penalty payment to the consumer, in addition to the refund, of:

(A) $250.00 on the first day after the refund was due; and

(B) $75.00 per day for each day thereafter until the refund and penalty payment have been mailed or delivered, provided that the total amount that accrues under this subdivision (B) shall not exceed 10 times the amount of the refund.

(5) Termination of service does not void any guaranteed price plan that meets the requirements of section 2461e of this title that has not expired by its own terms.

(f)(1) A seller of propane shall not refuse to deliver propane to a storage tank owned by a consumer if the consumer provides proof of ownership of the tank and the seller has conducted a safety check of the tank in accordance with NFPA 54 (National Fuel Gas Code) and NFPA 58 (Storage and Handling of Liquefied Petroleum Gas Code) of the National Fire Protection Association and complies with rules adopted by the Attorney General governing propane.

(2) If a seller of propane chooses to finance a consumer's purchase of a storage tank, the financing shall be a retail installment sale as provided in chapter 61 of this title.

(g) Nonpayment of the following charges may be the only basis for an interruption or disconnection of service: propane, leak or pressure test, safety check, restart of equipment, after-hours delivery, special trip for delivery, and meter read.

(h)(1) A seller who has a duty to remove a propane storage tank from a consumer's premises shall remove the tank within 20 days or, in the case of an underground storage tank, within 30 days of the earliest of the following dates:

(A) the date on which the consumer requests termination of service;

(B) the date the seller disconnects propane service; or

(C) the date on which the seller is notified by the consumer in writing that service has been disconnected.

(2) Notwithstanding the provisions of subdivision (1) of this subsection, if a consumer requests that a tank be removed on a specific day, the seller shall remove the tank no more than 10 days after the date requested, or within the period required by subdivision (1) of this subsection, whichever is later.

(3) A seller who fails to remove a propane storage tank in accordance with this subsection shall make a penalty payment to the consumer of:

(A) $250.00 on the first day after the tank should have been removed; and

(B) $75.00 per day for each day thereafter until the tank has been removed and the penalty payments have been mailed or delivered, provided that the total amount that accrues under this subdivision (B) shall not exceed $2,000.00.

(4)(A) Notwithstanding subdivision (3) of this subsection, no penalty shall be due for the time a seller is unable to remove a tank due to weather or other conditions not caused by the seller that bar access to the tank, if the seller provides within five days of the latest date the tank was otherwise required to be removed:

(i) a written explanation for the delay;

(ii) what reasonable steps the consumer must take to provide access to the tank; and

(iii) a telephone number, a mailing address, and an e-mail address the consumer can use to notify the seller that the steps have been taken.

(B) The seller shall have 20 days from the date he or she receives the notice from the consumer required in subdivision (4)(A)(iii) of this subsection to remove the tank.

(5) A consumer who prevents access to a propane storage tank, such that a seller is unable to timely remove the tank from the property or determine the amount of propane remaining in the tank in compliance with this section, shall not be entitled to a refund for propane remaining in the storage tank pursuant to subsection (e) of this section until the consumer takes the reasonable steps identified by the seller that are necessary to allow access to the tank and provides notice to the seller that he or she has taken those steps, in compliance with the process established in subdivision (4) of this subsection. (Added 1985, No. 34, § 2; amended 2011, No. 47, § 19a, eff. May 25, 2011; 2013, No. 44, § 1.)

§ 2461c. Predatory pricing

(a) No person, with the intent to harm competition, shall price goods or services in a manner that tends to create or maintain a monopoly or otherwise harms competition. A violation of this subsection is deemed to be an unfair method of competition in commerce and a violation of section 2453 of this title.

(b) It is the intent of the general assembly that in construing subsection (a) of this section, the courts of the state will be guided by similar terms contained in federal anti-trust law as construed by the courts of the United States and as amended by Congress.

(c) The attorney general shall make rules and regulations when necessary and proper to carry out the purposes of this section. The rules and regulations shall not be inconsistent with the rules, regulations, and decisions of the Federal Trade Commission or with the decisions of the courts of the United States construing federal anti-trust law.

(d) The attorney general has the same authority to conduct civil investigations and enter into assurances of discontinuance as provided under subchapter 1 of this chapter.

(e) A person aggrieved by a violation of this section or a violation of rules adopted under this section may bring an action in superior court for appropriate relief under subsection 2461(b) of this title.

(f) This section shall not be construed to limit rights or remedies available to a person under any other law. (Added 2005, No. 35, § 1.)

§ 2461d. Price gouging of petroleum products and heating fuel products

(a) Definitions For the purposes of this section:

(1) A "market emergency" shall be declared by the governor. The market emergency shall continue for 30 days or until terminated by the governor. The governor may extend the market emergency for additional 30-day periods. "Market emergency" means any abnormal disruption of any market for petroleum products or heating fuel products, including any actual or threatened shortage in the supply of petroleum products or heating fuel products or any actual or threatened increase in the price of petroleum products or heating fuel products resulting from severe weather, convulsion of nature, supply manipulation, failure or shortage of electric power or other source of energy, strike, civil disorder, act of war, terrorist attack, national or local emergency, or other extraordinary adverse circumstances.

(2) "Petroleum or heating fuel product" means motor fuels, liquefied petroleum gas, fuel oil, kerosene, and wood pellets used for heating or cooking purposes.

(3) "Petroleum or heating fuel-related business" means any producer, supplier, wholesaler, distributor, or retail seller of any petroleum or heating fuel product.

(b) It is an unfair and deceptive act and practice in commerce and a violation of section 2453 of this title for any petroleum or heating fuel-related business during a market emergency or seven days prior thereto to sell or offer to sell any petroleum product or heating fuel product for an amount that represents an unconscionably high price.

(c) A price is unconscionably high if:

(1) the amount charged during the market emergency or seven days prior thereto represents a gross disparity between the price of the petroleum product or heating fuel product charged by the petroleum or heating fuel related business and:

(A) the price at which the same product was sold or offered for sale by that business in the usual course of business immediately prior to the date of the declaration of the market emergency; or

(B) the price at which the same or similar petroleum product or heating fuel product is readily obtainable by the buyer and other buyers in the trade area in which the petroleum- or heating-fuel-related business markets the product; and

(2) the disparity is not substantially attributable to increased prices charged by the petroleum product or heating fuel product suppliers or increased costs due to a market emergency. (Added 2005, No. 210 (Adj. Sess.), § 2.)

§ 2461e. Requirements for guaranteed price plans and prepaid contracts

(a)(1) Contract and solicitation requirements. A contract for the retail sale of home heating oil, kerosene, or liquefied petroleum gas that offers a guaranteed price plan, including a fixed price contract, a prepaid contract, a cost-plus contract, and any other similar terms, shall be in writing, and the terms and conditions of such price plans shall be disclosed. Such disclosure shall be in plain language and shall immediately follow the language concerning the price or service that could be affected and shall be printed in no less than 12-point boldface type of uniform font. A solicitation for the retail sale of home heating oil or liquefied petroleum gas that offers a guaranteed price plan that could become a contract upon a response from a consumer, including a fixed price contract, a prepaid contract, a cost-plus contract, and any other similar terms, shall be in writing, and the terms and conditions of such offer shall be disclosed in plain language.

(2) Subdivision (1) of this subsection does not preclude a first come, first served offering.

(b)(1) Security for prepaid contracts. No home heating oil, kerosene, or liquefied petroleum gas dealer shall enter into a prepaid contract to provide home heating oil, kerosene, or liquefied petroleum gas to a consumer unless that dealer has, within seven days of the acceptance of the contract, obtained and maintained any one of the following:

(A) Futures contract. Heating oil, kerosene, or liquefied petroleum gas contracts or other similar commitments that allow the dealer to purchase, at a fixed price, heating oil, kerosene, or liquefied petroleum gas in an amount not less than 75 percent of the maximum number of gallons that the dealer is committed to deliver pursuant to all prepaid contracts entered into by the dealer;

(B) Surety bond. A surety bond in an amount not less than 50 percent of the total amount of funds paid to the dealer by consumers pursuant to prepaid heating oil, kerosene, or liquefied petroleum gas contracts; or

(C) Line of credit, letter of credit, cash. A line of credit from an FDIC-insured institution, letter of credit from an FDIC-insured institution, cash in an FDIC-insured account or a functionally equivalent account, or combination thereof in an amount that represents 100 percent of the cost to the dealer of the maximum number of gallons that the dealer is committed to deliver pursuant to all prepaid contracts entered into by the dealer. The cost shall be calculated at the time the contracts are entered into.

(2) A dealer shall maintain the amount of futures contracts required by this subsection for the period of time for which the prepaid home heating oil, kerosene, or liquefied petroleum gas contracts are effective, except that the amount of the futures contracts may be reduced during such period of time to reflect any amount of home heating oil, kerosene, or liquefied petroleum gas already delivered to and paid for by the consumer.

(3) Subdivision (1) of this subsection shall not apply to budget plans under which consumers pay 1/12th of their yearly heating fuel cost each month.

(c)(1) Disclosure; additional contract requirements. A prepaid home heating oil, kerosene, or liquefied petroleum gas contract shall indicate:

(A) the amount of funds paid by the consumer to the dealer under the contract;

(B) the maximum number of gallons of home heating oil, kerosene, or liquefied petroleum gas committed by the dealer for delivery to the consumer pursuant to the contract; and

(C) that the performance of the prepaid contract is secured by one of the three options described in subsection (b) of this section.

(2) Reimbursement default provision. Any contract described in this subsection shall provide that the contract price of any undelivered home heating oil, kerosene, or liquefied petroleum gas owed to the consumer under the contract at the end date of the contract shall be reimbursed to the consumer not later than 30 days after the end date of the contract, unless the parties to the contract agree otherwise.

(d) Private right of action under consumer protection act. In addition to the remedies set forth in sections 2458 and 2461 of this title, a home heating oil, kerosene, or liquefied petroleum gas dealer may bring an action against its heating oil, kerosene, or liquefied petroleum gas suppliers for failing to honor its contract with the home heating oil, kerosene, or liquefied petroleum gas dealer. The home heating oil, kerosene, or liquefied petroleum gas dealer bringing the action may recover all remedies available to consumers under subsection 2461(b) of this title. (Added 2005, No. 210 (Adj. Sess.), § 2; amended 2011, No. 109 (Adj. Sess.), § 2, eff. May 8, 2012; 2011, No. 136 (Adj. Sess.), § 1a, eff. May 18, 2012; 2013, No. 44, § 3.)

§ 2462. Action by state's attorney

Any state's attorney receiving notice of any alleged violation of this chapter shall immediately forward written notice of the same with any other information he may have to the "office of the attorney general, attention consumer protection division."  (Added 1967, No. 132, § 1, eff. April 17, 1967; amended 1973, No. 110, § 6.)

§ 2463. Credit billing for certain home solicitation sales

In the case of any home solicitation sale solicited or consummated by a seller in whole or in part by telephone that is paid for by means of an open-end consumer credit plan within the meaning of the federal Truth-in-Lending Act, 15 U.S.C. § 1601 et seq., the issuer of the credit card on which the consumer has charged the purchase shall, for one year from the date of the sale, or within any other time period available under applicable network operating rules in effect at the time of the sale, whichever is greater, and for the purpose of a disputed charge and reimbursement to the consumer, be subject to the claim or defense that the seller failed to comply with the disclosure requirements of subsection 2454(b) of this chapter and engaged in a related unfair or deceptive act or practice under subsection 2453(a) of this title, regardless of the amount of the purchase, the location of the seller, or the amount, if any, already paid by the consumer. Where a consumer has raised such a claim or defense, the issuer shall not report any negative information on the purchase to any consumer reporting agency as defined in the Fair Credit Reporting Act, 15 U.S.C. § 1681a(f), unless there is a judicial determination that the consumer's defense or claim is without merit, except that the issuer may report that there is a dispute with respect to the charge. (Added 1993, No. 99, § 4; amended 2011, No. 136 (Adj. Sess.), § 3, eff. May 18, 2013.)

§ 2463a. Choice of law in computer information agreement

A choice of law provision in a computer information agreement which provides that the contract is to be interpreted pursuant to the laws of a state that has enacted the Uniform Computer Information Transactions Act, as proposed by the National Conference of Commissioners on Uniform State Laws or any substantially similar law, is voidable, and the agreement shall be interpreted pursuant to the laws of this state if the party against whom enforcement of the choice of law provisions is sought is a resident of this state or has its principal place of business located in this state. For purposes of this section, a "computer information agreement" means an agreement that would be governed by the Uniform Computer Information Transactions Act or substantially similar law as enacted in the state specified in the choice of law provisions if that state's law were applied to the agreement. This section may not be varied by agreement of the parties. This section shall remain in force until such time as the general assembly enacts the Uniform Computer Information Transactions Act or any substantially similar law and that law becomes effective. (Added 2003, No. 44, § 2, eff. Jan. 1, 2004.)

§ 2464. Telemarketing transactions

(a) For the purposes of this section:

(1) "Express oral authorization" means that a consumer has explicitly authorized an electronic funds transfer from his or her financial account for goods or services offered by a telemarketer:

(A) during a telephone call in which the telemarketer has clearly stated that the consumer is authorizing the transfer from his or her account, and has further stated the consumer's name, a description of the specific goods or services offered, any material terms of the transaction, the date on or after which the account will be debited, the amount of the transfer, a telephone number for consumer inquiries that is answered during normal business hours, and the date of the authorization; and

(B) where the telemarketer has either tape-recorded the entire telemarketing call on which the consumer has authorized the transaction and not disposed of the recording until at least four years after the authorization, or has provided written notice to the consumer, prior to the settlement date of the transfer, confirming the terms of the authorization as described in subdivision (A) of this subdivision (1) and has not disposed of the written notice until at least four years after the notice was created. Isolated and inadvertent failure to comply with this record-keeping requirement shall not give rise to liability under this subsection, provided that the telemarketer has in place reasonable procedures designed to comply with this requirement.

(2) "Financial account" means a checking, savings, share, or other depository account.

(3) "Process" includes printing a check, draft, or other form of negotiable instrument drawn on or debited against a consumer's financial account, formatting or transferring data for use in connection with the debiting of a consumer's account by means of such an instrument or an electronic funds transfer, or arranging for such services to be provided to a telemarketer.

(4) "Telemarketer" means any person who initiates telephone calls to, or who receives telephone calls from, a consumer in connection with a plan, program, or campaign to market goods or services. The term "telemarketer" does not include:

(A) A federally-insured depository institution or its subsidiary when it obtains or submits for payment a check, draft, or other form of negotiable instrument drawn on or debited against a person's checking, savings, share, or other depository account at that institution.

(B) Any person that submits a payment when the consumer authorizing the submission has, prior to July 1, 1997, entered into a written contract with the person for the issuance of a charge or credit card.

(C) Any person who initiates telephone calls to or who receives telephone calls from a consumer in connection with collection of an amount due for goods or services previously provided to the consumer.

(D) Any company registered with and regulated by the Public Service Board.

(E) Any other category of persons that the Attorney General may exempt by rule consistent with the purposes of this section.

(b) It is an unfair and deceptive act and practice in commerce for any telemarketer directly or through an agent:

(1) to procure the services of any third-party delivery, courier, or other pickup service to obtain a consumer's payment for goods, unless the goods are delivered at the time that the consumer's payment is obtained by the courier; or

(2) to obtain or submit for payment a check, draft, or other form of negotiable instrument drawn on a person's financial account without the consumer's prior written authorization or to dispose of the written authorization until at least four years after the authorization.

(3) to obtain funds from a person's financial account by means of an electronic funds transfer unless:

(A)(i) the consumer has initiated the telephone call to the telemarketer; or

(ii) the telemarketer and the consumer have a current written agreement for the provision of goods or services or the consumer has purchased goods or services from the telemarketer within the previous two years; and

(B) the telemarketer has obtained the consumer's express oral authorization to the transfer prior to initiating the debit.

(c) It is an unfair and deceptive act and practice in commerce for a party other than a federally insured depository institution to process for payment from a consumer's financial account, in connection with a telemarketer's transaction with the consumer:

(1) a check, draft, or other form of negotiable instrument drawn on or debited against such account without the consumer's prior written authorization; or

(2) an electronic funds transfer from such account for goods or services offered by a telemarketer, unless:

(A)(i) the consumer has initiated the telephone call to the telemarketer; or

(ii) the telemarketer and the consumer have a current written agreement for the provision of goods or services or the consumer has purchased goods or services from the telemarketer within the previous two years; and

(B) the telemarketer has obtained the consumer's express oral authorization to the transfer prior to initiating the debit.

(d) In addition to the legal liability described in subsection (c) of this section, it is an unfair and deceptive act and practice in commerce for any person, including a third-party delivery, courier or other pickup service, or the telemarketer's financial institution as defined in 8 V.S.A. § 10202(5), but not including the consumer's financial institution as defined in 8 V.S.A. § 10202(5), to provide substantial assistance to a telemarketer in violation of subsection (b) of this section when the person or the person's authorized agent knows or consciously avoids knowing that the telemarketer is engaging in an unfair or deceptive act or practice in commerce.

(e) It is an unfair and deceptive act and practice in commerce for a party other than a federally insured depository institution who processes a telemarketing transaction for payment from a consumer's financial account to:

(1) fail to obtain, before processing the transaction, any prior written authorization required by subdivision (b)(2) of this section or any tape recording or copy of a written confirmation required by subdivision (b)(3) of this section as part of the consumer's express oral authorization; or

(2) dispose of a document required by subdivision (1) of this subsection, or of telemarketer applications or agreements, records of payments processed or returned, electronic communications relating to telemarketers, consumer complaints, or any other category of record that the Attorney General may prescribe by rule, until at least four years after the records were created. (Added 1997, No. 42, § 2; amended 2005, No. 5, § 1; 2007, No. 134 (Adj. Sess.), §§ 2-5.)

§ 2464a. Prohibited telephone solicitations

(a) Definitions. As used in this section:

(1) "Customer" means a customer, residing or located in Vermont, of a company providing telecommunications service as defined in 30 V.S.A. § 203(5).

(2) "Federal functional regulator" means a federal functional regulator as defined in 15 U.S.C. § 6809(2).

(3) "Financial institution" means a financial institution as defined in 15 U.S.C. § 6809(3).

(4) "Tax-exempt organization" means an organization described in Section 501(c) of the Internal Revenue Service Code (26 U.S.C. § 501(c)).

(5) "Telemarketer" means any telephone solicitor. However, "telemarketer" does not include any telephone solicitor who is otherwise registered or licensed with, or regulated or chartered by, the Secretary of State, the Public Service Board, the Department of Financial Regulation, or the Department of Taxes, or is a financial institution subject to regulations adopted pursuant to 15 U.S.C. § 6804(a) by a federal functional regulator. Telephone solicitors registered with the Department of Taxes to collect Vermont income withholding, sales and use, or meals and rooms tax, but not registered with any other agency listed in this subdivision, shall provide to the Secretary of State an address and agent for the purpose of submitting to the jurisdiction of the Vermont courts in any action brought for violations of this section.

(6) "Telephone solicitation":

(A) means the solicitation by telephone of a customer for the purpose of encouraging the customer to contribute to an organization which is not a tax-exempt organization, or to purchase, lease, or otherwise agree to pay consideration for money, goods or services; and

(B) does not include:

(i) telephone calls made in response to a request or inquiry by the called customer;

(ii) telephone calls made by or on behalf of a tax-exempt organization, an organization incorporated as a nonprofit organization with the State of Vermont, or an organization in the process of applying for tax-exempt status or nonprofit status;

(iii) telephone calls made by a person not regularly engaged in the activities listed in subdivision (A) of this subdivision (6); or

(iv) telephone calls made to a person with whom the telephone solicitor has an established business relationship.

(7) "Telephone solicitor" means any person placing telephone solicitations, or hiring others, on an hourly, commission, or independent contractor basis, to conduct telephone solicitations.

(b) Prohibition.

(1) No telemarketer shall make a telephone solicitation to a telephone number in Vermont without having first registered in accordance with section 2464b of this title.

(2) No person shall make any telephone call to a telephone number in Vermont which violates the Federal Trade Commission's Do Not Call Rule, 16 C.F.R. subdivision 310.4(b)(1)(iii), or the Federal Communication Commission's Do Not Call Rule, 47 C.F.R. subdivision 64.1200(c)(2) and subsection (d), as amended from time to time.

(c) Violation. A violation of this section shall constitute a violation of section 2453 of this title. Each prohibited telephone call shall constitute a separate violation. In considering a civil penalty for violations of subdivision (b)(2) of this section, the court may consider, among other relevant factors, the extent to which a telephone solicitor maintained and complied with procedures designed to ensure compliance with the rules of the Federal Communications Commission and the Federal Trade Commission.

(d) Criminal Penalties. A telemarketer who makes a telephone solicitation in violation of subdivision (b)(1) of this section shall be imprisoned for not more than 18 months or fined not more than $10,000.00, or both. It shall be an affirmative defense, for a telemarketer with five or fewer employees, that the telemarketer did not know, and did not consciously avoid knowing, that Vermont has a requirement of registration of telemarketers. Each telephone call shall constitute a separate solicitation under this section. This section shall not be construed to limit a person's liability under any other civil or criminal law. (Added 2001, No. 120 (Adj. Sess.), § 1; amended 2003, No. 89 (Adj. Sess.), § 1, eff. April 7, 2004; 2011, No. 78 (Adj. Sess.), § 2, eff. April 2, 2012.)

§ 2464b. Registration of telemarketers

(a) Every telemarketer shall register with the Secretary of State, on a form approved by the Secretary. In the case of a telemarketer who hires, whether on an hourly, commission, or independent contractor basis, one or more persons to conduct telephone solicitations, only the person who causes others to conduct telephone solicitations need register. The Secretary of State may adopt rules prescribing the manner in which registration under this section shall be conducted, including a requirement of notice to the Secretary by the telemarketer when the telemarketer ceases to do business in Vermont.

(b) The Secretary of State shall require that each telemarketer designate an agent for the purpose of submitting to the jurisdiction of the Vermont courts in any action brought for violations of section 2464a of this title.

(c) The Secretary of State shall collect the following fees when a document described in this section is delivered to the Office of the Secretary of State for filing:

(1) Registration: $125.00.

(2) Statement of change of designated agent or designated office, or both: $25.00, not to exceed $1,000.00 per filer per calendar year. (Added 2001, No. 120 (Adj. Sess.), § 2; amended 2013, No. 72, § 2.)

§ 2464c. Private cause of action

Any person who receives a telephone call in violation of subsection 2464a(b) of this title may bring an action in superior court for damages, injunctive relief, punitive damages in the case of a willful violation, and reasonable costs and attorney's fees. The court may issue an award for the person's actual damages or $500.00 for a first violation, or $1,000.00 for each subsequent violation, whichever is greater. In considering the amount of punitive damages, the court may consider, among other relevant factors, the extent to which a telephone solicitor maintained and complied with procedures designed to ensure compliance with the requirements of sections 2464a and 2464b of this title. This section shall not limit any other claims the person may have under applicable law. (Added 2001, No. 120 (Adj. Sess.), § 3; amended 2003, No. 89 (Adj. Sess.), § 2, eff. April 7, 2004.)

§ 2464d. Telephone preference service

Local exchange carriers shall provide notices at least annually to residential customers of the availability of telephone callers' do not call lists under federal law and of the federal do not call registry, and a description of how to register. (Added 2001, No. 120 (Adj. Sess.), § 4; amended 2003, No. 89 (Adj. Sess.), § 3, eff. April 7, 2004.)

§ 2465. Antitrust remedies

(a) Any person who sustains damages or injury as a result of any violation of state antitrust laws, including section 2453 of this title, may sue and recover from the violator the amount of his or her damages, or the consideration or the value of the consideration given by the aggrieved person, reasonable attorney's fees and exemplary damages, not exceeding three times the value of the consideration given or damages sustained by the aggrieved person.

(b) In any action for damages or injury sustained as a result of any violation of state antitrust laws, pursuant to section 2453 of this title, the fact that the state, any public agency, political subdivision or any other person has not dealt directly with a defendant shall not bar or otherwise limit recovery. The court shall take all necessary steps to avoid duplicate liability, including but not limited to the transfer or consolidation of all related actions. (Added 1999, No. 65 (Adj. Sess.), § 3.)

§ 2465a. Definition of local and locally grown

For the purposes of this chapter and rules adopted pursuant to subsection 2453(c) of this chapter, "local," "locally grown," and any substantially similar term shall mean that the goods being advertised originated within Vermont or 30 miles of the place where they are sold, measured directly, point to point, except that the term "local" may be used in conjunction with a specific geographic location, such as "local to New England," or a specific mile radius, such as "local-within 100 miles," as long as the specific geographic location or mile radius appears as prominently as the term "local," and the representation of origin is accurate. (Added 2007, No. 207 (Adj. Sess.), § 6, eff. June 11, 2008.)

§ 2465b. Misrepresentation of a floral business as local

(a) In connection with the sale of floral products, it shall be an unlawful and deceptive act and practice in commerce in violation of section 2453 of this title for a floral business to misrepresent in an advertisement, on the Internet, on a website, or in a listing of the floral business in a telephone directory or other directory assistance database the geographic location of the floral business as "local," "locally owned," or physically located within Vermont.

(b) A floral business is considered to misrepresent its geographic location that it is "local," "locally owned," or located within Vermont in violation of subsection (a) of this section if the floral business is not physically located in Vermont and:

(1) the advertisement, Internet, web site, or directory listing would lead a reasonable consumer to conclude that the floral business is physically located in Vermont; or

(2) the advertisement, Internet, web site, or directory listing uses the name of a floral business that is physically located in Vermont, with geographic terms that would lead a reasonable consumer to understand the advertised floral business to be physically located in Vermont.

(c) A retail floral business physically located in Vermont shall be deemed a consumer for the purposes of enforcing this section under § 2461(b) of this chapter. (Added 2011, No. 52, § 45, eff. May 27, 2011.)

§ 2466. Goods and services appearing on telephone bill

(a) Except as provided in subsection (f) of this section, a seller shall not bill a consumer for goods or services that will appear as a charge on the person's bill for telephone service provided by any local exchange carrier.

(b) No person shall arrange on behalf of a seller of goods or services, directly or through an intermediary, with a local exchange carrier, to bill a consumer for goods or services other than as permitted by this section. This prohibition applies, but is not limited, to persons who aggregate consumer billings for a seller and to persons who serve as a clearinghouse for aggregated billings.

(c) Failure to comply with this section is an unfair and deceptive act and practice in commerce under this chapter.

(d) The Attorney General may make rules and regulations to carry out the purposes of this section.

(e) Nothing in this section limits the liability of any person under existing statutory or common law.

(f)(1) This section shall apply to billing aggregators described in 30 V.S.A. § 231a, but shall not apply to:

(A) billing for goods or services marketed or sold by persons subject to the jurisdiction of the Vermont Public Service Board under 30 V.S.A. § 203;

(B) billing for direct dial or dial around services initiated from the consumer's telephone; or

(C) operator-assisted telephone calls, collect calls, or telephone services provided to facilitate communication to or from correctional center inmates.

(2) Nothing in this section affects any rule issued by the Vermont Public Service Board. (Added 1999, No. 67 (Adj. Sess.), § 5; amended 2011, No. 52, § 78, eff. May 27, 2011.)

§ 2466a. Consumer protections; prescription drugs

(a) A violation of 18 V.S.A. § 4631 shall be considered a prohibited practice under section 2453 of this title.

(b) As provided in 18 V.S.A. § 9473, a violation of 18 V.S.A. § 9472 shall be considered a prohibited practice under section 2453 of this title.

(c)(1) It shall be a prohibited practice under section 2453 of this title for a manufacturer of prescription drugs to present or cause to be presented in the State a regulated advertisement if that advertisement does not comply with the requirements concerning drugs and devices and prescription drug advertising in federal law and regulations under 21 United States Code, Sections 331 and 352(n) and 21 Code of Federal Regulations, Part 202.

(2) For purposes of this section:

(A) "Manufacturer of prescription drugs" means a person authorized by law to manufacture, bottle, or pack drugs or biological products, a licensee or affiliate of that person, or a labeler that receives drugs or biological products from a manufacturer or wholesaler and repackages them for later retail sale and has a labeler code from the federal Food and Drug Administration under 21 Code of Federal Regulations, 2027.20 (1999).

(B) "Regulated advertisement" means:

(i) the presentation to the general public of a commercial message regarding a prescription drug or biological product by a manufacturer of prescription drugs that is broadcast on television, cable, or radio from a station or cable company that is physically located in the State, broadcast over the Internet from a location in the State, or printed in magazines or newspapers that are printed, distributed, or sold in the State; or

(ii) a commercial message regarding a prescription drug or biological product by a manufacturer of prescription drugs or its representative that is conveyed:

(I) to the office of a health care professional doing business in Vermont, including statements by representatives or employees of the manufacturer and materials mailed or delivered to the office; or

(II) at a conference or other professional meeting occurring in Vermont.

(d) No person shall sell, offer for sale, or distribute electronic prescribing software that advertises, uses instant messaging and pop-up advertisements, or uses other means to influence or attempt to influence the prescribing decision of a health care professional through economic incentives or otherwise and which is triggered or in specific response to the input, selection, or act of a health care professional or agent in prescribing a specific prescription drug or directing a patient to a certain pharmacy. This subsection shall not apply to information provided to the health care professional about pharmacy reimbursement, prescription drug formulary compliance, and patient care management. (Added 2007, No. 80, § 21; 2007, No. 89 (Adj. Sess.), § 5, eff. March 5, 2008.)

 

Sub-Chapter 1A: Assistive Technology

§ 2467. Definitions

These definitions are for use in this subchapter only:

(1) "Assistive device" means an item, piece of equipment, or product system, whether acquired commercially off-the-shelf, modified, or customized, that is used or designed to be used to increase, maintain, or improve any functional capability of an individual with disabilities. An assistive device system, that as a whole is within the definition of this term, is itself an assistive device, and, in such cases, this term also applies to each component product of the assistive device system that is itself ordinarily an assistive device. For this section only and no other purposes, this term is limited to:

(A) wheelchairs and scooters of any kind, including all their assistive devices and components that enhance the mobility or positioning of an individual, such as motorization, motorized positioning features, and the switches and controls for any motorized features; and

(B) computer equipment with voice output, artificial larynges, voice amplification devices, and other alternative and augmentative communication devices or any devices used for the purpose of communication.

(2) "Assistive device dealer" means a person who is in the business of selling assistive devices to consumers.

(3) "Assistive device lessor" means a person who leases an assistive device to a consumer, or who holds the lessor's rights, under a written lease.

(4) "Collateral costs" means expenses incurred by a consumer in connection with the repair of a nonconformity, including the costs of obtaining an alternative assistive device.

(5) "Consumer" means any of the following:

(A) the purchaser of an assistive device, if the assistive device was purchased from an assistive device dealer or manufacturer for purposes other than resale;

(B) a person to whom the assistive device is transferred for purposes other than resale, if the transfer occurs before the expiration of an express warranty applicable to the assistive device;

(C) a person who may enforce the warranty; and

(D) a person who leases an assistive device from an assistive device lessor under a written lease.

(6) "Demonstrator" means an assistive device used primarily for the purpose of demonstration and tryout to the public.

(7) "Early termination cost" means any expense or obligation that an assistive device lessor incurs as a result of both the termination of a written lease before the termination date set forth in that lease and the return of an assistive device to a manufacturer pursuant to this section. Early termination cost includes a penalty for prepayment under a finance arrangement.

(8) "Early termination saving" means any expense or obligation that an assistive device lessor avoids as a result of both the termination of a written lease before that termination date set forth in that lease and the return of an assistive device to a manufacturer pursuant to this section. Early termination saving includes an interest charge that the assistive device lessor would have paid to finance the assistive device or, if the assistive device lessor does not finance the assistive device, the difference between the total amount for which the lease obligates the consumer during the period of the lease term remaining after the early termination and the present value of that amount at the date of the early termination.

(9) "Loaner" means an assistive technology device that is loaned to the user without charge while repairs are made to the user's assistive technology device.

(10) "Manufacturer" means a person who manufactures or assembles assistive devices and agents of that person, including an importer, a distributor, factory branch, distributor branch and any warrantors of the manufacturer's assistive device, but does not include an assistive device dealer.

(11) "Nonconformity" means a condition or defect that substantially impairs the use, value or safety of an assistive device, and that is covered by an express warranty applicable to the assistive device or to a component of the assistive device, but does not include a condition or defect that is the result of abuse, use which exceeds the manufacturer's recommendations, neglect or unauthorized modification or alteration of the assistive device by a consumer.

(12) "Reasonable attempt to repair" means, within the terms of an express warranty applicable to a new assistive device:

(A) any nonconformity within the warranty that is either subject to repair by the manufacturer, assistive device lessor or any of the manufacturer's authorized assistive device dealers, for at least three times and a nonconformity continues; or

(B) the assistive device is out of service for an aggregate of at least 30 cumulative days because of warranty nonconformity. (Added 1999, No. 104 (Adj. Sess.), § 1.)

§ 2468. Warranty

(a) A manufacturer who sells or leases an assistive device, only of the types listed in subdivisions 2467(1)(A) and (B) of this title, to a consumer, either directly or through an assistive device dealer, shall furnish the consumer with an express warranty for the assistive device. By the terms of or in the absence of an express warranty from the manufacturer, the manufacturer shall be deemed to have expressly warranted to the consumer of an assistive device, only as defined in subdivisions 2467(1)(A) and (B) of this title, that, for a period of at least one year from the date of first delivery to the consumer, the assistive device:

(1) has no defects in parts or performance; and

(2) is free from any condition and defect that would substantially impair the device's use, value or safety to the consumer.

(b) The manufacturer through the assistive device lessor or assistive device dealer shall provide the consumer with a loaner if the assistive device, listed in subdivisions 2467(1)(A) and (B) of this title, has any condition or defect that would substantially impair the device's use, value or safety to the consumer and that can not be remedied within one business day.

(c) If a new assistive device listed in subdivisions 2467(1)(A) and (B) of this title does not conform to an applicable express warranty and the consumer reports the nonconformity to the manufacturer, the assistive device lessor or any of the manufacturer's authorized assistive device dealers, and makes the assistive device available for repair before one year after return delivery of the assistive device to the consumer, the nonconformity shall be repaired at no charge to the consumer, including parts, labor, shipping, delivery and all other costs.

(d) If, after a reasonable attempt to repair, the nonconformity is not repaired, then at the direction of a consumer described in subdivisions 2467(5)(A), (B) or (C) of this title, the manufacturer shall do one of the following:

(1) Accept return of the assistive device and replace the assistive device with a comparable new assistive device and refund any collateral costs.

(2) Accept return of the assistive device and refund to the consumer and to any holder of a perfected security interest in the consumer's assistive device, as their interest may appear, the full purchase price plus any finance charge amount paid by the consumer at the point of sale and collateral costs, less a reasonable allowance for use. A reasonable allowance for use may not exceed the amount obtained by multiplying the full purchase price of the assistive device by a fraction, the denominator of which is 1,825 and the numerator of which is the number of days that the assistive device was used before the consumer first reported the nonconformity to the assistive device dealer.

(3) With respect to a consumer described in subdivision 2467(5)(D) of this title, accept return of the assistive device, refund to the assistive device lessor and to any holder of a perfected security interest in the assistive device, as their interest may appear, the current value of the written lease and refund to the consumer the amount that the consumer paid under the written lease, plus any collateral costs, less a reasonable allowance for use.

(e) The current value of the written lease equals the total amount for which that lease obligates the consumer during the period of the lease remaining after its early termination, plus the assistive device dealer's early termination costs and the value of the assistive device at the lease expiration date if the lease sets forth that value, less the assistive device lessor's early termination savings.

(f) A reasonable allowance for use may not exceed the amount obtained by multiplying the total amount for which the written lease obligates the consumer by a fraction, the denominator of which is 1,825 and the numerator of which is a number of days that the consumer used the assistive device before first reporting the nonconformity to the manufacturer, assistive device lessor or assistive device dealer.

(g) None of the requirements of this subchapter shall be construed to diminish existing assistive device warranties. (Added 1999, No. 104 (Adj. Sess.), § 1.)

§ 2469. Loaners

A loaner must:

(1) Be in good working order;

(2) Perform the essential functions of the assistive technology device that is being repaired, considering the needs of the user;

(3) Not create a threat to the safety of the user; and

(4) Be provided to the consumer by the manufacturer through the assistive device dealer within two business days after notice from the consumer of the nonconformity, except in the case of an assistive device that requires extensive custom retrofit in order to perform the essential functions. Such a custom device shall be provided as soon as reasonably possible, but in no case later than ten business days after notice. (Added 1999, No. 104 (Adj. Sess.), § 1.)

§ 2470. Remedies

(a) To receive a comparable new assistive device or a refund due under subsection 2468(d) of this title, a consumer shall offer to the manufacturer of the assistive device having the nonconformity to transfer possession of that assistive device to that manufacturer. No later than 30 days after that offer, the manufacturer shall provide the consumer with the comparable assistive device or refund. When the manufacturer provides the new assistive device or refund, the consumer shall return the assistive device having the nonconformity to the manufacturer, along with any endorsements necessary to transfer real possession to the manufacturer.

(b) To receive a refund due under subsection 2468(d) of this title, a consumer described in subdivision 2467(5)(D) of this title shall offer to return the assistive device having the nonconformity to its manufacturer. No later than 30 days after that offer, the manufacturer shall provide the refund to the consumer. When the manufacturer provides the refund, the consumer shall return to the manufacturer the assistive device having the nonconformity.

(c) To receive a refund due under subsection 2468(d) of this title, an assistive device lessor shall offer to transfer possession of the assistive device having the nonconformity to its manufacturer. No later than 30 days after that offer, the manufacturer shall provide the refund to the assistive device lessor. When the manufacturer provides the refund, the assistive device lessor shall provide to the manufacturer any endorsements necessary to transfer legal possession to the manufacturer.

(d) If the assistive device was a covered benefit under a health insurance policy or health benefit plan, then the health insurer or other entity providing the benefit shall be subrogated to the consumer's right of recovery to the extent of the benefit provided.

(e) No person shall enforce the lease against the consumer after the consumer offers to return the assistive device having the non-conformity pursuant to this section or returns the assistive device to the vendor pursuant to this section.

(f) No assistive device returned by a consumer or assistive device lessor in this state, or by a consumer or assistive device lessor in another state under a similar law of that state, may be sold or leased again in this state, unless full written disclosure of the reasons for return is made to any prospective buyer or lessee.

(g) This subchapter shall not be construed to limit rights or remedies available to a consumer under any other law.

(h) Any waiver by a consumer of rights under this subchapter is void.

(i) A violation of this subchapter or rules adopted under this subchapter is deemed to be an unfair or deceptive practice in commerce and a violation of section 2453 of this title. The attorney general has the same authority to make rules, conduct civil investigations and enter into assurances of discontinuance as provided under subchapter 1 of this chapter.

(j) A consumer aggrieved by a violation of this subchapter or a violation of rules adopted under this subchapter may bring an action in superior court for appropriate equitable relief, the amount of the consumer's damages, punitive damages in the case of a willful violation, the consideration or the value of the consideration given by the consumer and reasonable costs and attorney's fees. (Added 1999, No. 104 (Adj. Sess.), § 1.)

 

Sub-Chapter 1B: Children's Product Safety

§ 2470a. Definition

As used in this subchapter, "children's product" means a product that is designed or intended for the care of, or use by, children under six years of age (whether or not it is also designed or intended for the care of or use by children six years of age or older), and the product is designed or intended to come into contact with the child while the product is used. A product is not a "children's product" for purposes of this subchapter if:

(1) it may be used by or for the care of a child under six years of age, but is designed or intended for use by the general population, and not solely or primarily for use by or the care of a child; or

(2) it is a medication, drug, or food or is intended to be ingested. (Added 2001, No. 42, § 3.)

§ 2470b. Unsafe children's products; prohibition

(a) A children's product is deemed to be unsafe for purposes of this subchapter if it meets any of the following criteria:

(1) It does not conform to all federal laws and regulations setting forth standards for the children's product, including standards endorsed or established by the federal Consumer Product Safety Commission and the American Society for Testing and Materials.

(2) It has been recalled for any reason by an agency of the federal government or the product's manufacturer, distributor, or importer, and the recall has not been rescinded.

(3) An agency of the federal government has issued a warning that a specific product's intended use constitutes a safety hazard, and the warning has not been rescinded.

(b) The department of health shall create or adopt by reference, and shall maintain and update, a comprehensive list of children's products that it has identified as meeting any of the criteria set forth in subdivisions (a)(1) through (3) of this section. The department of health shall make the comprehensive list available to the public at no cost, and shall post it on its internet website. The department shall also encourage links to and from state, federal, and private internet websites that describe children's product standards, provide information on children or children's products, or advertise or sell children's products.

(c) It shall be an unfair or deceptive act or practice in commerce and a violation of section 2453 of this title, subject to enforcement and subject to the rights and remedies provided by subchapter 1 of this chapter, for a seller or lessor to remanufacture or retrofit (unless in compliance with the provisions of subsection (d) of this section), or for a seller or lessor to sell, contract to sell or resell, lease, sublet, or otherwise place in the stream of commerce, on or after January 1, 2002, a children's product that appears on the list of children's products created and maintained under subsection (b) of this section.

(d)(1) A listed children's product may be retrofitted if the retrofit has been approved or sanctioned by the agency of the federal government issuing the recall or warning or the agency responsible for approving the retrofit, if different from the agency issuing the recall or warning. A retrofitted children's product may be sold or leased if it is accompanied at the time of sale or lease by a notice containing:

(A) a description of the original problem which made the recalled product unsafe;

(B) a description of the retrofit which explains how the original problem was eliminated and declaring that it is now safe to use for a child under six years of age; and

(C) the name and address of the person who accomplished the retrofit.

(2) The seller or lessor is responsible for ensuring that the notice is present with the retrofitted product at the time of sale or lease. A retrofit is exempt from the provisions of this subchapter if:

(A) the retrofit is for a children's product that requires assembly by the consumer, the approved retrofit is provided with the product by the seller or lessor, and the retrofit is accompanied at the time of sale or lease by instructions explaining how to apply the retrofit; or

(B) the seller or lessor of a previously unsold or unleased product accomplishes the repair, approved or recommended by an agency of the federal government, prior to sale or lease.

(e) It shall be an unfair or deceptive act or practice in commerce and a violation of section 2453 of this title, subject to enforcement and subject to the rights and remedies provided by subchapter 1 of this chapter, for a person to manufacture, and to sell, contract to sell, resell, lease, sublet, or otherwise place in the stream of commerce, on or after January 1, 2002, a children's product that does not conform to all federal laws and regulations setting forth standards for the children's product, including standards endorsed or established by the federal Consumer Product Safety Commission and the American Society for Testing and Materials.

(f) At least annually, the department of health shall notify day care facilities and family child care homes licensed or registered under chapter 35 of Title 33 of the list of children's products created and maintained under subsection (b) of this section.

(g) At least annually, the department of health shall notify pediatricians licensed under chapter 23 of Title 26 of the list of children's products created and maintained under subsection (b) of this section. (Added 2001, No. 42, § 3; amended 2005, No. 174 (Adj. Sess.), § 14.)

§ 2470c. Exception

A seller or lessor shall not be held in violation of any provision of this subchapter if the specific children's product sold or leased is not deemed unsafe under subsection 2470b(a) of this title, or was not included on the department of health's list 14 days before the sale or commencement of the lease. (Added 2001, No. 42, § 3.)