The 2023 Florida Statutes (including Special Session C)

Title XLVI
CRIMES

Chapter 817
FRAUDULENT PRACTICES

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F.S. 817.40

817.40 False, misleading and deceptive advertising and sales; definitions.—When construing ss. 817.40, 817.41, 817.43-817.47, and each and every word, phrase or part thereof, where the context will permit:

(1) The word or term “wholesale” or “wholesale sale” shall extend to and include an “at-cost sale,” “below-cost sale,” and terms of similar purport, and embraces all sales purporting to be made at or below the seller’s net delivered cost price, or below the average wholesale cost of the items sold or to be sold, but which are in fact made for a price in excess of the average wholesale of like items.

(2) The word or term “retail” means the sale or offering for sale of individual items of merchandise to the ultimate consumer.

(3) The term or word “retailer” means one who acquires for the purpose of sale, keeps for sale, offers or exposes for sale, or sells individual units of merchandise to the ultimate consumer and not for resale.

(4) The term or word “merchandise” includes goods, wares and merchandise, as generally understood, and in addition thereto services and other things of value.

(5) The phrase “misleading advertising” includes any statements made, or disseminated, in oral, written, electronic, or printed form or otherwise, to or before the public, or any portion thereof, which are known, or through the exercise of reasonable care or investigation could or might have been ascertained, to be untrue or misleading, and which are or were so made or disseminated with the intent or purpose, either directly or indirectly, of selling or disposing of real or personal property, services of any nature whatever, professional or otherwise, or to induce the public to enter into any obligation relating to such property or services.

(6) The definitions contained in s. 1.01, insofar as the context of this act will permit, shall be applicable hereto.

History.—s. 1, ch. 59-301; s. 73, ch. 95-211; s. 11, ch. 2015-166.

F.S. 817.40 on Google Scholar

F.S. 817.40 on Casetext

Amendments to 817.40

Arrestable Offenses / Crimes under Fla. Stat. 817.40

Level: Degree
Misdemeanor/Felony: First/Second/Third

Current data shows no reason an arrest or criminal charge should have occurred directly under Florida Statute 817.40.

Annotations, Discussions, Cases:

Cases from cite.case.law:

GODELIA, S. Y. v. DOE ZOLL LLC, ZOLL, 881 F.3d 1309 (11th Cir. 2018)

. . . Godelia’s fraudulent marketing and promotion claim is based on Florida Statutes Sections 817.40(5) and . . . Stat. § 817.40(5). . . .

MDVIP, INC. v. BEBER, P., 222 So. 3d 555 (Fla. Dist. Ct. App. 2017)

. . . otherwise, or to induce the public to enter into any obligation relating to such- property or services, § 817.40 . . .

In HYDROXYCUT MARKETING AND SALES PRACTICES LITIGATION v., 801 F. Supp. 2d 993 (S.D. Cal. 2011)

. . . . §§ 817.06 and 817.40-817.47; (7) violation of Georgia’s Fair Business Practices Act, Ga.Code Ann. § . . .

BABY BUDDIES, INC. a v. TOYS R US, INC. a R Us- a a, 611 F.3d 1308 (11th Cir. 2010)

. . . . § 817.40(5). . . . .

TRANSAMERICA CORPORATION, v. MONIKER ONLINE SERVICES, LLC a k a H. W., 672 F. Supp. 2d 1353 (S.D. Fla. 2009)

. . . . § 817.06 and §§ 817.40-47 by all Defendants. (See id.). . . . Transamerica’s claim for false and misleading advertising is brought under section 817.06, as well as sections 817.40 . . . Sections 817.40-817.47 are not as limited as section 817.06. . . .

THIRD PARTY VERIFICATION, INC. v. SIGNATURELINK, INC. L. L. C., 492 F. Supp. 2d 1314 (M.D. Fla. 2007)

. . . Section 817.40(5), Fla. . . .

A. JOSEPH, v. LIBERTY NATIONAL BANK,, 873 So. 2d 384 (Fla. Dist. Ct. App. 2004)

. . . Section 817.40(5), Florida Statutes (1999), describes misleading advertising in the following terms: . . .

S. SAMUELS R. v. KING MOTOR COMPANY OF FORT LAUDERDALE,, 782 So. 2d 489 (Fla. Dist. Ct. App. 2001)

. . . . § 817.40(5), Fla. Stat. (1997). . . . Under section 817.40(5), the Plaintiffs must also allege the misleading or untrue statement was made . . . to a third party is unavailing because the “selling” or “disposing” of property mentioned in section 817.40 . . . The definition of “misleading advertising” under section 817.40(5) has no application to the term “false . . . Compare § 817.40 with § 817.44. . . .

STATE v. MARK MARKS, P. A. STATE v. MARK MARKS, P. A. a k a, 654 So. 2d 1184 (Fla. Dist. Ct. App. 1995)

. . . State, 180 So.2d 335 (Fla.1965) (one statute (section 817.40) defined certain terms and the other statute . . .

KRAFT GENERAL FOODS, INC. a v. ROSENBLUM,, 635 So. 2d 106 (Fla. Dist. Ct. App. 1994)

. . . Section 817.40(5), Florida Statutes (1991), defines "misleading advertising" as follows: "(5) The phrase . . .

J. WEAVER, v. SCHOOL BOARD OF LEON COUNTY,, 624 So. 2d 761 (Fla. Dist. Ct. App. 1993)

. . . 1258 (Fla. 4th DCA 1989) (on rehearing) (action brought under misleading advertising statute, sections 817.40 . . .

D A EXCAVATING SERVICE, INC. v. J. I. CASE COMPANY, d b a, 555 So. 2d 1256 (Fla. Dist. Ct. App. 1989)

. . . prevailed at trial pursuant to an action brought under the misleading advertising statutes, sections 817.40 . . . prevailed at trial pursuant to an action brought under the misleading advertising statutes, sections 817.40 . . .

THE FLORIDA BAR, v. S. RUBIN,, 549 So. 2d 1000 (Fla. 1989)

. . . Judgment is entered against him for $817.40, for which sum let execution issue. . . .

S. H. INVESTMENT AND DEVELOPMENT CORPORATION, HIC v. KINCAID, 495 So. 2d 768 (Fla. Dist. Ct. App. 1986)

. . . Kincaids also presented a claim, accepted by the jury, based on false advertising in violation of sections 817.40 . . . the Kincaids may have been fraudulent, that fraud is not encompassed by the provisions of sections 817.40 . . .

B. VANCE, Jr. v. INDIAN HAMMOCK HUNT RIDING CLUB, LTD., 403 So. 2d 1367 (Fla. Dist. Ct. App. 1981)

. . . not only to Chapter 498, Florida Statutes, which had been specifically pleaded, but also to Sections 817.40 . . . The relevant portions are Section 817.40(5) and Sections 817.41(1) and (6) as follows: Section 817.40 . . .

MIAMI LINCOLN MERCURY, INC. v. W. KRAMER,, 399 So. 2d 1003 (Fla. Dist. Ct. App. 1981)

. . . Kramer filed this suit against Miami Lincoln Mercury pursuant to Sections 817.40 and 817.41, Florida . . .

E. E. Jr. E. M. Co- v., 54 T.C. 1651 (T.C. 1970)

. . . Property: Sales price — sold 3/1/65- $45, 600. 00 Expenses of sale- 2, 782. 60 Net proceeds_ 42, 817.40 . . .

MAJOR, v. STATE, 180 So. 2d 335 (Fla. 1965)

. . . . § 817.40, F.S.A., provides in pertinent part as follows: “False, misleading and deceptive advertising . . . Appellant contends that he cannot be found guilty of violating § 817.40 (the definition section) under . . . Florida Statute § 817.40, F.S.A. requires that the definition prescribed be read into F.S. § 817.41, . . .

CHESTER M. CURRY, 3 B.T.A. 237 (B.T.A. 1925)

. . . Brander, $56,-817.40; L. W. Brander, $27,820.56. . . .