N. D. Williams, Jr., plaintiff below, brought suit against Hubert Spradling, d/b/a Sprad’s Boat Town, under the Deceptive Trade Practices — Consumer Protection *145Act [Tex.Bus. & Comm.Code Ann. § 17.41, et seq. (Supp.1976-77)], received a judgment for $4,300 actual and $4,300 double damages, after a jury trial, from which Spradling has appealed. The parties will be referred to as they were below.
The court gave the following instruction to the jury:
“DECEPTIVE TRADE PRACTICE:
“Any false, misleading or deceptive acts or practices in the conduct of any trade or commerce. You are instructed that the term ‘false, misleading, or deceptive acts or practices’ means an act or series of acts which has the capacity or tendency to deceive an average or ordinary person, even though that person may have been ignorant, unthinking or credulous. You are further instructed that the term ‘false, misleading, or deceptive acts or practices’ includes, but is not limited to, the following acts:
“1. Representing the boat sold to be a 1973 model boat if it was an older model boat.
“2. Representing that the boat sold was built in 1973 if it was built in any year prior to 1973.
“3. Representing the boat sold to be in a new, or almost new condition if it was deteriorated, reconditioned, reclaimed or secondhand.
“4. Making false or misleading statements concerning the reasons for, existence of, or amount of price reductions.
“5. Making false or misleading statements concerning the manufacturers’ suggested retail price of the boat.”
Tex.Bus. & Comm.Code Ann. § 17.46 (Supp.1976-77) provides:
“(a) False, misleading, or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful.
“(b) The term ‘false, misleading, or deceptive acts or practices’ includes, but is not limited to, the following acts:”
Then follow twenty separate acts.
These specific acts found in § 17.46(b) are declared to be violations of the prohibition against deceptive business practices found in § 17.46(a). However, this listing is not to be considered exclusive and is worded to encompass any type of business activity which deceives consumers.
Defendant contends that the court’s definition of “Deceptive Trade Practice” is a comment on the weight of the evidence. We disagree. This definition is suggested in Bragg, “Now We’re All Consumers!”, 28 Baylor L.Rev. 1, 14 (1976). This article suggests that “. . . because of the newness of the concept in Texas, courts should be tolerant of detailed instructions to insure that the jury is fully aware of the rules which must govern its answer as to whether a defendant’s conduct is ‘false, misleading or deceptive.’ ”
In Texas, the provisions of the rules of civil procedure relating to the submission of a case to the jury give the trial court considerable discretion in deciding what instructions are necessary and proper in submitting issues to the jury. Tex.R.Civ.P. 277; Union Oil Co. of California v. Richard, 536 S.W.2d 955 (Tex.Civ.App.—Beaumont 1975, no writ). Furthermore, Rule 277 now permits an incidental comment on the weight of the evidence where it is properly a part of an explanatory instruction or definition.
We think the phrase “which has the capacity or tendency to deceive an average or ordinary person, even though that person may have been ignorant, unthinking or credulous” represents the intention of the Legislature. Section 17.46(c) provides that courts to the extent possible would be guided by interpretations given by the Federal Trade Commission and the federal courts to specified section of the Federal Trade Commission Act. See Wesware, Incorporated v. State, 488 S.W.2d 844 (Tex.Civ.App.—Austin 1972, no writ). This is the interpretation given by the F.T.C. and the federal courts. Federal Trade Commission v. Standard Ed. Soc., 302 U.S. 112, 116, 58 S.Ct. *146113, 82 L.Ed. 141 (1937); Aronberg v. Federal Trade Commission, 132 F.2d 165, 167 (7th Cir.1942).
We do not, however, favor the trial court’s action in listing five instances above as being false, misleading or deceptive acts. We think he should have inquired of the jury whether certain factual issues (raised by the evidence) were represented or made, whether they were false, misleading or deceptive, and whether they were relied on. It would then be the court’s duty to determine if under the Act these were “Deceptive Trade Practices”. However, since each of the above five acts are in fact instances of Deceptive Trade Practices as listed in the twenty acts of the statute, and since § 17.44 —Construction and Application (Supp.1976-77) requires a liberal construction of the Act, we hold that the error was harmless, Tex.R.Civ.P. 434.
As previously noted herein, the trial court awarded double damages to the plaintiff. Both parties object to this, contending that the Act requires the award of treble damages when a violation is established. The applicable section of the Act follows:
“§ 17.50 — Relief for Consumers
“(b) In a suit filed under this section, each consumer who prevails may obtain:
“(1) three times the amount of actual damages plus court costs and attorneys’ fees reasonable in relation to the amount of work expended”. (Emphasis supplied)
Recently, the Dallas Court in McDaniel v. Dulworth, Docket No. 19108, 550 S.W.2d 395 (Tex.Civ.App.—Dallas, 1977) (not yet reported), held that treble damages are mandatory rather than discretionary reasoning that “may” as used in the introductory phrase of § 17.50(a) has as its subject “each consumer”; therefore, any discretion lies with the consumer.
In Mallory v. Custer, 537 S.W.2d 141, 143 (Tex.Civ.App.—Austin, 1976, no writ), the Austin Court said:
“We agree that Art. 17.50(b)(1) does not require that the prevailing consumer have judgment for treble damages. Article 17.50(b)(1), however, permits the entry of judgment for treble damages to the prevailing consumer.”
Before the publication of this opinion, the Supreme Court of Texas may have settled the matter (Woods v. Littleton, No. B-6270, 554 S.W.2d 662, writ granted, cause submitted January 26, 1977). However, to us the word “may” is not mandatory and expresses the Legislature’s intent that the trier of the facts may award damages up to but not above three times the amount of actual damages depending on the evidence of each case. This point is overruled.
The defendant has points contending each jury finding is against the great weight and preponderance of the evidence. This point directs us to the entire record. In Re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).
We have carefully read the entire record of this case, and it would only prolong — without benefit — this opinion to repeat or summarize the testimony. In answer to Special Issue No. 13, the jury found that defendant represented to plaintiff that the boat in question was a 1973 model boat built in 1973; that this was a Deceptive Trade Practice (14), which was relied on by plaintiff. The plaintiff so testified, and it is undisputed the boat was a 1972 model built in 1972. This supports the judgment. These points are overruled,
The defendant — appellant—has other points which we find without merit, and they are overruled. All points of both parties are overruled. The judgment of the trial court is affirmed.
AFFIRMED.