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Obtaining Relief for Deceptive Practices Under FDUTPA

Featured Article

Deception is by far the most employed prong of Florida’s Deceptive and Unfair Trade Practices Act (the “act”). 1 This article is the third in a series 2 on FDUTPA’s prohibitions 3 on unfair, deceptive, and unconscionable acts or practices in the conduct of any trade or commerce. It explores the standards for proving practices deceptive and for recovery of actual damages by or on behalf of individual and business consumers. It also discusses whether nonconsumer private plaintiffs can bring any claims under the act.

The Meaning of “Deceptive”
FDUTPA, patterned after the Federal Trade Commission Act,4 provides that in construing its prohibitions, due consideration and great weight shall be provided to the interpretations of the FTC and the federal courts relating to the FTC act’s parallel prohibitions (on unfair or deceptive acts or practices). Amendments to FDUTPA enacted this past legislative session, effective July 1, 2001, designate such interpretations as those in effect as of that date.5
Since its 1993 amendments FDUTPA has further provided that a violation may be based on, inter alia, the standards of unfairness and deception set forth and interpreted by the FTC and the federal courts.6 The 2001 amendments designate the standards as those in effect July 1, 2001.In determining whether a practice is deceptive, Florida courts have sometimes cited to FTC administrative and federal court precedent,7 and more recently have begun expressly to adopt at least the bare bones of the FTC’s current deception standard (in effect since 1983). Last year the Third DCA, in Millenium Communications & Fulfillment, Inc. v. Office of the Attorney General,8 observed that this FTC standard was enunciated in Southwest Sunsites, Inc. v. FTC, 785 F.2d 1431 (9th Cir. 1986): “The Commission will find deception if there is a representation, omission or practice that is likely to mislead the consumer acting reasonably in the circumstances, to the consumer’s detriment.”
The Southwest Sunsites opinion correctly noted that this (tightened) standard was adopted by the FTC in a 1984 administrative decision (imposing a cease and desist order); that decision relied on and appended the FTC’s 1983 “Deception Statement.”9 Subsequent federal decisions have also relied on that statement.10
The Third DCA confirmed that the standard requires proof of probable, not possible, deception; that the potential deception must be of consumers acting reasonably in the circumstances, not just any consumers; and that the deception must be likely to cause injury to a reasonable relying consumer. Five months later, the First DCA followed the Third in applying this FTC standard.11
The standard reflects, and federal precedent confirms, that intent to deceive, or intent that the recipient of the representation rely on it, are not elements of proof that a practice is “deceptive.”12 Also, in contrast to Florida common law,13 actionable omissions are not limited to certain categories of transactions. FDUTPA’s prohibition on “deceptive” practices is thus much broader than Florida common law’s prohibition on fraudulent practices.14
The FTC’s deception statement contains a good deal more guidance than the above one-sentence formulation, and it expressly derives from a large number of previously decided cases and some previously promulgated rules. Many of the general principles the statement articulates are familiar from other areas of the law. FDUTPA’s “due consideration and great weight” mandate would appear to require those general principles, as well as holdings thereunder in cases (finally) decided by the FTC or federal courts, to be applied by the Florida courts in adjudicating motions to dismiss, for summary judgment, and for injunctive relief, and in ruling at bench trials. At least three reported Florida FDUTPA decisions have explicitly applied FTC case holdings in finding practices deceptive or nondeceptive.15 For such claims as may be permitted to go to trial by jury,16 courts presumably will issue jury instructions deriving from the statement and conforming FTC precedent as to the general standards for proving a practice deceptive and for recovering damages resulting therefrom (see infra). Courts might also deem it appropriate, on a case-by-case basis, to give more specific instructions; e.g., “If you find that the practice meets the following definition of a ‘bait and switch,’17 you shall find it deceptive.” Such application of precedent may effectively reduce the evidentiary burden in proving that a practice is likely to mislead consumers acting reasonably in the circumstances. The practitioner would therefore be well advised to review the FTC statement in its entirety.

Representation, Omission or Practice Likely to Mislead
Pursuant to the statement, both express and implied claims may be actionable. Actionable express claims are not limited to extracontractual ones; for example, the statement cites precedent holding that failure to perform, consistently and promptly, services promised under a warranty or by contract can be deceptive. In this regard note that the economic loss rule has been held not to apply to FDUTPA claims,18 and thus a FDUTPA deception claim may lie in some common law breach of contract and warranty situations.
One type of deception through an implied claim is the “bait and switch” scenario, where the (implied) offer to sell the baiting product is not bona fide. An example is advertising to sell eyeglasses at a designated price, but when the customer arrives, disparaging those eyeglasses or claiming they are unavailable and instead offering eyeglasses with a higher profit margin.19 Also, objective claims, e.g., Firestone’s claim that its tire “stop[s] 25 percent quicker,”20 make implied representations that they have a “reasonable basis”, i.e., that there are specific grounds for them. The Firestone ad was held to imply that the 25-percent claim was substantiated by scientific tests. In a later decision cited in the statement, the Seventh Circuit held drug efficacy claims were others “for which the only reasonable basis. . . would be a valid scientific or medical basis.”21
Omissions of material information may also be actionable, when its disclosure is necessary to prevent a claim, practice, or transaction from being misleading. For example, advertising that a product prevents baldness was held deceptive for failing to disclose that most baldness is of the hereditary male pattern type and cannot be prevented by the product.22 An omission may be misleading even in the absence of an affirmative representation. The statement notes, for example, that the FTC has held that sales of hazardous or systematically defective products without adequate disclosures are misleading, as are the sale of late-model used cars without revealing the particular uses to which they have been put. A subsequent FTC decision opines, hypothetically, that omissions on subjects on which the seller has said nothing, in circumstances not giving meaning to the silence, would be nondeceptive (“pure omissions,” e.g., the life expectancy of clothes, or a bean canner’s policy on trade with Chile).23
While the statement suggests that practices other than representations or omissions can be deceptive, in almost all such cases there is some implied claim that is not met or explanatory information that is not disclosed. For example, the nature or appearance of a product itself, absent some corrective measure, may create a false impression in the consumer’s mind; e.g., toy packaging much larger than the toy it contains is deceptive as to the toy’s size.24 Also, the statement explains that merely offering a product for sale impliedly represents it is fit for the purpose for which it is sold. A visual demonstration of how a product operates can be deceptive if it fails to disclose that element(s) used are other than what they appear to be; for example, a shaving cream demonstration appearing to use sandpaper when it actually used sand applied to plexiglass.25

Act or Practice Considered by Reasonable Consumer
The statement makes clear that claims or presentations are to be assessed based on their net impression made on reasonable consumers. This objective reasonableness standard necessarily implies that a given consumer’s subjective deception is not dispositive, although it naturally will constitute evidence of a practice’s misleading nature. It is not required that all consumers reach the proffered interpretation. A practice that misleads a significant minority of reasonable consumers is deceptive, and the existence of some satisfied consumers does not constitute a defense.26 However, an unreasonable interpretation reached by an insignificant number of consumers, e.g., that goods advertised as “Danish pastry” are made in Denmark, does not create liability.27
Also, when representations or sales practices are targeted to a specific audience, such as children, the elderly, or the terminally ill, the test is the effect on a reasonable member of that group. That group’s legal sophistication is relevant as well.
Even as to express representations, the net impression is determined from examination of the entire context of the claims, including (for written claims) such facts as the entire document(s), the juxtaposition of the phrases therein, the nature of the claim(s), and the nature of the transaction. FTC decisions reflect that the net impression made on reasonable consumers may extend beyond the exact phraseology used. For example, ads for Geritol discussed that it could reduce tiredness in people with iron-poor blood. They were found to create the net impression that iron deficiency anemia causes most tiredness, and were held deceptive for failing to disclose that the majority of people with tiredness do not suffer from that deficiency.28
The presence of accurate disclosures or warnings in oral statements, printed labels, or otherwise will not necessarily correct a misleading representation or omission. For example, Listerine’s initial disclaimers that you can’t stop colds were held not to cure the deception accomplished by later false claims that its use fights, and leads to fewer and milder, colds.29 A misleading “door opener” may be actionable even though the truth is made known prior to final purchase; e.g., an encyclopedia salesman’s doorstep brandishing of an advertising research questionnaire, creating the initial misleading impression that he was a research surveyor.30 When a representation conveys both a true and false meaning to reasonable consumers, the seller is liable for the misleading interpretation. A manufacturer of custom-made shoes actually found to relieve pain and discomfort from foot disorders made a number of claims that mixed relief language with some wording sounding in cure, correction, or rehabilitation. The shoes lacked such ability to ameliorate the underlying disorders, and the ads were held deceptive.31
Claims phrased as opinions are actionable when not honestly held, when the recipient reasonably interprets them as implied statements of fact, or when they misrepresent the holder’s qualifications or the basis of his or her opinion.
“Puffing” and hyperbole, i.e., obviously exaggerated claims that ordinary consumers do not take seriously, are not actionable. For example, advertising that an inflatable swimming aid was “invisible” to others was held nondeceptive,32 and claims that a product is amazing or perfect usually would be nondeceptive.33

Material Representation, Omission, or Practice
The Statement defines materiality as follows: “A ‘material’ misrepresentation or practice is one which is likely to affect a consumer’s choice of or conduct regarding a product. In other words, it is information that is important to consumers. If inaccurate or omitted information is material, injury is likely.”34
Impact on choice is the key. For example, the U.S. Supreme Court has recognized that a false claim that a product is being sold at a price reduced from a (fabricated) higher price is deceptive under the FTC act even though the consumer obtains the product at its actual normal price. As the Court explained, “[t]he public is entitled to get what it chooses.”35 The statement lists categories of information as presumptively material: express claims; implied claims when there is evidence that the seller intended to make such a claim,36 or knew it was false; omitted information where the seller knew or should have known that an ordinary consumer would need it to evaluate the product or service; and other claims or omissions that significantly involve personal health or the safety, purpose, efficacy, or cost of a product or service. Information as to durability and warranties is “likely”37 material.

Extrinsic Evidence in Proving Practices Deceptive
The statement explains that the FTC will not generally require extrinsic evidence to prove representations’ meaning or materiality. It states, however, that in some cases (more likely for implied claims and omissions) such evidence, in the form of consumer testimony, reliable consumer surveys, expert opinion, or otherwise,38 will be necessary. As an example, the FTC was unwilling absent such evidence to hold that selling unmarked products in Alaska created the misleading impression that they were handmade by Alaskan natives.39 Of course, expert witness fees, and the expense of conducting a consumer survey or test that passes reliability muster, will render presentation of such evidence infeasible for some private litigants.
The statement explains, however, that consumer testimony can successfully overcome survey evidence as to the misleading nature of a practice.40

Most FDUTPA opinions on deceptive practices do not even cite the bare bones FTC standard (but occasionally make misplaced references to an obsolete standard41 for unfair practices). However, post-1983 decisions42 have generally been consistent with the standards elaborated in the Statement.
Also, they generally do not refer to extrinsic evidence other than consumer testimony. For example, in Millenium Commission, the Third DCA reversed the entry of a preliminary injunction after analyzing a national credit card marketing program and concluding, through common sense reasoning43 and comparing FTC Act holdings on related but differing fact situations, that the program was not deceptive.

Subjective Reliance
In considering how the FTC’s deception standard applies in the various types of lawsuits permitted under FDUTPA, it is important to keep in mind that in the administrative cease and desist proceedings that generate the bulk of its precedent, the FTC does not occupy the status of a consumer. It does not have to prove causation of, or even the occurrence of, actual damages; in fact, it can bring such actions solely to prevent the likely occurrence of future violative practices.44 Among all FDUTPA claims, those brought by state enforcement agencies for injunctive relief (“to enjoin any person who has violated, is violating, or is otherwise likely to violate, this part”)45 are the ones which are most analogous to FTC administrative actions.
As for individuals and businesses seeking compensatory damages under §501.211(2), FDUTPA as amended in 2001 provides that “a person [formerly “consumer”; see infra] who has suffered a loss as a result of a violation of this part. . . may recover actual damages. . . . ” The plain import of this language,46 and of common sense, is that private plaintiffs must prove the deceptive practices actually caused their losses. At common law, proof of such causation entails proof of subjective, justifiable reliance on the alleged misrepresentations, both in claims for fraud and negligent misrepresentation.47 Recently reported opinions in two FDUTPA class action cases, though, may be interpreted to suggest that showing a practice is deceptive, and that the plaintiff entered into the transaction, conclusively proves damage causation, and that the plaintiff’s subjective reliance is never an issue. As explained below, that would be contrary to FTC precedent and FDUTPA’s purpose.

Latman and Davis
In Latman, et al. v. Costa Cruise Lines, N.V., 758 So. 2d 699 (Fla. 3d DCA 2000), the court reversed a denial of class certification on a FDUTPA claim alleging that a cruise line’s billing for “port charges” was deceptive when the line kept a portion of such charges for itself. The court held that reasonable consumers would interpret the term to mean pass-through charges paid in their entirety to the port authorities. The trial court had denied certification based on the purported predominance of individual reliance issues, but the appellate court, citing Michigan and Texas little FTC act decisions, reasoned

    [for an] intentional overcharge of sales tax. . . the consumer must be repaid. . . nor would it make a difference that the consumer paid no attention to the sales tax amount. . . . The same logic applies here. . . [class members] need not individually prove reliance on the alleged misrepresentations. It is sufficient if the class can establish that a reasonable person would have relied on the representations [citing Michigan case]. . . . Reliance and damages are sufficiently shown by the fact that the passenger parted with money. . . but the cruise line kept the money. (Emphasis added.)

In Davis and Eddy, et al. v. Powertel, Inc. et al., 776 So. 2d 971 (Fla. 1st DCA 2000), named plaintiffs had alleged that defendants sold brand name cellular phones to their subscribers without informing them that the phones had been programmed to work only with defendants’ wireless communications service. In seeking damages, they alleged that the deceptive nondisclosure reduced the value of the phone in each case. The appellate court reversed the trial court’s dismissal of the class action complaint, which had been based on the predominance of individual fact issues. The court opined that

    The objective test adopted by the Federal Trade Commission applies. . . the question is not whether the plaintiff actually relied on the alleged deceptive practice, but whether the practice was likely to deceive a consumer acting reasonably in the same circumstances. . . . As the court explained in Latman. . . , members of a class. . . need not prove individual reliance. . . other states have also held that individual proof of reliance is not required in [little FTC act] class actions. . . . We recognize that the “likely to mislead” standard was adopted for use with the Federal Trade Commission Act, which has no provision for a suit by a private citizen. . . . A private citizen would have a greater ability to demonstrate the harmful effect of the alleged deceptive practice in a given case. Nevertheless, the courts in Florida and other states have adopted the objective standard for private actions. . . . Because proof of reliance is unnecessary. . . issues relating to causation and damages will be common to all members of the class.

A concurring opinion noted that “the potential for mischief will prove to be considerable” even though the result was “compelled” by “the remarkably broad language of FDUTPA.” While these decisions did not need to reach the issue of whether subjective reliance will ever be an issue in damage actions, their language seems to suggest that the “objective” standard determining whether a practice is deceptive also determines proof of damage causation.

FTC Precedent
The Latman and Davis opinions, however, did not consider the federal precedent on the very issue of proof of causation required in FTC federal court suits under 15 U.S.C. §53(b) to recover monetary redress for injured consumers. That 1973 amendment to the FTC Act provides that in proper cases the FTC may directly seek a permanent injunction in federal court. In litigating its scope in the 1980s the FTC succeeded in having its grant of equitable jurisdiction to the federal courts construed as extending to all traditional equitable powers, including the power to order rescission of contracts and monetary restitution.48 Such monetary redress suits are a different species of FTC action than administrative cease and desist proceedings.
The seminal decision on reliance’s role in such suits was FTC v. International Diamond Corp., et al.49 The district court drew heavily on Ninth Circuit and Supreme Court precedent under federal securities fraud law50 establishing a rebuttable presumption of reliance in, respectively, a class action concerning affirmative misrepresentations in the “fraud on the market” context (Blackie v. Barrack), and a nonclass, multiple plaintiff omissions case (Affiliated Ute Citizens of Utah v. United States).51 The district court held:

    the FTC may meet its burden by proving that the alleged. . . practices were the type of misrepresentation on which a reasonably prudent person would rely, that they were widely disseminated, and that the injured consumers purchased [the goods from defendants]. . . . The burden then shifts to defendants to prove that the misrepresentations were not relied upon by the consumers. (Emphasis added.)

Thus, reliance remains an issue in such cases, but the FTC is entitled to a rebuttable presumption of such reliance based on proof of materiality, dissemination, and purchase. The decision, citing Blackie ’s reasoning in affirming a class certification order, explained why the burden of proof should be shifted:

    There are cogent reasons for declining to follow the strict common law rule of subjective proof of reliance in the instant case. . . . [The relevant provisions of the FTC Act] serve a public purpose by authorizing the Commission to seek redress on behalf of injured consumers. It would be inconsistent with the statutory purpose for the court to stifle effective prosecution of large consumer redress actions by requiring proof of subjective reliance by each individual consumer.

The decision also quoted Blackie ’s concern that in the context of that case, leaving the burden of proof on plaintiffs would impose on them “an unreasonable. . . evidentiary burden.”

The federal courts have followed International Diamond ’s holding on the rebuttable presumption of reliance in subsequent FTC consumer redress cases dealing with both affirmative misrepresentations and omissions. 52 Some were decided prior to 1993, the year the major substantive amendments to FDUTPA were enacted, and the Florida Legislature is presumed to be aware of those decisions in enacting the amendments. 53 It is an established principle of statutory construction that when a state statute is patterned after a federal law on the same subject, the state statute takes the same construction as the federal law has received in the federal courts insofar as it is harmonious with the spirit and policy of the state statute. 54 In enacting the 1993 amendments the legislature went so far as to specify explicitly that one of FDUTPA’s purposes is “[t]o make state consumer protection and enforcement consistent with established policies of federal law relating to consumer protection.” 55 There should thus be a rebuttable presumption of reliance in FDUTPA damages class actions in order to facilitate their prosecution. The FTC precedent and its rationale also militate in favor of applying that rebuttable presumption in state agency enforcement actions under FDUTPA seeking actual damages on behalf of many consumers. 56

The question of who bears the burden of proof on the reliance issue in nonclass damages actions requires further analysis. With respect to omissions cases, Affiliated Ute ’s basis for relieving the plaintiff of that burden was the defendant’s duty to disclose, deriving from its position as a market maker in the securities. In the consumer purchase situation, the plaintiff-defendant relationship is even more direct. Subsequent (but pre-1993) Supreme Court precedent explained Affiliated Ute ’s holding as also based on a concern that requiring the plaintiff to prove how he or she would have acted if the withheld information had been disclosed would impose “an unnecessarily unrealistic evidentiary burden.” 57 It would thus appear that, to be faithful to FTC precedent and its rationale, there should also be a rebuttable presumption of reliance in non-class FDUTPA damages actions based on omissions of material information.

Having nonclass individual and business plaintiffs bear their traditional burden of proving subjective reliance in damages actions based on affirmative misrepresentations, however, should not impose an unreasonable evidentiary burden or substantially impede such actions. It is another established principle of statutory construction that statutes in derogation of the common law, even when remedial, will not be interpreted to displace or repudiate the common law any further than is clearly and plainly specified. 58 Here, consistency with federal policy is specified, and it and its rationale do not extend to this category of FDUTPA actions.
Affiliated Ute ’s progeny also confirm that in nonclass cases alleging both affirmative representations and omissions, plaintiffs generally should bear the burden of proving reliance. 59

Preserving subjective reliance as an issue in nonclass, private actions accords with advancing FDUTPA’s purpose of protecting the consuming public and legitimate business enterprises 60 while retaining the fundamental legal principle of causation of damages. As Blackie explained, “we think that the [federal statute’s] public purpose can be adequately served within the traditional compensatory suit framework by limiting recoveries to those who are in fact injured, and excluding those who[]… have not been injured.” 61

The above analysis as to nonclass plaintiffs would also appear to apply to state enforcement agency suits to recover actual damages suffered by “governmental entities” under §501.207(1)(c) as recently amended. Such entities are also unitary plaintiffs which have engaged in commercial transactions in the open marketplace.

Precedent from Other States
The other state court little FTC act decisions cited in Davis and Latman are not persuasive that subjective reliance should not be an issue in nonclass damages actions under Florida’s statute. Florida’s statute is unique among them in expressing the purpose of achieving consistency with established policies of federal law relating to consumer protection. The Washington statute is the only one of the others62 that even arguably refers63 to federal interpretations on issues other than the meaning of the “deceptive” and “unfair” prohibitions themselves. In Pickett, et al. v. Holland America Line-Westours, Inc., 6 P.3d 63 (Wash App. 1 Div. 2000), a Washington appellate court, in another port charges case, followed Latman in reversing a denial of class certification, but its holding, again, was directed to facilitating class actions by avoiding the predominance of individual issues that proof of individual reliance would require.64 It also relied on Ohio and California cases65 that held that an inference or presumption of reliance could be drawn.66
Furthermore, none of those decisions from other states even indicated an awareness of FTC precedent on the reliance issue in monetary redress actions.

Declaratory or Injunctive Relief for Future Consumers or Nonconsumers
In Davis, plaintiffs also brought a claim for declaratory and injunctive relief, even though there arguably were no continuing losses as to them. The First DCA held §501.211(1), which broadly provides that “anyone aggrieved by a violation” may bring an action for such nonmonetary relief,67 allowed such claims as FDUTPA is designed to protect not only the rights of litigants but also those of the consuming public at large. It cited §501.202(2)’s express statutory purpose of “protect[ing] the consuming public and legitimate business enterprises. . . . ” Davis is thus precedent for permitting existing customers to seek prospective relief directed to “consumers who have not yet been harmed.”68

Competitors and Other Nonconsumers
As the Davis action was brought by consumers, the decision did not reach the issue of whether plaintiffs who are not consumers of the defendant’s goods or services can bring FDUTPA claims for injunctive or declaratory relief. The “anyone aggrieved” language arguably appears to permit such claims.
A Third DCA decision69 last year in another port charges case opined that a travel agency suing cruise lines for amounts allegedly owing on its commissions, as well as declaratory and injunctive relief, was not a consumer and hence not protected by the act. However the decision, and the other Florida precedent on which it relied,70 did not consider the “anyone aggrieved” provision. The precedent it cited from other states also did not address such a provision for broader entitlement to nonmonetary relief.71
A Fourth DCA decision in April of this year in a commercial landlord-tenant dispute72 opined in explicit dictum that FDUTPA’s express statutory purposes of protecting the consuming public and legitimate business enterprises “seem consistent with applying [F]DUTPA to nonconsumer transactions, at least where they involve practices of anti-competitive conduct affecting the consuming public.” Permitting injunctive or declaratory actions by nonconsumers could serve that purpose when the practice challenged is likely to cause consumer injury.
Federal court decisions have split on whether alleged trademark infringements stated FDUTPA claims. Most recent ones, and those addressing the “anyone aggrieved” language, have approved such FDUTPA claims.73 Even those, however, did not analyze how the practice was “deceptive” under FDUTPA or posed the prospect of consumer injury.
However, on this issue there once again is guiding FTC precedent, and it strongly suggests that such nonmonetary claims should be permitted when they target practices likely to cause injury to consumers. The Supreme Court long ago recognized it is deceptive under the FTC Act for a business to misappropriate another’s trade name. In FTC v. Colgate-Palmolive Co.,74 the Court cited earlier decisions75 and explained that in employing such a practice

the seller has used a misrepresentation to break down what he regards to be an annoying or irrational habit of the buying public—the preference for particular manufacturers or known brands regardlessof a product’s actual qualities. . . a misrepresentation has been used to break the habit, and. . . a misrepresentation for such an end is not permitted.

Moreover, the FTC’s 1983 Statement, explaining that consumer injury exists if consumers would have chosen differently but for the deception, states76

    The Commission regards injury to competitors as identical to injury to consumers. Advertising. . . [is] intended to ‘injure’ competitorsby directing business to the advertiser. . . . Deceptive practices injure both competitors and consumers because consumers who preferred the competitor’s product are wrongly diverted.

Given such FTC act precedent, it would appear that lawsuits stating trademark infringement claims between competitors can also state claims for injunctive or declaratory relief as to deceptive practices under §501.211(1) of FDUTPA, since a required element of infringement is likelihood of confusion among purchasers as to the marks, i.e., the origin of the product or service. 77 As a leading authority has explained, “In this sense, protection of trademarks is merely a facet of consumer protection.” 78

For the same reason, fact situations supporting analogous unfair competition or trade dress infringement claims could also support FDUTPA claims. It is not inconceivable that other types of actions between competitors could state FDUTPA claims, but additional evidence might be required to prove the likelihood that the targeted practices would mislead reasonable consumers to their detriment. The courts would presumably make those determinations on a case-by-case basis.

2001 Amendments
The 2001 amendments modified the definition of “consumer” in §501.203(7) to clarify that it includes a “business” and “any commercial entity, however denominated”;79 it continues to include such terms as “firm” and “corporation.” They also, however, changed the beginning of the actual damages remedy subsection (§501.211(2)) by deleting the word “individual” before “action” and substituting “person” for “consumer” (“In any action brought by a person who has suffered a loss. . . . ”). This may give rise to a rebuttable presumption80 that nonconsumers are now permitted to seek monetary damages when challenged practices are likely to harm consumers. Such an interpretation, however, is at least arguably inconsistent with the continuing, overall statutory purposes of “consumer protection,” and “protect[ing] the consuming public and legitimate business enterprises.”81 Awarding damages to nonconsumers provides no direct protection to consumers, as compared with permitting nonconsumers to secure declaratory or injunctive relief that applies generally to acts affecting consumers as well.
The statute’s language thus leaves legislative intent on this point ambiguous. The legislative history82 indicates that the change was designed to clarify that businesses may obtain monetary damages on the same conditions that individuals have been able to obtain it, rather than expand the class of entities entitled to such relief. The last Senate Staff Analysis and Impact Statement for the bill noted:

    Remedies Available to Businesses:. . . Due to inconsistent court interpretations of the statute and its intended protection of businesses, the remedies available to individual consumers have not always been available to business consumers. . . . Under §101(3), F.S., a ‘person’ is understood to include a business. Thus, this change appears to be intended to clarify that the remedies available to individuals under the FDUTPA are also available to businesses that are harmed by a violationof the FDUTPA. (Emphasis added.) 83

However, the legislature could have better accomplished such a clarification by simply retaining the term “consumer” with its concurrently amended definition. The courts may thus be called upon to decide this issue.

FDUTPA’s prohibition on deceptive practices applies to a huge range of commercial behavior. The legislature, though, has very specifically adopted the current FTC deception standard, and required that great weight be accorded to conforming FTC and federal court interpretations. It moreover has codified the purpose that the consumer protection provided by the statute should be consistent with federal law and policy. In that respect, FDUTPA is unlike other “little FTC acts.”
With those directions, the legislature has supplied practitioners and the courts with a large body of federal precedent on which to rely in determining which practices are deceptive, and for resolving other questions of interpretation and enforcement not answered by the language or legislative history of FDUTPA itself. Decisions from other states should be addressed with care, as they may be inconsistent with FTC precedent or based on state statutory provisions different from FDUTPA’s.

1 Fla. Stat. §501.201 et seq.
2 David J. Federbush, The Unexplored Territory of Unfairness in Florida’s Deceptive and Unfair Trade Practices Act, 73 Fla. B.J. 26 (May 1999), and The Unclear Scope of Unconscionability in FDUTPA, 74 Fla. B.J. 49 (Aug. 2000).
3 Fla. Stat. §501.204(1).
4 15 U.S.C. §41 et seq.
5 S 208 (S 0208ER), 2001 Fla. Laws ch. 39, amending Fla. Stat. §501.204(2). See
6 Fla. Stat. §501.203(3)(b).
7 See, e.g., Rollins, Inc. v. Heller, 454 So. 2d 580, 584 (Fla. 3d D.C.A. 1984); Urling v. Helms Exterminators, Inc., 468 So. 2d 451, 453 (Fla. 1st D.C.A. 1985); Izadi v. Machado (Gus) Ford, Inc., 550 So. 2d 1135, 1139 n.8 (Fla. 3d D.C.A. 1989); D.L.A. v. Father & Son Moving & Storage, Inc., 643 So. 2d 23, 25 (Fla. 4th D.C.A. 1994).
8 761 So. 2d 1256, 1263 (Fla. 3d D.C.A. 2000).
9 See 785 F.2d at 1435 n.2. The administrative decision was Cliffdale Associates, Inc., 103 F.T.C. 110, 174–84 (1984), 1984 FTC LEXIS 71, 104. As the decision reflects, the Deception Statement was originally set forth in a letter dated October 14, 1983, by a majority of the FTC Commissioners to the Chair of the House Committee on Energy and Commerce. The earlier standard had been “tendency or capacity” (rather than “likely”) to mislead. See accompanying Statement of Commissioner Pertschuk, concurring in part and dissenting in part.
10 Kraft, Inc. v. FTC, 970 F.2d 311, 322–23 (7th Cir. 1992), cert. den., 507 U.S. 909 (1993); Novartis Corp. v. FTC, 223 F.3d 783, 786 (D.C. Cir. 2000).
11 Davis and Eddy, et al. v. Powertel, Inc. et al., 776 So. 2d 971, 974 (Fla. 1st D.C.A. 2000).
12 See Rollins, 454 So. 2d 580; FTC v. Publishing Clearing House, Inc., 104 F.3d 1168, 1171 (9th Cir. 1997).
13 Johnson v. Davis, 480 So. 2d 625 (Fla. 1985) (omission in sale of residential real estate); Green Acres, Inc. v. First Union National Bank, 637 So. 2d 363, 365 (Fla. 4th DCA 1994) (Johnson rule extends to commercial real estate transaction; noting, however, that 2d and 3d DCAs limit the rule to residential real estate transactions); Casey v. Cohan, 740 So. 2d 59, 62 (Fla. 4th DCA 1999) (common law rule of caveat emptor generally continues to apply in nondisclosure cases).
14 See, e.g., Rollins, 454 So. 2d 580; Delgado v. J.W. Courtesy Pontiac GMC-Truck, 693 So. 2d 602. 606 (Fla. 2d D.C.A. 1997) (FDUTPA creates a simplified statutory cause of action which bestows additional substantive remedies).
15 Izadi, 550 So. 2d 1135; Father & Son, 643 So. 2d 23; Millenium Communications, 761 So. 2d at 1264.
16 It is not clear that there is a right to jury trial on FDUTPA claims. See Federbush, supra note 2, at 34.
17 Izadi, 550 So. 2d at 1139 n.8.
18 Delgado, 693 So. 2d 602; accord, Sarkis v. Pafford Oil, 697 So. 2d 524, 528 (Fla. 1st D.C.A. 1997).
19 Tashof v. FTC, 437 F.2d 707, 709 (D.C. Cir. 1970).
20 Firestone Tire & Rubber Co. v. FTC, 481 F.2d 246, 251 (6th Cir. 1973), cert. den., 414 U.S. 1112 (1973).
21 Porter & Dietsch v. FTC, 605 F.2d 294, 302 n.5 (7th Cir. 1979); accord, FTC v. Pharmtech Research, Inc., 576 F. Supp. 294, 302 (D.D.C. 1983). In Pfizer, Inc., 81 F.T.C. 23, 67 (1974), the FTC had explained that in addition to scientific tests performed by the manufacturer, reasonable basis might also be supplied by medical literature reports on adequate, well-controlled tests, or the general state of medical knowledge at the time of the claim, however ascertained. A later decision held that a claim that scientific tests establish that a product works must generally be supported by at least two well-controlled scientific studies (as explained therein). Removatron Int’l Corp. v. FTC, 884 F.2d 1489, 1492 nn.3, 5 (1st Cir. 1989).
22 Ward Laboratories v. FTC, 276 F.2d 952, 955 (2d Cir. 1960), cert. den. 364 U.S. 827 (1960).
23 International Harvester Co., 104 F.T.C. 949, 1060 (1984).
24 Avalon Industries, 83 F.T.C. 1728, 1750, 1756 (1974).
25 FTC v. Colgate-Palmolive Co., 380 U.S. 374 (1965); see also FTC v. Figgie Int’l, Inc., 994 F.2d 595, 600 (9th Cir. 1993), cert. den., 510 U.S. 1110 (1994) (heat detector operation demonstrated in a cardboard house set on fire; false implied representation of correspondence to actual conditions).
26 Basic Books, Inc. v. FTC, 276 F.2d 718, 721 (7th Cir. 1960); accord, FTC v. Amy Travel Service, Inc., 875 F.2d 564, 572 (7th Cir. 1989).
27 Heinz Kirchner, 63 F.T.C. 1282, 1290 (1963), quoted in the Statement, 103 F.T.C. at 178.
28 J.B. Williams Co. v. FTC, 381 F.2d 884, 890 (6th Cir. 1967).
29 Warner Lambert, 86 F.T.C. 1398, 1414 (1975), aff’d, 562 F.2d 749 (D.C. Cir. 1977), cert. den., 435 U.S. 950 (1978).
30 Encyclopedia Britannica, Inc. v. FTC, 605 F.2d 964, 967 (7th Cir. 1979), cert. den., 445 U.S. 934 (1980).
31 Murray Space Shoe Corp. v. FTC, 304 F.2d 270 (2d Cir. 1962).
32 Heinz Kirchner, 63 F.T.C. 1282.
33 Wilmington Chemical Corp., 69 F.T.C. 828, 866 (1966).
34 103 F.T.C. at 183.
35 FTC v. Colgate-Palmolive Co., 380 U.S. at 387.
36 Accord, FTC v. Wilcox, 926 F. Supp. 1091, 1098 (S.D. Fla. 1995); FTC v. SlimAmerica, Inc., 1999-2 Trade Cas. (CCH) ¶72,579 at 85,201 (S.D. Fla. 1999).
37 103 F.T.C. at 183.
38 See, e.g., Rhodes Pharmacal, Inc., 208 F.2d 382, 386 (7th Cir. 1953); In the Matter of A.A. Friedman Co., 74 F.T.C. 1056, 1070 (1968); In the Matter of Benrus Watch Co., Inc., 64 F.T.C. 1018, 1032 (1964); Firestone, 481 F.2d at 250.
39 Leonard Porter, 88 F.T.C. 546, 626 n.5, 630 (1976).
40 See also Equifax v. FTC, 678 So. 2d 1047, 1052 (11th Cir. 1982).
41 A practice which “offends established public policy. . . and is immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers.. . . ”, as cited in Spiegel, Inc. v. FTC, 540 F.2d 287, 293 (7th Cir. 1976). Samuels, et al. v. King Motor Company of Fort Lauderdale, 782 So. 2d 489 (Fla. 4th D.C.A. 2001), erroneously cited that standard.
42 See, e.g., Urling, 468 So. 2d 451 (false termite inspection certificate); Day v. Le-Jo Enterprises, Inc, 521 So. 2d 175 (Fla. 3d D.C.A. 1988); Warren v. Monahan Beaches Jewelry Center, Inc., 548 So. 2d 870 (Fla. 1st D.C.A. 1989) (false representation that ring was diamond); Izadi, 550 So. 2d 1135 (auto financing offer which advertiser never intended to keep); Lou Bachrodt Chevrolet, Inc. v. Savage, 570 So. 2d 307 (Fla. 4th D.C.A. 1990) (false oral representation of auto’s condition actionable despite written “as is” warranty disclaimer); Cummings v. Warren Henry Motors, Inc., 648 So. 2d 1230 (Fla. 4th D.C.A. 1994) (intentional concealment that consumer was entering a lease agreement, rather than a sales agreement, for an auto); W.S. Badcock Corp. v. Myers, 696 So. 2d 776 (Fla. 1st D.C.A. 1996) (financier of purchaser of consumer goods misrepresented fee charged as nonfiling insurance rather than default protection, included the charge in amount to be financed rather than finance charge, thereby providing it a fund against which to offset bad debt losses and increasing the base upon which interest was computed); Sarkis, 697 So. 2d 524 (allegations by dealer that supplier submitted false test results indicating it had supplied higher grade gasoline, to justify the [higher] price charged); Fort Lauderdale Lincoln v. Corgnati, 715 So. 2d 311, 314 (Fla. 4th D.C.A. 1998) (false representation that auto had never been in accident or repainted and was in “showroom condition”); GMAC v. Laesser, 718 So. 2d 276 (Fla. 4th D.C.A. 1998) (switching consumer from outright purchase of auto to lease-purchase through false representation of financial benefit to consumer by doing so). See also Suris v. Gilmore Liquidating, Inc., 651 So. 2d 1282 (Fla. 3d D.C.A. 1995) (evidence that dealer misrepresented limited edition nature of car and type of engine and amount his trade-in was actually allocated, and failed to disclose manufacturer suggested retail price, created jury questions as to deceptive nature of acts; reversing directed verdict for defendant); Milan Davich, Jr. v. Norman Brothers Nissan, Inc., 739 So. 2d 138 (Fla. 5th D.C.A. 1999) (failure to disclose car’s paint damage; discovery issue).
43 “[W]e can discern nothing from the language contained on the postcard which would [be] likely to mislead a consumer acting reasonably under the circumstances to conclude that the credit card. . . is a Visa or MasterCard credit card as urged by the Department.” 761 So. 2d at 1264.
44 See 5 U.S.C. §45(a)(2) (actions “to prevent” persons. . . from using. . . unfair or deceptive acts”); The Coca-Cola Co., 117 F.T.C. 795, 909–14 (1994).
45 Fla. Stat. §501.207(1)(b).
46 Sheffield v. Davis, 562 So. 2d 384 (Fla. 2d D.C.A. 1990) (plain meaning rule).
47 Gutter v. Wunker, 631 So. 2d 1117 (Fla. 4th D.C.A. 1994) (fraud), dsm’d, 637 So. 2d 235; Gilchrist Timber Company, et al., v. ITT Rayonier, Inc., et al., 696 So. 2d 334 (Fla. 1997) (negligent misrepresentation).
48 See, e.g., FTC v. H.N. Singer, Inc., 668 F.2d 1107, 1111 (9th Cir. 1982) (routine fraud cases are “proper cases”); FTC v. U.S. Oil & Gas Corp., et al., 748 F.2d 1431 (11th Cir. 1984).
49 1983-2 Trade Cas. (CCH) ¶ 65,725 at 69,704 (N.D. Cal. Nov. 8, 1983).
50 FDUTPA itself has been held by a federal court not to apply to securities transactions. Crowell, et al. v. Morgan Stanley Dean Witter Services Co., Inc., 87 F. Supp. 1287 (S.D. Fla. 2000).
51 524 F.2d 891, 906 (9th Cir. 1975); 406 U.S. 128 (1972).
52 FTC v. Kitco of Nevada, Inc., 612 F. Supp. 1282, 1293 (D. Minn. 1985); FTC v. National Business Consultants, 781 F. Supp. 1136, 1143 (E.D. La. 1991) (misrepresentations and omissions); FTC v. Patriot Alcohol Testers, 798 F. Supp. 851, 861 (D. Mass. 1992); FTC v. Pacific Medical Clinics Management, Inc., 1992-1 Trade Cas. (CCH) ¶69,777 at 67,587 (S.D. Cal. 1992); FTC v. Figgie International, n. 25 supra at 606; U.S. v. Building Inspector of America, 894 F. Supp. 507, 522 (D. Mass. 1995).
Although the Supreme Court in Affiliated Ute did not expressly describe its holding as creating a presumption of reliance in omissions cases, the International Diamond decision so characterized it, and subsequent, pre-1993 securities law decisions confirmed it is rebuttable. See Panzirer v. Wolf, 663 F.2d 365, 368 (2d Cir. 1981); Lipton v. Documation, Inc., 734 F.2d 740, 742 (11th Cir. 1984), cert. den., 469 U.S. 1132 (1985); Finkel v. Docutel/Olivetti Corp., 817 F.2d 356, 359 (5th Cir. 1987). Compare Turner v. Beneficial Corp., 242 F.3d 1023, 1028 (11th Cir. 2001) (language of federal Truth in Lending Act, that a plaintiff is entitled only to “any actual damages sustained. . . as a result” of a violation, indicates legislative intent that plaintiffs must demonstrate detrimental reliance; confirmed by legislative history calling for showing that consumers “suffered a loss because they relied on an inaccurate or incomplete disclosure”).
53 The legislature is presumed to be acquainted with judicial decisions on a subject concerning which it subsequently enacts a statute. Ford v. Wainwright, 451 So. 2d 471, 475 (Fla. 1984).
54 Kirby Center v. Dept. of Labor and Employment Security, 650 So. 2d 1060, 1062 (Fla. 1st D.C.A. 1995).
55 Fla. Stat. §501.202(3).
56 Fla. Stat. §501.207(c) provides that the enforcing authority may bring “An action on behalf of one or more consumers or government entities [per 2001 amendment] for the actual damages caused by an act or practice in violation of this part” (emphasis added). It would seem unlikely that state authorities would bring such actions on behalf of small numbers of consumers.
57 Basic, Inc. v. Levinson, 485 U.S. 224, 245 (1988).
58 Thornber v. City of Fort Walton Beach, 568 So. 2d 914, 918 (Fla. 1990), appeal after remand, 622 So. 2d 570; Ady v. American Honda Finance Corp., 675 So. 2d 577, 581 (Fla. 1996); Raskin v. Community Blood Centers of Florida, Inc., 699 So. 2d 1015, 1015 (Fla. 4th D.C.A. 1997), rev. denied, 707 So. 2d 1124. Cf. Vance v. Indian Hammock Hunt & Riding Club, 403 So. 2d 1367, 1370 (Fla. 4th D.C.A. 1981). There, in a civil damages action under Florida’s misleading advertising statutes, which also provide for criminal penalties (§§817.40,. 41,. 44), the court opined that “one who seeks by civil suit to vindicate a violation of the statute as a private wrong must show that the wrong was the proximate cause of his injury or damage, and proof of reliance is necessary to prove the causal connection.” Accord, Smith v. Mellon Bank, 957 F.2d 856, 858 (11th Cir. 1992); State Farm Mutual Auto Ins. v. Novotny, 657 So. 2d 1210, 1213 (Fla. 5th D.C.A. 1995).
59 E.g., Cavalier Carpets, Inc. v. Caylor, 746 F.2d 749, 757 (11th Cir. 1984); Kirkpatrick v. J.C. Bradford & Co., 827 F.2d 718, 723 (11th Cir. 1987).
60 Fla. Stat. §501.202(2).
61 524 F.2d at 907 n.22. Blackie is still considered a leading case. Finkel, 817 F.2d at 361; 3 Bromberg and Lowenfels on Securities Fraud & Commodities Fraud (2d ed., 2000), §8.6 (600) at p. 8:803.
62 See Conn. GSA §42-110 et seq.; 815 ILCS (Ill.) 505/2; Mich. S.A. §19.418(1); N.C. GSA §75-1.1(a); Pa. CSA §201-2,3; Tex. B. & C. C. §17.50.
63 “The legislature hereby declares that the purpose of this act is to complement the body of federal law governing.. . unfair, deceptive, and fraudulent acts of practices in order to protect the public. . . . It is the intent of the legislature that, in construing this act, the courts be guided by final decisions of the federal courts and final orders of the federal trade commission interpreting the various federal statutes dealing with the same or similar matters. . . . ” RCWA §19.86.920.
64 “Any other interpretation would effectively undermine class actions based on the. . . CPA.” 6 P.3d at 72.
65 Amoco v. GMC, 463 N.E. 2d 625 (Oh. App. 1982); Vazquez v. Superior Court, 484 P. 2d 964 (Cal. 1971).
66 The decision in Hinchcliffe v. American Motors Corp., 440 A.2d 810, 815 (Conn. 1981), was based on the Connecticut statute’s provision that plaintiff need only prove “ascertainable loss,” rather than actual damages. The decision in Canady v. Mann, 419 S.E.2d 597 (N.C. App. 1992), did not reach the reliance issue. Furthermore, the court relied on the FTC’s obsolete “tendency or capacity to deceive” standard. The decision in Weitzel v. Barnes, 691 S.W. 2d 598, 600 (Tex. 1985), noted that the Texas statute’s relevant language was “a deceptive act or practice which is the producing cause of the consumer’s actual damages,” and that language containing the term “reliance”; i.e., “sustained actual damages as a result of reliance on” enumerated acts, had been rejected. Dix, et al. v. American Bankers Life Assurance Co., 415 N.W.2d 206 (Mich. 1987), was another class action decision holding that class members need not prove individual reliance, which proof would otherwise create a predominance of individual issues defeating class certification. It discussed federal securities precedent, but failed to note precedent holding there is a rebuttable presumption of reliance. Weinberg et al. v. Sun Company, Inc., 740 A.2d 1152 (Pa. Super. 1999), was another class certification decision, but it affirmed a denial of class certification as plaintiffs had failed to provide sufficient evidence of causation. In Oliveira v. Amoco Oil Company, 726 N.E.2d 51 (Ill. App. 4 Dist. 2000), the court affirmed the denial of certification of a nationwide class because the laws of other states might require reliance. Similarly, the FTC Act cases cited in Latman did not reach the reliance issue, and are inapposite. Orkin Exterminating Co. v. FTC, 849 F.2d 1354, 1368 (11th Cir. 1989), was not even a deception case; it was an unfairness case. Trans World Accounts, Inc. v. FTC, 594 F.2d 212, 214 (9th Cir. 1979), was not a consumer monetary redress case. It also utilized the pre-1983 deception standard.
67 Fla. Stat. §501.211(1): “Anyone aggrieved by a violation of this part may bring an action to obtain a declaratory judgment that an act or practice violates this part and to enjoin a person who has violated, is violating, or is otherwise likely to violate this part.”
68 776 So. 2d at 975.
69 N.G.L. Travel Associates v. Celebrity Cruises, Inc., 764 So. 2d 672 (Fla. 3d D.C.A. 2000); accord, Bio-Med Plus, Inc. v. Health Coalition, Inc., 2001 Fla. App. Lexis 11444 (Fla. 3d D.C.A. August 15, 2001) (appellant was competitor, not consumer, of appellee).
70 Delgado, 693 So. 2d 602, addressed damages only, and not equitable relief; it did not deny any requested relief.
71 It cited a New Jersey case, City Check Cashing v. Nat’l. State Bank, 582 A.2d 809 (N.J. Sup. Ct. App. Div. 1990), but that state’s statute limits private relief to persons suffering ascertainable losses of money or property, and contains no reference to FTC interpretations. N.J.S.A. 56:8-19. The 1996 law review article it cited also failed to address such provisions, and erroneously cited to the pre-1993 version of FDUTPA.
72 Beacon Property Management, Inc. v. PNR, Inc., 2001 Fla. App. LEXIS 4339, 26 Fla. L. Weekly D 915 (Fla. 4th D.C.A. 2001).
73 United Feature Syndicate, Inc. v. Sunrise Mold Co., Inc., 569 F. Supp. 1475, 1481 (S.D. Fla. 1983); Laboratorios Roldan v. Tex Int’l Inc., 902 F. Supp. 1555, 1570 (11th Cir. 1984); Klinger v. Weekly World News, Inc., 747 F. Supp. 1477 (S.D. Fla. 1990) (“anyone aggrieved”); Contemporary Restaurant Concepts, Ltd., v. Las Tapas-Jacksonville, Inc., 753 F. Supp. 1560, 1565 (M.D. Fla. 1991); Big Tomato v. Tasty Concepts, Inc., 972 F. Supp. 662 (S.D. Fla. 1997) (“anyone aggrieved”); Nassau v. Unimotorcyclists Society of America, Inc., 59 F. Supp.2d 1233, 1243 (M.D. Fla. 1999. But see IC Industries v. I.C. Industries, 595 F. Supp. 340, 344 (M.D. Fla. 1983); Packaging Corp. Int’l. v. Travenol Laboratories, Inc., 566 F. Supp. 1480 (S.D. Fla. 1983); M.G.B. Homes, Inc. v. Ameron Homes, Inc., 903 F.2d 1486, 1494 (11th Cir. 1990) (copyright infringement).
A 1999 state court decision held that a business could not state a trade disparagement-type claim under FDUTPA for monetary damages. Declaratory or equitable relief under FDUTPA was not sought. Warren Technology, Inc. v. Hines Interests Limited Partnership, 733 So. 2d 1146 (Fla. 3d D.C.A. 1999).
74 See Colgate-Palmolive, 380 U.S. at 388.
75 Niresk Industries, Inc. v. FTC, 278 F.2d 337, 342 (7th Cir. 1960), cert. den., 364 U.S. 883 (1960).
76 103 F.T.C. at 183 n.58.
77 See Contemporary Restaurant Concepts, 753 F. Supp. at 1563; Nassau, 59 F. Supp. at 1237.
78 1 McCarthy on Trademarks and Unfair Competition (4th ed. 2001) §2:33, at p. 2-58. See cases cited therein.
79 See supra note 5.
80 See Sam’s Club v. Bair, 678 So. 2d 902, 903 (Fla. 1st D.C.A. 1996).
81 Section 501.202. See Ideal Farms Drainage Dist. v. Certain Lands, 19 So. 2d 234, 239 (Fla. 1944); Klonis v. State Dept. of Revenue, 766 So. 2d 1186, 1189 (Fla. 1st D.C.A. 2000).
82 See Byte Int’l. Corp. v. Maurice Gusman Trust, 629 So. 2d 191, 192 (Fla. 3d D.C.A. 1993).
83 Senate Staff Analysis, Committee on Commerce and Economic Opportunities, CS/SB 208, March 22, 2001, see supra note 5 at p. 6. The legislative history of the parallel House bill, containing these same changes, is in accord. See HO685; Staff Analysis, House Committee on Agriculture & Consumer Affairs, March 10, 2001 at 3 (“The [Information Service Technology Development] Task Force believed the Legislature intended the definition of ‘consumer’ to track the definition of ‘person’ in s. 1.01(3), F.S., a definition that includes businesses.”), p. 4.
The legislative history of the 1993 amendments confirmed that FDUTPA’s purpose was to “protect[ ] individual and business consumers.” House Committee on Agriculture and Consumer Services, Final Bill Analysis and Economic Impact Statement, CS/HB 1753, April 17, 1993 at p. 3. Case law confirms that a change in statutory language may reflect an intent only to clarify and safeguard against misapprehension of existing law. State ex rel. Szabo Food Services, Inc. v. Dickinson, 286 So. 2d 529, 531 (Fla. 1973).

David J. Federbush practices in Largo, Maryland. He was a litigator in the Federal Trade Commission’s Bureau of Consumer Protection and subsequently has had a commercial and plaintiffs’ litigation practice in Miami and the Washington, D.C., area. Mr. Federbush graduated summa cum laude from Yale University in 1971 and received his J.D. in 1976 from Stanford Law School.