concurring.
I join in the Court’s affirmance of the judgment below, which reversed plaintiffs’ liability verdict on their Consumer Fraud Act (Act) claim. I am in full agreement with the Appellate Division’s conclusions that the trial court’s jury instruction was erroneous because it failed “to explain the difference between the kinds of consumer fraud [that] require ‘knowing’ action and those [that] may be established without any showing of scienter,” 243 N.J.Super. 590, 600, 581 A.2d 91 (1990), and that the error was not harmless. Id. at 603, 581 A.2d 91. I write separately because I anticipate that the issue remanded by the Appellate Division for the jury’s determination at retrial will be particularly difficult for a jury to adjudicate. I also perceive that the Appellate Division’s opinion may not adequately guide the trial court in framing an instruction that will clarify for the jury the distinction between conduct violative of the Act without proof of intent and conduct that violates the Act only if committed with an intent to deceive the purchaser or customer.
Preliminarily, I note that although this case was tried to a jury, no court has yet determined whether there exists a right to trial by jury for damage claims asserted under the Consumer Fraud Act. We explained in Meshinsky v. Nichols Yacht Sales, Inc., 110 N.J. 464, 472-73, 541 A.2d 1063 (1988), that
[a]s originally enacted, the Act was exclusively enforced by the Attorney General, who was provided with broad powers to investigate, N.J.S.A. 56:8-3, subpoena records, N.J.S.A. 56:8-5, and seek injunctions prohibiting fraudulent conduct and orders of restitution to make whole any person damaged by conduct violating the Act, N.J.S.A. 56:8-8. * * *
In 1971, the Legislature amended the Act to permit a private right of action through which a successful plaintiff receives treble damages, reasonable attorneys’ fees, filing fees, and costs. L. 1971, c. 247, § 7, codified at N.J.S.A. 56:8-19. [Footnote omitted.]
*522The 1971 amendment to the Act, however, did not provide for jury trials, and no right to a jury trial has been recognized in suits brought under the Act by the Attorney General seeking equitable relief and financial penalties. See Kugler v. Market Dev. Corp., 124 N.J.Super. 314, 319, 306 A.2d 489 (Ch.Div. 1973); Kugler v. Banner Pontiac-Buick, Opel, Inc., 120 N.J. Super. 572, 581-82, 295 A.2d 385 (Ch.Div.1972). Although this Court in Shaner v. Horizon Bancorp, 116 N.J. 433, 561 A.2d 1130 (1989), rejected the right to a jury trial in the context of a claim for discriminatory termination on the basis of age under the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to -42, its holding could be read to suggest by analogy that a statutorily-created cause of action under the Consumer Fraud Act does not carry with it the right to a jury trial. Id. at 454-55, 561 A.2d 1130. In any event, that issue is not before us and I advert to it only to emphasize my perception that the issue remanded by the Appellate Division for retrial is not particularly well-suited for resolution by a jury.
Simply stated, the critical issue on retrial is the categorization of Cape May Greene’s use of the term “insulated windows” to describe to prospective purchasers windows with a double pane of glass and an uninsulated frame. The Consumer Fraud Act distinguishes between two categories of unlawful practices. The first category — which includes unconscionable commercial practice, deception, fraud, false pretense, false promise, and misrepresentation — does not require proof of intent to deceive, suggesting an analogy to what the common law denominates as equitable fraud. See Jewish Center v. Whale, 86 N.J. 619, 625, 432 A.2d 521 (1981). The, second category — concealment, suppression, or omission of any material fact — requires proof that the offending conduct occurred knowingly and with an intent that others rely on the concealment, suppression, or omission. See Fenwick v. Kay Am. Jeep, Inc., 72 N.J. 372, 377, 371 A.2d 13 (1977); N.J.S.A. 56:8-2. The Appellate Division observed that the “first category * * * consists of affirmative acts[] and the second category consists of acts of omission.” 243 *523N.J.Super. at 598, 581 A.2d 91. Viewing defendant’s use of the term “insulated windows” as a statement that could be characterized either as an “affirmative act” or an “omission,” the court determined that the jury instruction failed to “explain to the jury the difference between the kinds of consumer fraud consisting of affirmative acts, which may be committed without a showing of intent, and acts of omission, which must be committed knowingly in order for liability to be imposed under the Consumer Fraud Act.” Id. at 598-99, 581 A.2d 91. In the court’s view, the deficiency in the jury charge constituted reversible error necessitating a retrial on the issue of liability, in the course of which the jury is to be properly instructed on the critical distinction between an affirmative misrepresentation and a knowing omission made with intent to deceive. Id. at 603-04, 581 A.2d 91.
I share the Appellate Division’s concern that an imprecise jury charge on the essential elements of an unlawful practice under the Act could erroneously cause a jury to impose a verdict resulting in treble damages and attorneys fees for conduct not violative of the Act. As the court observed in D’Ercole Sales, Inc. v. Fruehauf Corp., 206 N.J.Super. 11, 501 A.2d 990 (App.Div.1985),
[h]owever, attorneys fees, costs and treble damages are powerful weapons for the consumer and invoke a formidable remedy. Any breach of warranty, or of any contract for that matter, is unfair to the non-breaching party. Yet, “[i]n a sense, unfairness inheres in every breach of contract when one of the contracting parties is denied the advantage for which he contracted, but this is why remedial damages are awarded on contract claims. If such an award is to be trebled, the ... legislature must have intended that substantial aggravating circumstances be present.” [Id. at 31, 501 A.2d 990 (quoting United Roasters, Inc. v. Colgate-Palmolive Co., 649 F.2d 985, 992 (4th Cir.), cert. denied, 454 U.S. 1054, 102 S.Ct. 599, 70 L.Ed.2d 590 (1981)).]
The fly in the ointment, however, is that instructing the jury on the difference between an affirmative misrepresentation of fact and a knowing omission of a material fact is easier said than done.
As the Appellate Division acknowledges, the term “insulated window” applied to a double-pane window with an uninsulated *524frame could be considered an affirmative misrepresentation to the extent that it is understood to mischaracterize the frame as insulated. It could also be viewed as a term that correctly describes the window in accordance with industry standards but omits to disclose the material fact that the frame is uninsulated. On a semantic level, a misrepresentation could be viewed as a statement requiring a correction to be truthful, and an omission could be characterized as a statement requiring an addition to be truthful. In practice, however, the distinction between a correction and an addition may be more apparent than real.
I note that the decided cases under the Consumer Fraud Act fail to illuminate the distinction between misrepresentations and omissions. The leading case is Fenwick v. Kay American Jeep, Inc., supra, 72 N.J. 372, 371 A.2d 13, in which two automobile dealers were charged with having violated a regulation promulgated under the Act pursuant to which an advertisement for a used automobile that fails to disclose the odometer reading constitutes an unlawful practice. The agency that placed the advertisements was joined as a respondent, and contended that a member of its staff inadvertently had failed to include the odometer reading. The hearing officer determined that the dealers and the agency had violated the Act, and that proof of intent was not required. The Appellate Division reversed, holding that intent was an essential element of the alleged violations. Fenwick v. Kay Amer. Jeep, Inc., 136 N.J.Super. 114, 118-19, 344 A.2d 785 (1975). This Court reinstated the order of the Division of Consumer Affairs, holding that the omission of the odometer reading in violation of a specific regulation adopted by the Attorney General was a deceptive practice not requiring proof of intent:
Significantly, the requirement that knowledge and intent be shown is limited to the concealment, suppression or omission of any material fact. Respondent argues that his failure to include the mileage in each sales ad was at most the omission of a material fact and would not be an unlawful practice unless knowledge and intent were shown.
However, this argument overlooks the power of the Attorney General to adopt rules to further the purpose of the act to prevent fraud and other *525deceptive practices. * * * The regulation here adopted by the Attorney General has the effect of preventing the possibility of such deception if strictly enforced without regard to the intent of the advertiser. * * *
Moreover, we are satisfied that failure to disclose the mileage in the present cases was more than the mere omission of a material fact. * * * The capacity to mislead is the prime ingredient of deception or an unconscionable commercial practice. Intent is not an essential element. Since consumer protection is the ultimate goal, the standards of conduct established by the Act and implementing regulations must be met regardless of intent except when the Act specifically provides otherwise. We therefore hold that the charges herein, in order to be sustained did not require a showing of intent. [72 N.J. at 377-78, 371 A.2d 13.]
Thus, an omission of a material fact that violates a specific regulation promulgated under the Act can be sufficiently deceptive to invoke the Act’s sanctions without proof of intent.
The Appellate Division reached a similar conclusion in In re Shack, 177 N.J.Super. 358, 426 A.2d 1031 (1981), an administrative proceeding brought against licensed optometrists for violations of provisions of the licensing statute, N.J.S.A. 45:12-1 to -27, prohibiting, among other practices, misleading advertising, fraud, and deceptive conduct. The offending conduct was an advertisement offering soft-contact lenses for sixty-five dollars, without disclosing that patients invariably would require “some professional optometric services” for which a separate charge would be imposed. Defendants argued that their advertisement was not misleading because no misleading statements appeared “within the four comers” of the advertisement. Shack, supra, 177 N.J.Super. at 362, 426 A.2d 1031. The Appellate Division affirmed the decision of the State Board of Optometrists that the advertisement was deceptive and misleading, relying by analogy on cases decided under the Consumer Fraud Act and the Federal Trade Commission Act:
Defendants’ assertion that their advertisement cannot be deemed “misleading” because there are no misleading statements in it is not well founded. It has long been recognized that “a half-truth can be as deceptive as a positive misrepresentation” and this principle has been routinely applied under the FTCA. “Developments in the Law — Deceptive Advertising,” Note, 80 Harv.L. Rev. 1005,1047 (1967). A failure to disclose material information may cause an advertisement to be false or deceptive even though it does not state false facts. Simeon Management Corp. v. FTC, 579 F.2d 1137, 1145 (9 Cir.1978). The *526“prime ingredient of deception” is the advertisement’s “capacity to mislead.” Fenwick v. Kay American Jeep, Inc., 72 N.J. 372, 378 [371 A.2d 13] (1977). The criterion by which advertising is judged is “the likelihood of deception or the capacity to deceive.” Montgomery Ward & Co. v. FTC, 379 F.2d 666, 670 (7 Cir.1967). [Id. at 177 N.J.Super. 363, 426 A.2d 1031.]
See also State v. Hudson Furniture Co., 165 N.J.Super. 516, 519-20, 398 A.2d 900 (App.Div.1979) (violation of Consumer Fraud Act regulation requiring notification to customers of available options concerning furniture undelivered on promised date constitutes unlawful practice without proof of intent to deceive); Hyland v. Zuback, 146 N.J.Super. 407, 415, 370 A.2d 20 (App.Div.1976) (Although boat repairman had estimated cost of boat repairs at $100 for parts and four hours labor, he had already worked nineteen hours when customer inquired about job and repairman responded that work was going “fine.” The final bill was $467.75. The court held that repairman’s conduct went beyond mere omission and constituted deception and misrepresentation in violation of Consumer Fraud Act.)
The point of this discourse is that our cases interpreting the Act indicate that there is no clear line of demarcation separating an act of misrepresentation from one of mere omission. Nor does the Model Jury Charge for the Act draw such a line; it therefore provides no guidance on how to distinguish one from the other. See Model Jury Charges (Civil) § 4.22(B) (April 1, 1987),
Disputes such as that between plaintiffs and CMG demonstrate that it is possible for a statement to be seen fairly as either a misrepresentation or as omitting a material fact. A misrepresentation and an omission share the same baneful feature: a capacity to mislead the customer. Yet the Act treats them differently. Treble damages, attorneys fees, and costs are the penalties for a defendant’s misrepresentation no matter what the intent may have been; but for the same penalties to be imposed for an omission of fact, a plaintiff must prove scienter. The only logical basis for the Legislature’s different treatment of the two must lie in its perception of different levels of culpability.
*527To the extent that a substantive distinction between a misrepresentation and a knowing omission can be ascertained from the cases and inferred from the legislative purpose, it should reflect the overriding principle that the powerful remedies made available by the Legislature in the Act are meant to respond to “substantial aggravating circumstances.” D’Ercole Sales, Inc., supra, 206 N.J.Super. at 31, 501 A.2d 990. Thus, for a statement not contrary to a specific regulation to constitute a misrepresentation or other act of deceit in violation of the Act, its qualitative content must be so materially deceptive and its capacity to mislead so apparent that proof of intent is unnecessary. Whether denominated an affirmative statement or an omission, the distinguishing characteristic of a misstatement not requiring proof of scienter under the Act is that its inherent falsity is so manifest that its thoroughly unredeemable nature is itself the “substantial aggravating circumstance” that merits the Act's formidable penalties.
Because the substantive distinction between an affirmative misrepresentation and a knowing omission is elusive, I am of the view that the trial court on remand should evaluate carefully the evidence to determine whether it is sufficient to permit a jury to find that the use of the phrase “insulated windows” could constitute a misrepresentation not requiring proof of an intent to deceive. If it is not sufficient, the jury should be permitted to determine only whether the statement constitutes a concealment, suppression, or omission of a material fact and, if so, whether defendant intended to deceive its customers.
In all other respects, I join in the Court’s affirmance of the judgment of the Appellate Division.
Justice CLIFFORD joins in this opinion.