PART VII. 
BUSINESS AND COMMERCIAL FRAUDS



 



§708-870  Deceptive business practices. 
(1)  A person commits the offense of deceptive business practices if in the
course of engaging in a business, occupation, or profession the person
knowingly or recklessly:



(a) Uses or possesses for use a false weight or
measure, or any other device for falsely determining or recording any quality
or quantity;



(b) Sells, offers or exposes for sale, or delivers
less than the represented quantity of any commodity or service; or



(c) Takes or attempts to take more than the
represented quantity of any commodity or service when as buyer the person
furnishes the weight or measure; or



(d) Sells or offers for sale adulterated commodities;
or



(e) Sells or offers or exposes for sale mislabeled
commodities.



(2)  "Adulterated" means varying from
the standard of composition or quality prescribed by statute or lawfully
promulgated administrative regulation, or if none, as set by established
commercial usage.



(3)  "Mislabeled" means:



(a) Varying from the standard of truth or disclosure
in labeling prescribed by statute or lawfully promulgated administrative
regulation, or if none, as set by established commercial usage; or



(b) Represented as being another person's product, though
otherwise labeled accurately as to quality and quantity.



(4)  Deceptive business practices is a
misdemeanor.



(5)  This section does not apply to deceptive
business practices, as defined in subsection (1), for which a specific penalty
is provided by a statute other than this Code. [L 1972, c 9, pt of §1; gen ch
1993]



 



COMMENTARY ON §708-870



 



  This section proscribes knowingly or recklessly engaging in
certain business practices likely to deceive customers or clients.  The basic
purpose of the section is to provide a single punishment and simple definition
for various offenses related to false weights and measures, adulteration, and
mislabeling of commodities.



  This section is not intended as detailed regulation of the
subject area, but rather only to control the criminal penalties utilized to
enforce legislation dealing with deceptive business practices.  However,
recognizing the tremendous body of law specifically regulating various
deceptive business practices and the questionable wisdom of a wholesale
modification of that body of law, subsection (5) is included to provide that
this section shall not apply where statutes outside the Code specifically
provide a penalty for the deceptive practice involved.  It should be emphasized
that criminal sanctions in this area are an extreme measure, and generally not
as effective an enforcement tool as statutory licensing, injunction, and
private actions.[1]



  Subsection (1) defines the offense and is largely self-
explanatory.  It should be noted, with respect to the state of mind required
for conviction, that although (1) recklessness is a lower level of culpability
than acting knowingly, and (2) there is a slight redundancy in including the
word "knowingly" in the definition of the offense,[2] the clarity of
language that is achieved is worth the technical redundancy.  Unlike the theft
offenses, there is no requirement that (1) defendant obtain property or
services, (2) that the defendant obtain by deception, or (3) that the defendant
act intentionally.  The definitions in subsections (2) and (3) are also
self-explanatory.  However, it should be pointed out, that all current
regulatory standards are included by reference.  Where no statutory or
regulatory standards exist, it becomes encumbent upon the prosecution to prove
a violation of established commercial usage.



  Previous Hawaii law contained many penal provisions for
deceptive business practices within Title 38 of the Hawaii Revised Statutes
dealing with crimes.  Most deceptive practices were covered in the chapter on
"Gross Cheat."  The penalties in this chapter did not treat similar
conduct equally.



  The same anomalies will continue to occur in general
regulatory provisions.  Deceptive business practices relating to gasoline,
fuel, and motor oil warrant a $500 fine or six months' imprisonment or
both.[3]  For selling other than "pure quality" liquor the available
sanction is the same,[4] but for selling misbranded or adulterated milk,
imprisonment for one year is authorized.[5]  When this section of the Code is
compared with regulatory legislation outside the Code, inconsistencies in
sentences can be found.  However, these anomalies and inconsistencies are the
inevitable result of our determination, in subsection (5), not to use the Penal
Code as a vehicle for the wholesale reform of regulatory legislation relating
to deceptive business practices.



 



__________



§708-870 Commentary:



 



1.  See Prop. Mich. Rev. Cr. Code, comments at 288-89.



 



2.  Cf. §702-208.



 



3.  H.R.S. Chapter 451.



 



4.  Id. §§281-73, 281-102.



 



5.  Id. §§445-102, 321-18.