CALDOR

13754

215 Conn. 590 (1990) | Cited 23 times | Supreme Court of Connecticut | July 10, 1990

This appeal involves a challenge to aregulation promulgated by the named defendant,the commissioner of the department of consumerprotection,1 that established as unfairor deceptive certain acts or practices in theadvertising of manufacturers' rebates. Theplaintiff, Caldor, Inc., instituted the presentaction seeking a permanent injunction staying theeffectiveness and enforcement of the regulation.The case was tried to the court and judgment wasrendered for the defendants. From this judgmentthe plaintiff appealed to the Appellate Court. Wesubsequently transferred the case to ourselvespursuant to Practice Book 4023. We affirm thejudgment of the trial court.

The trial court's memorandum of decision revealsthe following facts. The Connecticut Unfair TradePractices Act (CUTPA) prohibits "unfair methods ofcompetition and unfair or deceptive acts or practicesin the conduct of any trade or commerce." GeneralStatutes 42-110b (a). The legislature did not codifya comprehensive list of "unfair or deceptive actsor practices," but rather articulated its intentthat, in construing the scope of the statutoryprohibition, "the [named defendant] and thecourts> shall be guided by interpretations given bythe Federal Trade Commission and the federalcourts> to Section 5(a)(1) of the Federal TradeCommission Act (15 U.S.C. § 45 (a)(1))

[215 Conn. 592]

     `unfair or deceptive acts or practices'], as fromtime to time amended." General Statutes 42-110bThe legislature delegated to the named defendantthe authority to "establish by regulation acts,practices or methods which shall be deemed to beunfair or deceptive in violation of [CUTPA]."General Statutes 42-110b (c). The named defendant'sauthority is limited, however, by the statutoryrequirement that her regulations "shall not beinconsistent with the rules, regulations anddecisions of the federal trade commission and thefederal courts> in interpreting the provisions ofthe Federal Trade Commission Act." GeneralStatutes 42-110b (c).

Pursuant to 42-110b (c), the named defendantpromulgated 42-110b-19 of the Regulations ofConnecticut State Agencies, that provides inpertinent part: "It shall be an unfair ordeceptive act or practice to . . . (e) Advertisethe availability of a manufacturer's rebate bydisplaying the net price of the advertised itemin the advertisement, unless the amount of themanufacturer's rebate is provided to the consumerby the retailer at the time of purchase of theadvertised item. A retailer will not be requiredto provide the purchaser of an advertised itemwith the amount of the manufacturer's rebate ifthe retailer advertises that a manufacturer'srebate is available without stating the net priceof the item. For the purpose of this subsection,`net price' means the ultimate price paid by aconsumer after he redeems the manufacturer'srebate offered for the advertised item."

The plaintiff, a New York corporation engagedin the business of retail sales in Connecticut,instituted the present action, seeking a"permanent injunction staying the effectivenessof [Regulation 42-110b-19 (e)] and itsenforcement." At trial, the plaintiff argued that

[215 Conn. 593]

     the regulation is: (1) inconsistent with, and inexcess of, the statutory authority granted to thenamed defendant; (2) in violation of substantivedue process in that it is arbitrary and capricious;and (3) inconsistent with the protections that areafforded commercial speech pursuant to the federaland state constitutions.

In addressing these claims, the trial court madethe following findings of fact with respect tomanufacturers' rebate programs. Such a program isa marketing technique that purports to return aportion of the purchase price to the consumer afterpurchase. The terms and conditions of a manufacturer'srebate, including the amount of the rebate, aredetermined by the manufacturer. While the terms andconditions vary from manufacturer to manufacturerand from product to product, three basic conditionsare common to each manufacturer's rebate program.In order to obtain the rebate from the manufacturer,the consumer must deliver to a designated address:(1) a completed rebate certificate; (2) the originalcash register receipt; and (3) a valid proof ofpurchase. The rebate certificate and the cashregister receipt are obtained from the retailerand the valid proof of purchase is typically partof the package or container purchased by theconsumer.

The language of the advertisement of a productfor which a manufacturer's rebate is offered isdetermined by the retailer. An important marketingtool used by retailers is the prominentadvertisement of a product's net price, i.e., theprice of the product after subtracting the rebateallowance. Such net price advertising quickly "grabs"the attention of the consumer. Advertisements by theplaintiff of products included in a manufacturer'srebate program display, in large type, the net priceand, in small type, the regular price, the saleprice and the amount of the manufacturer's rebate.

[215 Conn. 594]

     The following is an example of the plaintiff's netprice advertising: $1 after 50 cents mfr. rebate* reg. 2.99 sale 1.50 reg. 2.99 ea. sale 3/6.25 less 1.25 mfr. reb. *3/$5 * See clerk for details/limitations on all rebates & special offers.

The trial court noted that such advertising isfactually untrue because the consumer necessarilyincurs costs in obtaining the rebate from themanufacturer. At the very least, the consumer mustincur the expense of mailing the required items tothe address designated by the manufacturer. In theadvertisement reproduced above, therefore, theconsumer pays, at the time of purchase, $1.50 forthe advertised product and then incurs the costof obtaining the 50 cent rebate. The trial courtdetermined that the net price advertising islikely to mislead a consumer into believing thatthe price of the product is $1, a belief likelyto affect the consumer's purchase decision.

The trial court concluded, therefore, that theplaintiff's net price advertising of a productincluded in a manufacturer's rebate program is"deceptive" as a matter of law. Accordingly, thecourt held that: (1) in promulgating theregulation at issue, the named defendant actedwithin the authority granted her by GeneralStatutes 42-110b (c); and (2) the advertisinghere at issue was not protected by the federaland state constitutions.

The plaintiff's appeal to this court raisesthree issues. First, the plaintiff contends thatbecause its net price advertising of productsincluded in a manufacturer's rebate program is not"deceptive" as a matter of law, the trial courtimproperly sustained the regulation. Second, theplaintiff claims that the trial court mistakenly

[215 Conn. 595]

     determined that such net price advertising is notsubject to constitutional protection. Finally,the plaintiff maintains that the trial courtimproperly refused to admit at trial certainevidence relevant to a determination of thestatutory and constitutional validity of theregulation. We are unpersuaded.

I

We turn first to the plaintiff's claim that thechallenged regulation is inconsistent with thestatutory authority granted to the named defendantand, therefore, was improperly sustained by thetrial court. The trial court determined that theplaintiffs net price advertising was "deceptive"as a matter of law. This finding served as thebasis for the court's conclusion that, inpromulgating the regulation, the named defendantacted within the authority granted her by 42-110b(c). The plaintiff claims that a proper applicationof the standards set forth by the federal tradecommission compels a finding that its advertisingis not "deceptive." Accordingly, argues theplaintiff, the regulation of its advertisementspursuant to 42-110b is invalid. We conclude thatthe trial court properly sustained the regulation;we rely on different grounds than did the trialcourt, however, in reaching this conclusion.2

Initially, we note that the nature of theplaintiff's advertising is not the focus of ourinquiry, nor should it have been in the trialcourt. At issue in this appeal is the validityof the regulation promulgated by the nameddefendant. "`Judicial review of the [nameddefendant's] action is governed by the Uniform

[215 Conn. 596]

     Administrative Procedure Act (General Statutes,c. 54, 4-166 through 4-189), and the scope of thatreview is very restricted. Lawrence v. Kozlowski,171 Conn. 705, [707-708,] 372 A.2d 110 (1976) [cert.denied, 431 U.S. 969, 97 S.Ct. 2930, 53 L.Ed.2d 1066(1977)]. Neither this court nor the trial court mayretry the case or substitute its own judgment forthat of the [named] defendant.' C & H Enterprises,Inc. v. Commissioner of Motor Vehicles, 176 Conn. 11,12, 404 A.2d 864 (1978); DiBenedetto v. Commissionerof Motor Vehicles, 168 Conn. 587, 589, 362 A.2d 840(1975); see General Statutes 4-183 [j].3 `Thecourt's ultimate duty is only to decide whether, inlight of the evidence, the [named defendant] hasacted unreasonably, arbitrarily, illegally, or inabuse of [lien] discretion.' Burnham v. Administrator,184 Conn. 317, 322, 439 A.2d 1008 (1981); Riley v.State Employees' Retirement Commission, 178 Conn. 438,441, 423 A.2d 87 (1979); see also Persico v. Maher,191 Conn. 384, 409, 465 A.2d 308 (1983)." Buckley v.Muzio, 200 Conn. 1, 3, 509 A.2d 489 (1986); New Havenv. Freedom of Information Commission, 205 Conn. 767,773, 535 A.2d 1297 (1988); see also Griffin Hospitalv. Commission on Hospitals & Health Care, 200 Conn. 489,496, 512 A.2d 199, appeal dismissed, 479 U.S. 1023,107 S.Ct. 781, 93 L.Ed.2d 819 (1986). It iswith an awareness of these limitations that we reviewthe challenged regulation.

[215 Conn. 597]

Since the early 1980s the state department ofconsumer protection has received consumer complaintsabout manufacturers' rebate programs. In responseto these complaints, the named defendant conductedan investigation of these rebate programs. The trialcourt's findings, discussed supra, detailed therelevant findings made during this investigation.The ultimate conclusion reached by the nameddefendant and affirmed by the trial court was thatnet price advertising of a product for which amanufacturer's rebate is offered misleads theconsumer about the price the consumer will pay forthat product.

The federal courts> have determined that an act orpractice is deceptive4 if three requirementsare met. "First, there must be a representation,omission, or other practice likely to misleadconsumers. Second, the consumers must interpretthe message reasonably under the circumstances.Third, the misleading representation, omission,or practice must be material - that is, likely toaffect consumer decisions or conduct." FiggieInternational, Inc., 107 F.T.C. 313, 374 (1986).Given the findings concerning the inherentlymisleading nature of net price advertising wherea manufacturer's rebate is involved, the nameddefendant, pursuant to 42-110b (c), established byregulation that such advertising is in violationof CUTPA.

We conclude that in light of the evidence theregulation is consistent with the general statutoryscheme that it is designed to implement. Thelimitations imposed on the named defendant'sauthority by the express language of 42-110b donot require a contrary conclusion. First, inaccordance with the mandate of 42-110b (c), theregulation is not "inconsistent with the rules,regulations and decisions of the federal trade

[215 Conn. 598]

     commission and the federal courts> in interpretingthe provisions of the Federal Trade CommissionAct." Although the federal authorities have notestablished the net price advertising here atissue to be "unfair or deceptive," they have alsonot adopted rules, regulations or decisions withwhich the challenged regulation is inconsistent.5Likewise, although 42-110b (b) provides that courts>and the named defendant shall be guided by thefederal interpretations given 5 of the Federal TradeCommission Act, they are not limited by suchinterpretations. "As originally enacted, [CUTPA]provided that state unfair or deceptive acts orpractices were to be those `determined to be' unfairor deceptive by the [Federal Trade Commission] orthe federal courts>. 1973 Pub. Acts 615, 2(a).However, the Act was amended in 1976 to provideonly that courts> in Connecticut [and the nameddefendant] were to be `guided by' federalinterpretations of 5 of the [Federal TradeCommission Act]. The purpose of the changeapparently was to permit . . . practices which hadnot yet been specifically declared unlawful byfederal authorities to be nevertheless unlawfulunder CUTPA." (Emphasis added.) Bailey EmploymentSystem, Inc. v. Hahn, 545 F. Sup. 62, 71(D. Conn. 1982).

Further support for the conclusion that theregulation is consistent with the nameddefendant's statutory authority derives from thefact that the regulation has received approvalfrom the standing legislative regulation reviewcommittee as required by General Statutes 4-170.Section 4-170 provides in part that "[n]oadoption, amendment or repeal of any regulation . . .

[215 Conn. 599]

     shall be effective until the original of theproposed regulation approved by the attorneygeneral, as provided in section 4-169 . . .[has] been submitted to the standing legislativeregulation review committee . . . . The committeeshall review all proposed regulations and, in itsdiscretion . . . may approve [or] disapprove. . . any such regulation." "[L]egislativeratification of a proposed regulation supports theposition that the regulation is consistent withthe general statutory scheme that the regulationwas designed to implement." Texaco Refining &Marketing Co. v. Commissioner, 202 Conn. 583, 600,522 A.2d 771 (1987); see also Phelps Dodge CopperProducts Co. v. Groppo, 204 Conn. 122, 129-30,527 A.2d 672 (1987); Connecticut Hospital Assn., Inc.v. Commission on Hospitals & Health Care, 200 Conn. 133,144, 509 A.2d 1050 (1986).

The named defendant, therefore, acted within herstatutory grant of authority in establishing netprice advertising in the context of a manufacturer'srebate program as "unfair or deceptive" in violationof CUTPA. That the named defendant did not eliminatethe practice of net price advertising entirely, butrather chose to regulate the area more narrowly, doesnot render the regulation invalid. "The Commissionis the expert body to determine what remedy isnecessary to eliminate the unfair or deceptive tradepractices which have been disclosed. It has widelatitude for judgment and the courts> will notinterfere except where the remedy selected has noreasonable relation to the unlawful practicesfound to exist." Jacob Siegel Co. v. Federal TradeCommission, 327 U.S. 608, 612-13, 66 S.Ct. 758, 90L.Ed. 888 (1946). The named defendant, relying on herexpertise in the area, determined that an effectiveway to address the inherently misleading nature ofnet price advertising in the context of manufacturers'rebate programs is to require those retailers who

[215 Conn. 600]

     choose to use that type of advertising to make therebate available at the time of purchase. We maynot substitute our own judgment for that of thenamed defendant.

We conclude that, in promulgating 42-110b-19 (e)of the regulations, the named defendant did notact unreasonably, arbitrarily, illegally, or inabuse of her discretion. The trial court, therefore,properly determined that the adoption of theregulation was consistent with General Statutes42-110b.

II

We turn next to the plaintiffs claim that theregulation violates its right to free speechunder the first amendment to the United Statesconstitution and article first, 4 and 5 of theConnecticut constitution. As both the plaintiffand the defendants concede, the net priceadvertising here at issue falls within theclassification of "commercial speech."6 "TheUnited States Supreme Court has `adopted afour-part test for determining the validity ofgovernment restrictions on commercial speech . . . .(1) The First Amendment protects commercial speechonly if that speech concerns lawful activity andis not misleading. A restriction on otherwiseprotected commercial speech is valid only if it(2) seeks to implement a substantial governmentalinterest, (3) directly advances that interest, and(4) reaches no further than necessary to accomplishthe given objective.' Metromedia, Inc. v. San Diego,[453 U.S. 490, 507, 101 S.Ct. 2882, 69 L.Ed.2d 800(1981)]." (Emphasis added.) Burns v. Barrett,212 Conn. 176, 182, 561 A.2d 1378, cert. denied, ___U.S. ___, 110 S.Ct. 563, 107 L.Ed.2d 558 (1989).

[215 Conn. 601]

We need not go beyond the first of thesecriteria. As we discussed previously, the nameddefendant's investigation yielded a finding thatnet price advertising of a product for which amanufacturer's rebate is offered is inherentlymisleading. As such, the plaintiff's advertisingdoes not qualify for constitutional protection.

III

Finally, the plaintiff challenges the trial court'srefusal to admit into evidence examples of otherretailers' net price rebate advertising. In offeringthe evidence, the plaintiff stated that the evidencewas relevant to the issue of "deception" as set forthin its statutory challenge to the regulation and theissue of overbreadth as set forth in its constitutionalchallenge to the regulation. The court rejected theoffer, stating that the form and substance of anadvertisement of a competitor of the plaintiff wasirrelevant to the controversy. The plaintiff claimsthat the court improperly focused only on theplaintiff's advertising. We do not agree.

"It is beyond dispute that the trial court hasbroad discretion in determining the relevancy andmateriality of evidence. Hardisty v. Hardisty,183 Conn. 253, 257, 439 A.2d 307 (1981)." WebPress Services Corporation v. New London Motors,Inc., 203 Conn. 342, 355, 525 A.2d 57 (1987). Theplaintiff first offered the examples of otherretailers' advertising on the issue of "deception."As discussed previously, the question properlybefore the trial court was not whether a particularadvertisement was deceptive as a matter of law,but rather, whether the named defendant'sregulation was unreasonable, arbitrary, illegal,or in abuse of her discretion. The plaintiffalso offered the evidence on its claim that theregulation was unconstitutionally overbroad. TheUnited States Supreme Court has been reluctant,however, to apply the overbreadth analysis

[215 Conn. 602]

     in the context of commercial speech. See Bates v.State Bar of Arizona, 433 U.S. 350, 379-81, 97S.Ct. 2691, 53 L.Ed.2d 810, reh. denied, 434 U.S. 881,98 S.Ct. 242, 54 L.Ed.2d 164 (1977). Weconclude that the trial court did not abuse itsbroad discretion in precluding at trial examplesof other retailers' net price rebate advertising.

The judgment is affirmed.

In this opinion PETERS, C.J., CALLAHAN andGLASS, Js., concurred.

1. The Connecticut department of consumerprotection is also named as a defendant in this appeal.

2. This court may rely upon different groundsfrom those relied upon by the trial court for thepurpose of affirming the judgment. Rubin v. Rubin,204 Conn. 224, 232, 527 A.2d 1184 (1987); Pepe v.New Britain, 203 Conn. 281, 292, 524 A.2d 629 (1987);Heffernan v. New Britain Bank & Trust Co., 175 Conn. 8,14, 392 A.2d 481 (1978).

3. General Statutes 4-183 (j) as amended totake effect July 1, 1989, provides: "The court shallnot substitute its judgment for that of the agencyas to the weight of the evidence on questions of fact.The court shall affirm the decision of the agencyunless the court finds that substantial rights ofthe person appealing have been prejudiced becausethe administrative findings, inferences, conclusions,or decisions are: (1) In violation of constitutionalor statutory provisions; (2) in excess of thestatutory authority of the agency; (3) made uponunlawful procedure; (4) affected by other error oflaw; (5) clearly erroneous in view of the reliable,probative, and substantial evidence on the wholerecord; or (6) arbitrary or capricious orcharacterized by abuse of discretion or clearlyunwarranted exercise of discretion . . . ."

4. The parties focus solely on "deception"rather than "unfairness."

5. The plaintiff claims that a letter receivedby the named defendant in 1986 from a Federal TradeCommission staff employee is inconsistent with thechallenged regulation. We find no such inconsistency.The letter merely declines to undertake a study or tomake reports or policy statements regarding rebates.By this action, the Federal Trade Commission did notcommence the most basic steps that could lead to theissuance of a rule, regulation or decision.

6. In determining the protection affordedcommercial speech by the state constitution, weare guided by the United States Supreme Court'sdecisions in this area. Grievance Committee v.Trantolo, 192 Conn. 15, 23, 470 A.2d 228 (1984).

This appeal involves a challenge to aregulation promulgated by the named defendant,the commissioner of the department of consumerprotection,1 that established as unfairor deceptive certain acts or practices in theadvertising of manufacturers' rebates. Theplaintiff, Caldor, Inc., instituted the presentaction seeking a permanent injunction staying theeffectiveness and enforcement of the regulation.The case was tried to the court and judgment wasrendered for the defendants. From this judgmentthe plaintiff appealed to the Appellate Court. Wesubsequently transferred the case to ourselvespursuant to Practice Book 4023. We affirm thejudgment of the trial court.

The trial court's memorandum of decision revealsthe following facts. The Connecticut Unfair TradePractices Act (CUTPA) prohibits "unfair methods ofcompetition and unfair or deceptive acts or practicesin the conduct of any trade or commerce." GeneralStatutes 42-110b (a). The legislature did not codifya comprehensive list of "unfair or deceptive actsor practices," but rather articulated its intentthat, in construing the scope of the statutoryprohibition, "the [named defendant] and thecourts> shall be guided by interpretations given bythe Federal Trade Commission and the federalcourts> to Section 5(a)(1) of the Federal TradeCommission Act (15 U.S.C. § 45 (a)(1))

[215 Conn. 592]

     `unfair or deceptive acts or practices'], as fromtime to time amended." General Statutes 42-110bThe legislature delegated to the named defendantthe authority to "establish by regulation acts,practices or methods which shall be deemed to beunfair or deceptive in violation of [CUTPA]."General Statutes 42-110b (c). The named defendant'sauthority is limited, however, by the statutoryrequirement that her regulations "shall not beinconsistent with the rules, regulations anddecisions of the federal trade commission and thefederal courts> in interpreting the provisions ofthe Federal Trade Commission Act." GeneralStatutes 42-110b (c).

Pursuant to 42-110b (c), the named defendantpromulgated 42-110b-19 of the Regulations ofConnecticut State Agencies, that provides inpertinent part: "It shall be an unfair ordeceptive act or practice to . . . (e) Advertisethe availability of a manufacturer's rebate bydisplaying the net price of the advertised itemin the advertisement, unless the amount of themanufacturer's rebate is provided to the consumerby the retailer at the time of purchase of theadvertised item. A retailer will not be requiredto provide the purchaser of an advertised itemwith the amount of the manufacturer's rebate ifthe retailer advertises that a manufacturer'srebate is available without stating the net priceof the item. For the purpose of this subsection,`net price' means the ultimate price paid by aconsumer after he redeems the manufacturer'srebate offered for the advertised item."

The plaintiff, a New York corporation engagedin the business of retail sales in Connecticut,instituted the present action, seeking a"permanent injunction staying the effectivenessof [Regulation 42-110b-19 (e)] and itsenforcement." At trial, the plaintiff argued that

[215 Conn. 593]

     the regulation is: (1) inconsistent with, and inexcess of, the statutory authority granted to thenamed defendant; (2) in violation of substantivedue process in that it is arbitrary and capricious;and (3) inconsistent with the protections that areafforded commercial speech pursuant to the federaland state constitutions.

In addressing these claims, the trial court madethe following findings of fact with respect tomanufacturers' rebate programs. Such a program isa marketing technique that purports to return aportion of the purchase price to the consumer afterpurchase. The terms and conditions of a manufacturer'srebate, including the amount of the rebate, aredetermined by the manufacturer. While the terms andconditions vary from manufacturer to manufacturerand from product to product, three basic conditionsare common to each manufacturer's rebate program.In order to obtain the rebate from the manufacturer,the consumer must deliver to a designated address:(1) a completed rebate certificate; (2) the originalcash register receipt; and (3) a valid proof ofpurchase. The rebate certificate and the cashregister receipt are obtained from the retailerand the valid proof of purchase is typically partof the package or container purchased by theconsumer.

The language of the advertisement of a productfor which a manufacturer's rebate is offered isdetermined by the retailer. An important marketingtool used by retailers is the prominentadvertisement of a product's net price, i.e., theprice of the product after subtracting the rebateallowance. Such net price advertising quickly "grabs"the attention of the consumer. Advertisements by theplaintiff of products included in a manufacturer'srebate program display, in large type, the net priceand, in small type, the regular price, the saleprice and the amount of the manufacturer's rebate.

[215 Conn. 594]

     The following is an example of the plaintiff's netprice advertising: $1 after 50 cents mfr. rebate* reg. 2.99 sale 1.50 reg. 2.99 ea. sale 3/6.25 less 1.25 mfr. reb. *3/$5 * See clerk for details/limitations on all rebates & special offers.

The trial court noted that such advertising isfactually untrue because the consumer necessarilyincurs costs in obtaining the rebate from themanufacturer. At the very least, the consumer mustincur the expense of mailing the required items tothe address designated by the manufacturer. In theadvertisement reproduced above, therefore, theconsumer pays, at the time of purchase, $1.50 forthe advertised product and then incurs the costof obtaining the 50 cent rebate. The trial courtdetermined that the net price advertising islikely to mislead a consumer into believing thatthe price of the product is $1, a belief likelyto affect the consumer's purchase decision.

The trial court concluded, therefore, that theplaintiff's net price advertising of a productincluded in a manufacturer's rebate program is"deceptive" as a matter of law. Accordingly, thecourt held that: (1) in promulgating theregulation at issue, the named defendant actedwithin the authority granted her by GeneralStatutes 42-110b (c); and (2) the advertisinghere at issue was not protected by the federaland state constitutions.

The plaintiff's appeal to this court raisesthree issues. First, the plaintiff contends thatbecause its net price advertising of productsincluded in a manufacturer's rebate program is not"deceptive" as a matter of law, the trial courtimproperly sustained the regulation. Second, theplaintiff claims that the trial court mistakenly

[215 Conn. 595]

     determined that such net price advertising is notsubject to constitutional protection. Finally,the plaintiff maintains that the trial courtimproperly refused to admit at trial certainevidence relevant to a determination of thestatutory and constitutional validity of theregulation. We are unpersuaded.

I

We turn first to the plaintiff's claim that thechallenged regulation is inconsistent with thestatutory authority granted to the named defendantand, therefore, was improperly sustained by thetrial court. The trial court determined that theplaintiffs net price advertising was "deceptive"as a matter of law. This finding served as thebasis for the court's conclusion that, inpromulgating the regulation, the named defendantacted within the authority granted her by 42-110b(c). The plaintiff claims that a proper applicationof the standards set forth by the federal tradecommission compels a finding that its advertisingis not "deceptive." Accordingly, argues theplaintiff, the regulation of its advertisementspursuant to 42-110b is invalid. We conclude thatthe trial court properly sustained the regulation;we rely on different grounds than did the trialcourt, however, in reaching this conclusion.2

Initially, we note that the nature of theplaintiff's advertising is not the focus of ourinquiry, nor should it have been in the trialcourt. At issue in this appeal is the validityof the regulation promulgated by the nameddefendant. "`Judicial review of the [nameddefendant's] action is governed by the Uniform

[215 Conn. 596]

     Administrative Procedure Act (General Statutes,c. 54, 4-166 through 4-189), and the scope of thatreview is very restricted. Lawrence v. Kozlowski,171 Conn. 705, [707-708,] 372 A.2d 110 (1976) [cert.denied, 431 U.S. 969, 97 S.Ct. 2930, 53 L.Ed.2d 1066(1977)]. Neither this court nor the trial court mayretry the case or substitute its own judgment forthat of the [named] defendant.' C & H Enterprises,Inc. v. Commissioner of Motor Vehicles, 176 Conn. 11,12, 404 A.2d 864 (1978); DiBenedetto v. Commissionerof Motor Vehicles, 168 Conn. 587, 589, 362 A.2d 840(1975); see General Statutes 4-183 [j].3 `Thecourt's ultimate duty is only to decide whether, inlight of the evidence, the [named defendant] hasacted unreasonably, arbitrarily, illegally, or inabuse of [lien] discretion.' Burnham v. Administrator,184 Conn. 317, 322, 439 A.2d 1008 (1981); Riley v.State Employees' Retirement Commission, 178 Conn. 438,441, 423 A.2d 87 (1979); see also Persico v. Maher,191 Conn. 384, 409, 465 A.2d 308 (1983)." Buckley v.Muzio, 200 Conn. 1, 3, 509 A.2d 489 (1986); New Havenv. Freedom of Information Commission, 205 Conn. 767,773, 535 A.2d 1297 (1988); see also Griffin Hospitalv. Commission on Hospitals & Health Care, 200 Conn. 489,496, 512 A.2d 199, appeal dismissed, 479 U.S. 1023,107 S.Ct. 781, 93 L.Ed.2d 819 (1986). It iswith an awareness of these limitations that we reviewthe challenged regulation.

[215 Conn. 597]

Since the early 1980s the state department ofconsumer protection has received consumer complaintsabout manufacturers' rebate programs. In responseto these complaints, the named defendant conductedan investigation of these rebate programs. The trialcourt's findings, discussed supra, detailed therelevant findings made during this investigation.The ultimate conclusion reached by the nameddefendant and affirmed by the trial court was thatnet price advertising of a product for which amanufacturer's rebate is offered misleads theconsumer about the price the consumer will pay forthat product.

The federal courts> have determined that an act orpractice is deceptive4 if three requirementsare met. "First, there must be a representation,omission, or other practice likely to misleadconsumers. Second, the consumers must interpretthe message reasonably under the circumstances.Third, the misleading representation, omission,or practice must be material - that is, likely toaffect consumer decisions or conduct." FiggieInternational, Inc., 107 F.T.C. 313, 374 (1986).Given the findings concerning the inherentlymisleading nature of net price advertising wherea manufacturer's rebate is involved, the nameddefendant, pursuant to 42-110b (c), established byregulation that such advertising is in violationof CUTPA.

We conclude that in light of the evidence theregulation is consistent with the general statutoryscheme that it is designed to implement. Thelimitations imposed on the named defendant'sauthority by the express language of 42-110b donot require a contrary conclusion. First, inaccordance with the mandate of 42-110b (c), theregulation is not "inconsistent with the rules,regulations and decisions of the federal trade

[215 Conn. 598]

     commission and the federal courts> in interpretingthe provisions of the Federal Trade CommissionAct." Although the federal authorities have notestablished the net price advertising here atissue to be "unfair or deceptive," they have alsonot adopted rules, regulations or decisions withwhich the challenged regulation is inconsistent.5Likewise, although 42-110b (b) provides that courts>and the named defendant shall be guided by thefederal interpretations given 5 of the Federal TradeCommission Act, they are not limited by suchinterpretations. "As originally enacted, [CUTPA]provided that state unfair or deceptive acts orpractices were to be those `determined to be' unfairor deceptive by the [Federal Trade Commission] orthe federal courts>. 1973 Pub. Acts 615, 2(a).However, the Act was amended in 1976 to provideonly that courts> in Connecticut [and the nameddefendant] were to be `guided by' federalinterpretations of 5 of the [Federal TradeCommission Act]. The purpose of the changeapparently was to permit . . . practices which hadnot yet been specifically declared unlawful byfederal authorities to be nevertheless unlawfulunder CUTPA." (Emphasis added.) Bailey EmploymentSystem, Inc. v. Hahn, 545 F. Sup. 62, 71(D. Conn. 1982).

Further support for the conclusion that theregulation is consistent with the nameddefendant's statutory authority derives from thefact that the regulation has received approvalfrom the standing legislative regulation reviewcommittee as required by General Statutes 4-170.Section 4-170 provides in part that "[n]oadoption, amendment or repeal of any regulation . . .

[215 Conn. 599]

     shall be effective until the original of theproposed regulation approved by the attorneygeneral, as provided in section 4-169 . . .[has] been submitted to the standing legislativeregulation review committee . . . . The committeeshall review all proposed regulations and, in itsdiscretion . . . may approve [or] disapprove. . . any such regulation." "[L]egislativeratification of a proposed regulation supports theposition that the regulation is consistent withthe general statutory scheme that the regulationwas designed to implement." Texaco Refining &Marketing Co. v. Commissioner, 202 Conn. 583, 600,522 A.2d 771 (1987); see also Phelps Dodge CopperProducts Co. v. Groppo, 204 Conn. 122, 129-30,527 A.2d 672 (1987); Connecticut Hospital Assn., Inc.v. Commission on Hospitals & Health Care, 200 Conn. 133,144, 509 A.2d 1050 (1986).

The named defendant, therefore, acted within herstatutory grant of authority in establishing netprice advertising in the context of a manufacturer'srebate program as "unfair or deceptive" in violationof CUTPA. That the named defendant did not eliminatethe practice of net price advertising entirely, butrather chose to regulate the area more narrowly, doesnot render the regulation invalid. "The Commissionis the expert body to determine what remedy isnecessary to eliminate the unfair or deceptive tradepractices which have been disclosed. It has widelatitude for judgment and the courts> will notinterfere except where the remedy selected has noreasonable relation to the unlawful practicesfound to exist." Jacob Siegel Co. v. Federal TradeCommission, 327 U.S. 608, 612-13, 66 S.Ct. 758, 90L.Ed. 888 (1946). The named defendant, relying on herexpertise in the area, determined that an effectiveway to address the inherently misleading nature ofnet price advertising in the context of manufacturers'rebate programs is to require those retailers who

[215 Conn. 600]

     choose to use that type of advertising to make therebate available at the time of purchase. We maynot substitute our own judgment for that of thenamed defendant.

We conclude that, in promulgating 42-110b-19 (e)of the regulations, the named defendant did notact unreasonably, arbitrarily, illegally, or inabuse of her discretion. The trial court, therefore,properly determined that the adoption of theregulation was consistent with General Statutes42-110b.

II

We turn next to the plaintiffs claim that theregulation violates its right to free speechunder the first amendment to the United Statesconstitution and article first, 4 and 5 of theConnecticut constitution. As both the plaintiffand the defendants concede, the net priceadvertising here at issue falls within theclassification of "commercial speech."6 "TheUnited States Supreme Court has `adopted afour-part test for determining the validity ofgovernment restrictions on commercial speech . . . .(1) The First Amendment protects commercial speechonly if that speech concerns lawful activity andis not misleading. A restriction on otherwiseprotected commercial speech is valid only if it(2) seeks to implement a substantial governmentalinterest, (3) directly advances that interest, and(4) reaches no further than necessary to accomplishthe given objective.' Metromedia, Inc. v. San Diego,[453 U.S. 490, 507, 101 S.Ct. 2882, 69 L.Ed.2d 800(1981)]." (Emphasis added.) Burns v. Barrett,212 Conn. 176, 182, 561 A.2d 1378, cert. denied, ___U.S. ___, 110 S.Ct. 563, 107 L.Ed.2d 558 (1989).

[215 Conn. 601]

We need not go beyond the first of thesecriteria. As we discussed previously, the nameddefendant's investigation yielded a finding thatnet price advertising of a product for which amanufacturer's rebate is offered is inherentlymisleading. As such, the plaintiff's advertisingdoes not qualify for constitutional protection.

III

Finally, the plaintiff challenges the trial court'srefusal to admit into evidence examples of otherretailers' net price rebate advertising. In offeringthe evidence, the plaintiff stated that the evidencewas relevant to the issue of "deception" as set forthin its statutory challenge to the regulation and theissue of overbreadth as set forth in its constitutionalchallenge to the regulation. The court rejected theoffer, stating that the form and substance of anadvertisement of a competitor of the plaintiff wasirrelevant to the controversy. The plaintiff claimsthat the court improperly focused only on theplaintiff's advertising. We do not agree.

"It is beyond dispute that the trial court hasbroad discretion in determining the relevancy andmateriality of evidence. Hardisty v. Hardisty,183 Conn. 253, 257, 439 A.2d 307 (1981)." WebPress Services Corporation v. New London Motors,Inc., 203 Conn. 342, 355, 525 A.2d 57 (1987). Theplaintiff first offered the examples of otherretailers' advertising on the issue of "deception."As discussed previously, the question properlybefore the trial court was not whether a particularadvertisement was deceptive as a matter of law,but rather, whether the named defendant'sregulation was unreasonable, arbitrary, illegal,or in abuse of her discretion. The plaintiffalso offered the evidence on its claim that theregulation was unconstitutionally overbroad. TheUnited States Supreme Court has been reluctant,however, to apply the overbreadth analysis

[215 Conn. 602]

     in the context of commercial speech. See Bates v.State Bar of Arizona, 433 U.S. 350, 379-81, 97S.Ct. 2691, 53 L.Ed.2d 810, reh. denied, 434 U.S. 881,98 S.Ct. 242, 54 L.Ed.2d 164 (1977). Weconclude that the trial court did not abuse itsbroad discretion in precluding at trial examplesof other retailers' net price rebate advertising.

The judgment is affirmed.

In this opinion PETERS, C.J., CALLAHAN andGLASS, Js., concurred.

1. The Connecticut department of consumerprotection is also named as a defendant in this appeal.

2. This court may rely upon different groundsfrom those relied upon by the trial court for thepurpose of affirming the judgment. Rubin v. Rubin,204 Conn. 224, 232, 527 A.2d 1184 (1987); Pepe v.New Britain, 203 Conn. 281, 292, 524 A.2d 629 (1987);Heffernan v. New Britain Bank & Trust Co., 175 Conn. 8,14, 392 A.2d 481 (1978).

3. General Statutes 4-183 (j) as amended totake effect July 1, 1989, provides: "The court shallnot substitute its judgment for that of the agencyas to the weight of the evidence on questions of fact.The court shall affirm the decision of the agencyunless the court finds that substantial rights ofthe person appealing have been prejudiced becausethe administrative findings, inferences, conclusions,or decisions are: (1) In violation of constitutionalor statutory provisions; (2) in excess of thestatutory authority of the agency; (3) made uponunlawful procedure; (4) affected by other error oflaw; (5) clearly erroneous in view of the reliable,probative, and substantial evidence on the wholerecord; or (6) arbitrary or capricious orcharacterized by abuse of discretion or clearlyunwarranted exercise of discretion . . . ."

4. The parties focus solely on "deception"rather than "unfairness."

5. The plaintiff claims that a letter receivedby the named defendant in 1986 from a Federal TradeCommission staff employee is inconsistent with thechallenged regulation. We find no such inconsistency.The letter merely declines to undertake a study or tomake reports or policy statements regarding rebates.By this action, the Federal Trade Commission did notcommence the most basic steps that could lead to theissuance of a rule, regulation or decision.

6. In determining the protection affordedcommercial speech by the state constitution, weare guided by the United States Supreme Court'sdecisions in this area. Grievance Committee v.Trantolo, 192 Conn. 15, 23, 470 A.2d 228 (1984).

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