'Sales' and 'Discounts'

RCNY tit. 6, ch. 5, subch. A, pt. 7

in effect

6 RCNY § 5-86 Definitions.

§ 5-86 Definitions. Advertiser. Where the "advertiser" is a chain store, the requirements of this part shall apply to each branch as if it were a separate store. Advertiser's bona fide selling price. "Advertiser's bona fide selling price" shall mean the immediately preceding price at which the same item or service was actually offered for sale to the public by the advertiser for a reasonably substantial period of time in the recent regular course of the advertiser's business, unless an earlier time period is clearly specified, and not a price charged for the purpose of establishing a fictitious higher price on which a deceptive comparison might be based. (1) "Recent regular course of business" shall mean the current selling season on seasonal goods; or, on services or non-seasonal goods, the period of the current model or twelve months, whichever is shorter. (2) It is prima facie evidence that a selling price for a service or an item is bona fide if: (i) the item was offered for a reasonably substantial period of time and a substantial quantity of sales were made at that price, or (ii) if a substantial number of sales was not made at such price, that the item was openly offered for sale to the public for a reasonably substantial period of time and that such offering price was reasonable based upon the manner in which such items were displayed or offered for sale, and such other factors as the mark-up reflected in such price and the price of comparable items. Genuine. "Genuine," when used in this part with such phrases as "open stock price," "list price," "suggested retail price," and "catalog price" shall mean that the price is one at which substantial quantities of the identical merchandise have actually been sold to the public within the recent regular course of business, by the advertiser or principal retail outlets within the New York City trading area, or, if identical merchandise is not available in the New York City trading area, in principal retail outlets in other similar trading areas provided that the fact is disclosed. During the first two weeks after a new model or item has been introduced, a "list price," "suggested retail price" or "catalog price" may be considered "genuine" only if: (1) the list price, suggested retail price or catalog price for the last previous model was genuine, or, (2) where no previous model existed, the list price, suggested retail price or catalog price for other similar goods, produced by the same manufacturer and sold in the preceding selling season or twelve month period, was genuine. Where no previous model or similar goods existed or where the manufacturer has not previously made use of list price or suggested retail price, the list price, suggested retail price or catalog price may be used for up to thirty days after introduction of the new model or item after which time, the advertiser must be able to demonstrate that the price is genuine. In-store. "In-store" representation shall mean any written statement, visual description, advertisement, or other written representation of any kind, or any oral statement by a demonstrator which is made inside the interior premises of the merchant. Models and types. "Models" and "types" refer to models and types exclusive of differentiations attributable only to sizes or colors except where sizes or colors are material, e.g. mattresses, paint. Out-of-store. "Out-of-store" representations shall mean any oral or written statement, visual description, advertisement or other representation of any kind made outside the interior premises of the advertiser, including representations made in newspapers, magazines, handbills, billboards, direct mailings, on radio and television and in store windows, storefronts, and other similar places where the representations can be perceived by the public not yet inside the premises of the merchant. Retail market price. "Retail market price" shall mean: (1) the price at which substantial sales of the same article or service are presently being made in principal retail outlets in the New York City trading area, or (2) where no substantial sales have been made, the bona fide, usual and customary selling price of the item or service as offered in principal retail outlets in the New York City trading area.

6 RCNY § 5-87 Prohibited Conduct.

§ 5-87 Prohibited Conduct. It is a deceptive practice in the sale or offering for sale of consumer goods or services for a person (including any business entity) having a store, place of business for sales or mailing address for sales in the City of New York, or otherwise selling in the City of New York to advertise or represent in connection with sales made in the City of New York or offerings for sales to be made in the City of New York that such goods or services are being or will be offered or sold to New York City consumers at a reduction, discount, or savings in a manner in violation of this part.

6 RCNY § 5-88 Identification of Merchandise and Services (Out-of-Store Representations).

§ 5-88 Identification of Merchandise and Services (Out-of-Store Representations). An out-of-store representation or advertisement containing words or numbers indicating a savings, reduction, discount or sale price, must include limiting language which permits the consumer to identify the merchandise or services being offered at savings, reductions, discounts or sale price. Identification simply by former price is not sufficient unless the items so identified constitute a percentage of the advertised brands, styles, types, models, classes, or categories of merchandise or services sufficiently large to meet reasonable consumer expectations created by the advertisement. (a) Such limiting language should be sufficiently precise to permit consumers to distinguish the applicable merchandise or services. This can be accomplished only by setting forth the brand, price, style, type, model, class or category, as appropriate in the context of the out-of-store representation or advertisement. Vague language such as "percentage off some merchandise" does not comply with this requirement. An advertisement shall be construed to apply to every piece of merchandise (or every service) within that category, type, make, model, (etc.). Examples: (1) "Brand X aluminum tennis rackets." Acceptable. (2) "Steel belted radial tires." Acceptable if all steel belted radial tires are now on sale. (3) "Famous manufacturer's single lens reflex cameras." Acceptable if all of the particular manufacturer's single lens reflex cameras are on sale. (4) "Men's cashmere sweaters, formerly $40, now $30." This is acceptable if all men's cashmere sweaters that were formerly $40 are now on sale, and these sweaters constitute a percentage of the store's total supply of cashmere sweaters sufficiently large to meet reason able consumer expectations created by the advertisement. (b) (1) If the merchandise or services referred to in the out-of-store representation or advertisement as being offered at a savings, reduction, discount or sale price cannot be specified with precision because the sale involves: (i) less than all of the brands, styles, types, models, classes or categories of merchandise or services identified; (ii) a storewide sale in a broad cross-section of departments; or (iii) one or more established departments, but less than all of the merchandise or services in such departments, the terms "selected," "many," "representative," "assorted," or terms of similar import, may be used as limiting language to comply with identification requirement of this section, provided that a meaningful percentage of such merchandise or services is so offered. "Meaningful percentage" shall mean an amount of merchandise that will meet reasonable consumer expectations created by the advertisement. For 5 RCNY § 5-88(b)(1)(i), it shall be prima facie evidence of a violation of the meaningful percentage requirement if at least 15 percent of such brands, styles, types, models, classes or categories identified are not on sale, provided however, that the advertiser shall be permitted to show that under the particular circumstances involved the amount on sale was not deceptive. (2) In the absence of words of limitation, an advertisement shall be construed to apply to every piece of merchandise or every service within that category, type, make, model, etc. Examples: (i) "Numerous pottery vases" complies if at least 15 percent of the pottery vases are on sale, unless the advertiser can demonstrate that under the particular circumstances involved the amount on sale, in light of the advertisement itself, is not deceptive. (ii) "Assistant Managers' birthday sale – storewide savings on selected merchandise" complies if the amount of merchandise on sale meets reasonable consumer expectations created by the advertisement. (iii) "Representative low-cut tennis sneakers" complies provided 15 per cent of the types of brands, makes or etc., are on sale, unless the advertiser can demonstrate that under the particular circumstances involved the amount on sale in light of the advertisement itself was not deceptive. (iv) "Special grouping of Misses' slacks, regularly $20 now $15" complies if at least 15 percent of all Misses' slacks regularly $20 are now $15 unless the advertiser can demonstrate that under the particular circumstances involved the amount on sale, in light of the advertisement itself, was not deceptive. (v) "Reduction on many items in the Sporting Goods and Luggage Department" complies if the amount of merchandise on sale in each department meets reasonable consumer expectations created by the advertisement. (c) An out-of-store representation or advertisement concerning a storewide sale or a sale in a broad cross-section of departments which displays, pictures, or mentions specific items which are on sale must also disclose whether the items displayed, pictured or mentioned are the only ones on sale. If they are not the only ones on sale, the advertisement must disclose the extent to which items not displayed, pictured or mentioned are on sale. Example: "Semi-annual White Sale – These and many other savings" complies if the complete supply of all pictured items is on sale and a meaningful percentage of the ether sale items is offered at a savings.

6 RCNY § 5-89 "Wholesale Price," "Manufacturer's Price," "Factory Price," and Similar Terms.

§ 5-89 "Wholesale Price," "Manufacturer's Price," "Factory Price," and Similar Terms. If an advertiser states or implies that goods are offered at or below "list," "wholesale," "wholesale price," "original wholesale," or other similar terms, these terms must pertain to the price currently and generally paid for such goods by retailers in the New York City trading area. If the advertiser states or implies that goods are offered at or below "manufacturer's wholesale," "manufacturer's price," "factory price," or other similar terms indicating purchase directly from a manufacturer, these terms must pertain to the price currently and generally paid for such goods by retailers in the New York City trading area who purchase the category of merchandise directly from the manufacturer. It is presumptive evidence of compliance with this section if the advertiser can show that the goods are offered below the price paid by the advertiser.

6 RCNY § 5-90 "Less Than Cost," "At a Loss," and Similar Terms.

§ 5-90 "Less Than Cost," "At a Loss," and Similar Terms. If the advertiser uses the words: "less than cost" "at a loss" "below retailer's cost" or other similar terms implying that the purchaser is paying a lower price than the advertiser, the price to the consumer must actually be less than the price paid by the advertiser.

6 RCNY § 5-91 Reductions Based on Advertiser's Own Price; "Formerly," "Regularly," "Reduced," "Percent Off," "Save," and Similar Terms.

§ 5-91 Reductions Based on Advertiser's Own Price; "Formerly," "Regularly," "Reduced," "Percent Off," "Save," and Similar Terms. (a) Immediately preceding price. If an advertiser uses the words: "percent off" "formerly ..., now ..." "reduced" "reduced to" "regularly..., now ..." "now only" "save $ ..." "was ..., now ..., "item now $ ..." or any similar term implying a reduction from a prior price charged by the advertiser, the price to which the reduced offering price is being compared must be the advertiser's bona fide selling price for that item or service unless the advertiser clearly discloses another basis of comparison or qualification. (b) Intermediate reductions. If the term "originally," or any similar term, is used in any advertisement, the price stated as the "original" price must be the advertiser's bona fide selling price for the same article or service prior to intermediate reductions, and the price immediately prior to the current reduction must be disclosed, unless intermediate reductions are clearly indicated by the language used. Example: "Originally $75; then $68; now $65" "Earlier this year $75; now $65" "Further reduced to $50." (c) Comparison not recent. If a claim is based on a past bona fide selling price of the advertiser prior to the recent, regular course of business, the advertiser must clearly disclose that fact. Example: "Last year $40, now $20."

6 RCNY § 5-92 Comparisons Based on Price of Identical Merchandise or Services Sold Elsewhere: "Value," "Nationally Advertised at," "Usually," "List," and Similar Terms.

§ 5-92 Comparisons Based on Price of Identical Merchandise or Services Sold Elsewhere: "Value," "Nationally Advertised at," "Usually," "List," and Similar Terms. (a) "Value," "nationally advertised at," "sold nationally at," "made to sell for," "woven to sell for," "usually." If the terms: "value" "nationally advertised at" "sold nationally at" "made to sell for" "woven to sell for" "elsewhere" or other similar terms implying a generally accepted value or price are used with regard to any item or service, then the price to which the reduced offering price is being compared must be the retail market price of the item or service. Furthermore, the terms "value," "nationally advertised at," or "sold nationally at" or any similar terms implying a generally accepted value or price in a national market may be used only (1) in relation to articles or services whose prices have been nationally advertised to the consuming public and (2) i) in relation to prices which are retail market prices, or, (ii) if the advertised item or service is not available elsewhere in the New York City trading area, the prices for which the article or service is currently selling in principal retail outlets in a substantial number of other representative communities in the United States. (b) If the term "usually" is used with regard to any item or service, then the price to which the reduced offering price is being compared must be either (1) the advertiser's own bona fide price for the item or service, or (2) the retail market price. (c) "list," "catalog," "suggested," "manufacturer's suggested," prices. Any "list" price, "catalog" price, "suggested" price, "manufacturer's suggested" price, "retailer's suggested" price or a preticketed price displayed by the advertiser must be genuine, unless, in the case of a price printed by a supplier of the advertiser, the advertiser has made every reasonable effort to remove or obliterate totally the printed price, or if removal or obliteration is impracticable taking into account the cost thereof, has conspicuously disclaimed that it is genuine. The display of any list price or printed price accompanied by a lower price constitutes a representation that such price is genuine and that the merchandise is being offered at a discount from such genuine price unless in the case of a price printed by a supplier of the advertiser, the advertiser has made every reasonable effort to remove or obliterate totally the printed price, or if removal or obliteration is impracticable taking into account the cost thereof, has conspicuously disclaimed that it is genuine.

6 RCNY § 5-93 Claims Based on Price of Comparable Merchandise or Services:"Comparable Value" and Similar Terms.

§ 5-93 Claims Based on Price of Comparable Merchandise or Services:"Comparable Value" and Similar Terms. If the term: "comparable value" "compare with" "equal to" or other similar term implying comparison with non-identical merchandise is used (a) the advertisement must not imply that the comparison is with the former or usual price of the advertised merchandise or service itself; and (b) the compared merchandise or service must be of essentially similar quality in those material respects which affect consumer preferences and marketability; and (c) the price to which the advertiser's price is compared must be the retail market price or the genuine list, suggested or catalog price of the comparable article or service; and (d) the comparable article or service must be generally available in New York City at the price stated; and (e) the advertisement must clearly and conspicuously disclose that "comparable value" pertains to similar but not identical merchandise or services. If an aggregate "open stock" price is used as a comparative price for an advertised set, the advertisement must disclose this fact and indicate that the advertised saving is based upon the difference between the price for the set and the total open stock price for items comprising the set.

6 RCNY § 5-94 Range Discounts: "% to % Off," "Up to % Off Selected" and Similar Terms.

§ 5-94 Range Discounts: "% to % Off," "Up to % Off Selected" and Similar Terms. (a) If an advertiser uses terms such as: "Savings of ____ % to ____ %" "____ % to ____ % off" or other similar terms to indicate a price range, then: (1) the minimum percentage reduction must be stated as conspicuously as the maximum percentage reduction; and (2) the price from which the discount or reduction is taken must be either a genuine list, suggested or catalog price, the retail market price or the advertiser's bona fide selling price, for the same articles or services, unless another basis is clearly stated; and (3) "out-of-store" advertisements must disclose which of the above standards was or were used (if a single advertisement relates to merchandise or services offered at reductions according to different standards, it must disclose which standards apply to which types of merchandise or services); Example: "____ % to ____ % off the manufacturer's price" "____ % to ____ % off last year's price." (4) at least 15 percent of all types, models, or categories of items or services on sale in the advertised category must in fact be reduced by the maximum percentage reduction and a representative number of other models or types or services must be offered at various points in the range significantly separated and representatively scattered. Example: "PORTABLE RADIOS AND TELEVISIONS 10%-50% off our former prices" Complies if at least 15 percent of all models of portable radios and televisions available are selling at 50 percent off, and a representative number of the remaining models are offered at various points between 10 and 50 percent representatively scattered throughout that range. (b) If the terms: "discounts from ..... %" "up to ...... % off" "as high as" "save up to ..... %" or other similar terms are used to advertise a range of reductions with no specified minimum reduction, (1) the prices used for comparison must be the advertiser's bona fide selling price, the retail market price, or a genuine list, suggested price for the same articles or services, unless another basis or a qualification is clearly stated; (2) "out-of-store" advertisements must disclose which of the above standards was or were used; (3) at least 15 percent of all the types, models, or services on sale in the advertised categories must be offered for sale at the stated maximum percentage reduction; and (4) a representative number of the remaining models or types or services must be offered at various points representatively scattered throughout the range from the stated maximum percentage reduction to the bottom of the range, or the majority of such other models or types or services must be offered at points in the higher portion of the range. Example: "BRAND Y CASSETTE TAPE RECORDERS" "Up to 30 percent off" Complies if at least 15 percent of all models of Brand Y Cassette tape recorders available are selling at 30 percent off and the remaining models are offered at various points representatively scattered throughout the range below 30 percent or the majority of the remaining models are offered at points in the higher portion of the range. If the range is 0-30 percent, the majority of the remaining models would have to be offered above 15 percent; if the range is 10-30 percent, the majority would have to be offered above 20 percent. (c) If terms such as "formerly $ ..... to $ .....; now $ ....." are used, the maximum price in the range of advertised former prices must represent the advertiser's bona fide selling price for at least 15 percent of all the types, models or services advertised. Bona fide selling prices for the other items or services must have been at levels representatively scattered through the range of advertised former prices.

6 RCNY § 5-95 "Advance Sale" or "Introductory Offer."

§ 5-95 "Advance Sale" or "Introductory Offer." (a) If an advertiser uses the words "advance sale" or "introductory offer" or statements such as "if there are any left they will be marked $ .....," or any other words or statements implying that the goods or services are offered for sale at a reduced price in relation to a future mark-up, he must also (1) have, in fact, in the case of goods, either a reasonable quantity of merchandise in stock, or an order to be marked up; or demonstrate his intention to order such merchandise for future mark-up; and (2) mark up the goods or services within a reasonable period of time and maintain the mark-up for a reasonable period of time not less than 30 days, unless he can show that competitive circumstances occurring subsequent to the advertisement required him to maintain or lower the price in order to maintain a competitive position. (b) If the words "introductory offer" or words of similar meaning are used, they must pertain only to merchandise or services not previously sold by the advertiser nor sold by him for more than six weeks prior to the advertisement.

6 RCNY § 5-96 Combination Offers.

§ 5-96 Combination Offers. (a) If the advertiser uses "combination offers," in which he offers his product in combination with one or more additional articles or services at a stated price, and claims that the combined articles or services have a "value" greater than the total advertised selling price of the individual items, the total "value" claimed must not be greater than the total of the retail market prices of the articles and services as sold separately. (b) If none of the combination articles is being sold in the New York City trading area and the comparison is based on comparable merchandise, the phrase "comparable value" may be used only if it complies with 6 RCNY § 5-93. (c) If one or more of the articles offered in combination is in general retail distribution, but one or more is not, comparative prices for the articles may be stated separately, according to the facts.

6 RCNY § 5-97 "Discount," "Outlet," "Bargain" and "Warehouse" Operations.

§ 5-97 "Discount," "Outlet," "Bargain" and "Warehouse" Operations. If a retailer includes in the name of his store, or in any other "out-of-store" manner represents the regular retail operation of his entire store by use of the words "discount," "outlet," "bargain," "warehouse," or any other term implying that all goods and services are regularly sold at less than genuine list, catalog, suggested or retail market prices, then 75 percent of the retailer's dollar volume in the last selling season exclusive of fair-traded items must have been from items which were in fact sold for at least 5 percent less than genuine list, catalog, suggested or retail market price.

6 RCNY § 5-98 Discount Departments.

§ 5-98 Discount Departments. A retailer may not use the words "discount," "bargain," "warehouse," "bargain basement," or other similar terms in characterizing a particular department or section within his regular retail operation unless (a) a substantial percentage of the dollar volume of the last previous selling season within that department or section was derived from items sold for less than genuine list, catalogue, suggested or retail market prices. It shall be presumptive evidence of violation of this section if the advertiser cannot show that at least 35 percent of the dollar volume in the last previous selling season within that department or section was derived from items selling for less than genuine list, catalog, suggested or retail market prices for such items; or (b) all items not presently being sold for at least 5 percent less than genuine catalog, list, suggested or retail market price, are clearly and conspicuously designated as non-discount items. This requirement of designation may be satisfied by segregation of identified non-discount items, shelf labels, or other prominent signs, a listing of non-discount items clearly and conspicuously displayed in the relevant department, or a standardized sticker or tag with a clear and conspicuous explanation that the item to which it is affixed is a non-discount item. Example: A shoe department in a retail store sells brands X, Y, and Z shoes. Brand X is sold at less than retail market price, and brands Y and Z are sold at retail market price. In the last previous selling season, 35 percent of all shoe sales came from the sale of brand X shoes. The store is in compliance with this article. But if less than 35 percent of all sales came from sales of brand X shoes, brands Y and Z must be conspicuously designated as nondiscount items in order for the department to be called "discount shoe department."

6 RCNY § 5-99 Meaningful Reductions.

§ 5-99 Meaningful Reductions. All discounts, sales, reductions or savings must be meaningful, and not merely nominal or insignificant. All articles and services so advertised must be offered at a reduction or savings of at least 5 percent from the price to which the advertiser's is being compared, unless [in the case of items retailing for over $100] the advertisement clearly sets forth the actual percentage of reduction or the dollar amount of the reduction.

6 RCNY § 5-100 Sufficient Quantities.

§ 5-100 Sufficient Quantities. The retailer either must have in stock or on order, or be prepared to supply within a reasonable time sufficient quantities of each advertised item or service to fulfill reasonably anticipated public demand, or clearly conspicuously disclose in the advertisement any items or services of genuinely limited availability. A retailer is not "prepared to supply" merchandise unless he has communicated with suppliers and ascertained, prior to advertising, that the merchandise is available to him.

6 RCNY § 5-101 Inherently Misleading Terms.

§ 5-101 Inherently Misleading Terms. The following inherently misleading terms are prohibited in retail advertising: "our list price" below "manufacturer's wholesale cost" "manufacturer's cost"

6 RCNY § 5-102 Adequacy of Disclosure.

§ 5-102 Adequacy of Disclosure. All disclosures and words of limitation or qualification required by this part shall be written or printed in letters at least one third as high and one third as broad as the largest words or numbers appearing in the advertisement which relate to or describe the reduction, discount or savings, but in no event in less than ten point type. In radio announcements, the disclosure or words of limitation or qualification shall be clearly spoken, and in television announcements they shall be part of the radio track and not merely part of the picture.

6 RCNY § 5-103 Records Required.

§ 5-103 Records Required. (a) Each person who advertises or represents the existence of a discount, reduction or savings shall for three months maintain records demonstrating compliance with this part at his principal place of business within the City of New York or at a location where such records are normally maintained by such person. Example: An advertiser who advertises "20 percent off Brand X cameras" must maintain records demonstrating that the reduction is from the bona fide selling price. If the cameras were last sold at such lower price eleven months ago, the advertiser must retain the records indicating the earlier price. These records must be kept for a period of three months after the sale is over. (b) Where the Commissioner of Consumer Affairs or her delegate requests a person to produce by mail information or records to demonstrate compliance with this part, and the information, or original, carbon, photographic or electrostatic copies of the records are available in the company's files, the person shall mail a copy of such information to the person requesting it within seven business days after receipt of the request unless such time period is extended by the Chief of the Law Enforcement Division. Where the information is available to the person but not in his possession, or where the record must be reconstructed (e.g., where they have been stored in the memory bank of a computer), the person shall mail a copy of such information to the person requesting it within a reasonable period of time, not to exceed sixty business days, after receipt of the request unless such time period is extended by the Chief of the Law Enforcement Division. In lieu of mailing requested information or records to the Commissioner, a person may grant access to the files for purpose of examination and to copy documentary evidence by advising the Commissioner in writing within 5 business days after receipt of the request that such access will be granted provided the information or records are kept in New York City. (c) No action shall be maintained by the Commissioner under Administrative Code, § 20-703(c) merely for failure to maintain or produce records required by this section. However, all of the other penalties provided by § 20-703 shall apply.

6 RCNY § 5-104 Regulations 6 RCNY §§ 5-06 and 5-12 Not Affected.

§ 5-104 Regulations 6 RCNY §§ 5-06 and 5-12 Not Affected. Nothing in this part repeals or modifies 6 RCNY §§ 5-06 and 5-12 or any portion thereof. In the event of any inconsistency, the advertiser should comply with the requirements of 6 RCNY §§ 5-06 or 5-12, as the case may be.

6 RCNY § 5-105 Exemptions.

§ 5-105 Exemptions. (a) Except as provided in 6 RCNY § 5-92, this part does not apply to advertisements printed or packaging material prepared by a manufacturer outside of the City of New York unless such advertisements were requested or ordered by the advertiser located within the City of New York. (b) This part does not apply to advertising placed prior to its effective date, nor, until four months after its effective date, to non-periodical advertising displays in existence and used by the advertiser prior to the effective date.

6 RCNY § 5-106 Citation Form.

§ 5-106 Citation Form. This regulation may be cited as Consumer Protection Law Regulations, Part 7.

Source: City of New York, Charter, Administrative Code and Rules (American Legal Publishing XML export, codelibrary.amlegal.com)URL: https://codelibrary.amlegal.com/codes/newyorkcity/latest/NYCrules/0-0-0-19431Fetched: 10/24/2026