New Mexico Unfair Practices Act

Chapter 57, Article 12 NMSA 1978 may be cited as the “Unfair Practices Act”.

History: 1953 Comp., § 49-15-1, enacted by Laws 1967, ch. 268, § 1; 2003, ch. 167, § 8; 2003, ch. 168, § 1.

As used in the Unfair Practices Act:

A. “person” means, where applicable, natural persons, corporations, trusts, partnerships, associations, cooperative associations, clubs, companies, firms, joint ventures or syndicates;

B. “seller-initiated telephone sale” means a sale, lease or rental of goods or services in which the seller or the seller’s representative solicits the sale by telephoning the prospective purchaser and in which the sale is consummated entirely by telephone or mail, but does not include a transaction:

(1) in which a person solicits a sale from a prospective purchaser who has previously made an authorized purchase from the seller’s business; or

(2) in which the purchaser is accorded the right of rescission by the provisions of the federal Consumer Credit Protection Act, 15 U.S.C. 1635, or regulations issued pursuant thereto;

C. “trade” or “commerce” includes the advertising, offering for sale or distribution of any services and any property and any other article, commodity or thing of value, including any trade or commerce directly or indirectly affecting the people of this state;

D. “unfair or deceptive trade practice” means an act specifically declared unlawful pursuant to the Unfair Practices Act, a false or misleading oral or written statement, visual description or other representation of any kind knowingly made in connection with the sale, lease, rental or loan of goods or services or in the extension of credit or in the collection of debts by a person in the regular course of the person’s trade or commerce, that may, tends to or does deceive or mislead any person and includes:

(1) representing goods or services as those of another when the goods or services are not the goods or services of another;

(2) causing confusion or misunderstanding as to the source, sponsorship, approval or certification of goods or services;

(3) causing confusion or misunderstanding as to affiliation, connection or association with or certification by another;

(4) using deceptive representations or designations of geographic origin in connection with goods or services;

(5) representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits or quantities that they do not have or that a person has a sponsorship, approval, status, affiliation or connection that the person does not have;

(6) representing that goods are original or new if they are deteriorated, altered, reconditioned, reclaimed, used or secondhand;

(7) representing that goods or services are of a particular standard, quality or grade or that

goods are of a particular style or model if they are of another;

(8) disparaging the goods, services or business of another by false or misleading representations;

(9) offering goods or services with intent not to supply them in the quantity requested by the prospective buyer to the extent of the stock available, unless the purchaser is purchasing for resale;

(10) offering goods or services with intent not to supply reasonable expectable public demand;

(11) making false or misleading statements of fact concerning the price of goods or services, the prices of competitors or one’s own price at a past or future time or the reasons for, existence of or amounts of price reduction;

(12) making false or misleading statements of fact for the purpose of obtaining appointments for the demonstration, exhibition or other sales presentation of goods or services;

(13) packaging goods for sale in a container that bears a trademark or trade name identified with goods formerly packaged in the container, without authorization, unless the container is labeled or marked to disclaim a connection between the contents and the trademark or trade name;

(14) using exaggeration, innuendo or ambiguity as to a material fact or failing to state a material fact if doing so deceives or tends to deceive;

(15) stating that a transaction involves rights, remedies or obligations that it does not involve;

(16) stating that services, replacements or repairs are needed if they are not needed;

(17) failing to deliver the quality or quantity of goods or services contracted for;

(18) violating the Tobacco Escrow Fund Act [6-4-14 through 6-4-24 NMSA 1978];

(19) offering or providing unposted or unadvertised pricing or service based on the buyer’s gender or perceived gender identity; provided, however, that this provision does not apply to persons regulated by the office of superintendent of insurance pursuant to the New Mexico Insurance Code [Chapter 59A NMSA 1978, except for 59A-30A-1 to 59A-30A-18 NMSA 1978, and 59A-42A-1 to 59A- 42A-9 NMSA 1978]; or

(20) charging an applicant a fee in violation of the Uniform Owner-Resident Relations Act [47- 8-1 to 47-8-52 NMSA 1978]; and

E. “unconscionable trade practice” means an act or practice in connection with the sale, lease, rental or loan, or in connection with the offering for sale, lease, rental or loan, of any goods or services, including services provided by licensed professionals, or in the extension of credit or in the collection of debts that to a person’s detriment:

(1) takes advantage of the lack of knowledge, ability, experience or capacity of a person to a grossly unfair degree; or

(2) results in a gross disparity between the value received by a person and the price paid.

History: 1953 Comp., § 49-15-2, enacted by Laws 1967, ch. 268, § 2; 1969, ch. 208, § 1; 1971, ch. 240, § 1; 1987, ch. 187, § 1; 1989, ch. 309, § 1; 1995, ch. 18, § 2; 1999, ch. 171, § 1; 2003, ch. 167, § 9; 2009, ch. 197, § 25; 2019, ch. 214, § 1; 2025, ch. 122, § 8.

Unfair or deceptive trade practices and unconscionable trade practices in the conduct of any trade or commerce are unlawful.

History: 1953 Comp., § 49-15-3, enacted by Laws 1967, ch. 268, § 3; 1971, ch. 240, § 2.

A. It shall be an unlawful practice within the meaning of the Unfair Practices Act for any person to:

(1) remove the owner’s container from the owner’s or a recipient’s premises or parking area without the permission of the owner or recipient;

(2) possess or use the owner’s container if it has been removed from the owner’s or recipient’s premises or parking area without the permission of the owner or recipient;

(3) alter, convert, destroy or tamper with the owner’s container without permission of the owner or recipient; or

(4) sell the owner’s container to or purchase the owner’s container from someone other than the owner without the permission of the owner.

B. As used in this section:

(1) “bakery rack” means a metal frame that holds bakery trays or other bakery products and that is used by a bakery, distributor or retailer or its agent as a means to transport, store or carry bakery products;

(2) “bakery tray” means a wire or plastic receptacle that holds bread, buns or other baked goods and that is used by a bakery, distributor or retailer or its agent as a means to transport, store or carry bakery products;

(3) “container” means a bakery rack, bakery tray, dairy case, egg basket, poultry box, shopping cart or pallet;

(4) “dairy case” means a plastic receptacle that holds sixteen quarts or more of beverage

and that is used by a dairy, distributor or retailer or its agent as a means to transport, store or carry dairy products;

(5) “pallet” means a wooden or plastic base that allows stacks of merchandise to be placed upon it and that provides a space and support beneath the stack for forklift handling;

(6) “parking area” means a lot or other property provided by a recipient for the use of its customers to park vehicles while at the recipient’s establishment;

(7) “poultry box” means a permanent type of container that is used by a processor, distributor, retailer or food service establishment or an agent of one of those persons to transport, store or carry poultry;

(8) “recipient” means a person, firm, corporation or association that is authorized by the owner to use an owner’s container; and

(9) “shopping cart” means a basket that is mounted on wheels, or a similar device, that is generally used in a retail establishment by a customer to transport goods of any kind.

C. No civil action shall be maintained pursuant to this section against any person who returns to its owner within sixty days after the effective date of this section a container that was unlawfully obtained.

History: Laws 1991, ch. 28, § 1.

It is the intent of the legislature that in construing Section 3 [57-12-3 NMSA 1978] of the Unfair Practices Act the courts to the extent possible will be guided by the interpretations given by the federal trade commission and the federal courts.

History: 1953 Comp., § 49-15-4, enacted by Laws 1967, ch. 268, § 4.

The use or employment of any chain referral sales technique, plan, arrangement or agreement whereby the buyer is induced to purchase merchandise or services upon the seller’s representation or promise that if the buyer will furnish the seller names of other prospective buyers of like or identical merchandise that the seller will contact the named prospective buyers and the buyer will receive a

reduction in the purchase price by means of a cash rebate, commission, credit toward balance due or any other consideration, is declared to be an unlawful practice within the meaning of the Unfair Practices Act.

History: 1953 Comp., § 49-15-5, enacted by Laws 1967, ch. 268, § 5.

A. The willful misrepresentation of the age or condition of a motor vehicle by any person, including regrooving tires or performing chassis repair, without informing the purchaser of the vehicle that the regrooving or chassis repair has been performed, is an unlawful practice within the meaning of the Unfair Practices Act, unless the alleged misrepresentation is based wholly on repair of damage, the disclosure of which was not required pursuant to Subsection C of this section. The failure to provide an affidavit pursuant to Subsection B of this section when there has been repair for which disclosure is required shall constitute prima facie evidence of willful misrepresentation.

B. Except as provided in Subsections C and D of this section, a seller of a motor vehicle shall furnish at the time of sale of a motor vehicle an affidavit that:

(1) describes the vehicle; and

(2) states to the best of the seller’s knowledge whether there has been an alteration or chassis repair due to wreck damage.

C. No affidavit shall be required pursuant to this section if the flat rate manual cost of the alteration or chassis repair is less than six percent of the sales price of the vehicle.

D. In the case of a private-party sale of a vehicle, an affidavit shall be furnished only upon the request of the purchasing party.

E. Notwithstanding the provisions of Subsection D of Section 57-12-10 NMSA 1978, the award of three times actual damages as provided for in that section shall be in lieu of any award of punitive damages based only on those facts constituting the unfair or deceptive trade practice or unconscionable trade practice.

F. Any person who violates this section is guilty of a misdemeanor.

History: 1953 Comp., § 49-15-5.1(B), enacted by Laws 1971, ch. 274, § 1, and recompiled as 1953 Comp., § 49-15-5.1 by Laws 1977, ch. 181, § 4; 1981, ch. 361, § 1; 1991, ch. 232, § 1; 1995, ch. 10, § 1.

Nothing in the Unfair Practices Act shall apply to actions or transactions expressly permitted under laws administered by a regulatory body of New Mexico or the United States, but all actions or transactions forbidden by the regulatory body, and about which the regulatory body remains silent, are subject to the Unfair Practices Act.

History: 1953 Comp., § 49-15-6, enacted by Laws 1967, ch. 268, § 6; 1999, ch. 171, § 2.

A. Whenever the attorney general has reasonable belief that any person is using, has used or is about to use any method, act or practice which is declared by the Unfair Practices Act to be unlawful, and that proceedings would be in the public interest, he may bring an action in the name of the state alleging violations of the Unfair Practices Act. The action may be brought in the district court of the county in which the person resides or has his principal place of business or in the district court in any county in which the person is using, has used or is about to use the practice which has been alleged to be unlawful under the Unfair Practices Act. The attorney general acting on behalf of the state of New Mexico shall not be required to post bond when seeking a temporary or permanent injunction in such

action.

B. In any action filed pursuant to the Unfair Practices Act, including an action with respect to unimproved real property, the attorney general may petition the district court for temporary or permanent injunctive relief and restitution.

History: 1953 Comp., § 49-15-7, enacted by Laws 1967, ch. 268, § 7; 1970, ch. 38, § 1; 1977, ch. 181, § 1.

A. In lieu of beginning or continuing an action pursuant to the Unfair Practices Act, the attorney general may accept a written assurance of discontinuance of any practice in violation of the Unfair Practices Act from the person who has engaged in the unlawful practice. The attorney general may require an agreement by the person engaged in the unlawful practice that, by a date set by the attorney general and stated in the assurance, he will make restitution to all persons of money, property or other things received from them in any transaction related to the unlawful practice. All settlements are a matter of public record but are not admissible against any defendant in any action brought by any other person or public body against such defendant under the Unfair Practices Act and do not constitute a basis for the introduction of the assurance of discontinuance as prima facie evidence against such defendant in any action or proceeding.

B. A person need not accept restitution pursuant to an assurance. His acceptance of restitution bars recovery of any damages in any action by him or on his behalf against the same defendant on account of the same unlawful practice.

C. A violation of an assurance entered into pursuant to this section is a violation of the Unfair Practices Act.

History: 1953 Comp., § 49-15-7.1, enacted by Laws 1971, ch. 240, § 3; 1977, ch. 181, § 2.

A. A person likely to be damaged by an unfair or deceptive trade practice or by an unconscionable trade practice of another may be granted an injunction against it under the principles of equity and on terms that the court considers reasonable. Proof of monetary damage, loss of profits or intent to deceive or take unfair advantage of any person is not required. Relief granted for the copying of an article shall be limited as to the prevention of confusion or misunderstanding as to source.

B. Any person who suffers any loss of money or property, real or personal, as a result of any employment by another person of a method, act or practice declared unlawful by the Unfair Practices Act may bring an action to recover actual damages or the sum of one hundred dollars ($100), whichever is greater. Where the trier of fact finds that the party charged with an unfair or deceptive trade practice or an unconscionable trade practice has willfully engaged in the trade practice, the court may award up to three times actual damages or three hundred dollars ($300), whichever is greater, to the party complaining of the practice.

C. The court shall award attorney fees and costs to the party complaining of an unfair or deceptive trade practice or unconscionable trade practice if the party prevails. The court shall award attorney fees and costs to the party charged with an unfair or deceptive trade practice or an unconscionable trade practice if it finds that the party complaining of such trade practice brought an action that was groundless.

D. The relief provided in this section is in addition to remedies otherwise available against the same conduct under the common law or other statutes of this state.

E. In any class action filed under this section, the court may award damages to the named plaintiffs as provided in Subsection B of this section and may award members of the class such actual damages as were suffered by each member of the class as a result of the unlawful method, act or practice.

F. A party to a court action for a private remedy pursuant to this section may request in writing during the thirty-day period following service of the summons and complaint on all parties named in the action that the parties attempt to settle the claim in early mediation. If a request for mediation is made, the parties shall choose a mutually acceptable mediator and enter into mediation within sixty days of the appointment of an acceptable mediator unless otherwise agreed by the parties. A request for mediation may be rescinded at any time if agreed to by all parties.

G. If the parties do not agree on a mutually acceptable mediator, the court shall appoint the mediator. If the early mediation pursuant to this section is entered into within sixty days following the appointment of the mediator, the parties suing on the basis of unfair, deceptive or unconscionable trade practices or acts under the Unfair Practices Act shall be required to pay no more than fifty dollars ($50.00) toward the cost of the mediation and the other party shall pay the remainder of such cost, unless otherwise agreed by the parties. If a person is seeking injunctive relief in accordance with Subsection A of this section, the person may pursue the claim for injunctive relief without following the mediation requirements of this subsection and Subsection F of this section.

History: 1953 Comp., § 49-15-8, enacted by Laws 1967, ch. 268, § 8; 1971, ch. 240, § 4; 1977, ch. 181, § 3; 1987, ch. 187, § 2; 2005, ch. 187, § 1.

In any action brought under Section 57-12-8 NMSA 1978, if the court finds that a person is willfully using or has willfully used a method, act or practice declared unlawful by the Unfair Practices Act, the attorney general, upon petition to the court, may recover, on behalf of the state of New Mexico, a civil penalty of not exceeding five thousand dollars ($5,000) per violation.

History: 1953 Comp., § 49-15-9, enacted by Laws 1970, ch. 38, § 2.

A. Whenever the attorney general has reason to believe that any person may be in possession, custody or control of an original or copy of any book, record, report, memorandum, paper, communication, tabulation, map, chart, photograph, mechanical transcription or other tangible document or recording which he believes to be relevant to the subject matter of an investigation of a probable violation of the Unfair Practices Act, he may, prior to the institution of a civil proceeding, execute in writing and cause to be served upon the person a civil investigative demand requiring such person to produce documentary material and permit the inspection and copying of the material. The demand of the attorney general shall not be a matter of public record and shall not be published by him

except by order of the court.

B. Each demand shall:

(1) state the general subject matter of the investigation;

(2) describe the classes of documentary material to be produced with reasonable certainty;

(3) prescribe the return date within which the documentary material is to be produced, which in no case shall be less than ten days after the date of service; and

(4) identify the members of the attorney general’s staff to whom such documentary material is to be made available for inspection and copying.

C. No demand shall:

(1) contain any requirement which would be unreasonable or improper if contained in a subpoena duces tecum issued by a court of this state; or

(2) require the disclosure of any documentary material which would be privileged, or which for any other reason would not be required by a subpoena duces tecum issued by a court of this state;

(3) require the removal of any documentary material from the custody of the person upon whom the demand is served except in accordance with the provisions of Subsection E.

D. Service of the demand may be made by:

(1) delivering a duly executed copy thereof to the person to be served, or if the person is not a natural person, to the statutory agent for the person or to any officer of the person to be served; or

(2) delivering a duly executed copy thereof to the principal place of business in this state of the person to be served; or

(3) mailing by registered or certified mail a duly executed copy of the demand addressed to the person to be served at his principal place of business in this state, or, if the person has no place of business in this state, to his principal office or place of business.

E. Documentary material demanded pursuant to the provisions of this section shall be produced for inspection and copying during normal business hours at the principal office or place of business of the person served or may be inspected and copied at such other times and places as may be agreed upon by the person served and the attorney general.

F. No documentary material produced pursuant to a demand, or copies thereof, shall, unless otherwise ordered by the district court in the county in which the person resides or has his principal place of business, or is about to [perform] or is performing the practice which is alleged to be unlawful under the Unfair Practices Act, for good cause shown, be produced for inspection or copying by anyone other than an authorized employee of the attorney general, nor shall the contents thereof be disclosed to anyone other than an authorized employee of the attorney general, or in court in an action relating to a violation of the Unfair Practices Act.

G. At any time before the return date of the demand, a petition to set aside the demand, modify the demand or extend the return date thereon may be filed in the district court in the county in which the person resides or has his principal place of business, or is about to [perform] or is performing the practice which is alleged to be unlawful under the Unfair Practices Act, and the court upon a showing of good cause may set aside the demand, modify it or extend the return date of the demand.

H. After service of the investigative demand upon him, if any person neglects or refuses to comply with the demand, the attorney general may invoke the aid of the court in the enforcement of the demand. In appropriate cases the court shall issue its order requiring the person to appear and produce the documentary material required in the demand and may upon failure of the person to comply with the order punish the person for contempt.

I. This section shall not be applicable to criminal prosecutions.

History: 1953 Comp., § 49-15-10, enacted by Laws 1967, ch. 268, § 10.

The attorney general is empowered to issue and file as required by law all regulations necessary to implement and enforce any provision of the Unfair Practices Act.

History: 1953 Comp., § 49-15-11, enacted by Laws 1967, ch. 268, § 10 [10A].

The Unfair Practices Act neither enlarges nor diminishes the rights of parties in private litigation.

History: 1953 Comp., § 49-15-12, enacted by Laws 1967, ch. 268, § 11.

In order to promote the uniform administration of the Unfair Practices Act in New Mexico, the attorney general is to be responsible for its enforcement, but he may in appropriate cases delegate this authority to the district attorneys of the state and when this is done, the district attorneys shall have every power conferred upon the attorney general by the Unfair Practices Act.

History: 1953 Comp., § 49-15-13, enacted by Laws 1967, ch. 268, § 12.

The Unfair Practices Act does not apply to publishers, broadcasters, printers or other persons engaged in the dissemination of information or reproduction of printed or pictorial matters who publish, broadcast or reproduce material without knowledge of its deceptive or unconscionable character.

History: 1953 Comp., § 49-15-14, enacted by Laws 1967, ch. 268, § 13; 1971, ch. 240, § 5.

Whenever the attorney general has reasonable belief that any person is using or is about to use any method, act or practice which is declared by the Unfair Practices Act to be unlawful, and whenever the attorney general has reasonable belief that any such person is about to remove himself from the

state of New Mexico, or is about to remove his property or assets from the state of New Mexico, the attorney general may petition the appropriate district court for a writ of ne exeat and the court may forbid any such person from leaving the state of New Mexico, or removing his property or assets from the state of New Mexico until a determination of the issues has been made.

History: 1953 Comp., § 49-15-15, enacted by Laws 1971, ch. 164, § 1.

The court may require any such person to post a ne exeat bond conditioned on such persons [person’s] appearance at all hearings on the matter at issue.

History: 1953 Comp., § 49-15-16, enacted by Laws 1971, ch. 164, § 2.

No such person shall be incarcerated for failure to post said ne exeat bond for longer than 72 hours, Sundays excepted, without the benefit of a hearing before the court setting said bond. Such hearing shall be held as soon as possible after incarceration.

History: 1953 Comp., § 49-15-17, enacted by Laws 1971, ch. 164, § 3.

The sureties upon any bond, shall in all cases justify as to their sufficiency; and the clerk of the district court taking such bond shall certify his approval of the same, as to form and the manner of its execution and to the sufficiency of the sureties thereon.

History: 1953 Comp., § 49-15-18, enacted by Laws 1971, ch. 164, § 4.

A. In connection with a door-to-door sale, it constitutes an unfair or deceptive trade practice for a seller to:

(1) fail to furnish the buyer with a fully completed receipt or copy of a contract pertaining to the sale at the time of its execution that is in the same language as that principally used in the oral sales presentation and that shows the date of the transaction and contains the name and address of the seller and, in immediate proximity to the space reserved in the contract for the signature of the buyer or on the front page of the receipt if a contract is not used and in bold face type of a minimum size of ten points, a statement in substantially the following form:

“You, the buyer, may cancel this transaction at any time prior to midnight of the third business day after the date of this transaction. See the attached notice of cancellation form for an explanation of this right.”;

(2) fail to furnish each buyer, at the time the buyer signs the door-to-door sales contract or otherwise agrees to buy consumer goods or services from the seller, a completed form in duplicate, captioned “NOTICE OF CANCELLATION”, that shall be attached to the contract or receipt and easily detachable and that shall contain in ten-point bold face type the following information and statements in the same language as that used in the contract:

"NOTICE OF CANCELLATION

_______________________ date

You may cancel this transaction, without any penalty or obligation, within three business days from the above date.

If you cancel, any property traded in, any payments made by you under the contract or sale and any negotiable instrument executed by you will be returned within ten business days following receipt by the seller of your cancellation notice and any security interest arising out of the transaction will be canceled.

If you cancel, you must make available to the seller at your residence, in substantially as good condition as when received, any goods delivered to you under this contract or sale; or you may, if you wish, comply with the instructions of the seller regarding the return shipment of the goods at the seller’s expense and risk.

If you do make the goods available to the seller and the seller does not pick them up within twenty days of the date of your notice of cancellation, you may retain or dispose of the goods without any further obligation. If you fail to make the goods available to the seller or if you agree to return the goods to the seller and fail to do so, then you remain liable for performance of all obligations under the contract.

To cancel this transaction, mail or deliver a signed and dated copy of this cancellation notice or any other written notice or send a telegram to:

_____________________________ (name of seller)

at ___________________________________________________________ (address of seller’s place of business)

not later than midnight of ___________________________________ (date)

I hereby cancel this transaction.

_____________________________ (date)

_____________________________ (buyer’s signature)";

(3) fail, before furnishing copies of the notice of cancellation to the buyer, to complete both copies by entering the name of the seller, the address of the seller’s place of business, the date of the transaction and the date, not earlier than the third business day following the date of the transaction, by which the buyer may give notice of cancellation;

(4) include in a door-to-door contract or receipt a confession of judgment or a waiver of any of the rights to which the buyer is entitled under this section, including specifically the buyer’s right to cancel the sale in accordance with the provisions of this section;

(5) fail to inform each buyer orally, at the time the buyer signs the contract or purchases the goods or services, of the right to cancel;

(6) misrepresent in any manner the buyer’s right to cancel;

(7) fail or refuse to honor a valid notice of cancellation by a buyer and, within ten business days after the receipt of the notice, fail to:

(a) refund all payments made under the contract or sale;

(b) return in substantially as good condition as when received by the seller any goods or property traded in; and

(c) cancel and return any negotiable instrument executed by the buyer in connection with the contract or sale and take any action necessary or appropriate to terminate promptly a security interest created in the transaction;

(8) negotiate, transfer, sell or assign any notice or other evidence of indebtedness to a finance company or other third party prior to midnight of the fifth business day following the day the contract was signed or the goods or services were purchased; and

(9) fail to notify the buyer, within ten business days of receipt of the notice of cancellation, whether the seller intends to repossess or to abandon any shipped or delivered goods.

B. The cancellation period provided for in this section as applied to telephone initiated sales shall not begin until the buyer has been informed of the right to cancel and has been provided with copies of the notice of cancellation.

C. For the purposes of this section:

(1) “business day” means any calendar day except Sunday or the following business holidays: New Year’s day; President’s day; Memorial day; Independence day; Labor day; Indigenous Peoples’ day; Armistice day and Veterans’ day; Thanksgiving day; Christmas day; Martin Luther King, Jr.’s birthday; and any other legal public holiday of the state of New Mexico or the United States;

(2) “consumer goods or services” means goods or services other than perishable goods or agricultural products purchased, leased or rented primarily for personal, family or household purposes, including courses of instruction or training, regardless of the purpose for which they are taken;

(3) “door-to-door sale” means a sale, lease or rental of consumer goods or services with a purchase price of twenty-five dollars ($25.00) or more, whether under single or multiple contracts, in which the seller or the seller’s representative personally solicits the sale, including those in response to or following an invitation by the buyer, and the buyer’s agreement or offer to purchase is made at a place other than the place of business of the seller. A door-to-door sale includes seller initiated telephone sales. A door-to-door sale does not include a transaction:

(a) made pursuant to prior negotiations in the course of a visit by the buyer to a retail business establishment having a fixed permanent location where the goods are exhibited or the services are offered for sale on a continuing basis;

(b) in which the consumer is accorded the right of rescission by the provisions of the Consumer Credit Protection Act, 15 U.S.C. 1635, or regulations issued pursuant thereto;

(c) in which the buyer has initiated the contract and the goods or services are needed to meet a bona fide immediate personal emergency of the buyer, and the buyer furnishes the seller with a separate dated and signed personal statement in the buyer’s handwriting describing the situation requiring immediate remedy and expressly acknowledging and waiving the right to cancel the sale within three business days;

(d) in which the buyer has initiated the contract and specifically requested the seller to visit the buyer’s home for the purpose of repairing or performing maintenance upon the buyer’s personal property. If in the course of such a visit the seller sells the buyer the right to receive additional services or goods other than replacement parts necessarily used in performing the maintenance or in making the repairs, the sale of those additional goods or services would not fall within this exclusion;

(e) pertaining to the sale or rental of real property, to the sale of insurance or to the sale of securities or commodities by a broker-dealer registered with the securities and exchange commission; or

(f) in which a consumer acquires the use of goods under the terms of a rental-purchase agreement made pursuant to the provisions of the Rental-Purchase Agreement Act, with an initial rental period of one week or less, by placing a telephone call to a lessor and by requesting that specific goods be delivered to the consumer’s residence or such other place as the consumer directs and consummation of the rental-purchase agreement occurs after the goods are delivered;

(4) “place of business” means the main or permanent branch office or local address of a seller;

(5) “purchase price” means the total price paid or to be paid for the consumer goods or services, including all interest and service charges; and

(6) “seller” means any person, partnership, corporation or association engaged in the door- to-door sale of consumer goods or services.

History: 1978 Comp., § 57-12-21, enacted by Laws 1987, ch. 212, § 1; 1995, ch. 38, § 13; 2019, ch. 123, § 2.

A. A person shall not utilize an automated telephone dialing or push-button or tone-activated address signaling system with a prerecorded message to solicit persons to purchase goods or services unless there is an established business relationship between the persons and the person being called consents to hear the prerecorded message.

B. It is unlawful under the Unfair Practices Act for a person to make a telephone solicitation for a purchase of goods or services:

(1) without disclosing within fifteen seconds of the time the person being called answers the name of the sponsor and the primary purpose of the contact;

(2) that misrepresents the primary purpose of a telephone solicitation of a residential subscriber as a “courtesy call”, a “public service information call” or some other euphemism;

(3) under the guise of research or a survey when the real intent is to sell goods or services;

(4) without disclosing, prior to commitments by customers, the cost of the goods or services, all terms, conditions, payment plans and the amount or existence of any extra charges such as shipping and handling;

(5) that are received before 9:00 a.m. or after 9:00 p.m.;

(6) using automatic dialing equipment unless the telephone immediately releases the line when the called party disconnects;

(7) using automatic dialing equipment that dials and engages the telephone numbers of more than one person at a time but allows the possibility of a called person not being connected to the calling person for some period not exceeding that established by the federal trade commission at 16 C.F.R. Sections 310(b)(1)(iv) and 310.4(b)(4); and

(8) in which credit card numbers are requested before the prospective purchaser expresses a desire to use a credit card to pay for the purchase.

C. It is unlawful for a person to:

(1) make a telephone solicitation of a residential subscriber whose telephone number has been on the national do-not-call registry, established by the federal trade commission, for at least three

months prior to the date the call is made; or

(2) use a method to block or otherwise intentionally circumvent a residential subscriber’s use of a caller identification service pursuant to the Consumer No-Call Act [repealed].

D. As used in this section:

(1) “established business relationship” means a relationship that:

(a) was formed, prior to a telephone solicitation, through a voluntary, two-way communication between a seller or telephone solicitor and a residential subscriber, with or without consideration, on the basis of an application, purchase, ongoing contractual agreement or commercial transaction between the parties regarding products or services offered by the seller or telephone solicitor; and

(b) currently exists or has existed within the immediately preceding twelve months;

(2) “local exchange company” means a telecommunications company that provides the transmission of two-way interactive switched voice communications within a local exchange area;

(3) “residential subscriber” means a person who has subscribed to residential telephone service from a local exchange company or the other persons living or residing with such person; and

(4) “telephone solicitation” means a voice or telefacsimile communication over a telephone line for the purpose of encouraging the purchase or rental of or investment in property, goods or services and includes a communication described in this subsection through the use of automatic dialing and recorded message equipment or by other means, but “telephone solicitation” does not include a communication:

(a) to a residential subscriber with that subscriber’s prior express invitation or permission;

(b) by or on behalf of a person with whom a residential subscriber has an established business relationship;

(c) made for the sole purpose of urging support for or opposition to a political candidate or ballot issue;

(d) made for the sole purpose of conducting political polls or soliciting the expression of opinions, ideas or votes; or

(e) by a person who is a duly licensed real estate broker pursuant to Section 61-29-11 NMSA 1978, who is a resident of the state and whose telephone call to the consumer is for the sole purpose of selling, exchanging, purchasing, renting, listing for sale or rent or leasing real estate in accordance with the provisions for which he or she is licensed and not in conjunction with any other offer.

History: Laws 1989, ch. 309, § 2; 2003, ch. 167, § 10.

A. No person conducting business in this state shall transmit by facsimile or cause to be transmitted by facsimile an unsolicited advertisement unless:

(1) the person establishes a toll-free telephone number that a recipient of the unsolicited advertisement may call to notify the person not to send the recipient any additional unsolicited advertisement; and

(2) the unsolicited advertisement includes a statement, in at least nine-point type, informing

the recipient of the toll-free telephone number that the recipient may call to notify the sender not to send the recipient any additional unsolicited information.

B. No person conducting business in this state shall email or cause to be emailed an unsolicited advertisement unless:

(1) the person establishes a toll-free telephone number or a valid sender-operated return email address that a recipient of the unsolicited advertisement may call or email to notify the person not to send the recipient any additional unsolicited advertisement;

(2) the unsolicited advertisement includes a statement, in the first text of the body of the message and in the same size as the majority of the text of the message, informing the recipient of the toll-free telephone number or the email address that the recipient may call or email to notify the sender not to send the recipient any additional unsolicited advertisement;

(3) the subject line of the email includes “ADV:” as the first four characters; and

(4) if the unsolicited advertisement advertises realty, goods, services, intangibles or the extension of credit that may only be viewed, purchased, licensed, rented, leased or held in the possession by an individual eighteen years of age or older, the subject line of the email includes “ADV:ADLT” as the first eight characters.

C. After notification by a recipient of the recipient’s request not to receive any further unsolicited advertisement, no person conducting business in this state shall transmit by facsimile, cause to be transmitted by facsimile, email or cause to be emailed any unsolicited advertisement to that recipient.

D. In the case of an employer who is the registered owner of more than one email address, the notification required by Subsection C of this section may be given by the employer on behalf of all of the employees who may use email addresses provided and controlled by the employer.

E. No person shall knowingly or intentionally assist in the transmission of an unsolicited advertisement by facsimile or email if the person knows, or consciously avoids knowing, that the initiator of the advertisement is engaged, or intends to engage, in a violation of this section.

F. A violation of a provision of this section constitutes an unfair or deceptive trade practice.

G. As used in this section and Section 57-12-24 NMSA 1978:

(1) “transmit by facsimile”, “cause to be transmitted by facsimile”, “email”, “cause to be emailed” or “assist in the transmission” does not include the transmission of an unsolicited advertisement by a telecommunications utility or an internet service provider that merely carries the transmission over its network or who acts or fails to act as allowed by contract or other law, including but not limited to 47 USCA 230(c); and

(2) “unsolicited advertisement” means information transmitted by facsimile or email that:

(a) advertises the lease, sale, license, rental, gift offer or other disposition of any realty, goods, services, intangibles or the extension of credit; and

(b) is addressed to a recipient with whom the sender does not have an existing business or personal relationship; or

(c) is not sent at the request of, or with the express consent of, the recipient.

History: Laws 2003, ch. 168, § 2.

A. Any person who receives an unsolicited advertisement by facsimile or email may bring an action against the sender of the unsolicited advertisement to recover actual damages, including loss of profits, or statutory damages equal to the greater of twenty-five dollars ($25.00) for each email or facsimile received or five thousand dollars ($5,000) for each day of violation, plus reasonable attorney fees and costs if, prior to receiving the unsolicited advertisement:

(1) the person who received the unsolicited advertisement has notified the sender, pursuant to the provisions of Section 57-12-23 NMSA 1978, of the person’s request not to receive unsolicited advertisements; or

(2) the sender of the unsolicited advertisement has entered into a written assurance of discontinuance pursuant to Section 57-12-9 NMSA 1978.

B. A telecommunications utility or internet service provider, injured by a violation of a provision of Section 57-12-23 NMSA 1978 or this section, may recover actual damages, including loss of profits, or statutory damages equal to the greater of ten dollars ($10.00) for each facsimile or email transmitted or five thousand dollars ($5,000) for each day of violation plus reasonable attorney fees and costs.

C. The remedies provided in this section are in addition to any available remedies otherwise provided by law.

History: Laws 2003, ch. 168, § 3.

A. A person shall not reference the trade name or trademark of a lender or a trade name or trademark confusingly similar to that of a lender in a solicitation offering services or products without the consent of the lender, unless the solicitation clearly and conspicuously states the following in close proximity to and in the same or larger point type as the first and the most prominent use of a lender’s trade name or trademark:

(1) the name, address and telephone number of the person making the solicitation;

(2) that the person making the solicitation is not affiliated with the lender;

(3) that the solicitation is not authorized or sponsored by the lender; and

(4) that the loan information referenced was not provided by the lender.

B. A person shall not reference a loan number, loan amount or other specific loan information that is not publicly available in a solicitation offering services or products, unless the information is included in a communication from a lender or an affiliate of a lender to a current customer of the lender or a person who was a customer of the lender during the eighteen months immediately preceding the solicitation.

C. Except as provided in Subsection D of this section, a person shall not reference a loan number, loan amount or other specific loan information that is publicly available in a solicitation offering services or products, unless the solicitation clearly and conspicuously states the following in close proximity to and in the same or larger point type as the first and the most prominent use of the loan number, loan amount or other specific loan information:

(1) the name, address and telephone number of the person making the solicitation;

(2) that the person making the solicitation is not affiliated with the lender;

(3) that the solicitation is not authorized or sponsored by the lender; and

(4) that the loan information referenced was not provided by the lender.

D. Subsection C of this section does not apply to a communication by a lender or an affiliate of a lender with a current customer of the lender or with a person who was a customer of the lender during the eighteen months immediately preceding the communication.

E. A person shall not use the name of a lender or a name similar to that of a lender in a solicitation directed to consumers if that use could cause a reasonable person to be confused, mistaken or deceived as to:

(1) the lender’s sponsorship, affiliation, connection or association with the person using the name; or

(2) the lender’s approval or endorsement of the person using the name or the person’s services or products.

F. Any reference to an outstanding loan, including the name of the lender, the loan number, the

loan amount or other specific information about the loan that appears on the outside of an envelope, that is visible through the envelope window or that appears on a postcard in connection with any written communication that includes or contains a solicitation for goods or services, is prohibited without the consent of the lender.

G. The prohibitions of this section do not apply to the use by a person of the trade name of another lender in an advertisement for services or products that compares the services or products offered by the other lender.

H. A lender or owner of a trade name or trademark may seek an injunction in a state district court against a person who violates this section to stop the unlawful use of the trade name, trademark or loan information. In such an action:

(1) the person seeking the injunction shall not have to prove actual damage as a result of the violation; and

(2) irreparable harm and interim harm to the lender or owner shall be presumed.

I. A lender or owner seeking an injunction under Subsection H of this section may, in the same action, seek to recover actual damages and any profits the defendant has accrued as a result of a violation of this section. The prevailing party in an action brought pursuant to this section may recover costs associated with the action and reasonable attorney fees from the other party.

J. As used in this section:

(1) “affiliate” means a business entity that, directly or indirectly through one or more intermediaries controls, is controlled by or is under common control with another business entity; and

(2) “lender” means an insured state or national bank, a state or federal savings and loan association or savings bank, a state or federal credit union, a mortgage loan company, an escrow company or any other person who makes loans in this state or a holder of a loan and any affiliate, or any third party operating with the consent of the lender.

History: Laws 2007, ch. 225, § 1.

A. As used in this section, “gift certificate” means a writing identified as a gift certificate that is not redeemable in cash and is usable in its face amount in lieu of cash in exchange for goods or services

supplied by a seller, but does not include a gift certificate useable with multiple unaffiliated sellers or goods or services. “Gift certificate” includes an electronic card with a banked dollar value, a merchandise credit, a certificate where the issuer has received payment for the full face value for the future purchase or delivery of goods or services and any other medium that evidences the giving of consideration in exchange for the right to redeem the certificate, electronic card or other medium for goods or services of at least an equal value. “Gift certificate” does not include:

(1) gift certificates, store gift cards or general use prepaid cards distributed to a consumer for promotional, award, incentive, rebate or other similar purposes without any money or other tangible thing of value being given by the consumer in exchange for the gift certificate, store gift card or general use prepaid card;

(2) gift certificates, store gift cards or general use prepaid cards that are sold below face value or at a volume discount to employers or to nonprofit and charitable organizations for fund-raising purposes;

(3) written promises, plastic cards or other electronic devices that are:

(a) used solely for telephone services; or

(b) are associated with a deposit, checking, savings or similar account at a banking or other similarly regulated financial institution and that provide payments solely by debiting such account; and

(4) gift certificates issued by banks, savings and loan associations and their affiliates and subsidiaries, licensed money transmitters or credit unions operating pursuant to the laws of the United States or New Mexico.

B. A gift certificate shall not have an expiration date less than sixty months after the date upon which the gift certificate was issued. If an expiration date is not conspicuously stated on a gift certificate, that gift certificate shall be presumed to have no expiration date and shall be valid until redeemed or replaced.

C. An issuer of a gift certificate shall not charge a fee of any kind in relation to the sale, redemption or replacement of a gift certificate other than an initial charge not exceeding the face value of the gift certificate, nor may a gift certificate be reduced in value by any fee, including a service or dormancy fee.

D. A violation of this section shall constitute an unfair or deceptive trade practice and shall be subject to the penalties set forth in the Unfair Practices Act.

History: Laws 2007, ch. 125, § 1.

A. As used in this section:

(1) “applicant” means a person who submits an application to rent a dwelling unit to the owner or agrees to act as a guarantor or cosigner on a rental agreement;

(2) “dwelling unit” means a structure, mobile home or the part of a structure, including a hotel or motel, that is used as a home, residence or sleeping place by one person who maintains a household or by two or more persons who maintain a common household and includes a parcel of land leased by the owner for use as a site for the parking of a mobile home;

(3) “owner” means one or more persons, jointly or severally, in whom is vested all or part of the:

(a) legal title to a property, but does not include the limited partner in an association regulated under the Uniform Revised Limited Partnership Act [47-8-1 to 47-8-52 NMSA 1978]; or

(b) beneficial ownership and a right to present use and enjoyment of the premises and agents thereof and includes a mortgagee in possession and the lessors, but does not include a person or persons, jointly or severally, who as owner leases the entire premises to a lessee of vacant land for apartment use;

(4) “rent” means payments in currency or in-kind under terms and conditions of the rental agreement for use of a dwelling unit or premises, to be made to the owner by the resident, but does not include deposits; and

(5) “rental agreement” means all agreements between an owner and resident and valid rules and regulations adopted pursuant to Section 47-8-23 NMSA 1978 embodying the terms and conditions concerning the use and occupancy of a dwelling unit or premises.

B. It is an unfair or deceptive trade practice for an owner to charge a fee to an applicant that is not a screening fee or deposit or that was not published in a listing for rental of a dwelling unit in violation of the Uniform Owner-Resident Relations Act.

C. It is an unfair or deceptive trade practice for an owner to charge fees that are not included in the rental agreement in violation of the Uniform Owner-Resident Relations Act.

History: Laws 2025, ch. 122, § 9.