dissenting.
We agree with Judge Botter, dissenting below, that the regulation in question, N.J.A.C. 13:45A-2.2(a)(7)(iv), is invalid. Appellant’s advertisement refers to automobiles priced well below “dealer invoice,” a term that the Court concludes is prohibited, despite the fact that the regulation nowhere refers to “dealer invoice.” Instead, the regulation focuses specifically and exclusively on “dealer’s cost” and “inventory price.” As Judge Botter points out:
The testimony in the case from Division’s witness and appellant’s witness established that “dealer invoice” is a commonly used term which refers to a document showing what the manufacturer has billed the dealer for a particular car. The term may be contrasted with the terms used in the regulation, “dealer’s cost” or “inventory price,” which have no fixed, generally accepted meaning in the trade. Whether respondent and its agents meant to equate dealer’s cost and dealer invoice is immaterial; they did not expressly do so in the regulation, and the terms used in the regulation do not include a term of art in the trade, namely, dealer invoice. Thus, appellant should not have been found guilty of violating the regulation, whether or not it is lawful. [193 N.J.Super. 613, 624 (App.Div.1984) (Botter, J.A.D., dissenting) (footnote omitted).]
But beyond that,
[t]he means used by the regulation — a total ban on advertising in relation to the dealer’s invoice price — is excessive. It applies a remedy that is worse than the disease. If car buyers do not know that the dealer invoice price does not show the actual cost to the dealer, the regulations could simply require advertisements to announce that fact. It is advantageous for buyers to know at least the amount of the dealer’s invoice price. If the fear is that they will not avail themselves of information in the public domain, namely, that dealer invoice price does not mean actual cost, a simple remedy can be supplied by tailoring the regulation to meet this need. It is worth repeating that the invoice in evidence contains this notice to prospective buyers. The invoice also shows the "memo amount less H/B & Adv,” as $5,262.92 in addition to the “Invoice Total” of $5,566.81. Thus, a buyer who examines the invoice — the regulation can also require that the invoice be given to the buyer when dealer-invoice advertising is employed — would be able to compare the initial dealer-invoice price with the net invoice charge to the dealer. Whether contained on the invoice or not, the regulation can require that buyers be advised of holdbacks, rebates and other discounts from dealer invoice price. After all, buyers normally do not expect
*78dealers to sell cars at cost. Everyone knows that a retail seller must have a markup over cost to stay in business. The idea that this regulation is needed to protect the public is fanciful. The record before us does not justify giving uncritical deference to the supposed expertise of Division on this subject. [Id. at 627.]
That makes eminent good sense to us. Moreover, the interests of consumer protectionism do not demand that automobile dealers be treated as sharpsters or charlatans. The selling techniques employed here — particularly if modified consistent with Judge Botter's suggestion for expanding the regulation and making it more specific — would serve to enlighten the prospective buyer, to assist him in making rational choices, and to give a basis for comparison shopping. We therefore endorse Judge Botter’s final reasons for declaring the regulation invalid:
It suppresses useful information; the means chosen to avoid misconceptions unduly encroaches on rights of free speech; and the remedy for the perceived danger of deception is to require more disclosure rather than the suppression of relevant information. The regulation stifles a legitimate, honest means of competition and deprives the public of the benefit of truthful advertising. [Id. at 628-29.]
We vote to reverse.
For affirmance — Chief Justice WILENTZ and Justices HANDLER, POLLOCK, O’HERN and GARIBALDI — 5.
For reversal —Justices CLIFFORD and STEIN — 2.