Proposed Amendment: N.J.A.C. 13:45A-9.2

General Advertising Practices
 
Authorized By: New Jersey Division of Consumer Affairs, Thomas R. Calcagni, Director.
 
Authority: N.J.S.A. 45:14-57 and 56:8-1 et seq., specifically 56:8-4.
 
Calendar Reference: See Summary below for explanation of exception to calendar requirement.
 
Proposal Number: PRN 2012-062.
 
Submit written comments by June 15, 2012 to:
   Thomas R. Calcagni
   Director
   New Jersey Division of Consumer Affairs
   124 Halsey Street
   P.O. Box 45027
   Newark, NJ 07101
 
The agency proposal follows:
 
Summary
In the notice of readoption of N.J.A.C. 13:45A with amendments, proposed in the New Jersey Register on May 2, 2011 (43 N.J.R. 1130(a)), with the readoption effective on December 14, 2011 and the amendments effective on January 17, 2012 (44 N.J.R. 166(b)), the Division amended N.J.A.C. 13:45A-9.2, General advertising practices, to require that permitted or required disclaimers be set forth in at least 10-point type. The Division received a comment on the amendment from William K. Mosca, Jr., Bevan, Mosca Giuditta & Zarillo, P.C., Counsel for AT&T Communications of N.J., L.P.; AT&T Corp.; and AT&T Mobility LLC.
Mr. Mosca supported the readoption of N.J.A.C. 13:45A-9, but asserted that the amendment to N.J.A.C. 13:45A-9.2(a)5, which requires that disclosures of disclaimers permitted or required under N.J.A.C. 13:45A-9.2 be in 10-point type, is impractical in some instances and unnecessary in others. The commenter noted that a 10-point size requirement is reasonable for printed matter in newspapers and signs, but not so for all written matter. Writings that appear directly on small items such as cell phones and their packaging, or electronic banner advertisements that appear on Internet websites accessed using the small screens on smartphones, are smaller than traditional advertising and should not be subject to the same 10-point requirements as traditional printed material.
The Division agreed with the commenter but noted this change would be too substantive to make upon adoption pursuant to N.J.A.C. 1:30-6.3 and undertook to develop a separate notice of proposal to address this issue. Therefore, the Division proposes to amend N.J.A.C. 13:45A-9.2(a)5 to delete the requirement for 10-point type in paragraph (a)5 and replace it with the language suggested by the commenter; requiring that the size and style of disclaimers be clear and conspicuous relative to other type sizes and styles used in the advertisement.
The Division has determined that the comment period for this notice of proposal shall be 60 days. Therefore, pursuant to N.J.A.C. 1:30-3.3(a)5, this notice is excepted from the rulemaking calendar requirement.
 
Social Impact
The Division believes that the proposed amendment will benefit advertisers by permitting them to present their messages through any medium and at the same time make required disclaimers and disclosures in a format that will be readily apparent to consumers.
 
Economic Impact
The Division anticipates that the proposed amendment will have a positive economic impact because it allows smaller print, which will better suit certain mediums and will make advertising more practical.
 
Federal Standards Statement
A Federal standards analysis is not required because the proposed amendment is not subject to any Federal standards or requirements.
 
Jobs Impact
The Division does not anticipate that the proposed amendment will increase or decrease jobs in the State.
 
Agriculture Industry Impact
The proposed amendment will have no impact on the agriculture industry in the State.
 
Regulatory Flexibility Analysis
The proposed amendment does not impose reporting or recordkeeping requirements on small businesses as defined in the Regulatory Flexibility Act, N.J.S.A. 52:14B-16 et seq. The proposed amendment does impose compliance requirements that relate to the format of disclaimers and disclosures, but the proposed amendment does not affect the disclaimers that are required, only the format, as discussed in the Summary above. No professional services should be required and no capital costs are anticipated as a result of the proposed amendment, which could reduce costs for businesses in general. No differing standards are proposed for small businesses as the rule is meant to make sure disclaimers are of a size that protects consumers' rights.
 
Housing Affordability Impact Analysis
The proposed amendment will have an insignificant impact on affordable housing in New Jersey and there is an extreme unlikelihood that the rule would evoke a change in the average costs associated with housing because the proposed amendment concerns the format of disclaimers under N.J.A.C. 13:45A-9.
 
Smart Growth Development Impact Analysis
The proposed amendment will have an insignificant impact on smart growth and there is an extreme unlikelihood that the rule would evoke a change in housing production in Planning Areas 1 or 2, or within designated centers, under the State Development and Redevelopment Plan in New Jersey because the proposed amendment concerns format of disclaimers under N.J.A.C. 13:45A-9.
 
Full text of the proposal follows (additions indicated in boldface thus; deletions indicated in brackets [thus]):
 
SUBCHAPTER 9.    GENERAL ADVERTISING
 
13:45A-9.2   General advertising practices
 
(a) Without limiting the application of N.J.S.A. 56:8-1 et seq., the following practices shall be unlawful with respect to all advertisements:
 
1.-4. (No change.)
 
5. The use of any type, size, location, lighting, illustration, graphic depiction, or color resulting in the obscuring of any material fact. Disclaimers permitted or required under this section, such as "terms and conditions apply" and "quantities limited," shall be set forth in [at least 10-point] a type size and style that is clear and conspicuous relative to the other type sizes and styles used in the advertisement.