SB 991

SENATE BILL NO. 991
A bill to amend 1976 PA 331, entitled
"Michigan consumer protection act,"
by amending section 3 (MCL 445.903), as amended by 2022
PA 152, and by adding section 3j.
the people of the state of michigan enact:
Sec. 3. (1) Unfair, unconscionable, or deceptive
methods, acts, or practices in the conduct of trade or commerce are unlawful
and are defined as follows:
(a) Causing a
probability of confusion or misunderstanding as to the source, sponsorship,
approval, or certification of goods or services.
(b) Using deceptive
representations or deceptive designations of geographic origin in connection
with goods or services.
(c) Representing
that goods or services have sponsorship, approval, characteristics,
ingredients, uses, benefits, or quantities that they
the goods or services do not have or
that a person has sponsorship, approval, status, affiliation, or connection
that he or she the
person does not have.
(d) Representing
that goods are new if they the goods are deteriorated, altered, reconditioned,
used, or secondhand.
(e) 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 the goods are of another.
(f) Disparaging the
goods, services, business, or reputation of another by false or misleading
representation of fact.
(g) Advertising or
representing goods or services with intent not to dispose of those goods or
services as advertised or represented.
(h) Advertising
goods or services with intent not to supply reasonably expectable public
demand, unless the advertisement discloses a limitation of quantity in
immediate conjunction with the advertised goods or services.
(i) Making false or
misleading statements of fact concerning the reasons for, existence of, or
amounts of price reductions.
(j) Representing
that a part, replacement, or repair service is needed when it is not.
(k) Representing to
a party to whom goods or services are supplied that the goods or services are
being supplied in response to a request made by or on behalf of the party, when
they the goods or
services are not.
(l) Misrepresenting that because of some
defect in a consumer's home the health, safety, or lives of the consumer or his or her the family
of the consumer are in danger if the product or
services are not purchased, when in fact the defect does not exist or the
product or services would not remove the danger.
(m) Causing a
probability of confusion or of misunderstanding with respect to the authority
of a salesperson, representative, or agent to negotiate the final terms of a
transaction.
(n) Causing a
probability of confusion or of misunderstanding as to the legal rights,
obligations, or remedies of a party to a transaction.
(o) Causing a
probability of confusion or of misunderstanding as to the terms or conditions
of credit if credit is extended in a transaction.
(p) Disclaiming or
limiting the implied warranty of merchantability and fitness for use, unless a
disclaimer is clearly and conspicuously disclosed.
(q) Representing or
implying that the subject of a consumer transaction will be provided promptly,
or at a specified time, or within a reasonable time, if the merchant knows or
has reason to know it will not be so provided.
(r) Representing
that a consumer will receive goods or services free or without charge, or using
words of similar import in the representation, without clearly and
conspicuously disclosing with equal prominence in immediate conjunction with
the use of those words the conditions, terms, or prerequisites to the use or
retention of the goods or services advertised.
(s) Failing to
reveal a material fact, the omission of which tends to mislead or deceive the
consumer, and which fact could not reasonably be known by the consumer.
(t) Entering into a
consumer transaction in which the consumer waives or purports to waive a right,
benefit, or immunity provided by law, unless the waiver is clearly stated and
the consumer has specifically consented to it.
(u) Failing, in a
consumer transaction that is rescinded, canceled, or otherwise terminated in
accordance with the terms of an agreement, advertisement, representation, or
provision of law, to promptly restore to the any person or persons entitled
to it a deposit, down payment, or other payment, or in the case of property
traded in but not available, the greater of the agreed value or the fair market
value of the property, or to cancel within a specified time or an otherwise
reasonable time an acquired security interest.
(v) Taking or
arranging for the consumer to sign an acknowledgment, certificate, or other
writing affirming acceptance, delivery, compliance with a requirement of law,
or other performance, if the merchant knows or has reason to know that the
statement is not true.
(w) Representing
that a consumer will receive a rebate, discount, or other benefit as an
inducement for entering into a transaction, if the benefit is contingent on an
event to occur subsequent to the consummation of the transaction.
(x) Taking
advantage of the consumer's inability reasonably to protect his or her the consumer's
interests by reason of disability, illiteracy, or inability to
understand the language of an agreement presented by the other party to the
transaction who knows or reasonably should know of the consumer's inability.
(y) Gross
discrepancies between the oral representations of the seller and the written
agreement covering the same transaction or failure of the other party to the
transaction to provide the promised benefits.
(z) Charging the
consumer a price that is grossly in excess of the price at which similar
property or services are sold.
(aa) Causing
coercion and duress as the result of the time and nature of a sales
presentation.
(bb) Making a
representation of fact or statement of fact material to the transaction such
that a person reasonably believes the represented or suggested state of affairs
to be other than it actually is.
(cc) Failing to
reveal facts that are material to the transaction in light of representations
of fact made in a positive manner.
(dd) Subject to
subdivision (ee), representing as the manufacturer of a product or package that
the product or package is 1 or more of the following:
(i) Except as provided in subparagraph (ii), recycled, recyclable, degradable, or is
of a certain recycled content, in violation of guides for the use of
environmental marketing claims, 16 CFR part 260.
(ii) For container holding devices regulated
under part 163 of the natural resources and environmental protection act, 1994
PA 451, MCL 324.16301 to 324.16303, degradable contrary to the definition provided of degradable as
that term is defined in that act.section 16301 of the natural resources and environmental
protection act, 1994 PA 451, MCL 324.16301.
(ee) Representing
that a product or package is degradable, biodegradable, or photodegradable
unless it can be substantiated by evidence that the product or package will
completely decompose into elements found in nature within a reasonably short
period of time after consumers use the product and dispose of the product or
the package in a landfill or composting facility, as appropriate.
(ff) Offering a
consumer a prize if the consumer is required to submit to a sales presentation
to claim the prize, unless a written disclosure is given to the consumer at the
time the consumer is notified of the prize and the written disclosure meets all
of the following requirements:
(i) Is written or printed in a bold type
that is not smaller than 10-point.
(ii) Fully describes the prize, including its the prize's cash
value, won by the consumer.
(iii) Contains all the terms and conditions
for claiming the prize, including a statement that the consumer is required to
submit to a sales presentation.
(iv) Fully describes the product, real
estate, investment, service, membership, or other item that is or will be
offered for sale, including the price of the least expensive item and the most
expensive item.
(gg) Violating 1971
PA 227, MCL 445.111 to 445.117, in connection with a home solicitation sale or
telephone solicitation, including, but not limited to, having an independent
courier service or other third party pick up a consumer's payment on a home solicitation
sale during the period the consumer is entitled to cancel the sale.
(hh) Except as
provided in subsection (3), requiring a consumer to disclose his or her the consumer's
Social Security number as a condition to selling or leasing goods or
providing a service to the consumer, unless any of the following apply:
(i) The selling, leasing, providing, terms
of payment, or transaction includes an application for or an extension of
credit to the consumer.
(ii) The disclosure is required or authorized
by applicable state or federal statute, rule, or regulation.
(iii) The disclosure is requested by a person
to obtain a consumer report for a permissible purpose described in section 604
of the fair credit reporting act, 15 USC 1681b.
(iv) The disclosure is requested by a
landlord, lessor, or property manager to obtain a background check of the
individual in conjunction with the rent or leasing of real property.
(v) The disclosure is requested from an
individual to effect, administer or enforce a specific telephonic or other
electronic consumer transaction that is not made in person but is requested or
authorized by the individual if it is to be used solely to confirm the identity
of the individual through a fraud prevention service database. The consumer
good or service must still be provided to the consumer on verification of his or her the consumer's
identity if he or she the consumer refuses to provide his or her the consumer's
Social Security number but provides other information or documentation
that can be used by the person to verify his or her
the consumer's identity. The person may
inform the consumer that verification through other means than use of the
Social Security number may cause a delay in providing the service or good to
the consumer.
(ii) If a credit
card or debit card is used for payment in a consumer transaction, issuing or
delivering a receipt to the consumer that displays any part of the expiration
date of the card or more than the last 4 digits of the consumer's account
number. This subdivision does not apply if the only receipt issued in a
consumer transaction is a credit card or debit card receipt on which the
account number or expiration date is handwritten, mechanically imprinted, or
photocopied. This subdivision applies to any consumer transaction that occurs
on or after March 1, 2005, except that if a credit or debit card receipt is
printed in a consumer transaction by an electronic device, this subdivision
applies to any consumer transaction that occurs using that device only after 1
of the following dates, as applicable:
(i) If the electronic device is placed in
service after March 1, 2005, July 1, 2005 or the date the device is placed in
service, whichever is later.
(ii) If the electronic device is in service
on or before March 1, 2005, July 1, 2006.
(jj) Violating
section 11 of the identity theft protection act, 2004 PA 452, MCL 445.71.
(kk) Advertising or
conducting a live musical performance or production in this state through the
use of a false, deceptive, or misleading affiliation, connection, or
association between a performing group and a recording group. This subdivision
does not apply if any of the following are met:
(i) The performing group is the authorized
registrant and owner of a federal service mark for that group registered in the
United States Patent and Trademark Office.
(ii) At least 1 member of the performing
group was a member of the recording group and has a legal right to use the
recording group's name, by virtue of use or operation under the recording
group's name without having abandoned the name or affiliation with the
recording group.
(iii) The live musical performance or
production is identified in all advertising and promotion as a salute or
tribute and the name of the vocal or instrumental group performing is not so
closely related or similar to that used by the recording group that it would
tend to confuse or mislead the public.
(iv) The advertising does not relate to a
live musical performance or production taking place in this state.
(v) The performance or production is
expressly authorized by the recording group.
(ll) Violating section 3e, 3f, 3g, 3h, 3i, 3j, 3k, 3l, 3m, or 3o.
(2) The attorney
general may promulgate rules to implement this act under the administrative
procedures act of 1969, 1969 PA 306, MCL 24.201 to 24.328. The rules must not
create an additional unfair trade practice not already enumerated by this
section. However, to assure ensure national uniformity, rules must not be
promulgated to implement subsection (1)(dd) or (ee).
(3) Subsection
(1)(hh) does not apply to either of the following:
(a) Providing a
service related to the administration of health-related or dental-related
benefits or services to patients, including provider contracting or
credentialing. This subdivision is intended to limit the application of
subsection (1)(hh) and is not intended to imply that this act would otherwise
apply to health-related or dental-related benefits.
(b) An employer
providing benefits or services to an employee.
Sec. 3j. (1) A
person engaged in trade or commerce online shall not use personalized
algorithmic pricing to offer a price to a consumer using an online device for a
good or service that is generated, in whole or in part, based on any of the
following:
(a) The hardware or hardware state of the online device. This subdivision
does not prohibit the generation of a price offered to a consumer based on the
hardware or hardware state of the online device for repairs or maintenance of
the online device or for calculating a trade-in value of the online device.
(b) The presence or absence of any software on the online device.
(c) Geolocation data of the online device, when used to set a price
based on inferences about the consumer made from this data. This subdivision
does not prohibit the use of geolocation data of the online device and the
consumer's location to generate a price for either of the following reasons:
(i) To determine
pricing based on the real-time demand for the good or service in the consumer's
vicinity, if the good or service is provided immediately on request.
(ii) To provide
accurate pricing information based on price variances at different physical
locations, due to legitimate cost differentials associated with providing a
good or service to different consumers or state or local government taxes,
duties, or other fees imposed by state or local government on the transaction.
(d) Protected class data, if either of the following applies:
(i) The use of the
protected class data withholds or denies an accommodation, advantage, or
privilege to the consumer that is received by other consumers.
(ii) The price for
the good or service offered to the consumer is different from the price of the
same good or service offered to another consumer or group of consumers based in
whole or in part on the use of the protected class data.
(2) This section does not apply to an
insurer licensed, regulated, or otherwise authorized to do business in this
state.
(3) As used in this section:
(a) "Algorithm" means a computational process that uses a set
of rules to define a sequence of operations.
(b) "Consumer data" means any data that identifies or could
reasonably be linked, directly or indirectly, with a specific consumer or online
device.
(c) "Dynamic pricing" means pricing that fluctuates dependent
on conditions where models retrain or recalibrate on information in near real
time. Dynamic pricing does not include pricing offers, loyalty program
benefits, or other temporary discounts or changes to prices related to the
retention of existing customers.
(d) "Online device" means a physical object that has built-in
resources that allow the object to communicate through internet or short-range
wireless technology and react to interface conditions, including, but not
limited to, a laptop computer, a desktop computer, a tablet, a smartphone, or
other smart hardware.
(e) "Personalized algorithmic pricing" means dynamic pricing
derived from or set by an algorithm that uses consumer data that varies among
consumers or consumer populations.
(f) "Protected class data" means information about a consumer
that directly, in combination, or by implication identifies a characteristic
that is legally protected from discrimination under the laws of this state or
under federal law including, but not limited to, ethnicity, national origin,
age, disability, sex, sexual orientation, gender identity and expression,
pregnancy outcomes, and reproductive health care.