Senate Bill No. 167-Committee on Commerce and Labor
(On Behalf of the Office of the Attorney General)
March 5, 1997
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Referred to Committee on Commerce and Labor
SUMMARY--Revises provisions governing investigation of deceptive trade practices. (BDR 52-611)
FISCAL NOTE: Effect on Local Government: No.
Effect on the State or on Industrial Insurance: No.
EXPLANATION - Matter in italics is new; matter in brackets [ ] is material to be omitted.
AN ACT relating to deceptive trade practices; providing that the failure to produce upon the request of the attorney general evidence that substantiates claims constitutes a deceptive trade practice; authorizing the attorney general to issue subpoenas and make investigative demands for the purpose of investigating deceptive trade practices; and providing other matters properly relating thereto.
THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:
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Section 1 NRS 598.0925 is hereby amended to read as follows:
598.0925 1. Except as otherwise provided in this section, a person engages in a "deceptive trade practice" when , in the course of his business or occupation , he:
(a) Makes an assertion of scientific, clinical or quantifiable fact in an advertisement which would cause a reasonable person to believe that the assertion is true, unless, at the time the assertion is made, the person making it has possession of factually objective scientific, clinical or quantifiable evidence which substantiates the assertion; or
(b) Fails upon request of the commissioner or attorney general to produce within 6 working days the substantiating evidence in his possession at the time the assertion of scientific, clinical or quantifiable fact was made.
2. This section does not apply to general assertions of opinion as to quality, value or condition made without the intent to mislead another person.
Sec. 2 NRS 598.096 is hereby amended to read as follows:
598.096When the commissioner , [or the] director or attorney general has cause to believe that any person has engaged or is engaging in any deceptive trade practice, he may:
1. Request the person to file a statement or report in writing under oath or otherwise, on such forms as may be prescribed by the commissioner [or the director,] , director or attorney general, as to all facts and circumstances concerning the sale or advertisement of property by the person, and such other data and information as [he] the commissioner, director or attorney general may deem necessary.
2. Examine under oath any person in connection with the sale or advertisement of any property.
3. Examine any property or sample thereof, record, book, document, account or paper as he may deem necessary.
4. Make true copies, at the expense of the consumer affairs division of the department of business and industry, of any record, book, document, account or paper examined [, as provided in] pursuant to subsection 3 , [of this section,] which copies may be offered into evidence in lieu of the originals thereof in actions brought pursuant to NRS 598.097 and 598.0979.
5. Pursuant to an order of any district court, impound any sample of property which is material to the deceptive trade practice and retain the property in his possession until completion of all proceedings as provided in NRS 598.0903 to 598.0999, inclusive. An order may not be issued pursuant to this subsection unless [the commissioner or the] :
(a) The commissioner, director or attorney general, and the court give the accused full opportunity to be heard ; and [unless the commissioner or]
(b) The commissioner, director or attorney general proves by clear and convincing evidence that the business activities of the accused will not be impaired thereby.
Sec. 3 NRS 598.0963 is hereby amended to read as follows:
598.09631. Whenever the attorney general is requested in writing by the commissioner or the director to represent him in instituting a legal proceeding against a person who has engaged or is engaging in a deceptive trade practice, the attorney general may bring an action in the name of the State of Nevada against that person on behalf of the commissioner or director.
2. The attorney general may institute criminal proceedings to enforce the provisions of NRS 598.0903 to 598.0999, inclusive. The attorney general is not required to obtain leave of the court before instituting criminal proceedings pursuant to this subsection.
3. If the attorney general has reason to believe that a person has engaged or is engaging in a deceptive trade practice, the attorney general may bring an action in the name of the State of Nevada against that person to obtain a temporary restraining order, a preliminary or permanent injunction, or other appropriate relief.
4. If the attorney general has reason to believe that a person has engaged or is engaging in a deceptive trade practice, the attorney general may issue a subpoena to require the testimony of any person or the production of any documents, and may administer an oath or affirmation to any person providing such testimony. The subpoena must be served upon the person in the manner required for service of process in this state or by certified mail with return receipt requested. An employee of the attorney general may personally serve the subpoena.
Sec. 4 NRS 598.097 is hereby amended to read as follows:
598.097If any person fails to cooperate with any investigation, as provided in NRS 598.096, or if any person fails to obey a subpoena issued by the commissioner [or the director,] , director or attorney general pursuant to NRS 598.0963 or 598.0967, the commissioner , [or the] director or attorney general may apply to any district court for equitable relief. The application must state reasonable grounds showing that the relief is necessary to terminate or prevent a deceptive trade practice. If the court is satisfied of the reasonable grounds, the court may:
1. Grant injunctive relief restraining the sale or advertisement of any property by the person.
2. Require the attendance of or the production of documents by the person, or both.
3. Grant other relief necessary to compel compliance by the person.
Sec. 5 This act becomes effective on July 1, 1997.