PART VII. BUSINESS AND COMMERCIAL FRAUDS

 

708-870 Deceptive business practices. (1) A person commits the offense of deceptive business practices if in the course of engaging in a business, occupation, or profession the person knowingly or recklessly:

(a) Uses or possesses for use a false weight or measure, or any other device for falsely determining or recording any quality or quantity;

(b) Sells, offers or exposes for sale, or delivers less than the represented quantity of any commodity or service;

(c) Takes or attempts to take more than the represented quantity of any commodity or service when as buyer the person furnishes the weight or measure;

(d) Sells or offers for sale adulterated commodities; or

(e) Sells or offers or exposes for sale mislabeled commodities.

(2) "Adulterated" means varying from the standard of composition or quality prescribed by statute or lawfully promulgated administrative regulation, or if none, as set by established commercial usage.

(3) "Mislabeled" means:

(a) Varying from the standard of truth or disclosure in labeling prescribed by statute or lawfully promulgated administrative regulation, or if none, as set by established commercial usage; or

(b) Represented as being another person's product, though otherwise labeled accurately as to quality and quantity.

(4) Deceptive business practices is a misdemeanor.

(5) This section does not apply to deceptive business practices, as defined in subsection (1), for which a specific penalty is provided by a statute other than this Code. [L 1972, c 9, pt of 1; gen ch 1993]

 

Revision Note

 

In subsection (1)(b) and (c), "or" deleted pursuant to 23G-15.

 

COMMENTARY ON 708-870

 

This section proscribes knowingly or recklessly engaging in certain business practices likely to deceive customers or clients. The basic purpose of the section is to provide a single punishment and simple definition for various offenses related to false weights and measures, adulteration, and mislabeling of commodities.

This section is not intended as detailed regulation of the subject area, but rather only to control the criminal penalties utilized to enforce legislation dealing with deceptive business practices. However, recognizing the tremendous body of law specifically regulating various deceptive business practices and the questionable wisdom of a wholesale modification of that body of law, subsection (5) is included to provide that this section shall not apply where statutes outside the Code specifically provide a penalty for the deceptive practice involved. It should be emphasized that criminal sanctions in this area are an extreme measure, and generally not as effective an enforcement tool as statutory licensing, injunction, and private actions.[1]

Subsection (1) defines the offense and is largely self- explanatory. It should be noted, with respect to the state of mind required for conviction, that although (1) recklessness is a lower level of culpability than acting knowingly, and (2) there is a slight redundancy in including the word "knowingly" in the definition of the offense,[2] the clarity of language that is achieved is worth the technical redundancy. Unlike the theft offenses, there is no requirement that (1) defendant obtain property or services, (2) that the defendant obtain by deception, or (3) that the defendant act intentionally. The definitions in subsections (2) and (3) are also self-explanatory. However, it should be pointed out, that all current regulatory standards are included by reference. Where no statutory or regulatory standards exist, it becomes encumbent upon the prosecution to prove a violation of established commercial usage.

Previous Hawaii law contained many penal provisions for deceptive business practices within Title 38 of the Hawaii Revised Statutes dealing with crimes. Most deceptive practices were covered in the chapter on "Gross Cheat." The penalties in this chapter did not treat similar conduct equally.

The same anomalies will continue to occur in general regulatory provisions. Deceptive business practices relating to gasoline, fuel, and motor oil warrant a $500 fine or six months' imprisonment or both.[3] For selling other than "pure quality" liquor the available sanction is the same,[4] but for selling misbranded or adulterated milk, imprisonment for one year is authorized.[5] When this section of the Code is compared with regulatory legislation outside the Code, inconsistencies in sentences can be found. However, these anomalies and inconsistencies are the inevitable result of our determination, in subsection (5), not to use the Penal Code as a vehicle for the wholesale reform of regulatory legislation relating to deceptive business practices.

 

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708-870 Commentary:

 

1. See Prop. Mich. Rev. Cr. Code, comments at 288-89.

 

2. Cf. 702-208.

 

3. H.R.S. chapter 451.

 

4. Id. 281-73, 281-102.

 

5. Id. 445-102, 321-18.

 

 

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