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