             EXE      OIRNEY        GENERAL
                     OF     TEXAS




Department of Agriculture
Austin, Texas

Gentlemen:             Att'entlon: W. 3. Bussey
                       Opinion No. O-2470
                       Re: Certain price advertlsements
                            which might be of a deceptive
                            and misleading nature.
        We have received your request for an opinion of thFs
department. We quote from your letter as follows:
       "This Department has been receiving numerous
   complaints from cltlzens of this state regarding
   the use of price tags or posters, in connection
   with the sale of certain commodltles and services,
   which are designed to decefve and mislead the
   public, in the material particular thst the public
   is !.eadto believe that the cost of the commodity
   or serviccbeing advertised Is less than the price
   actually charged therefor.
       "To illustrate this point, we are enclosing,
   herewith, three hotographs of a gasoline price
   sign, reading 12P#, said photographs being taken
   at,approximately, the following distances; number
   one, 150 feet, number two, 50 feet, and number
   three, 15 feet. You will note that from a distance
   of 150 feet, the 12 is clearly visible and read-
   able, horever, the 2 cannot be dFstinguishsd at all.
   Then from a distance of only 50 feet, you will note
   that the 4 is still unreadable, but when you look
   very closTlg you can see a dim outline of the frac-
   tion, while at a distance of 15 feet the & does
   show up.
       "Row the purpose of this type of sign, accord-
   ing to many of the service station operators who
   have been displaying them, Is to have the whole
   number so large and the fraction so small that the
   prospective customer ~111 read the whole number
   quite a distance away, thus getting the Impression
Department of Agriculture, page 2        O-2470


    that he can buy gasollne at that price, but as
    he gets near the station he probably will not
    watch the algn closely enough to notice that a
    fraction of a cent also appears in connection
    with the whole number, and after he gets in the
    station and orders his tank filled, then he
    finds that he must pay 12& per gallon for his
    gasoline, instead of 12# per gallon as he was
    lead to bellevs.
         "We also find many price signs where this
    fraction is g/10 of a cent, instead of one-
    half, thus, making it necessary for the customer
    to purchase ten gallons of gasoline to save one
    penny, while the large figures used to dlsplag
    the whole number In the sign leads them to be-
    lieve that they are saving a penny on
    lon.
        "Many of the station operators dieplaying
    signs similar to the one shown in the photographs
    are very free to tell our inspectors just what
    the purpose of this type of sign Is, and most
    of them are strongly opposed to using such methods
    to secure business and only do so in order to meet
    competition because when a competitor across the
    street puts up a sign similar to this, it leads
    the public to bellsve that he is selling gasoline
    for one cent per gallon less than his neighbor.
        "We also find signs similar to this used in
    connection wl'chother businesses, and would ap-
    prsclate your advising whether or not this type
    of misleading and deceptive advertlslng is in
    violation of Article 1554 of the Penal' Cods of
    Texas.
        "If the above question Is answered in the af-
    firmative, vould not any price sign containing
    a whole number and a fraction, and In which the
    fraction was not clearly visible and readable from
    approximately the same distance as the whole number,
    be considered misleading and deceptive and also
    in violation of the above mentioned Article.
        "We notice in reading Article 1554 of the Penal
    Cods that no particular law enforcement agency is
    chargdwith the enforcement thereof, we would, there-
    fore, appreciate being advised as to which law sn-
    forcement agency or agsnciss would be a;thorlzsd to
    enforce the provisions of this Article.
Department of Agriculture, page 3             O-2470


         Article 1554, Vernon's Annotated Penal Code, pro-
vides:
         "Art. 1554.   Untrue advertisement
        "Whoever with Intent to sell or in any way
    dispose ~of merchandise, securltles, service, or
    anything offered by such person, or by any firm,
    corporation or association which he owna or of
    which he has control directly or indirectly, to
    the public for sale or distribution, or with ln-
    tent to increase the consumption thereof, or to
    induce the public In any manner to enter into
    any obligation relating thereto, or to acquire
    title thereto, or any Interest therein, makes,
    publishes, disseminates, circulates or places
    before the public or causes to be made, published,
    disseminated, circulated or placed before the
    public in a newspaper, or other publication, or
    in the form of a book, notice, handbill, window
    display card or price tag, poster, bill, circu-
    lar, pamphlet or letter, or in any other way,
    an advsrtlssment of any eort regarding merchan-
    dise, as to Its character or cost, sscuritles,
    service, or anything so offered to the public,
    which advertisement contains any assertion, repre-
    sentation or statement of fact which is known
    by said person or could have been known by use
    of reasonable diligence or inquiry to be untrue,
    deceptive or misleading in any material  particular
    as to such matters or things so advertised, shall
    be flned not lszs+t;$n ten nor more than two hun-
    dred dollars.
        It is to be noted that the advertisement must be
"untrue, deceptive, or misleading."
        The Court of Criminal Appeals in the case of Plncus
v. State , 126 Cr. R. 188, 70 S.W. (2) 417, considered Arti-
cle 1554, supra. We quote from that decision:
        "On the first proposition we express the
    opinion that such part of the statute as under-
    takes to penalize one who 'could have known by
    uss of reasonable diligence or lnqulry' that
    the advertisement was untrue is of doubtful va-
    lidity. It undertakes to make a criminal of one
    who might be guilty of negligence only in the ab-
    sence of any willful wrong in connection with an
    act which results in no harm to any one. Overt
Department of Agriculture, page 4          O-2470


    v. State, 97 Tex. Cr. R. 202, 260 S. W. 856.
    Likewise, the term 'deceptive or misleading'
    seems to be vague and fraught with uncertain-
    ty. Surely in an attempted practical appli-
    cation much difficulty would be experienced
    both in averments which would be necessary
    and in proof to sustain them. * * * * * * fl
        The language used by the court is plain and unam-
biguous; accordingly it would be a futile gesture to attempt
an elaboration of its meaning. The gasoline advertisement
in question here is not, to our mind, untrue. However, an
element of deception is readily discernible; but the statu-
tory phrase "deceptive or misleading" is "vague and fraught
with uncertainty". In any event, the question of possible
deceptive or misleading attributes of any given advertise-
ment would appear a fact Issue for the determination of a
    . This d.epartmentmust refrain from acting in the ca-
.iury
pacity.
        Article 5710, Vernon's Annotated Civil Statutes,
provides that:
        "The Commissioner, his deputy, sealers
    inspectors and all local sealers and their &-
                                               _ .
    utlks In the performance of their official duties,
    shall have the same power as peace officers in
    this State." (Underscoring ours)
        In conclusion, we will advise you that the statutes
place no duty upon you, in your capacity as Chief of Deputy
Weights & Measures, to enforce the provlsions,of Article 1554,
supra.
        Trusting that this answers your Inquiry, we remain
                                       Yours very truly
                                     ATTORNEY GENERAL OF TEXAS

GW:RS:wc                                By s/Wm. J. Fanning
                                             Wm. J. Fanning
                                                  Assistant
APPROVED JULY 8, 1940                   By s/Grundy Williams
s/Glenn R. Lewis                             Grundy Williams
ATTORNEY GENERAL OF TEXAS (acting)
Approved Opinion Committee By s/BWB Chairman
