Examining Ohio Law: Ohio Consumer Sales Practices Act

Many states have laws that are designed to protect consumers by discouraging fraud or overreaching by sellers. In Ohio, these statutory protections are embodied in the Ohio Consumer Sales Practices Act (OCSPA), Ohio Rev. Code § 1345.01, et seq. The OCSPA prohibits "suppliers" in "consumer transactions" from committing acts that are either "unfair or deceptive" or "unconscionable."

The OCSPA defines a "consumer transaction" as "a sale, lease, assignment, award by chance, or other transfer of an item of goods, a service, a franchise, or an intangible, to an individual for purposes that are primarily personal, family, or household, or solicitation to supply any of these things."

Unfair or DeceptiveActs

Generally, the actions of a supplier are deemed to be "unfair" or "deceptive" if they are likely to lead a consumer a consumer to believe something about the product or service they are providing that is not truthful. Specifically, but not exclusively, the OSCPA prohibits suppliers from representing any of the following:

1. That the subject of a consumer transaction has sponsorship, approval, performance characteristics, accessories, uses, or benefits that it does not have;

2. That the subject of a consumer transaction is of a particular standard, quality, grade, style, prescription, or model, if it is not;

3. That the subject of a consumer transaction is new, or unused, if it is not;

4. That the subject of a consumer transaction is available to the consumer for a reason that does not exist;

5. That the subject of a consumer transaction has been supplied in accordance with a previous representation, if it has not, except that the act of a supplier in furnishing similar merchandise of equal or greater value as a good faith substitute does not violate this section;

6. That the subject of a consumer transaction will be supplied in greater quantity than the supplier intends;

7. That replacement or repair is needed, if it is not;

8. That a specific price advantage exists, if it does not;

9. That the supplier has a sponsorship, approval, or affiliation that the supplier does not have;

10. That a consumer transaction involves or does not involve a warranty, a disclaimer of warranties or other rights, remedies, or obligations if the representation is false.

Unconscionable Acts

"Unconscionable acts" are those in which the supplier has performed an act knowingly or with the intent to deceive the consumer. The OSCPA states that, in determining whether an act or practice is unconscionable, the following circumstances shall be taken into consideration:

1. Whether the supplier has knowingly taken advantage of the inability of the consumer reasonably to protect the consumer's interests because of the consumer's physical or mental infirmities, ignorance, illiteracy, or inability to understand the language of an agreement;

2. Whether the supplier knew at the time the consumer transaction was entered into that the price was substantially in excess of the price at which similar property or services were readily obtainable in similar consumer transactions by like consumers;

3. Whether the supplier knew at the time the consumer transaction was entered into of the inability of the consumer to receive a substantial benefit from the subject of the consumer transaction;

4. Whether the supplier knew at the time the consumer transaction was entered into that there was no reasonable probability of payment of the obligation in full by the consumer;

5. Whether the supplier required the consumer to enter into a consumer transaction on terms the supplier knew were substantially one-sided in favor of the supplier;

6. Whether the supplier knowingly made a misleading statement of opinion on which the consumer was likely to rely to the consumer's detriment;

7. Whether the supplier has, without justification, refused to make a refund in cash or by check for a returned item that was purchased with cash or by check, unless the supplier had conspicuously posted in the establishment at the time of the sale a sign stating the supplier's refund policy.

Penalties for Violating the OSCPA

The OSCPA provides two types of remedies to a consumer who prevails in an action under it provisions. First, the consumer may "rescind" the transaction, i.e. undo the contract, return the product purchased, and get a return of the purchase price. Second, the consumer may elect to recover the actual, provable damages caused by the supplier's OSCPA violation such as recovering cost of repairing the product.

Under certain circumstances, the consumer may recover "treble," or three times, the actual damages the suffered. Treble damages are recoverable under the OSCPA when the consumer can prove that the supplier's act was prohibited by law. Further, a consumer may also be awarded the reasonable attorney's fees incurred in bringing that OSCPA action if it is shown that the supplier knowingly committed an act that violated the OCSPA.

OSCPA provisions can be very complex and the above summary is meant only as a general guide. If you have questions regarding the OSCPA, contact the experienced attorneys at DiCaudo, Pitchford & Yoder today.