|State||2013 Statute Number||2013 Statute Language|
|New Mexico||N.M. Stat. Ann. § 57-12-1 |
|Chapter 57, Article 12 NMSA 1978 may be cited as the “Unfair Practices Act”.|
|N.M. Stat. Ann. § 57-12-2 |
|As used in the Unfair Practices Act:|
A. “person” means, where applicable, natural persons, corporations, trusts, partnerships, associations, cooperative associations, clubs, companies, firms, joint ventures or syndicates;
B. “seller-initiated telephone sale” means a sale, lease or rental of goods or services in which the seller or the seller's representative solicits the sale by telephoning the prospective purchaser and in which the sale is consummated entirely by telephone or mail, but does not include a transaction:
(1) in which a person solicits a sale from a prospective purchaser who has previously made an authorized purchase from the seller's business; or
(2) in which the purchaser is accorded the right of rescission by the provisions of the federal Consumer Credit Protection Act, 15 U.S.C. 1635 or regulations issued pursuant thereto;
C. “trade” or “commerce” includes the advertising, offering for sale or distribution of any services and any property and any other article, commodity or thing of value, including any trade or commerce directly or indirectly affecting the people of this state;
D. “unfair or deceptive trade practice” means an act specifically declared unlawful pursuant to the Unfair Practices Act, a false or misleading oral or written statement, visual description or other representation of any kind knowingly made in connection with the sale, lease, rental or loan of goods or services or in the extension of credit or in the collection of debts by a person in the regular course of the person's trade or commerce, that may, tends to or does deceive or mislead any person and includes:
(1) representing goods or services as those of another when the goods or services are not the goods or services of another;
(2) causing confusion or misunderstanding as to the source, sponsorship, approval or certification of goods or services;
(3) causing confusion or misunderstanding as to affiliation, connection or association with or certification by another;
(4) using deceptive representations or designations of geographic origin in connection with goods or services;
(5) representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits or quantities that they do not have or that a person has a sponsorship, approval, status, affiliation or connection that the person does not have;
(6) representing that goods are original or new if they are deteriorated, altered, reconditioned, reclaimed, used or secondhand;
(7) representing that goods or services are of a particular standard, quality or grade or that goods are of a particular style or model if they are of another;
(8) disparaging the goods, services or business of another by false or misleading representations;
(9) offering goods or services with intent not to supply them in the quantity requested by the prospective buyer to the extent of the stock available, unless the purchaser is purchasing for resale;
(10) offering goods or services with intent not to supply reasonable expectable public demand;
(11) making false or misleading statements of fact concerning the price of goods or services, the prices of competitors or one's own price at a past or future time or the reasons for, existence of or amounts of price reduction;
(12) making false or misleading statements of fact for the purpose of obtaining appointments for the demonstration, exhibition or other sales presentation of goods or services;
(13) packaging goods for sale in a container that bears a trademark or trade name identified with goods formerly packaged in the container, without authorization, unless the container is labeled or marked to disclaim a connection between the contents and the trademark or trade name;
(14) using exaggeration, innuendo or ambiguity as to a material fact or failing to state a material fact if doing so deceives or tends to deceive;
(15) stating that a transaction involves rights, remedies or obligations that it does not involve;
(16) stating that services, replacements or repairs are needed if they are not needed;
(17) failing to deliver the quality or quantity of goods or services contracted for; or
(18) violating the Tobacco Escrow Fund Act; and
E. “unconscionable trade practice” means an act or practice in connection with the sale, lease, rental or loan, or in connection with the offering for sale, lease, rental or loan, of any goods or services, including services provided by licensed professionals, or in the extension of credit or in the collection of debts that to a person's detriment:
(1) takes advantage of the lack of knowledge, ability, experience or capacity of a person to a grossly unfair degree; or
(2) results in a gross disparity between the value received by a person and the price paid.
|N.M. Stat. Ann. § 57-12-3 |
Unfair or deceptive and unconscionable trade practices prohibited.
|Unfair or deceptive trade practices and unconscionable trade practices in the conduct of any trade or commerce are unlawful.|
|N.M. Stat. Ann. § 57-12-3.1|
Unauthorized use of delivery container prohibited.
|A. It shall be an unlawful practice within the meaning of the Unfair Practices Act for any person to:|
(1) remove the owner's container from the owner's or a recipient's premises or parking area without the permission of the owner or recipient;
(2) possess or use the owner's container if it has been removed from the owner's or recipient's premises or parking area without the permission of the owner or recipient;
(3) alter, convert, destroy or tamper with the owner's container without permission of the owner or recipient; or
(4) sell the owner's container to or purchase the owner's container from someone other than the owner without the permission of the owner.
B. As used in this section:
(1) “bakery rack” means a metal frame that holds bakery trays or other bakery products and that is used by a bakery, distributor or retailer or its agent as a means to transport, store or carry bakery products;
(2) “bakery tray” means a wire or plastic receptacle that holds bread, buns or other baked goods and that is used by a bakery, distributor or retailer or its agent as a means to transport, store or carry bakery products;
(3) “container” means a bakery rack, bakery tray, dairy case, egg basket, poultry box, shopping cart or pallet;
(4) “dairy case” means a plastic receptacle that holds sixteen quarts or more of beverage and that is used by a dairy, distributor or retailer or its agent as a means to transport, store or carry dairy products;
(5) “pallet” means a wooden or plastic base that allows stacks of merchandise to be placed upon it and that provides a space and support beneath the stack for forklift handling;
(6) “parking area” means a lot or other property provided by a recipient for the use of its customers to park vehicles while at the recipient's establishment;
(7) “poultry box” means a permanent type of container that is used by a processor, distributor, retailer or food service establishment or an agent of one of those persons to transport, store or carry poultry;
(8) “recipient” means a person, firm, corporation or association that is authorized by the owner to use an owner's container; and
(9) “shopping cart” means a basket that is mounted on wheels, or a similar device, that is generally used in a retail establishment by a customer to transport goods of any kind.
C. No civil action shall be maintained pursuant to this section against any person who returns to its owner within sixty days after the effective date of this section a container that was unlawfully obtained.
|N.M. Stat. Ann. § 57-12-4|
|It is the intent of the legislature that in construing Section 3 of the Unfair Practices Act the courts to the extent possible will be guided by the interpretations given by the federal trade commission and the federal courts.|
|N.M. Stat. Ann. § 57-12-5|
Chain referral sales technique; prohibited.
|The use or employment of any chain referral sales technique, plan, arrangement or agreement whereby the buyer is induced to purchase merchandise or services upon the seller's representation or promise that if the buyer will furnish the seller names of other prospective buyers of like or identical merchandise that the seller will contact the named prospective buyers and the buyer will receive a reduction in the purchase price by means of a cash rebate, commission, credit toward balance due or any other consideration, is declared to be an unlawful practice within the meaning of the Unfair Practices Act.|
|N.M. Stat. Ann. § 57-12-6|
Misrepresentation of motor vehicles; penalty.
|A. The willful misrepresentation of the age or condition of a motor vehicle by any person, including regrooving tires or performing chassis repair, without informing the purchaser of the vehicle that the regrooving or chassis repair has been performed, is an unlawful practice within the meaning of the Unfair Practices Act, unless the alleged misrepresentation is based wholly on repair of damage, the disclosure of which was not required pursuant to Subsection C of this section. The failure to provide an affidavit pursuant to Subsection B of this section when there has been repair for which disclosure is required shall constitute prima facie evidence of willful misrepresentation.|
B. Except as provided in Subsections C and D of this section, a seller of a motor vehicle shall furnish at the time of sale of a motor vehicle an affidavit that:
(1) describes the vehicle; and
(2) states to the best of the seller's knowledge whether there has been an alteration or chassis repair due to wreck damage.
C. No affidavit shall be required pursuant to this section if the flat rate manual cost of the alteration or chassis repair is less than six percent of the sales price of the vehicle.
D. In the case of a private-party sale of a vehicle, an affidavit shall be furnished only upon the request of the purchasing party.
E. Notwithstanding the provisions of Subsection D of Section 57-12-10 NMSA 1978, the award of three times actual damages as provided for in that section shall be in lieu of any award of punitive damages based only on those facts constituting the unfair or deceptive trade practice or unconscionable trade practice.
F. Any person who violates this section is guilty of a misdemeanor.
|N.M. Stat. Ann. § 57-12-7|
|Nothing in the Unfair Practices Act shall apply to actions or transactions expressly permitted under laws administered by a regulatory body of New Mexico or the United States, but all actions or transactions forbidden by the regulatory body, and about which the regulatory body remains silent, are subject to the Unfair Practices Act.|
|N.M. Stat. Ann. § 57-12-8|
Restraint of prohibited acts; remedies for violations.
|A. Whenever the attorney general has reasonable belief that any person is using, has used or is about to use any method, act or practice which is declared by the Unfair Practices Act to be unlawful, and that proceedings would be in the public interest, he may bring an action in the name of the state alleging violations of the Unfair Practices Act. The action may be brought in the district court of the county in which the person resides or has his principal place of business or in the district court in any county in which the person is using, has used or is about to use the practice which has been alleged to be unlawful under the Unfair Practices Act. The attorney general acting on behalf of the state of New Mexico shall not be required to post bond when seeking a temporary or permanent injunction in such action.|
B. In any action filed pursuant to the Unfair Practices Act, including an action with respect to unimproved real property, the attorney general may petition the district court for temporary or permanent injunctive relief and restitution.
|N.M. Stat. Ann. § 57-12-9|
|A. In lieu of beginning or continuing an action pursuant to the Unfair Practices Act, the attorney general may accept a written assurance of discontinuance of any practice in violation of the Unfair Practices Act from the person who has engaged in the unlawful practice. The attorney general may require an agreement by the person engaged in the unlawful practice that, by a date set by the attorney general and stated in the assurance, he will make restitution to all persons of money, property or other things received from them in any transaction related to the unlawful practice. All settlements are a matter of public record but are not admissible against any defendant in any action brought by any other person or public body against such defendant under the Unfair Practices Act and do not constitute a basis for the introduction of the assurance of discontinuance as prima facie evidence against such defendant in any action or proceeding.|
B. A person need not accept restitution pursuant to an assurance. His acceptance of restitution bars recovery of any damages in any action by him or on his behalf against the same defendant on account of the same unlawful practice.
C. A violation of an assurance entered into pursuant to this section is a violation of the Unfair Practices Act.
|N.M. Stat. Ann. § 57-12-10|
|A. A person likely to be damaged by an unfair or deceptive trade practice or by an unconscionable trade practice of another may be granted an injunction against it under the principles of equity and on terms that the court considers reasonable. Proof of monetary damage, loss of profits or intent to deceive or take unfair advantage of any person is not required. Relief granted for the copying of an article shall be limited as to the prevention of confusion or misunderstanding as to source.|
B. Any person who suffers any loss of money or property, real or personal, as a result of any employment by another person of a method, act or practice declared unlawful by the Unfair Practices Act may bring an action to recover actual damages or the sum of one hundred dollars ($100), whichever is greater. Where the trier of fact finds that the party charged with an unfair or deceptive trade practice or an unconscionable trade practice has willfully engaged in the trade practice, the court may award up to three times actual damages or three hundred dollars ($300), whichever is greater, to the party complaining of the practice.
C. The court shall award attorney fees and costs to the party complaining of an unfair or deceptive trade practice or unconscionable trade practice if the party prevails. The court shall award attorney fees and costs to the party charged with an unfair or deceptive trade practice or an unconscionable trade practice if it finds that the party complaining of such trade practice brought an action that was groundless.
D. The relief provided in this section is in addition to remedies otherwise available against the same conduct under the common law or other statutes of this state.
E. In any class action filed under this section, the court may award damages to the named plaintiffs as provided in Subsection B of this section and may award members of the class such actual damages as were suffered by each member of the class as a result of the unlawful method, act or practice.
F. A party to a court action for a private remedy pursuant to this section may request in writing during the thirty-day period following service of the summons and complaint on all parties named in the action that the parties attempt to settle the claim in early mediation. If a request for mediation is made, the parties shall choose a mutually acceptable mediator and enter into mediation within sixty days of the appointment of an acceptable mediator unless otherwise agreed by the parties. A request for mediation may be rescinded at any time if agreed to by all parties.
G. If the parties do not agree on a mutually acceptable mediator, the court shall appoint the mediator. If the early mediation pursuant to this section is entered into within sixty days following the appointment of the mediator, the parties suing on the basis of unfair, deceptive or unconscionable trade practices or acts under the Unfair Practices Act shall be required to pay no more than fifty dollars ($50.00) toward the cost of the mediation and the other party shall pay the remainder of such cost, unless otherwise agreed by the parties. If a person is seeking injunctive relief in accordance with Subsection A of this section, the person may pursue the claim for injunctive relief without following the mediation requirements of this subsection and Subsection F of this section.
|N.M. Stat. Ann. § 57-12-11|
|In any action brought under Section 57-12-8 NMSA 1978, if the court finds that a person is willfully using or has willfully used a method, act or practice declared unlawful by the Unfair Practices Act, the attorney general, upon petition to the court, may recover, on behalf of the state of New Mexico, a civil penalty of not exceeding five thousand dollars ($5,000) per violation.|
|N.M. Stat. Ann. § 57-12-14|
|The Unfair Practices Act neither enlarges nor diminishes the rights of parties in private litigation.|
|N.M. Stat. Ann. § 57-12-16|
Advertising media excluded.
|The Unfair Practices Act does not apply to publishers, broadcasters, printers or other persons engaged in the dissemination of information or reproduction of printed or pictorial matters who publish, broadcast or reproduce material without knowledge of its deceptive or unconscionable character.|
|N.M. Stat. Ann. § 57-12-21|
Door-to-door sales; contracts; requirements; prohibitions.
|A. In connection with any door-to-door sale, it constitutes an unfair or deceptive trade practice for any seller to:|
(1) fail to furnish the buyer with a fully completed receipt or copy of any contract pertaining to such sale at the time of its execution that is in the same language as that principally used in the oral sales presentation and that shows the date of the transaction and contains the name and address of the seller and, in immediate proximity to the space reserved in the contract for the signature of the buyer or on the front page of the receipt if a contract is not used and in bold face 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 form for an explanation of this right.”;
(2) fail to furnish each buyer, at the time he signs the door-to-door sales contract or otherwise agrees to buy consumer goods or services from the seller, a completed form in duplicate, captioned “NOTICE OF CANCELLATION”, that shall be attached to the contract or receipt and easily detachable and that shall contain in ten-point bold face type the following information and statements in the same language as that used in the contract:
“NOTICE OF CANCELLATION
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:
(name of seller)
(address of seller's place of business)
not later than midnight of
I hereby cancel this transaction.
(3) fail, before furnishing copies of the notice of cancellation to the buyer, to 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;
(4) include in any door-to-door contract or receipt any confession of judgment or any waiver of any of the rights to which the buyer is entitled under this section, including specifically his right to cancel the sale in accordance with the provisions of this section;
(5) fail to inform each buyer orally, at the time he signs the contract or purchases the goods or services, of his right to cancel;
(6) misrepresent in any manner the buyer's right to cancel;
(7) fail or refuse to honor any valid notice of cancellation by a buyer and, within ten business days after the receipt of such notice, fail to:
(a) refund all payments made under the contract or sale;
(b) return in substantially as good condition as when received by the seller any goods or property traded in; and
(c) cancel and return any negotiable instrument executed by the buyer in connection with the contract or sale and take any action necessary or appropriate to terminate promptly any security interest created in the transaction;
(8) negotiate, transfer, sell or assign any notice or other evidence of indebtedness to a finance company or other third party prior to midnight of the fifth business day following the day the contract was signed or the goods or services were purchased; and
(9) fail to notify the buyer, within ten business days of receipt of his notice of cancellation, whether the seller intends to repossess or to abandon any shipped or delivered goods.
B. The cancellation period provided for in this section as applied to telephone initiated sales shall not begin until the buyer has been informed of his right to cancel and has been provided with copies of the notice of cancellation.
C. For the purposes of this section:
(1) “business day” means any calendar day except Sunday or the following business holidays: new year's day, Washington's birthday, memorial day, independence day, labor day, Columbus day, veterans' day, thanksgiving day, Christmas day, Martin Luther King, Jr.'s birthday and any other legal public holiday of the state of New Mexico or the United States;
(2) “consumer goods or services” means goods or services other than perishable goods or agricultural products purchased, leased or rented primarily for personal, family or household purposes, including courses of instruction or training, regardless of the purpose for which they are taken;
(3) “door-to-door sale” means a sale, lease or rental of consumer goods or services with a purchase price of twenty-five dollars ($25.00) or more, whether under single or multiple contracts, in which the seller or his representative personally solicits the sale, including those in response to or following an invitation by the buyer, and the buyer's agreement or offer to purchase is made at a place other than the place of business of the seller. A door-to-door sale includes seller initiated telephone sales. A door-to-door sale does not include a transaction:
(a) made pursuant to prior negotiations in the course of a visit by the buyer 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;
(b) in which the consumer is accorded the right of rescission by the provisions of the Consumer Credit Protection Act, 15 U.S.C. 1635, or regulations issued pursuant thereto;
(c) in which the buyer has initiated the contract and the goods or services are needed to meet a bona fide immediate personal emergency of the buyer, and the buyer furnishes the seller with a separate dated and signed personal statement in the buyer's handwriting describing the situation requiring immediate remedy and expressly acknowledging and waiving the right to cancel the sale within three business days;
(d) in which the buyer has initiated the contract and specifically requested the seller to visit his home for the purpose of repairing or performing maintenance upon the buyer's personal property. If in the course of such a visit the seller sells the buyer 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;
(e) pertaining to the sale or rental of real property, to the sale of insurance or to the sale of securities or commodities by a broker-dealer registered with the securities and exchange commission; or
(f) in which a consumer acquires the use of goods under the terms of a rental-purchase agreement made pursuant to the provisions of the Rental-Purchase Agreement Act, with an initial rental period of one week or less, by placing a telephone call to a lessor and by requesting that specific goods be delivered to the consumer's residence or such other place as the consumer directs and consummation of the rental-purchase agreement occurs after the goods are delivered;
(4) “place of business” means the main or permanent branch office or local address of a seller;
(5) “purchase price” means the total price paid or to be paid for the consumer goods or services, including all interest and service charges; and
(6) “seller” means any person, partnership, corporation or association engaged in the door-to-door sale of consumer goods or services.
|N.M. Stat. Ann. § 57-12-22|
Telephone solicitation sales; automated telephone dialing systems for sales restricted; disclosure and other requirements established for authorized telephone solicitation sales; prohibited telephone solicitation.
|A. A person shall not utilize an automated telephone dialing or push-button or tone-activated address signaling system with a prerecorded message to solicit persons to purchase goods or services unless there is an established business relationship between the persons and the person being called consents to hear the prerecorded message.|
B. It is unlawful under the Unfair Practices Act for a person to make a telephone solicitation for a purchase of goods or services:
(1) without disclosing within fifteen seconds of the time the person being called answers the name of the sponsor and the primary purpose of the contact;
(2) that misrepresents the primary purpose of a telephone solicitation of a residential subscriber as a “courtesy call”, a “public service information call” or some other euphemism;
(3) under the guise of research or a survey when the real intent is to sell goods or services;
(4) without disclosing, prior to commitments by customers, the cost of the goods or services, all terms, conditions, payment plans and the amount or existence of any extra charges such as shipping and handling;
(5) that are received before 9:00 a.m. or after 9:00 p.m.;
(6) using automatic dialing equipment unless the telephone immediately releases the line when the called party disconnects;
(7) using automatic dialing equipment that dials and engages the telephone numbers of more than one person at a time but allows the possibility of a called person not being connected to the calling person for some period not exceeding that established by the federal trade commission at 16 C.F.R. Sections 310(b)(1)(iv) and 310.4(b)(4); and
(8) in which credit card numbers are requested before the prospective purchaser expresses a desire to use a credit card to pay for the purchase.
C. It is unlawful for a person to:
(1) make a telephone solicitation of a residential subscriber whose telephone number has been on the national do-not-call registry, established by the federal trade commission, for at least three months prior to the date the call is made; or
(2) use a method to block or otherwise intentionally circumvent a residential subscriber's use of a caller identification service pursuant to the Consumer No-Call Act.
D. As used in this section:
(1) “established business relationship” means a relationship that:
(a) was formed, prior to a telephone solicitation, through a voluntary, two-way communication between a seller or telephone solicitor and a residential subscriber, with or without consideration, on the basis of an application, purchase, ongoing contractual agreement or commercial transaction between the parties regarding products or services offered by the seller or telephone solicitor; and
(b) currently exists or has existed within the immediately preceding twelve months;
(2) “local exchange company” means a telecommunications company that provides the transmission of two-way interactive switched voice communications within a local exchange area;
(3) “residential subscriber” means a person who has subscribed to residential telephone service from a local exchange company or the other persons living or residing with such person; and
(4) “telephone solicitation” means a voice or telefacsimile communication over a telephone line for the purpose of encouraging the purchase or rental of or investment in property, goods or services and includes a communication described in this subsection through the use of automatic dialing and recorded message equipment or by other means, but “telephone solicitation” does not include a communication:
(a) to a residential subscriber with that subscriber's prior express invitation or permission;
(b) by or on behalf of a person with whom a residential subscriber has an established business relationship;
(c) made for the sole purpose of urging support for or opposition to a political candidate or ballot issue;
(d) made for the sole purpose of conducting political polls or soliciting the expression of opinions, ideas or votes; or
(e) by a person who is a duly licensed real estate broker pursuant to Section 61-29-11 NMSA 1978, who is a resident of the state and whose telephone call to the consumer is for the sole purpose of selling, exchanging, purchasing, renting, listing for sale or rent or leasing real estate in accordance with the provisions for which he or she is licensed and not in conjunction with any other offer.
|N.M. Stat. Ann. § 57-12-23|
Unsolicited facsimiles or email; prohibition.
|A. No person conducting business in this state shall transmit by facsimile or cause to be transmitted by facsimile an unsolicited advertisement unless:|
(1) the person establishes a toll-free telephone number that a recipient of the unsolicited advertisement may call to notify the person not to send the recipient any additional unsolicited advertisement; and
(2) the unsolicited advertisement includes a statement, in at least nine-point type, informing the recipient of the toll-free telephone number that the recipient may call to notify the sender not to send the recipient any additional unsolicited information.
B. No person conducting business in this state shall email or cause to be emailed an unsolicited advertisement unless:
(1) the person establishes a toll-free telephone number or a valid sender-operated return email address that a recipient of the unsolicited advertisement may call or email to notify the person not to send the recipient any additional unsolicited advertisement;
(2) the unsolicited advertisement includes a statement, in the first text of the body of the message and in the same size as the majority of the text of the message, informing the recipient of the toll-free telephone number or the email address that the recipient may call or email to notify the sender not to send the recipient any additional unsolicited advertisement;
(3) the subject line of the email includes “ADV:” as the first four characters; and
(4) if the unsolicited advertisement advertises realty, goods, services, intangibles or the extension of credit that may only be viewed, purchased, licensed, rented, leased or held in the possession by an individual eighteen years of age or older, the subject line of the email includes “ADV:ADLT” as the first eight characters.
C. After notification by a recipient of the recipient's request not to receive any further unsolicited advertisement, no person conducting business in this state shall transmit by facsimile, cause to be transmitted by facsimile, email or cause to be emailed any unsolicited advertisement to that recipient.
D. In the case of an employer who is the registered owner of more than one email address, the notification required by Subsection C of this section may be given by the employer on behalf of all of the employees who may use email addresses provided and controlled by the employer.
E. No person shall knowingly or intentionally assist in the transmission of an unsolicited advertisement by facsimile or email if the person knows, or consciously avoids knowing, that the initiator of the advertisement is engaged, or intends to engage, in a violation of this section.
F. A violation of a provision of this section constitutes an unfair or deceptive trade practice.
G. As used in this section and Section 57-12-24 NMSA 1978:
(1) “transmit by facsimile”, “cause to be transmitted by facsimile”, “email”, “cause to be emailed” or “assist in the transmission” does not include the transmission of an unsolicited advertisement by a telecommunications utility or an internet service provider that merely carries the transmission over its network or who acts or fails to act as allowed by contract or other law, including but not limited to 47 USCA 230(c); and
(2) “unsolicited advertisement” means information transmitted by facsimile or email that:
(a) advertises the lease, sale, license, rental, gift offer or other disposition of any realty, goods, services, intangibles or the extension of credit; and
(b) is addressed to a recipient with whom the sender does not have an existing business or personal relationship; or
(c) is not sent at the request of, or with the express consent of, the recipient.
|N.M. Stat. Ann. § 57-12-24|
Unsolicited facsimiles or email; private remedy.
|A. Any person who receives an unsolicited advertisement by facsimile or email may bring an action against the sender of the unsolicited advertisement to recover actual damages, including loss of profits, or statutory damages equal to the greater of twenty-five dollars ($25.00) for each email or facsimile received or five thousand dollars ($5,000) for each day of violation, plus reasonable attorney fees and costs if, prior to receiving the unsolicited advertisement:|
(1) the person who received the unsolicited advertisement has notified the sender, pursuant to the provisions of Section 57-12-23 NMSA 1978, of the person's request not to receive unsolicited advertisements; or
(2) the sender of the unsolicited advertisement has entered into a written assurance of discontinuance pursuant to Section 57-12-9 NMSA 1978.
B. A telecommunications utility or internet service provider, injured by a violation of a provision of Section 57-12-23 NMSA 1978 or this section, may recover actual damages, including loss of profits, or statutory damages equal to the greater of ten dollars ($10.00) for each facsimile or email transmitted or five thousand dollars ($5,000) for each day of violation plus reasonable attorney fees and costs.
C. The remedies provided in this section are in addition to any available remedies otherwise provided by law.
|N.M. Stat. Ann. § 57-12-25|
Solicitations using loan information; restriction; cause of action.
|A. A person shall not reference the trade name or trademark of a lender or a trade name or trademark confusingly similar to that of a lender in a solicitation offering services or products without the consent of the lender, unless the solicitation clearly and conspicuously states the following in close proximity to and in the same or larger point type as the first and the most prominent use of a lender's trade name or trademark:|
(1) the name, address and telephone number of the person making the solicitation;
(2) that the person making the solicitation is not affiliated with the lender;
(3) that the solicitation is not authorized or sponsored by the lender; and
(4) that the loan information referenced was not provided by the lender.
B. A person shall not reference a loan number, loan amount or other specific loan information that is not publicly available in a solicitation offering services or products, unless the information is included in a communication from a lender or an affiliate of a lender to a current customer of the lender or a person who was a customer of the lender during the eighteen months immediately preceding the solicitation.
C. Except as provided in Subsection D of this section, a person shall not reference a loan number, loan amount or other specific loan information that is publicly available in a solicitation offering services or products, unless the solicitation clearly and conspicuously states the following in close proximity to and in the same or larger point type as the first and the most prominent use of the loan number, loan amount or other specific loan information:
(1) the name, address and telephone number of the person making the solicitation;
(2) that the person making the solicitation is not affiliated with the lender;
(3) that the solicitation is not authorized or sponsored by the lender; and
(4) that the loan information referenced was not provided by the lender.
D. Subsection C of this section does not apply to a communication by a lender or an affiliate of a lender with a current customer of the lender or with a person who was a customer of the lender during the eighteen months immediately preceding the communication.
E. A person shall not use the name of a lender or a name similar to that of a lender in a solicitation directed to consumers if that use could cause a reasonable person to be confused, mistaken or deceived as to:
(1) the lender's sponsorship, affiliation, connection or association with the person using the name; or
(2) the lender's approval or endorsement of the person using the name or the person's services or products.
F. Any reference to an outstanding loan, including the name of the lender, the loan number, the loan amount or other specific information about the loan that appears on the outside of an envelope, that is visible through the envelope window or that appears on a postcard in connection with any written communication that includes or contains a solicitation for goods or services, is prohibited without the consent of the lender.
G. The prohibitions of this section do not apply to the use by a person of the trade name of another lender in an advertisement for services or products that compares the services or products offered by the other lender.
H. A lender or owner of a trade name or trademark may seek an injunction in a state district court against a person who violates this section to stop the unlawful use of the trade name, trademark or loan information. In such an action:
(1) the person seeking the injunction shall not have to prove actual damage as a result of the violation; and
(2) irreparable harm and interim harm to the lender or owner shall be presumed.
I. A lender or owner seeking an injunction under Subsection H of this section may, in the same action, seek to recover actual damages and any profits the defendant has accrued as a result of a violation of this section. The prevailing party in an action brought pursuant to this section may recover costs associated with the action and reasonable attorney fees from the other party.
J. As used in this section:
(1) “affiliate” means a business entity that, directly or indirectly through one or more intermediaries controls, is controlled by or is under common control with another business entity; and
(2) “lender” means an insured state or national bank, a state or federal savings and loan association or savings bank, a state or federal credit union, a mortgage loan company, an escrow company or any other person who makes loans in this state or a holder of a loan and any affiliate, or any third party operating with the consent of the lender.
|N.M. Stat. Ann. § 57-12-26|
Gift certificates; expiration; fees; penalties.
|A. As used in this section, “gift certificate” means a writing identified as a gift certificate that is not redeemable in cash and is usable in its face amount in lieu of cash in exchange for goods or services supplied by a seller, but does not include a gift certificate useable with multiple unaffiliated sellers or goods or services. “Gift certificate” includes an electronic card with a banked dollar value, a merchandise credit, a certificate where the issuer has received payment for the full face value for the future purchase or delivery of goods or services and any other medium that evidences the giving of consideration in exchange for the right to redeem the certificate, electronic card or other medium for goods or services of at least an equal value. “Gift certificate” does not include:|
(1) gift certificates, store gift cards or general use prepaid cards distributed to a consumer for promotional, award, incentive, rebate or other similar purposes without any money or other tangible thing of value being given by the consumer in exchange for the gift certificate, store gift card or general use prepaid card;
(2) gift certificates, store gift cards or general use prepaid cards that are sold below face value or at a volume discount to employers or to nonprofit and charitable organizations for fund-raising purposes;
(3) written promises, plastic cards or other electronic devices that are:
(a) used solely for telephone services; or
(b) are associated with a deposit, checking, savings or similar account at a banking or other similarly regulated financial institution and that provide payments solely by debiting such account; and
(4) gift certificates issued by banks, savings and loan associations and their affiliates and subsidiaries, licensed money transmitters or credit unions operating pursuant to the laws of the United States or New Mexico.
B. A gift certificate shall not have an expiration date less than sixty months after the date upon which the gift certificate was issued. If an expiration date is not conspicuously stated on a gift certificate, that gift certificate shall be presumed to have no expiration date and shall be valid until redeemed or replaced.
C. An issuer of a gift certificate shall not charge a fee of any kind in relation to the sale, redemption or replacement of a gift certificate other than an initial charge not exceeding the face value of the gift certificate, nor may a gift certificate be reduced in value by any fee, including a service or dormancy fee.
D. A violation of this section shall constitute an unfair or deceptive trade practice and shall be subject to the penalties set forth in the Unfair Practices Act.
|N.M. Stat. Ann. § 57-12B-2|
|As used in the Privacy Protection Act:|
A. “business” means a commercial enterprise that:
(1) sells or leases or intends to sell or lease products, goods or services to consumers;
(2) is an agent of a business described in Paragraph (1) of this subsection; or
(3) is an agent of a nonprofit organization selling marketing services to that organization; and
B. “consumer” means a natural person, who is a resident of New Mexico, and who purchases, leases or otherwise contracts for products, goods or services within New Mexico that are primarily used for personal, family or household purposes.
|N.M. Stat. Ann. § 57-12B-3|
Disclosure of social security number.
|A. Except as provided in Subsection B of this section, no business shall require a consumer's social security number as a condition for the consumer to lease or purchase products, goods or services from the business.|
B. Nothing in this section prohibits a business from requiring or requesting a consumer's social security number if the number will be used in a manner consistent with state or federal law or as part of an application for credit or in connection with annuity or insurance transactions.
C. Nothing in this section prohibits a business from acquiring or using a consumer's social security number if the consumer consents to the acquisition or use.
D. A company acquiring or using social security numbers of consumers shall adopt internal policies that:
(1) limit access to the social security numbers to those employees authorized to have access to that information to perform their duties; and
(2) hold employees responsible if the social security numbers are released to unauthorized persons.
|N.M. Stat. Ann. § 57-12B-4|
Use of social security numbers restricted; exceptions.
|A. Except as provided in Subsection B of this section, a business shall not:|
(1) make the entirety of a social security number available to the general public. This prohibition includes:
(a) intentionally communicating a social security number to the general public; and
(b) printing a social security number on a receipt issued for the purchase of products or services, including a receipt for the purchase of services from the state or its political subdivisions;
(2) require the use of a social security number:
(a) over the internet without a secure connection or encryption security; or
(b) to access an internet account unless a password or unique personal identification number or other personal authentication device is also required to access the account;
(3) print a social security number on materials mailed to a consumer unless authorized or required by federal or state law; provided that nothing in this paragraph prohibits a business from requiring a consumer, as part of an application or enrollment process, or to establish, amend or terminate an account, contract or policy, or to confirm the accuracy of the social security number, to enter a social security number on material to be mailed by the consumer as long as it is not required to be entered, in whole or in part:
(a) on a postcard or other mailer not requiring an envelope;
(b) on the envelope; or
(c) in any other manner in which the number may be visible without the envelope being opened;
(4) transmit material that associates a social security number with an account number for a bank, savings and loan association or credit union, unless both numbers are required as part of an application or enrollment process or to establish, amend or terminate an account, contract or policy or to confirm the accuracy of the social security, bank, savings and loan association or credit union account number; or
(5) refuse to transact business because of a refusal to provide the social security number for use of that number in a manner prohibited by Paragraphs (1) through (4) of this subsection.
B. The provisions of Subsection A of this section do not apply to:
(1) the use of a social security number by a business if the social security number:
(a) was furnished for a document generated prior to January 1, 2006 and the business is copying or reproducing that document; or
(b) exists on an original document generated prior to January 1, 2006;
(2) the collection, use or release of a social security number by a business if the business complies with Subsection D of Section 57-12B-3 NMSA 1978 and if the collection, use or release:
(a) is part of an application or enrollment process or is used to establish, amend or terminate an account, contract or policy;
(b) is required or authorized by federal or state law or is required for the business to comply with federal or state law; or
(c) is for internal verification or administrative purposes; or
(3) documents that are filed in court or public records or documents recorded in public records or required to be open to the public under federal law, state law, applicable case law, supreme court rule or the constitution of New Mexico.
|N.M. Stat. Ann. § 57-13-2|
|As used in the Pyramid Promotional Schemes Act:|
A. “compensation” includes a payment based on a sale or distribution made to a person who either is a participant in a pyramid promotional scheme or has the right to become a participant upon payment;
B. “consideration” means the payment of cash or the purchase of goods, services or intangible property but does not include:
(1) the purchase of goods or services furnished at cost to be used in making sales and not for resale; or
(2) time and effort spent in pursuit of sales or recruiting activities; and
C. “pyramid promotional scheme” means any plan or operation by which a participant gives consideration for the opportunity to receive compensation which is derived primarily from any person's introduction of other persons into participation in the plan or operation rather than from the sale of goods, services or intangible property by the participant or other persons introduced into the plan or operation.
|N.M. Stat. Ann. § 57-13-3|
Prohibition; defenses excluded
|A. A person shall not establish, operate, advertise or promote a pyramid promotional scheme.|
B. A limitation as to the number of persons who may participate or the presence of additional conditions affecting eligibility for the opportunity to receive compensation under the plan or operation does not change the identity of the scheme as a pyramid promotional scheme nor is it a defense under this article that a participant, on giving consideration, obtains any goods, services or intangible property in addition to the right to receive compensation.
|N.M. Stat. Ann. § 57-14-2|
|As used in the Price Discrimination Act:|
A. “person” means an individual, partnership, association, corporation, joint-stock company or business trust;
B. “price” means the net price to the buyer after deduction of all discounts, rebates or other price concessions paid or allowed by the seller;
C. “commerce” means trade within this state; and
D. “commodity” means any movable article or any commercial service sold in commerce.
|N.M. Stat. Ann. § 57-14-3|
|A. It is unlawful for any person engaged in commerce, either directly or indirectly, intentionally, for the purpose of destroying competition or eliminating a competitor, to:|
(1) discriminate in price between different purchasers of commodities of like grade and quality; or
(2) discriminate in price between different sections, communities or cities in this state where the effect is to lessen competition substantially, to create a monopoly in any line of commerce or to injure, destroy or prevent competition with any person who grants or knowingly receives the benefit of the discrimination, or with customers of either.
B. This section does not prevent:
(1) allowance for differences in cost of manufacture, sale or delivery resulting from differing methods or quantities in which commodities are sold or delivered;
(2) persons engaged in selling goods, wares or merchandise in commerce from selecting their own customers in bona fide transactions not in restraint of trade; or
(3) price changes in response to changing conditions affecting the market or marketability of goods.
|N.M. Stat. Ann. § 57-14-6|
|It is unlawful for any person engaged in commerce:|
A. to pay or contract for payment of anything of value to or for the benefit of a customer as compensation for any services or facilities furnished by or through the customer in connection with the processing, handling, sale or offering for sale of any products or commodities manufactured, sold or offered for sale unless the payment or compensation is available on proportionally equal terms to all other customers competing in the distribution of the products or commodities;
B. to discriminate in favor of one purchaser against another purchaser of a commodity bought for resale, with or without processing, by contracting to furnish or furnishing, or by contributing to the furnishing of any services or facilities connected with the processing, handling, sale or offering for sale of the commodity purchased on terms not accorded to all purchasers on proportionally equal terms; or
C. knowingly to induce or receive a discrimination in price which is prohibited by the Price Discrimination Act.
|N.M. Stat. Ann. § 57-15-1|
False advertising unlawful.
|False advertising in the conduct of any business, trade or commerce or in the furnishing of any service in this state is hereby declared unlawful.|
|N.M. Stat. Ann. § 57-15-2|
False advertising defined.
|The term false advertising means advertising, including labeling, which is misleading in any material respect; and in determining whether any advertising is misleading, there shall be taken into account (among other things) not only representations made by statement, word, design, device, sound or any combination thereof, but also the extent to which the advertising fails to reveal facts material in the light of such representations with respect to the commodity to which the advertising relates under the conditions prescribed in said advertisement, or under such conditions as are customary or usual.|
|N.M. Stat. Ann. § 57-16-4|
Unlawful acts; dealers.
|It is unlawful for any dealer to:|
A. require a retail purchaser of a new motor vehicle, as a condition of sale and delivery thereof, to purchase special features, equipment, parts or accessories not ordered or desired by the purchaser, provided such features, equipment, parts or accessories are not already installed on the new motor vehicle when received by the dealer;
B. use false, deceptive or misleading advertising in connection with his business;
C. willfully defraud any retail buyer to the buyer's damage;
D. fail to perform the obligations placed on the dealer in connection with the delivery and preparation of a new motor vehicle for retail sale as provided in the manufacturer's preparation and delivery agreements;
E. fail to perform the obligations placed on the dealer in connection with the manufacturer's warranty agreements;
F. represent or sell as a new motor vehicle any motor vehicle which has been used and operated for demonstration purposes or which is otherwise a used motor vehicle; or
G. intentionally fail to perform any written agreement with any retail buyer.
|N.M. Stat. Ann. § 57-16A-2|
|As used in the Motor Vehicle Quality Assurance Act:|
A. “collateral charges” means additional charges to a consumer not directly attributed to a manufacturer's suggested retail price label for a new motor vehicle and includes all taxes, license, title and registration fees and other governmental charges related to the purchase of the vehicle;
B. “comparable motor vehicle” means an identical or reasonably equivalent motor vehicle;
C. “consumer” means the purchaser, other than for purposes of resale, of a new or used motor vehicle normally used for personal, family or household purposes, a person to whom such a motor vehicle has been transferred during the duration of an express warranty applicable to the motor vehicle and any other person entitled by the terms of the warranty to enforce the obligations of the warranty;
D. “express warranty” means a written affirmation of the fact of promise made by a manufacturer to a consumer in connection with the sale of a new or used motor vehicle that relates to the nature of the material or workmanship or to a specified level of performance over a specified period of time, including any terms or conditions precedent to the enforcement of obligations pursuant to the warranty;
E. “manufacturer” means a person engaged in the manufacturing, assembling, importing or distributing of a motor vehicle as a regular business;
F. “motor vehicle” means a passenger motor vehicle, including an automobile, pickup truck, motorcycle or van normally used for personal, family or household purposes, that is sold and registered in this state and whose gross vehicle weight is less than ten thousand pounds;
G. “used motor vehicle” means a motor vehicle that has been sold, bargained or exchanged or a motor vehicle that is the subject of a title that has been transferred from the person who first acquired the motor vehicle from the manufacturer, importer or dealer or agent of the manufacturer or importer and that has been placed in bona fide consumer use; and
H. “used motor vehicle dealer” means a person or business that sells or offers for sale a used motor vehicle after selling or offering for sale four or more used motor vehicles in the previous twelve months but does not include:
(1) a bank or financial institution;
(2) an insurance company;
(3) a business selling a used motor vehicle to an employee of the business; or
(4) a lessor selling a leased vehicle to the lessee of the vehicle or to an employee of the lessee of the vehicle.
|N.M. Stat. Ann. § 57-16A-3.1|
Used motor vehicles.
|A. Unless a seller is a used motor vehicle dealer, before the seller attempts to sell a used motor vehicle, the seller shall possess the title to the used motor vehicle and the title shall be in the seller's name.|
B. Except as otherwise provided in the Motor Vehicle Quality Assurance Act, a used motor vehicle dealer shall not exclude, modify or disclaim the implied warranty of merchantability prescribed in Section 55-2-314 NMSA 1978 or limit the remedies for a breach of the warranty before midnight of the fifteenth calendar day after delivery of a used motor vehicle or until a used motor vehicle is driven five hundred miles after delivery, whichever is earlier. In calculating time under this subsection, a day on which the warranty is breached and all subsequent days in which the used motor vehicle fails to conform with the implied warranty of merchantability are excluded. In calculating distance under this subsection, the miles driven to obtain or in connection with the repair, servicing or testing of the used motor vehicle that fails to conform with the implied warranty of merchantability are excluded. An attempt to exclude, modify or disclaim the implied warranty of merchantability or to limit the remedies for a breach of the warranty in violation of this subsection renders a purchase agreement voidable at the option of the purchaser.
C. An implied warranty of merchantability is met if a used motor vehicle functions substantially free of a defect that significantly limits the use of the used motor vehicle for the ordinary purpose of transportation on any public highway. The implied warranty of merchantability expires at midnight of the fifteenth calendar day after delivery of a used motor vehicle or until a used motor vehicle is driven five hundred miles after delivery, whichever is earlier. In calculating time, a day on which the implied warranty of merchantability is breached is excluded and all subsequent days in which the used motor vehicle fails to conform with the warranty are also excluded. In calculating distance, the miles driven to obtain or in connection with the repair, servicing or testing of the used motor vehicle that fails to conform with the implied warranty of merchantability are excluded.
D. An implied warranty of merchantability does not extend to damage that occurs after the sale of the used motor vehicle that results from:
(1) off-road use;
(7) failure to perform regular maintenance; and
(8) failure to maintain adequate oil, coolant and other required fluids or lubricants.
E. If the implied warranty of merchantability described in this section is breached, the consumer shall give reasonable notice to the seller within thirty days of the date of the breach. Before the consumer exercises another remedy pursuant to Chapter 55, Article 2 NMSA 1978, the seller shall have a reasonable opportunity to repair the used motor vehicle. The consumer shall pay one-half of the cost of the first two repairs necessary to bring the used motor vehicle into compliance with the warranty. The payments by the consumer are limited to a maximum payment of twenty-five dollars ($25.00) for each repair.
F. The maximum liability of a seller pursuant to this section is limited to the purchase price paid for the used motor vehicle, to be refunded to the consumer or lender, as applicable, in exchange for return of the vehicle, unless the seller knew or should have known of the defect given the circumstances in which the vehicle was acquired or sold and the seller did not disclose that defect.
G. An agreement for the sale of a used motor vehicle by a used motor vehicle dealer is voidable at the option of the consumer unless it contains on its face the following conspicuous statement printed in boldface, ten-point or larger type set off from the body of the agreement:
“New Mexico law requires that this vehicle will be fit for the ordinary purposes for which the vehicle is used for fifteen days or five hundred miles after delivery, whichever is earlier, except with regard to particular defects disclosed on the first page of this agreement. You (the consumer) will have to pay up to twenty-five dollars ($25.00) for each of the first two repairs if the warranty is violated.”
H. The inclusion in the agreement of the statement prescribed in Subsection G of this section does not create an express warranty.
I. A consumer of a used motor vehicle may waive the implied warranty of merchantability only for a particular defect in the vehicle and only if all of the following conditions are satisfied:
(1) the used motor vehicle dealer fully and accurately discloses to the consumer that because of circumstances unusual to the business of the used motor vehicle dealer, the used motor vehicle has a particular defect;
(2) the consumer agrees to buy the used motor vehicle after disclosure of the defect; and
(3) before the sale, the consumer indicates agreement to the waiver by signing and dating the following conspicuous statement that is printed on the first page of the sales agreement in boldface ten-point or larger type and that is written in the language in which the presentation was made:
“Attention consumer: sign here only if the dealer has told you that this vehicle has the following problem(s) and you agree to buy the vehicle on those terms:
J. A used motor vehicle dealer has the burden to prove by a preponderance of the evidence that the dealer complied with Subsection I of this section.
K. A consumer or seller that is aggrieved by a transaction pursuant to this section and that seeks a legal remedy shall pursue an appropriate remedy prescribed in Chapter 55, Article 2 NMSA 1978 and shall comply with the requirements prescribed in that article.
|N.M. Stat. Ann. § 57-21-3|
Advertising requirements; penalty.
|A. Any health care practitioner advertising services to the public shall state in the advertisement his name, address or telephone number and the designation of the profession in which he is licensed or certified to practice.|
B. Anyone violating the provisions of Subsection A of this section is guilty of a misdemeanor.