Florida Deceptive & Unfair Trade Practices Act (FDUTPA) Claims

In Florida, certain protections are in place to prevent unscrupulous individuals or entities from taking advantage of consumers or businesses.

One such protection is The Florida Deceptive and Unfair Trade Practices Act (FDUTPA), a state law enacted to protect consumers and businesses against fraudulent, deceiving, or unfair commercial practices. Under FDUTPA, anyone who believes they have suffered from said practices is entitled to file a claim for damages.  

This comprehensive guide will provide in-depth insight into what FDUTPA is, what practices it prohibits, and what elements a claim must prove.

What is the Florida Deceptive and Unfair Trade Practices Act (FDUTPA)?

The Florida Deceptive and Unfair Trade Practices Act is a state law designed to offer consumer protection from a broad range of prohibited conduct in trade or commerce. Under FDUPTA, aggrieved parties are entitled to sue any persons or entities engaging in deceptive business practices or unfair methods of competition. 

FDUPTA has three specific purposes, as described in Fla. Stat. 501.202(2):

• To modernize, simplify, and clarify the law governing consumer protection, including deceptive, unconscionable, and unfair trade practices or methods of competition.
• To protect public consumers and legitimate businesses from those who engage in deceptive, unconscionable, and unfair trade practices or methods of competition in commerce or trade.
• To establish state consumer protection and enforcement consistent with federal law.

In simpler terms, the purpose of FDUTPA is to protect businesses and individuals from any commercial practices considered misleading, corrupt, or unfair. 

First passed by Florida Legislature in 1973, FDUTPA was formulated to supplement the Federal Trade Commission Act by offering additional protections to cover gaps in the federal law. It is often called the “Little FTC Act,” but unlike its federal counterpart, FDUTPA contains a clear right of action allowing a consumer or business to file a lawsuit against the party in violation of FDUTPA. Under federal law, only the Federal Trade Commission (FTC) may sue those in violation.  

Under the Florida Deceptive and Unfair Trade Practices Act (FDUTPA), businesses and homeowners may file claims if they suffer damages as a result of hiring an unlicensed contractor, as the penalty for hiring unlicensed contractor in Florida can lead to significant financial losses, making it vital to understand the legal protections available.

What does the Florida Deceptive and Unfair Trade Practices Act Prohibit?

FDUTPA prohibits unfair and deceptive acts or practices in trade or commerce. Under FDUTPA, the courts have defined “trade or commerce” as many things, including advertising, soliciting, providing, offering, or distributing any good or service, by sale, rental, or otherwise. This standard is broad – if a consumer transaction occurs, FDUTPA protection is afforded.

While the FDUTPA statute does not directly specify actions or conduct in violation of Florida consumer protection laws, Florida’s courts have assumed the Federal Trade Commission (FTC)’s standard definition of deception. The FTC has defined “deception” as any practice that misleads or is likely to mislead a consumer acting reasonably under the circumstances.

In short, the standard for determining what is prohibited is simple – would a reasonable consumer be misled? However, in practice, the decision is complex and dependent on many variables. What constitutes a practice as unfair or deceptive trade is a highly specific matter. Each FDUTPA claim must be carefully considered on a case-by-case basis.

Examples of Unfair and Deceptive Trade Practices

Much of FDUTPA is designed to prevent deceptive labeling or advertising. The law is also designed to protect businesses from competitors engaging in unfair methods of competition, such as trademark infringements or illegal discounts.   

Some common practices considered a FDUTPA violation include:

Misleading Advertisements

Under the Florida Unfair Trade Practices Act, it may be considered deceptive or unfair to make a claim in advertising without a factual, reasonable basis. When determining reasonable basis, the courts will consider many factors, including the nature of the product advertised, the specificity of the claim, and the potential consequences should the claim be false. It is imperative that advertisers are certain their claims are entirely truthful before publication.

Deceptive Sales Pitches

A salesperson’s explicit, non-contractual statements could be considered a deceptive act in violation of a Florida consumer protection practices act, should the salesperson make overtly false claims about the goods or services offered. Feigning unique properties or superiority to similar offerings in a sales pitch may be considered one of FDUTPA’s causes of action. 

Bait and Switch Tactics

A “bait and switch” occurs when a seller entices a consumer with attractive claims about goods or services, knowing the advertised deal does not actually exist, with the underlying intent to push the potential buyer toward a more expensive offering. This tactic is highly unethical and may be considered a deceptive practice under FDUPTA.

Exceptions to This Florida Consumer Protection Act

Florida consumer laws offer a wide range of protections. However, there are certain situations in which this Florida consumer protection statute does not apply.

Some examples of FDUTPA exceptions include:

• Property damage claims
• Death or personal injury claims
• A publisher, broadcaster, or printer reproducing information on behalf of others without knowledge that it is in violation
• A practice or act specifically permitted by law

Additionally, exceptions to FDUTPA also include any activity or person regulated by laws set by the following:

• The Florida Public Services Commission
• The Financial Services Commission’s Office of Insurance Regulation
• Banks and savings and loan associations regulated by either federal law or the Office of Financial Regulation of the Financial Services Commission

Because there are many other exceptions to this law, consulting a law firm experienced in business litigation is critical.

Elements of a FDUTPA Claim

If a consumer believes they are the victim of a deceptive or unfair practice, they must prove three main elements in order to claim consequential damages. The statute also includes a provision allowing the court to award attorney’s fees and court costs to the prevailing party under certain circumstances. 

The three elements of a standard FDUTPA claim for damages are:

1. A Deceptive Act or Unfair Practice

A consumer claiming damages in FDUTPA cases must first prove they were subjected to a practice considered deceptive or unfair. Generally speaking, and as described by the FTC, a deceptive act or practice is “likely to mislead” reasonable consumers. An unfair act or practice has been defined as offending established public policy, or as unethical, immoral, unscrupulous, oppressive, or substantially injurious to consumers.

2. Causation

The claimant must prove the unfair or deceptive practices were the cause of the consumer’s damages. In short, they must demonstrate that any objectively reasonable person would have been deceived by said practices.

3. Actual Damages

A Florida Unfair and Deceptive Trade Practices Act must prove the consumer suffered actual damages. Courts have defined the standard for determining “actual damages” as “the difference in the market value of the product or service in the condition in which it was delivered and its market value in the condition in which it should have been delivered.”

Need Help Navigating the Florida Unfair and Deceptive Trade Practices Act?

In Florida, consumers have explicit rights. The Florida Deceptive Trade Practices Act empowers private citizens to bring legal action against deceitful businesses – and with qualified legal representation, successful resolution is possible.

If you believe you are the victim of unscrupulous trade practices, Cueto Law Group is prepared to fight on your behalf and provide the personal service you deserve.  

The Cueto Law Group is a Miami-based international business law firm offering an extensive range of business law solutions to customers in South Florida and beyond. Contact us now to arrange your consultation.

FAQs

Florida Consumer Protection Act Statute Resources

For more information on Florida consumer protection statutes, refer to Florida Statute 501.